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Dexter v. Colvin

United States Court of Appeals, Ninth Circuit

September 30, 2013

Karen L. DEXTER, Plaintiff-Appellant,
Carolyn W. COLVIN, Commissioner of Social Security,[*] Defendant-Appellee.

Argued and Submitted May 8, 2013.

Page 978

Eitan Kassel Yanich, Law Office of Eitan Kassel Yanich, PLLC, Olympia, WA, for Plaintiff-Appellant.

Jeffrey R. McClain (argued), Assistant Regional Counsel, Social Security Administration, Office of the General Counsel, Seattle, WA; Jenny A. Durkan, United States Attorney; Kerry Jane Keefe, Assistant United States Attorney; and David Morado, Regional Chief Counsel, Seattle Region X, for Defendant-Appellee.

Appeal from the United States District Court for the Western District of Washington, Robert J. Bryan, Senior District Judge, Presiding. D.C. No. 3:11-cv-05023-RJB.



NGUYEN, Circuit Judge:

Ten years ago, Karen Dexter first applied for social security disability insurance benefits. After benefits were denied, Dexter requested a hearing. The Social Security Administration (" SSA" ) ruled her request untimely, and denied a subsequent application on the ground of res judicata, but it has never explained why it rejected Dexter's facially valid excuse for the delay in her hearing request. Dexter then sought review in federal district court, which dismissed her action for lack of subject matter jurisdiction. Because the administrative law judge (" ALJ" ) failed to consider whether her facially valid reasons constituted good cause excusing the delay, thus depriving Dexter of her due process right to a meaningful opportunity to be heard and to seek reconsideration of an adverse benefits determination, we reverse and remand for further proceedings.



The administrative review process governing applications for social security benefits " consists of several steps, which usually must be requested within certain time periods and in [a particular] order." 20 C.F.R. § 404.900(a). If a dissatisfied applicant fails to take the next step within the stated time period, the applicant loses the right to further administrative or judicial review unless she can show that there was good cause for her failure to make a timely request for review. Id. § 404.900(b).

After an applicant files for social security benefits, the SSA makes an initial determination " about [the applicant's] entitlement or ... continuing entitlement to benefits or about any other matter ... that gives [the applicant] a right to further review." Id. § 404.900(a)(1). If the applicant is dissatisfied with the SSA's initial determination, she may request the SSA to reconsider it. Id. § 404.900(a)(2).

If the applicant is dissatisfied with the SSA's determination upon reconsideration, she may request a hearing before an ALJ, id. § 404.900(a)(3), who will either issue a decision, see id. § 404.953, or in certain cases, dismiss the request, see id. § 404.957. The applicant may then request that the Appeals Council review the ALJ's decision. Id. § 404.900(a)(4). The Appeals

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Council's decision is final and in certain cases is subject to review in district court. Id. § 404.900(a)(5).


Dexter filed an application for disability benefits on September 23, 2003, claiming a disability onset date of January 1, 1997. The SSA denied her application initially and again upon reconsideration. The April 2004 reconsideration letter informed Dexter that she could appeal the decision by requesting a hearing in front of an ALJ within 60 days.[1] The letter also explained that she could file a new application for benefits but that " filing a new application is not the same as appealing this decision," and if she filed a new application rather than an appeal, the SSA " could deny the new application using this decision, if the facts and issues are the same."

On March 20, 2005, more than eleven months after receiving the reconsideration letter, Dexter again requested reconsideration of the SSA's decision, which the SSA construed as a request for hearing.[2] The following day, Dexter submitted a statement regarding 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." Three months later, Dexter filed the appropriate form requesting a hearing before an ALJ.

In an August 26, 2005 order, the ALJ found that Dexter had not shown good cause and dismissed her request for hearing. The ALJ noted Dexter's statement " that she had not realized that she had to file her request for hearing within a certain amount of time," and concluded that it did not amount to good cause for a time extension because the reconsideration letter had informed Dexter about the 60-day deadline. The ALJ did not address Dexter's other asserted grounds for good cause-her illness and her mother's death. Dexter requested that the Appeals Council review the ALJ's dismissal order, but the Appeals Council denied her request.

Dexter eventually filed a complaint in federal district court seeking review of the SSA's decision regarding her application for disability insurance benefits.[3] The district

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court dismissed the action for lack of subject matter jurisdiction, finding that Dexter had not exhausted her administrative remedies. The district court further held that Dexter did not meet the exception to the exhaustion requirement by raising a colorable constitutional claim. Dexter now appeals the district court's order and judgment.


We have jurisdiction under 28 U.S.C. § 1291 to review the district court's order and judgment dismissing the complaint for lack of subject matter jurisdiction. See Klemm v. Astrue, 543 F.3d 1139, 1141 (9th Cir.2008). The district court's dismissal is reviewed de novo. Subia v. Comm'r of Soc. Sec., 264 F.3d 899, 901 (9th Cir.2001).

Cases arising under the Social Security Act generally are not subject to review unless they challenge a " final decision of the Secretary made after a [statutorily mandated] hearing." Califano v. Sanders, 430 U.S. 99, 108, 97 S.Ct. 980, 51 L.Ed.2d 192 (1977) (quoting 42 U.S.C. § 405(g)) (internal quotation marks omitted); see Peterson v. Califano, 631 F.2d 628, 630-31 (9th Cir.1980) (holding that final decision made after hearing is not subject to judicial review if the hearing was discretionary). Because the SSA's decision whether, for good cause shown, to entertain an untimely hearing request or reopen an earlier application is strictly discretionary, see Matlock v. Sullivan, 908 F.2d 492, 494 (9th Cir.1990); Taylor v. Heckler, 765 F.2d 872, 876-77 (9th Cir.1985), it is not final and thus not generally reviewable by a district court. An exception to this rule exists for " any 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." Klemm, 543 F.3d at 1144 (quoting Udd v. Massanari, 245 F.3d 1096, 1099 (9th Cir.2001)) (internal quotation marks omitted).


Dexter contends that she is entitled to review of the SSA's denial of her applications for benefits because she alleges a colorable constitutional claim, namely that she was denied due process because the ALJ did not follow SSA regulations to determine if she had good cause for her late request for hearing. Dexter proffered three reasons why she had good cause: (1) she was unaware of the filing deadline; (2) she was very sick; and (3) she was preoccupied with caring for her mother, who had died of cancer. Although the ALJ addressed (and reasonably rejected) the first reason, he did not acknowledge Dexter's other two reasons notwithstanding that SSA regulations list them as " [e]xamples of circumstances where good cause may exist," 20 CFR § 404.911(b). See id. § 404.911(b)(1) (" You were seriously ill and were prevented from contacting us in person, in writing, or through a friend, relative, or other person." ); id. § 404.911(b)(2) (" There was a death or serious illness in your immediate family." ). It thus appears that the ALJ did not consider Dexter's potentially valid reasons for her delay. Due process requires as much. Cf. Randall v. Yakima Nation Tribal Court, 841 F.2d 897, 901-02 (9th Cir.1988) (finding tribal court violated appellant's right to procedural due process by dismissing

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her appeal for failure to pay filing fee without ruling on her request to proceed in forma pauperis and, if its merit was unclear, holding evidentiary hearing).

Moreover, when the Commissioner promulgates regulations explaining what circumstances may constitute good cause and an applicant relies on one or more of them in explaining her delay, some explanation is required of why the applicant's potentially valid reasons for good cause are rejected. We have recognized as much in other contexts involving dispositive rulings.

Giving an explanation for significant rulings is an important component of due process. It lets the adversely affected party know that the judge has heard and understood its argument, and that the judge's ruling is based on the facts and the law. An explanation also allows the judge to confirm that his ruling is correct. If he is unable to articulate a plausible rationale for his ruling, he may think better of it. Finally, and not least, by failing to give any indication that he applied the correct legal standard, [a] judge ma[kes] appellate review difficult.

United States v. Hernandez-Meza, 720 F.3d 760, 767-68 (9th Cir.2013); see also United States v. Collins, 684 F.3d 873, 887 (9th Cir.2012) (" As a matter of procedural due process, a sentencing judge must explain a sentence sufficiently to communicate that a reasoned decision has been made and permit meaningful appellate review." (internal quotation marks and citation omitted)); Miller v. Or. Bd. of Parole & Post Prison Supervision, 642 F.3d 711, 716 (9th Cir.2011) (explaining that when state prisoners have a state-created liberty interest in parole and parole is denied, the " minimal" procedures required include " a statement of the reasons why" (quoting Swarthout v. Cooke, __ U.S. __, 131 S.Ct. 859, 862, 178 L.Ed.2d 732 (2011))); Yeghiazaryan v. Gonzales, 439 F.3d 994, 1000 (9th Cir.2006) ( " [The asylum applicant] was denied due process because the [Board of Immigration Appeals] foreclosed his one avenue of relief without providing him notice and without a reasoned basis for doing so." ).

The Commissioner faults Dexter for improperly seeking review of the merits of the ALJ's decision. But there is a distinction between a claim that the ALJ reached the wrong decision about whether good cause had been shown and the claim that Dexter actually makes— that the ALJ made a decision without considering all of her reasons in support of a good-cause finding or at least articulating his grounds for rejecting them. While Dexter is not entitled to judicial review of the merits of the ALJ's good-cause decision, she was entitled to seek administrative review of that decision with the Appeals Council. The Appeals Council could not have made an informed decision to deny review without knowing what the ALJ's reasons were for rejecting Dexter's assertion that her mother's death and her own illness justified her delay.

We hold that Dexter states a colorable due process claim because she presented a reason that constituted good cause under the Commissioner's regulations. Of course, not every failure by an ALJ to address a claimant's reason for missing a deadline gives rise to a due process violation. Cf. Sample v. Diecks, 885 F.2d 1099, 1115 (3d Cir.1989) (" [D]ue process does not ... require that records officers refer every argument made by an inmate, regardless of its plausibility, to a deputy attorney general. The cost of such a requirement would far outweigh its marginal utility...." (citing Mathews v. Eldridge, 424 U.S. 319, 348, 96 S.Ct. 893, 47 L.Ed.2d 18 (1976))). However, if a claimant provides a facially legitimate reason

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that constitutes " good cause" under the Commissioner's regulations, see 20 C.F.R. § 404.911(b),[4] then due process requires that the ALJ address it.

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.


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.


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