Richard P. Armstrong v. Commissioner of Social Security

This disposition is not appropriate for publication and is not precedent*
except as provided by Ninth Circuit Rule 36-3.
The panel unanimously concludes this case is suitable for decision**
without oral argument. See Fed. R. App. P. 34(a)(2).
NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
RICHARD P. ARMSTRONG,
Plaintiff - Appellant,
v.
COMMISSIONER OF SOCIAL
SECURITY,
Defendant - Appellee.
No. 09-35114
D.C. No. 6:07-cv-01485-TC
MEMORANDUM *
Appeal from the United States District Court
for the District of Oregon
Michael R. Hogan, District Judge, Presiding
Submitted February 1, 2010**
Seattle, Washington
Before: RYMER, GOULD and BYBEE, Circuit Judges.
Richard Armstrong appeals the district court’s dismissal, for lack of subject
matter jurisdiction, of Armstrong’s action seeking judicial review of the
Commissioner of Social Security’s denial of his application for disability insurance
FILED
FEB 04 2010
MOLLY C. DWYER, CLERK
U .S. C OU R T OF APPE ALS

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benefits. We have jurisdiction pursuant to 28 U.S.C. § 1291, and we affirm
substantially for the reasons given by the magistrate judge and adopted by the
district court.
Armstrong did not exhaust his administrative remedies because he did not
timely request a hearing before an Administrative Law Judge (“ALJ”), see 42
U.S.C. § 405(g), and a decision denying a request to extend the time period for
requesting review is not subject to judicial review, see 20 C.F.R. § 404.903(j);
Subia v. Comm’r of Soc. Sec., 264 F.3d 899, 902 (9th Cir. 2001).
The district court did not err in declining to waive the exhaustion
requirement because Armstrong raised neither a colorable constitutional claim nor
a claim that was collateral to his substantive claim of entitlement to benefits. See
Kildare v. Saenz, 325 F.3d 1078, 1082 (9th Cir. 2003); Subia, 264 F.3d at 902.
Armstrong has not raised a colorable constitutional claim because he does not
allege that he received deficient agency notice, because Armstrong was represented
by counsel, and because the ALJ considered Armstrong’s mental capacity in
denying his request for an extension of time. See Udd v. Massanari, 245 F.3d
1096, 1099 (9th Cir. 2001). We also agree with the magistrate judge’s reasoning
on collaterality: “Plaintiff’s claim . . . goes to the individual application of
regulations by the ALJ, and, ultimately, to the determination of plaintiff’s benefits.

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[It] does not challenge an Agency policy that would rise or fall on its own.” See
Kildare, 325 F.3d at 1082–83.
AFFIRMED.

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