EDWARD WINGFIELD, 

UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF OREGON 

Plaintiff, 

3: 16-cv-503-JR 

FINDINGS & RECOMMENDATION 

V. 

COMMISSIONER OF SOCIAL SECURITY, 

Defendant. 

RUSSO, Magistrate Judge: 

PROCEDURAL BACKGROUND 

Plaintiff, Edward Wingfield, filed an application for disability insurance benefits (DIB) 

which the Social Security Administration ("Administration") denied on September 23, 2011. 

Plaintiff sought reconsideration of the decision and, on December 19, 2011, the Administration again 

denied the application. The notice of denial informed the recipient of a 60 day time limit within 

which to file a request for an administrative hearing. Plaintiff alleges neither he nor his counsel were 

provided with a copy of the December 19, 2011 denial. 

Plaintiffs attorney requested status updates from the Administration on March 5, 2013, June 

6, 2013, August 1, 2014, and October 14, 2014. Plaintiff alleges his attorney received the December 

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19, 2011 notice of denial on October 16, 2014. On October 21, 2014, plaintiffs counsel requested 

a hearing asserting the delay was justified by the Administration's failure to provide the notice of 

denial until October 16, 2014. 

On January 2, 2015, an administrative law judge (ALJ) dismissed plaintiffs request for a 

hearing as untimely. The Appeals Council denied review. Plaintiff alleges the refusal to hold a 

hearing deprived him of his due process rights to a meaningful opportunity to be heard. Plaintiff 

seeks an order reversing the Commissioner's denials and a remand for hearing on the issue of 

whether the hearing was timely requested and, if not, whether good cause exists for the late request. 

DISCUSSION 

The Commissioner moves to dismiss the complaint asserting the court lacks subject matter 

jurisdiction to review the Administration's dismissal of plaintiffs disability benefits application. 

The Social Security Act (the Act), limits judicial review of the Commissioner's decisions to 

"any final decision ... made after a hearing." 42 U.S.C. § 405(g). The administrative review process 

governing applications for social security benefits includes initial applications and reconsideration 

requests prior to a hearing, if necessary. 20 C.F.R. § 404.900(a) (1-3). Further steps include 

Appeals Council review before seeking review in federal court. 20 C.F.R. § 404.900(a) (4-5). The 

review process involves time limits for each step and failure to "take the next step within the stated 

time period, [results in loss of the] right to further administrative review [and the] right to judicial 

review, unless you can show ... good cause for [the] failure to make a timely request for review." 

20 C.F.R. § 404.900(b). 

As noted, the Act limits this court's review to final decisions of the Commissioner after a 

hearing. 42 U.S.C. § 405(g); Califano v. Sanders, 430 U.S. 99, 107-09 (1977). A decision denying 

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an untimely request for a hearing is not reviewable. See Dexter v. Colvin, 731 F.3d 977, 980 (9th 

Cir. 2013) ("Because the SSA's decision whether, for good cause shown, to entertain an untimely 

hearing request or reopen an earlier application is strictly discretionary ... it is not final and thus not 

generally reviewable by a district court."). 

Sanders, however, recognized an exception where the constitution is implicated. Sanders. 

430 U.S. at 109. The Sanders exception applies to any colorable constitutional claim of a due 

process violation implicating the right to a meaningful opportunity to be heard. Evans v. Chater, 

110 F .3d 1480, 1483 (9th Cir. 1997). A challenge that is not "wholly insubstantial, immaterial, or 

frivolous" raises a colorable constitutional claim. Boettcher v. Sec'y of Health & Human Serv., 759 

F.2d 719, 722 (9th Cir. 1985). 

Plaintiff asserts good cause for his untimely filing. In determining whether good cause exists 

for missing a deadline, the Administration considers: 

1) What circumstances kept you from making the request on time; 

(2) Whether our action misled you; 

(3) Whether you did not understand the requirements of the Act resulting from 

amendments to the Act, other legislation, or court decisions; and 

(4) Whether you had any physical, mental, educational, or linguistic limitations 

(including any lack of facility with the English language) which prevented you from 

filing a timely request or from understanding or knowing about the need to file a 

timely request for review. 

20 C.F.R. § 404.91 l(a). 

The regulations specifically provide good cause may exist when a claimant did not receive 

notice of a determination. 20 C.F.R. § 404.911 (b )(7). Due process requires that a claimant receive 

meaningful notice and an opportunity to be heard before his claim for disability benefits may be 

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denied. Mathews v. Eldridge, 424 U.S. 319, 333 (1976). Plaintiff asserts that neither he nor his 

counsel received the denial determination which triggered the 60 day time limit. An ALJ declined 

to find good cause existed for missing the deadline. It is unclear, however, whether the ALJ actually 

considered whether plaintiff received the notice. The ALJ reasoned as follows: 

The claimant's attorney contends that the notice of reconsideration was not received 

by him until October 16, 2014 and was never received by the claimant. On October 

14, 2014, Mr. Sly sent a letter to the Social Security office, requesting a status of the 

claim, indicating this was his fourth request for status. He stated he had previously 

sent requests on March 5, 2013, June 6, 2013 and August 1, 2014. 

The Notice of Reconsideration, dated September 19, 2011, reflects it was sent to the 

claimant's correct address and a copy sent to Mr. Sly. 

While the claimant's attorney sent requests for the status of the claim in March and 

June 2013 and August 2014, the initial request in March 2013 was 15 months 

after the reconsideration determination was sent to both the attorney and the 

claimant. Disability Determination Services records reflect the reconsideration 

determination was appropriately sent in December 2011. I would be more persuaded 

by Mr. Sly's argument if he had sent requests for information in a more timely 

manner. [As] it stands, the requests look more like an attempt to build a case for late 

filing far after the fact. Significantly, the requests for status do not establish that 

the reconsideration determination was not received by either the claimant or the 

representative in a timely manner. 

Order of Dismissal, dated January 2, 2015 (attached to the Declaration of Nancy Chung (#11-1) at 

pp. 19-20) (emphasis added). 

The ALJ appears to fault the attorney for not requesting a status update sooner based on the 

date of the determination that the attorney alleges was never received. Indeed, the ALJ faults the 

attorney for not stating in the requests that the determination letter was not timely received even 

though the status requests were made precisely because counsel had not received any information 

on the request for reconsideration. See, e.g., Letter of Richard Sly dated October 14, 2014 (attached 

to the Declaration ofNancy Chung (#11-1) at p. 14) ("[W]e requested the status of Claimant Edward 

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Wingfield's request for reconsideration which was filed on October 11, 2011, we received the SSA 

confirmation of our representation by letter dated November 15, 2011. Since that time we have 

submitted records to be included in the record and requested to know the status of the claim but have 

had no response .... "). 

It is unclear ifthe ALJ rejected the credibility of the assertion that the denial determination 

was not received until October 16, 2014, or if the ALJ denied the request for an untimely hearing 

based on counsel's failure to request it sooner, despite lacking knowledge of the determination. The 

ALJ cites as reason for denial the length of time between the denial determination and the first status 

request and the failure to note lack of receipt of the determination in the status requests. 

If plaintiff and his counsel are credible regarding not receiving the determination, the time 

between the determination date and the status requests do not necessarily matter. Moreover, the fact 

the status requests do not state plaintiff did not receive the determination would be explained by the 

fact counsel did not know of its existence. It may be that the ALJ impliedly rejected plaintiffs and 

plaintiffs counsel's assertion the denial determination was not received, however that is not clear 

from the decision. On the other hand, if the ALJ dismissed the request for a hearing because she 

determined that counsel should have made a status request sooner, that does not necessarily establish 

lack of good cause. Due process requires the Administration to consider whether good cause for the 

delay exists if the claimant did not receive notice of the determination. Plaintiff 

states a colorable due process claim [if he] presented a reason that constituted good 

cause under the Commissioner's regulations.... [I]f a claimant provides a facially 

legitimate reason that constitutes "good cause" under the Commissioner's regulations 

... then due process requires that the ALJ address it. 

Dexter, 731 F.3d at 981-82. Based on the record before the court, it cannot be determined ifthe ALJ 

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accepted or rejected plaintiffs and plaintiffs counsel's assertions they did not receive notice of the 

determination and thus whether good cause exists. Accordingly, the matter should be remanded to 

the Commissioner to consider whether good cause exists for the late request for a hearing and, if 

good cause is found, to hold a hearing on the merits of plaintiffs disability claim. 

CONCLUSION 

The Commissioner's motion to dismiss (#11) should be denied and this matter should be 

reversed and remanded for further proceedings, 

This recommendation is not an order that is immediately appealable to the Ninth Circuit 

Court of Appeals. Any notice of appeal pursuant to Rule 4(a)(l), Federal Rules of Appellate 

Procedure, should not be filed until entry of the district court's judgment or appealable order. The 

parties shall have fourteen (14) days from the date of service of a copy of this recommendation 

within which to file specific written objections with the court. Thereafter, the parties shall have 

fourteen (14) days within which to file a response to the objections. Failure to timely file objections 

to any factual determination of the Magistrate Judge will be considered as a waiver of a party's right 

to de novo consideration of the factual issues and will constitute a waiver of a party's right to 

appellate review of the findings of fact in an order or judgment entered pursuant to this 

recommendation. 

DATED this ~'5t'-ctay ofJanuary lOI ?. a~.,A.. ~I.I.~ 

J A. RUSSO 

United States Magistrate Judge 

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