Karen Dexter v. Michael Astrue
FILED OPINION (MICHAEL DALY HAWKINS, SIDNEY R. THOMAS and JACQUELINE H. NGUYEN) REVERSED AND REMANDED. Judge: JHN Authoring. FILED AND ENTERED JUDGMENT. 
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
KAREN L. DEXTER,
CAROLYN W. COLVIN,
Commissioner of Social Security,*
Appeal from the United States District Court
for the Western District of Washington
Robert J. Bryan, Senior District Judge, Presiding
Argued and Submitted
May 8, 2013—Seattle, Washington
Filed September 30, 2013
Before: Michael Daly Hawkins, Sidney R. Thomas,
and Jacqueline H. Nguyen, Circuit Judges.
Opinion by Judge Nguyen
Carolyn W. Colvin, Commissioner of Social Security, is substituted
for her predecessor, Michael J. Astrue, pursuant to Federal Rule of
Appellate Procedure 43(c)(2).
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DEXTER V. COLVIN
The panel reversed the district court’s dismissal for lack
of subject matter jurisdiction of a claimant’s challenge to the
Social Security Administration’s denial of the claimant’s
request for a hearing on her application for social security
disability insurance benefits.
The panel held that because the administrative law judge
failed to consider whether claimant’s facially valid reasons
constituted good cause excusing the delay in her request for
a hearing, the claimant was thereby deprived of her due
process right to a meaningful opportunity to be heard and to
seek reconsideration of an adverse benefits determination.
Eitan Kassel Yanich, Law Office of Eitan Kassel Yanich,
PLLC, Olympia, Washington, for Plaintiff-Appellant.
Jeffrey R. McClain (argued), Assistant Regional Counsel,
Social Security Administration, Office of the General
Counsel, Seattle, Washington; 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.
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
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DEXTER V. COLVIN
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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.
DEXTER V. COLVIN
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 Council’s decision is final
and in certain cases is subject to review in district court. Id.
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
The reconsideration letter was dated April 15, but the date stamp did
not include a year or the year was imperceptibly faint. Although Dexter
claims that she “may have been unable to figure out when she had
received [the reconsideration letter] or whether she had already appealed
[it],” the year should have been obvious. The reconsideration letter
responded to her request for reconsideration from the previous November,
and Dexter does not dispute receiving it in April 2004.
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DEXTER V. COLVIN
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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
Dexter improperly filed a second request for reconsideration instead of
a request for a hearing based upon the erroneous instructions of an SSA
employee, Nancy Scott. Apparently because Scott believed that Dexter
was seeking a reconsideration determination rather than a request for
hearing—where an ALJ would make the good-cause finding, see
HALLEX I-2-4-15(A), (B)—she made a written “good cause” finding
excusing Dexter’s late request. The SSA eventually recognized the error
and forwarded the case to the Office of Hearings and Appeals, where the
ALJ ignored Scott’s good-cause finding and decided the issue anew.
There is no indication that Scott’s finding was ever conveyed to Dexter
prior to the ALJ’s decision.
DEXTER V. COLVIN
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
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
Before seeking relief in federal court, Dexter filed a second application
for Social Security disability insurance benefits. After a hearing, another
ALJ issued a denial order pursuant to the doctrines of administrative
finality and res judicata. The Appeals Council granted review, vacated the
ALJ’s order, and dismissed Dexter’s March 2008 request for hearing
pursuant to 20 C.F.R. § 404.957(c)(1), which provides that an ALJ may
dismiss a hearing request entirely if “[t]he doctrine of res judicata
applies . . . .” Notwithstanding the passage of nearly five years between
the Commissioner’s final decision on Dexter’s original application for
benefits and her suit in federal court, the Commissioner does not assert a
statute-of-limitations defense. Consequently, the Commissioner has
forfeited any such argument. See Bowen v. City of New York, 476 U.S.
467, 478 (1986).
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DEXTER V. COLVIN
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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 (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
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
DEXTER V. COLVIN
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 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.
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DEXTER V. COLVIN
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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
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, 131 S. Ct. 859, 862 (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
DEXTER V. COLVIN
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
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 (1976))). However, if a
claimant provides a facially legitimate reason that constitutes
“good cause” under the Commissioner’s regulations, see
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DEXTER V. COLVIN
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20 C.F.R. § 404.911(b),4 then due process requires that the
The Commissioner lists the following nonexclusive “[e]xamples of
circumstances where good cause may exist”:
(1) You were seriously ill and were prevented from
contacting us in person, in writing, or through a friend,
relative, or other person.
(2) There was a death or serious illness in your
(3) Important records were destroyed or damaged by
fire or other accidental cause.
(4) You were trying very hard to find necessary
information to support your claim but did not find the
information within the stated time periods.
(5) You asked us for additional information explaining
our action within the time limit, and within 60 days of
receiving the explanation you requested reconsideration
or a hearing, or within 30 days of receiving the
explanation you requested Appeal Council review or
filed a civil suit.
(6) We gave you incorrect or incomplete information
about when and how to request administrative review
or to file a civil suit.
(7) You did not receive notice of the determination or
(8) You sent the request to another Government
agency in good faith within the time limit and the
request did not reach us until after the time period had
(9) Unusual or unavoidable circumstances exist,
including the circumstances described in paragraph
DEXTER V. COLVIN
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.
REVERSED and REMANDED.
(a)(4) of this section, which show that you could not
have known of the need to file timely, or which
prevented you from filing timely.
20 C.F.R. § 404.911(b).
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