The opinion of the court was delivered by: Carla M. Woehrle United States Magistrate Judge
The parties have consented, under 28 U.S.C. § 636(c), to the jurisdiction of the undersigned Magistrate Judge. Plaintiff seeks review of the Commissioner's denial of disability benefits. Defendant has moved to dismiss the complaint for lack of jurisdiction due to failure to exhaust administrative remedies under Fed. R. Civ. P. 12(b)(1). For the reasons discussed below, the motion is GRANTED.
The relevant facts are not in dispute.
On July 29, 2008, Plaintiff filed a claim for supplemental security income ("SSI") and disability insurance benefits ("DIB") alleging disability since July 23, 2004. Her claims were denied initially, and Plaintiff then filed a timely request for reconsideration. [Motion to Dismiss, ("MTD"), Declaration of Yolanda Vargas ("Vargas Decla") at 2.]
On August 28, 2009, the reconsideration request was denied, and, according to the electronic case processing system of the Office of Disability Adjudication and Review ("ODAR"), a copy was mailed to both Plaintiff and her attorney.*fn1 [Id. at 3.] The denial notice gave Plaintiff sixty (60) days within which to file a request for an administrative hearing. [Id.] The ODAR electronic case processing system does not show that either copy was returned by the U.S. Postal service as "undeliverable." [Id.]
Plaintiff's Request for Hearing was submitted approximately one year after it was due, on about September 28, 2010. [Varga Decla., Ex. 2.] Along with the request, Plaintiff submitted declarations from herself and her attorney asserting under penalty of perjury that neither received the notice of the reconsideration determination. [Id.]
On November 5, 2010, an Administrative Law Judge ("ALJ") issued a notice of dismissal on the basis that the request for hearing was not filed in a timely manner and that Plaintiff's declarations failed to establish good cause for the late request. [Varga Decla., Ex. 3.] The dismissal noted Plaintiff had the same address since 2005; that she timely responded to most, if not all, prior correspondence; and there was nothing in the record to suggest she had a limitation that would prevent her from making a timely request. [Id.] Furthermore, the ALJ noted that other circumstances weighed against a finding of good cause: Plaintiff abandoned a prior claim for benefits after the initial denial, and she waited an inordinately long time between receiving the initial determination in this case and inquiring about her claim. [Id.]
Plaintiff requested review of the ALJ's decision. On March 3, 2011, the Appeals Council denied review. [Varga Decla., Ex. 4.]
This action followed. In the Complaint, Plaintiff seeks either a finding that she is disabled or a remand for a hearing on the merits of her disability claim on the basis that: the record supports a finding of disability, the good cause finding was in error or, in the alternative, her due process rights were violated by the denial of a hearing. [See Docket no. 1.]
Defendant contends this court lacks jurisdiction over the complaint because there has been no "final decision" after a hearing, and Plaintiff has thus failed to exhaust her administrative remedies. Plaintiff essentially urges that the exhaustion requirement should be waived in this case.
Judicial review of the denial of a DIB or SSI benefits claim is authorized and limited by 42 U.S.C. § 405(g), which provides, in relevant part: "Any individual, after any final decision of the Commissioner of Social Security made after a hearing to which [s]he was a party . . . may obtain a review of such decision by a civil action . . . ." 42 U.S.C. § 405(g) (emphasis added); see also Hoye v. Sullivan, 985 F.2d 990, 991 (9th Cir. 1992). Relevant here, the final decision requirement is an exhaustion requirement, which may be waived. Cassim v. Bowen, 824 F.2d 791, 794 (9th Cir. 1987) (citing Hironymous v. Bowen, 800 F.3d F.2d 888, 894 (9th Cir. 1986) and Mathews v. Eldridge, 424 U.S. 319, 328-30, 96 S. Ct. 893, 899-900, 47 L. Ed. 2d 18 (1976)) (final decision includes two elements: presentment and exhaustion). Absent waiver of the exhaustion requirement, there is no other avenue for ...