Jo Ann Barker v. CAROLYN W. COLVIN, Commissioner of Social Security

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
JO ANN BARKER,
Plaintiff - Appellant,
v.
CAROLYN W. COLVIN, Commissioner
of Social Security,
Defendant - Appellee.
No. 15-35128
D.C. No. 6:13-cv-01231-HZ
MEMORANDUM*
Appeal from the United States District Court
for the District of Oregon
Marco A. Hernandez, District Judge, Presiding
Submitted December 13, 2016**
Before: PREGERSON, LEAVY, and OWENS, Circuit Judges.
Jo Ann Barker appeals pro se the district court’s judgment dismissing her
action against the Commissioner of Social Security, who issued a favorable
decision granting Barker a waiver of recovery of an overpayment of supplemental
FILED
DEC 15 2016
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
* This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
** The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).

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security income (“SSI”) benefits under Title XVI of the Social Security Act but
refused to consider (1) whether Barker’s SSI benefits awarded on her first
application were properly ceased in 1997, or (2) whether an SSI payment was
properly withheld in order to reimburse the State of California for interim
assistance that the State provided to Barker while her second SSI application was
pending. We have jurisdiction under 28 U.S.C. § 1291, and we affirm.
The district court did not abuse its discretion in denying Barker’s request to
proceed in forma pauperis and her motion for reconsideration of that denial. The
district court properly determined that Barker failed to establish poverty. See 28
U.S.C. § 1915(a); Escobedo v. Applebees, 787 F.3d 1226, 1234 (9th Cir. 2015).
The district court correctly concluded that it lacked jurisdiction to consider
whether Barker’s SSI benefits were properly ceased in 1997. Barker did not timely
seek judicial review of either the Commissioner’s decision to cease benefits or an
administrative law judge’s (“ALJ”) decision in 2011 not to reopen Barker’s first
SSI application. See 42 U.S.C. § 405(g); Klemm v. Astrue, 543 F.3d 1139, 1144
(9th Cir. 2008). Barker has not established a colorable claim of a denial of due
process in the ALJ’s refusal to look again at reopening the first application when
the ALJ granted the waiver of overpayment in 2013. See Dexter v. Colvin, 731
F.3d 977, 980 (9th Cir. 2013) (holding that district court has jurisdiction to
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consider colorable claim of denial of due process in Commissioner’s discretionary
ruling).
The district court also correctly concluded that it lacked jurisdiction to
review the reimbursement of interim assistance payments made by the State of
California. The Social Security Act expressly provides that the decision to
withhold SSI payments for the purpose of reimbursing states for interim assistance
is not subject to judicial review. 42 U.S.C. § 1383(g)(5).
Finally, Barker has not shown that the district judge should have been
disqualified for bias. See 28 U.S.C. §§ 144, 455; Pesnell v. Arsenault, 543 F.3d
1038, 1043 (9th Cir. 2008) (holding that determinative question is whether
reasonable person with knowledge of all the facts would conclude that judge’s
impartiality might reasonably be questioned), abrogated on other grounds by
Simmons v. Himmelreich, 136 S. Ct. 1843, 1848 (2016).
AFFIRMED.
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