The opinion of the court was delivered by: Marc L. Goldman United States Magistrate Judge
MEMORANDUM OPINION AND ORDER
Plaintiff Ronald Welch seeks judicial review of the Appeals Council's denial of an application to reopen the dismissal of a request for review. Plaintiff seeks remand to the Appeals Council with an instruction that it consider Plaintiff's request for review on the merits. For the reasons set forth below, the action is dismissed for lack of subject matter jurisdiction.
On March 29, 1999, Plaintiff applied for Social Security Disability benefits alleging an onset date of September 13, 1996. (Joint Stip., Ex A at 3.) On February 27, 2002, the ALJ issued an unfavorable decision.
(Id. at 11.) On July 15, 2003, Plaintiff requested that the Appeals Council review the February 27, 2002 unfavorable determination. On July 15, 2003, the Appeals Council remanded the case to the ALJ for further proceedings. (Id. at 17-19.) On August 28, 2003, the ALJ again denied benefits. (Id. at 20-28.)
Plaintiff had 60 days, or until October 27, 2003, to request that the Appeals Council review the August 28, 2003 decision. 20 C.F.R. § 404.968. An untimely request for review will result in the Appeals Council dismissing the request. 20 C.F.R. § 404.971. Plaintiff contends that on September 25, 2003, he faxed to the Appeals Council a request for review. In support of this contention, Plaintiff attached to his pleadings the following documents: (1) a fax cover sheet dated September 25, 2003; (2) a request for review; and (3) a fax transmission log dated September 25, 2003. (Id. at 31 to 33) ("the September 2003 request for review").
There being no action taken on the request for review, on August 9, 2004, Plaintiff faxed a status request to the Appeals Council. (Id. at 39-40) ("the August 2004 status request"). On March 29, 2005, at the request of the Appeals Council, Plaintiff faxed a copy of the September 2003 request for review and the August 2004 status request. (Id. at 34-43.)
On January 13, 2006, the Appeals Council dismissed Plaintiff's request for review, finding that it was not filed within 60 days of the ALJ's unfavorable decision, as required by 20 C.F.R. 404.968(a). The denial states in pertinent part:
The representative, Bill LaTour, faxed a request for review for the claimant to the Appeals Council on March 29, 2005. The request for review is dated September 25, 2003 and a cover sheet dated September 25, 2003 is attached. There is also a "receipt" showing a fax was sent to the Appeals Council on September 25. However, the representative did not submit any clear proof that this particular request for review was faxed to the Appeals Council in a timely manner. (Id. at 44-46.)
On February 7, 2006, Plaintiff faxed a request to the Appeals Council seeking reconsideration of the January 13, 2006 dismissal of his request for review. (Id. at 46-58.) That request was apparently denied on February 20, 2007. (Id. at 60).
On February 23, 2009, Plaintiff faxed a request to reopen the August 2003 unfavorable decision, accompanied by a declaration by attorney Bill LaTour, signed under penalty of perjury, authenticating the September 2003 request for review.*fn1 (Id. at 84-88.) On August 13, 2010, Plaintiff again requested that the Appeals Council reopen the August 2003 unfavorable decision. (Id. at 81-82.) According to the parties, on March 30, 2011, the Appeals Council denied review of the second application for benefits and again denied Plaintiff's request to reopen of the 2003 decision.
The Social Security Act authorizes judicial review of "any final decision of the Commissioner of Social Security made after a hearing to which he was a party[.]" 42 U.S.C. § 405(g). The Act itself provides that this is the exclusive basis for the district court's jurisdiction to review such decisions. See 42 U.S.C. § 405(h) ("No ... decision of the Commissioner of Social Security shall be reviewed by any person, tribunal, or governmental agency except as herein provided."). "A decision not to reopen a prior, final benefits decision is discretionary and ordinarily does not constitute a final decision; therefore, it is not subject to judicial review." Udd v. Massanari, 245 F.3d 1096, 1098--99 (9th Cir. 2001)) (citing Califano v. Sanders, 430 U.S. 99, 107--09 (1977)).
This general rule is subject to an exception, however, where the claimant raises a "colorable constitutional claim of due process violation that implicates a due process right either to a meaningful opportunity to be heard or to seek reconsideration of an adverse benefits determination." Udd, 245 F.3d at 1099 (citing Sanders, 430 U.S. at 109; Evans v. Chater, 110 F.3d 1480, 1483 (9th Cir. 1997)). A "colorable" constitutional claim is one "that is not wholly insubstantial, immaterial, or frivolous." Udd, 245 F.3d at 1099. As the Supreme Court has explained, this exception exists because "[c]onstitutional questions obviously are unsuited to resolution in administrative hearing procedures, and therefore, access to the courts is essential to the decision of such questions." ...