Jennifer Walter v. Michael Astrue ( 2010 )

FILED
NOT FOR PUBLICATION NOV 12 2010
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
JENNIFER WALTER, Administrator of No. 09-15664
the Estate of Janet H. Garfield,
D.C. No. 3:03-cv-04124-VRW
Plaintiff - Appellant,
v. MEMORANDUM *
MICHAEL J. ASTRUE, Commissioner of
Social Security Administration,
Defendant - Appellee.
Appeal from the United States District Court
for the Northern District of California
Vaughn R. Walker, Chief District Judge, Presiding
Submitted November 4, 2010 **
San Francisco, California
Before: THOMAS and IKUTA, Circuit Judges, and SETTLE, District Judge.***
We affirm the district court’s grant of summary judgment to the
*
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).
***
The Honorable Benjamin Hale Settle, United States District Judge for
the Western District of Washington, sitting by designation.
Commissioner. Jennifer Walter has presented no evidence of claimant Janet
Garfield’s mental incapacity during the sixty-day period following the Appeals
Council’s 1997 decision, see 42 U.S.C. § 405(g); Social Security Ruling (SSR) 91-
5p, 1991 WL 208067, at *1, and has shown neither a nexus between the
Commissioner’s alleged fraudulent concealment and her inability to file suit in a
timely manner, as is required for equitable estoppel, nor an inability to obtain vital
information bearing on the existence of her claim during the tolling period, as is
required for equitable tolling, see Huseman v. Icicle Seafoods, 471 F.3d 1116,
1120–21 (9th Cir. 2006). We also affirm the district court’s decision not to
exercise its mandamus jurisdiction over Walter’s complaint because the
Commissioner has no “clear nondiscretionary duty” to reopen lapsed claims,
Johnson v. Shalala, 2 F.3d 918, 924 (9th Cir. 1993) (internal quotation mark
omitted) (quoting Briggs v. Sullivan, 886 F.2d 1132, 1142 (9th Cir. 1989)).
Walter’s argument that the Special Disability Workload (SDW) process created a
“clear nondiscretionary duty” for the Commissioner to reopen Garfield’s claim
fails because Garfield was never eligible for the SDW.
AFFIRMED.
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