United States District Court, W.D. Washington, Seattle
KAREN L. DEXTER, Plaintiff,
NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant.
P. DONOHUE CHIEF UNITED STATES MAGISTRATE JUDGE
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
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.
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
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.
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.
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
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)).
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
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
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 ...