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affirming the district court's conclusion that it lacked jurisdiction and finding that the plaintiff's "reliance on McNatt . . . [wa]s misplaced."
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No. 08-35422.
The panel unanimously finds this case suitable for decision without oral argument. See Fed.R.App.P. 34(a)(2).
Filed July 10, 2009.
David B. Lowry, Law Offices of David B. Lowry, Portland, OR, for Plaintiff-Appellant.
Nancy Albert Mishalanie, Social Security Administration Office of the General Counsel, Seattle, WA, Britannia I. Hobbs, Assistant U.S., Office of the U.S. Attorney, Portland, OR, for Defendant-Appellee.
Appeal from the United States District Court for the District of Oregon, Dennis James Hubel, Magistrate Judge, Presiding. D.C. No. 3:07-cv-01481-HU.
Before: PREGERSON, RYMER, and GRABER, Circuit Judges.
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.
Carla Larsen appeals from the district court's order dismissing her appeal in this social security case for lack of subject matter jurisdiction. We affirm.
Because we affirm the district court's conclusion that it lacked jurisdiction, we deny die Commissioner's motion to strike, and Larsen's motion to supplement the record on appeal, as moot.
In Matlock v. Sullivan, 908 F.2d 492, 492-93 (9th Cir. 1990), this court held that "jurisdiction was lacking" over the "Appeals Council's discretionary refusal to consider an untimely request for review." See 42 U.S.C. § 405(g); 20 C.F.R. § 416.1403(a)(8). Matlock squarely controls this case. Therefore, Larsen's reliance on McNatt v. Apfel, 201 F.3d 1084 (9th Cir. 2000), is misplaced.
Larsen's contention that waiver of the exhaustion requirement is warranted also fails. Larsen's claim is an allegation of individual errors that is intertwined with her claim for relief, and development of an agency record would serve the purposes of exhaustion; accordingly, waiver of exhaustion is not warranted. Kildare v. Saenz, 325 F.3d 1078, 1082-83, 1084 (9th Cir. 2003).
Because Larsen failed to raise a due process claim before the district court, this claim is waived on appeal. See Edlund v. Massanari, 253 F.3d 1152, 1158 n. 7 (9th Cir. 2001); Crawford v. Lungren, 96 F.3d 380, 389 n. 6 (9th Cir. 1996).
AFFIRMED.