MICHELLE McDONALD v. Michael J. Astrue

United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted February 15, 2012*
Decided February 24, 2012
Before
MICHAEL S. KANNE, Circuit Judge
ANN CLAIRE WILLIAMS, Circuit Judge
DAVID F. HAMILTON, Circuit Judge
No. 11-2924
MICHELLE McDONALD,
Plaintiff-Appellant,
v.
MICHAEL J. ASTRUE,
Defendant-Appellee.
Appeal from the United States District
Court for the Northern District of Illinois,
Eastern Division
No. 11 C 1425
Joan Humphrey Lefkow,
Judge.
O R D E R
Michelle McDonald appeals the dismissal of her suit to recover supplemental
security income and disability insurance benefits, see 42 U.S.C. §§ 423, 1382c. The district
court dismissed her case without prejudice because the Social Security Administration had
NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with
Fed. R. App. P. 32.1
After examining the briefs and the record, we have concluded that oral argument is*
unnecessary. Thus, the appeal is submitted on the briefs and the record. See FED. R. APP. P.
34(a)(2)(C).

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N o. 11-2924 Page 2
yet to reach a final decision on her application for benefits. McDonald maintains that her
suit should nevertheless proceed, arguing that the Commissioner’s delay in reaching a final
decision violates due process and therefore excuses her failure to exhaust administrative
remedies. We affirm.
In late 2008 McDonald applied for supplemental security income and disability
insurance benefits after suffering back injuries stemming from a medical procedure. The
Social Security Administration denied her application initially and on reconsideration. She
sought and received a hearing before an administrative law judge in September 2010. The
Commissioner notified her of a supplemental hearing to be held seven months later, at
which time McDonald could introduce the results of a consultative exam and other medical
documents.
One day before the scheduled hearing, however, McDonald filed a complaint in the
district court “to obtain benefits administered by the Social Security Administration.” She
claimed that the initial denial of her benefits was “arbitrary and capricious” and that “the
agency [had] used an improper and injurious amount of time” to process her application.
She requested that the “decisions and practices”of the Commissioner be reviewed and that
the Social Security Administration “be ordered to make payment of [her] benefits.” The
following day, McDonald attended the supplemental hearing and testified about the
consultative exam and various medical records.
The district court granted the Commissioner’s motion to dismiss on grounds that
McDonald failed to exhaust administrative remedies. The court stated that only “final
decisions” may be reviewed, see 42 U.S.C. § 405(g), and that in McDonald’s case neither the
ALJ nor the Appeals Council had reached a final decision. The court granted McDonald
leave to refile once she received the Commissioner’s final ruling.
Meanwhile McDonald’s administrative proceedings went forward. Days after the
court’s ruling, an ALJ dismissed her request for a hearing because she failed to appear at
that hearing and did not establish good cause for failing to appear. One month later
McDonald moved under Federal Rule of Civil Procedure 60(b)(3) for relief from judgment,
arguing that the ALJ’s dismissal of her third hearing was misconduct and retaliatory; the
district court denied the motion.
On appeal McDonald maintains that the district court wrongly dismissed her
complaint because the Social Security Administration has taken longer than 270 days to
decide her application and thereby delayed a “final decision” in violation of due process.
This due process challenge, in her view, excuses her from having to exhaust administrative
remedies.

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N o. 11-2924 Page 3
The “final decision” requirement of section 405(g) contains two elements, the first of
which is purely “jurisdictional” in the sense that it cannot be waived. Bowen v. City of New
York, 476 U.S. 467, 482-83 (1986). This non-waivable element is the requirement that a
claimant present an application for benefits to the Commissioner. Id. The second element is
the requirement that a claimant exhaust administrative remedies. Id.; Johnson v. Sullivan,
922 F.2d 346, 352-53 (7th Cir. 1990). The exhaustion requirement can be excused when the
claimant presents a colorable constitutional challenge. See Subia v. Comm’r of Social Sec., 246
F.3d 899, 902 (9th Cir. 2001).
McDonald’s due process claim is not colorable. There is no due process right to have
one’s supplemental security or disability insurance benefits adjudicated in less than 270
days. Indeed, in Heckler v. Day, 467 U.S. 104, 112 (1984), the Supreme Court rejected the
notion that federal courts can impose mandatory deadlines for processing Social Security
claims. Id. at 111-18; see Wright v. Califano, 587 F.2d 345, 353-54 (7th Cir. 1978); Fitzgerald v.
Apfel, 148 F.3d 232, 235 (3d Cir. 1998); Reagan v. Sec’y of Health and Human Servs., 877 F.2d
123, 125-26 (1st Cir. 1989). In support of a 270-day deadline, McDonald invokes the
Commissioner’s 2011 testimony before Congress in which he proposes (upon elimination of
the present backlog) being “able to decide hearings in an average of 270 days, which [he]
believe[s] is the appropriate amount of time . . . to ensure due process.” See Hearing Before
the Subcomm. on Social Security of the H. Comm. on Ways & Means and Subcomm. on the
Courts, Commercial and Administrative Law of the H. Comm. on the Judiciary, 112th
Cong. (Jul. 11, 2011). In that same testimony, however, the Commissioner testified that
despite recent budget cuts, and the receipt of almost 1.5 million more applications for
benefits, the agency has reduced the time for deciding hearing requests from an average of
532 days in February 2008 to 353 days in June 2011. Although McDonald urges a 270-day
deadline, we have already determined that delays of up to one year would not violate due
process. See Schroeder v. City of Chicago, 927 F.2d 957, 960 (7th Cir. 1991); Littlefield v. Heckler,
824 F.2d 242, 247 (3d Cir. 1987) (holding that nine-month delay in rejecting ALJ’s
recommended decision does not violate claimant’s right to due process). On this record, we
need not delineate the circumstances when an egregious delay may violate due process. See
Bush v. Shalala, 94 F.3d 40, 46 (2d Cir. 1996).
Finally McDonald challenges the district court’s denial of her Rule 60(b) motion. But
McDonald did not file a separate notice of appeal after the denial of the motion, and we
therefore lack jurisdiction to consider her challenge. See Sosebee v. Astrue, 494 F.3d 583, 590
(7th Cir. 2007).
AFFIRMED.

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