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Dexter v. Berryhill

United States District Court, W.D. Washington, Seattle

January 4, 2018

KAREN L. DEXTER, Plaintiff,
v.
NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant.

          ORDER

          JAMES P. DONOHUE CHIEF UNITED STATES MAGISTRATE JUDGE

         I. INTRODUCTION

         This matter comes before the Court on the Commissioner's motion to dismiss for lack of subject matter jurisdiction. Dkt. 12. After careful consideration of the Commissioner's motion and Plaintiff's response, the governing law, and the balance of the record, the Court GRANTS the Commissioner's motion (Dkt. 12) and DISMISSES the case.

         II. BACKGROUND

         Plaintiff filed an application for Disability Insurance Benefits (“DIB”) in September 2003, with a date last insured of December 31, 1997. Dkt. 12-2 at 2; Dkt. 12-3 at 12. This application was denied initially and upon reconsideration. Dkt. 12-3 at 2-3. The reconsideration notice was dated April 15, 2004, and told Plaintiff she could appeal that denial by requesting a hearing with an administrative law judge (“ALJ”) within 60 days. Id. Plaintiff did not appeal the reconsideration decision until March 21, 2005. Dkt. 12-3 at 7. The following day, Plaintiff explained her untimeliness: “‘I didn't realize I had to refile in any certain amount of time, and have been very sick and Mother has died of cancer[.] [S]he was my first concern, and now I need help.'” Dkt. 12-7 at 5.

         In August 2005, the ALJ found that Plaintiff had not shown good cause for filing an untimely request for a hearing, because the reconsideration notice clearly stated the 60-day deadline. Dkt. 12-3 at 7. The ALJ did not comment on the remainder of Plaintiff's explanation for her untimeliness. Id.

         Plaintiff filed another DIB application in August 2007, and the ALJ denied the application based on res judicata in July 2009. Dkt. 12-3 at 12-14. The Appeals Council found that the ALJ should not have written a decision denying benefits, but should have instead dismissed Plaintiff's request for a hearing based on the application of res judicata. Dkt. 12-3 at 16-19.

         Plaintiff sought judicial review, and the district court found that she had not exhausted her administrative remedies and had not raised a colorable constitutional claim that would except her from the exhaustion requirement. See Order Adopting R&R, Dexter v. Astrue, No. 11-5023-RJB (W.D. Wash. Nov. 22, 2011), ECF No. 25. Plaintiff appealed, and the Ninth Circuit reversed the district court's decision, finding that Plaintiff had raised a colorable constitutional claim of a denial of due process because the ALJ did not address all of the reasons Plaintiff provided to explain her untimeliness. Dexter v. Colvin, 731 F.3d 977 (9th Cir. 2013). The Ninth Circuit remanded the matter to the ALJ for consideration of all of Plaintiff's reasons for her untimely filing. Dexter, 731 F.3d at 982.

         The ALJ held a hearing on December 11, 2014. Dkt. 12-4 at 2-43, Dkt. 12-5 at 1-39, Dkt. 12-6 at 1-38. The ALJ issued a decision on November 27, 2015, finding that none of Plaintiff's reasons amounted to good cause for her untimely filing and dismissing her request for a hearing. Dkt. 12-7 at 5-12. Plaintiff filed exceptions to the ALJ's decision, and the Appeals Council found no reason to assume jurisdiction. Dkt. 12-7 at 14-19. Plaintiff now seeks judicial review.[1]

         III. ANALYSIS

         A federal district court's review of claims arising under the Social Security Act is limited, and the court does not have subject matter jurisdiction over such claims unless a claimant has exhausted her administrative remedies as set forth in the Social Security Act. See 42 U.S.C. § 405(g); Subia v. Comm'r of Social Sec. Admin., 264 F.3d 899 (9th Cir. 2001); Bass v. Social Sec. Admin.¸ 872 F.2d 832, 833 (9th Cir. 1989). Specifically, 42 U.S.C. § 405(g) “provides that a civil action may be brought only after (1) the claimant has been party to a hearing held by the Secretary, and (2) the Secretary has made a final decision on the claim.” Bass, 872 F.2d at 833. The Code of Federal Regulations further defines “reviewable ‘final decisions' as decisions by the Appeals Council either reviewing or denying review of an ALJ decision.” Matlock v. Sullivan, 908 F.2d 492, 493 (9th Cir. 1990) (citing 20 C.F.R. § 416.1481 (1989)).

         A decision denying a claimant's benefits application upon reconsideration is not a “final decision, ” and therefore Plaintiff's failure to timely request a hearing amounts to a failure to exhaust her administrative remedies. Plaintiff appears to contend that she has “effectively exhausted her administrative remedies, ” but does not explain how this is so. Dkt. 20-1 at 10. Instead, her brief explains why colorable constitutional claims, for example, are not precluded by a failure to exhaust administrative remedies. See Dkt. 20-1 at 5-8. Thus, the Court must consider whether Plaintiff has again raised a colorable constitutional claim that would except her from the exhaustion requirement.

         The Ninth Circuit in Dexter explained that because the ALJ addressed only the most “obviously deficient” grounds on which Plaintiff had claimed good cause for her untimely filing, Plaintiff was deprived of due process. 731 F.3d at 982 (“Dexter cited just three reasons for the late filing, and the ALJ addressed only the most obviously deficient of them. Due process requires more than that.”). Thus, the Ninth Circuit held that due process required a remand to allow the ALJ to consider and address all of the reasons Plaintiff provided as explanation for her late filing. Id. (“We remand this matter to the district court to remand to the SSA to further consider Dexter's alternative grounds for good cause to file a late request for hearing on her 2003 application for benefits.”).

         On remand, the ALJ held a hearing, and took testimony from Plaintiff regarding the merits of her DIB claim as well as her reasons for untimely filing her request for a hearing. Dkt. 12-4 at 2-43, Dkt. 12-5 at 1-39, Dkt. 12-6 at 1-38. The ALJ's decision finds that Plaintiff had not shown good cause for her untimely filing, and all of Plaintiff's reasons were addressed in detail. Dkt. 12-7 at 5-12. The ALJ's decision therefore ...


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