FILED

NOT FOR PUBLICATION

SEP 10 2020

UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

MIKE YELLEN, No. 19-16646

Plaintiff-Appellant, D.C. No. 1:18-cv-00422-ACK-RT v.

ANDREW M. SAUL, Commissioner of MEMORANDUM* Social Security,

Defendant-Appellee.

Appeal from the United States District Court for the District of Hawaii Alan C. Kay, District Judge, Presiding

Submitted September 8, 2020** San Francisco, California

Before: GRABER, BYBEE, and N.R. SMITH, Circuit Judges.

Mike Yellen appeals pro se the district court’s dismissal of his action

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). challenging the constitutionality of the earnings requirement of Title II of the

Social Security Act, which requires individuals to have worked and paid Social

Security taxes for a certain number of years in order to qualify for Social Security

Disability Insurance Benefits (“DIB”). Yellen alleges that he was unable to meet

the earnings requirement because he was incarcerated. We have jurisdiction under

18 U.S.C. § 1291, and we affirm.

We review de novo the district court’s dismissal for lack of subject matter

jurisdiction. Dexter v. Colvin, 731 F.3d 977, 980 (9th Cir. 2013). Yellen did not

exhaust his administrative remedies, which is a requirement when filing a suit

challenging the denial of an application for DIB. See 42 U.S.C. § 405(g); Dexter,

731 F.3d at 980. The district court properly concluded that Yellen did not meet the

exception to the exhaustion requirement because he did not raise a colorable

constitutional claim that the earnings requirement violates equal protection by

treating him less favorably than an equally disabled claimant who was not

imprisoned and thus able to earn a qualifying income. See Hoye v. Sullivan, 985

F.2d 990, 991 (9th Cir. 1992) (per curiam) (judicial review without exhaustion of

administrative remedies is available if the claimant shows that his constitutional

claim is (1) collateral to his benefits claim, (2) colorable, and (3) “one whose

resolution would not serve the purposes of exhaustion”) (internal citations

2 omitted). As we held in Harvell v. Chater, 87 F.3d 371, 373 (9th Cir. 1996) (per

curiam), the earnings requirement comports with the Due Process Clause of the

Fifth Amendment because it is rationally based and free from invidious

discrimination.

The district court also properly dismissed Yellen’s claim of disability

discrimination in violation of Title II of the Americans with Disabilities Act

because such a claim may not be brought to recover on a claim for DIB. See 42

U.S.C. § 405(h).

AFFIRMED.

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