UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF NEW YORK
February 25, 2009
DARCY PANETTA, PLAINTIFF,
MICHAEL J. ASTRUE, DEFENDANTS.
The opinion of the court was delivered by: Thomas J. McAVOY Senior United States District Judge
DECISION and ORDER
On December 5, 2007, Plaintiff Darcy Panetta filed a Complaint seeking judicial review of the decision of the Commissioner of Social Security pursuant to 42 U.S.C. § 405. Dk. No. 1. Defendant Commissioner of Social Security filed a motion to dismiss for lack of subject matter jurisdiction pursuant to Fed. R. Civ. P. 12(b)(1). Dk. No. 6.
The Social Security Act precludes judicial review of any "finding [ ] of fact or decision of the Secretary" except as provided in Section 405(g). Weinberger v. Salfi, 422 U.S. 749, 757 (1975); 42 U.S.C. § 405(h). Section 405(g) limits judicial review to "a final decision of the Secretary made after a hearing." 42 U.S.C. § 405(g); see also Califano v. Sanders, 430 U.S. 99, 107 (1977). Accordingly, the Supreme Court held that the Commissioner's denial of a petition to reopen a final decision without a hearing was not an agency action subject to judicial review. Califano, 430 U.S. at 108. Califano provides an exception, however, for "colorable constitutional claims" relating to an agency decision, because "[c]onstitutional questions obviously are unsuited to resolution in administrative hearing procedures and, therefore, access to the courts is essential to the decision of such questions." Id. at 109; see also Calapa v. Shalala, 99 F.3d 400 (2d Cir. 1995) (unpublished); Latona v. Schweiker, 707 F.2d 79, 81 (2d Cir. 1983); Canales v. Sullivan, 936 F.2d 755, 758 (2d Cir. 1991) (noting that federal courts cannot ordinarily review Commissioner's denial of a request to reopen a claim).
Here, Plaintiff was denied benefits, her request for reconsideration was denied, her request for a hearing was dismissed as untimely, and her request for review of the dismissal of her request for a hearing also was dismissed as untimely. Because Plaintiff is not seeking review of a final agency decision made after a hearing and she is not asserting any constitutional claims, the case is not subject to judicial review.
For the foregoing reasons, Defendant's Motion to Dismiss is GRANTED.
IT IS SO ORDERED.
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