                                                                              FILED
                            NOT FOR PUBLICATION                                FEB 04 2010

                                                                        MOLLY C. DWYER, CLERK
                     UNITED STATES COURT OF APPEALS                         U .S. C O U R T OF APPE ALS




                            FOR THE NINTH CIRCUIT



RICHARD P. ARMSTRONG,                            No. 09-35114

              Plaintiff - Appellant,             D.C. No. 6:07-cv-01485-TC

  v.
                                                 MEMORANDUM *
COMMISSIONER OF SOCIAL
SECURITY,

              Defendant - Appellee.



                    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

        *
             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).
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.


                                            2
[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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