Cooke v. Colvin, No. 2:2013cv00504 - Document 15 (W.D. Wash. 2013)
Court Description: ORDER denying defendant's 13 Motion to Dismiss. Defendant's Answer to plaintiff's Complaint is due within 60 days of the date of this Order. Signed by Hon. Mary Alice Theiler.(GB)
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Cooke v. Colvin Doc. 15 01 02 03 04 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON AT SEATTLE 05 06 07 EMILY J. COOKE, 08 09 10 11 12 ) ) Plaintiff, ) ) v. ) ) CAROLYN W. COLVIN, Commissioner ) of Social Security, ) ) Defendant. ) ____________________________________ ) 13 14 CASE NO. C13-0504-MAT ORDER DENYING MOTION TO DISMISS AND DIRECTING SUBMISSION OF ANSWER INTRODUCTION Plaintiff Emily Cooke, proceeding in forma pauperis, seeks review of the dismissal of 15 her claim for Supplemental Security Income (SSI) by the Commissioner of the Social Security 16 Administration (Commissioner). Now before the Court is the Commissioner’s Motion to 17 Dismiss plaintiff’s complaint for lack of subject matter jurisdiction. (Dkt. 13.) Having 18 considered the pending motion and plaintiff’s response, as well as the remainder of the record, 19 the Court concludes that the Commissioner’s motion should be DENIED. BACKGROUND 20 21 Following denial of plaintiff’s claim initially and on reconsideration (Dkts. 13-1 and 22 13-2), plaintiff requested a hearing (Dkt. 13-3). On May 1, 2012, the Administrative Law ORDER RE: MOTION TO DISMISS PAGE -1 Dockets.Justia.com 01 Judge (ALJ) issued a notice of hearing, to occur on July 24, 2012. (Dkt. 13-4.) The notice 02 advised that, if needed, plaintiff must ask for a change in the time or place of hearing as soon as 03 she knew of a problem that would keep her from coming, and stated: “If possible, your request 04 should be in writing to state why you need the change and the time and place you would like the 05 hearing held.” (Id.) The notice indicated the ALJ would decide whether plaintiff had a good 06 reason for requesting a change, or had a good reason for any delay in asking for a change. (Id.) 07 On May 8, 2012, plaintiff acknowledged receipt of the hearing notice. (Dkt. 13-5.) 08 Plaintiff attests that, on July 20, 2012, she called the Office of Disability Adjudication 09 and Review to request a continuance and was told that her claim would be denied if she did not 10 appear. (Dkt. 14-1.) She did not have an attorney at the time of the hearing and states: “I 11 tried to explain my reason but was told it was to [sic] late. I had been sick almost all of the 12 summer of 2012. I called my doctor on numerous occasions but was told that there is nothing 13 that can be done for an IBS flare.” (Id.) 14 On July 26, 2012, the ALJ issued an Order of Dismissal. (Dkt. 13-5.) The ALJ noted 15 plaintiff was unrepresented, that she did not appear at the hearing, and concluded there was “no 16 good cause for the claimant’s failure to appear at the time and place of hearing.” (Id.) The 17 ALJ dismissed plaintiff’s request for a hearing, and stated that the October 31, 2011 denial of 18 reconsideration remained in effect. (Id.) 19 Plaintiff requested review of the ALJ’s order, stating she has “severe IBS” and missed 20 her hearing because she “was very sick.” (Dkt. 13-6 at 2.) On February 1, 2013, the Appeals 21 Council denied plaintiff’s request for review. (Id. at 4-5.) Plaintiff thereafter commenced the 22 current action in this Court. ORDER RE: MOTION TO DISMISS PAGE -2 01 02 DISCUSSION Judicial review of a claim for Social Security disability benefits is limited to review of a 03 “final decision of the Commissioner of Social Security made after a hearing[.]” 42 U.S.C. § 04 405(g); accord Califano v. Sanders, 430 U.S. 99, 107-08 (1977) (§ 405(g) “clearly limits 05 judicial review to a particular type of agency action, a ‘final decision of the Secretary made 06 after a hearing.’”) This Court lacks subject matter jurisdiction over claims upon which there 07 has been no final agency action. 42 U.S.C. § 405(g) and § 405(h) (“The findings and decisions 08 of the Commissioner of Social Security after a hearing shall be binding upon all individuals 09 who were parties to such hearing. No findings of fact or decision of the Commissioner of Social 10 Security shall be reviewed by any person, tribunal, or governmental agency except as herein 11 provided.”); Weinberger v. Salfi, 422 U.S. 749, 763-66 (1975) (interpreting § 405(g)’s 12 requirement of a final decision after a hearing “to be central to the requisite grant of 13 subject-matter jurisdiction – the statute empowers district courts to review a particular type of 14 decision by the Secretary, that type being those which are ‘final’ and ‘made after a hearing.’”); 15 Johnson v. Shalala, 2 F.3d 918, 921 (9th Cir. 1993) (“Section 405(g) requires an SSI claimant 16 to obtain a final judgment from the Secretary before seeking judicial review.”) 17 The meaning of the term “final decision” is to be defined by the Commissioner’s 18 regulations. Weinberger, 422 U.S. at 766. Under the regulations, a claimant obtains the 19 Commissioner’s final decision only after completing the four steps of the administrative review 20 process: (1) initial determination; (2) reconsideration determination; (3) hearing before an ALJ; 21 and (4) Appeals Council review. See 20 C.F.R. § 416.1400(a). As stated by the Ninth 22 Circuit, “[a] final decision has two elements: (1) presentment of the claim to the Commissioner, ORDER RE: MOTION TO DISMISS PAGE -3 01 and (2) complete exhaustion of administrative remedies.” Kildare v. Saenz, 325 F.3d 1078, 02 1082 (9th Cir. 2003) (citing Johnson, 2 F.3d at 921). 03 Where a claim is dismissed for failure to appear at a scheduled hearing, the dismissal of 04 a request for a hearing becomes binding. 20 C.F.R. §§ 416.1457, 416.1459. The denial of a 05 request for a hearing is not subject to judicial review. See § 416.1403(a) (“Administrative 06 actions that are not initial determinations may be reviewed by us, but they are not subject to the 07 administrative review process provided by this subpart and they are not subject to judicial 08 review.”). That is, where a claimant fails to appear for a scheduled hearing, she fails to exhaust 09 “‘the administrative remedy upon which judicial review depends[,]’” and there is no final 10 decision by the Commissioner. Subia v. Comm’r of Soc. Sec., 264 F.3d 899, 902 (9th Cir. 11 2001) (quoting Hoye v. Sullivan, 985 F.2d 990, 991 (9th Cir. 1992)). 12 An exception to the administrative exhaustion requirement exists where a plaintiff 13 raises a “colorable” constitutional challenge to the Commissioner’s decision. Sanders, 430 14 U.S. at 109; Subia, 264 F.3d at 902. “A constitutional claim is colorable if it is not wholly 15 insubstantial, immaterial, or frivolous.” Klemm v. Astrue, 543 F.3d 1139, 1144 (9th Cir. 2008) 16 (internal quotation marks and quoted sources omitted). The mere assertion of a bare 17 constitutional violation without supporting allegations is not a colorable constitutional claim. 18 Id. “Rather, the claim must be supported by facts sufficient to state a violation of substantive 19 or procedural due process.” Id. (internal quotation marks and quoted sources omitted). A 20 claimant who cites “arguably relevant” case law in support of her claim has asserted a colorable 21 claim. See Rolen v. Barnhart, 273 F.3d 1189, 1191 (9th Cir. 2001). Determining whether a 22 constitutional claim is colorable requires an examination of its merits; however, a ORDER RE: MOTION TO DISMISS PAGE -4 01 determination that a claim lacks merit does not necessarily mean that it is not colorable. 02 Boettcher v. Secretary of Health & Human Services, 759 F.2d 719, 722 (9th Cir. 1985). 03 Plaintiff here maintains the existence of a colorable constitutional claim giving rise to 04 subject matter jurisdiction. She avers the denial of a meaningful opportunity to be heard. As 05 stated in Social Security Ruling (SSR) 79-19: “Adequate protection of [the] right [to appear at 06 a hearing] is important because, by waiving attendance at a hearing, the appellant gives up an 07 opportunity to present additional oral testimony himself or herself, or through a representative, 08 directly to the decision-maker, even though this could affect the decision.” Plaintiff notes the 09 Ninth Circuit’s recognition that the Sanders exception applies “to any colorable constitutional 10 claim of due process violation that implicates a due process right either to a meaningful 11 opportunity to be heard or to seek reconsideration of an adverse benefits determination.” 12 Klemm, 543 F.3d at 1144 (internal quotation marks and quoted sources omitted). See also 13 Udd v. Massanari, 245 F.3d 1096, 1099 (9th Cir. 2001) (“It is axiomatic that due process 14 requires that a claimant receive meaningful notice and an opportunity to be heard before his 15 claim for disability benefits may be denied.”) (citing Mathews v. Eldridge, 424 U.S. 319, 333 16 (1976)). 17 Responding to arguments raised by the Commissioner, plaintiff notes that she was not 18 required to submit her request for a continuance in writing. See 20 C.F.R. § 416.1436(d) (“If at 19 all possible, the request [for a change in the time or place of the hearing] should be in writing.”) 20 Accord Dkt. 13-4 (“If possible, your request should be in writing[.]”) Further, plaintiff was not 21 represented at the time of the hearing, and asserts she was not told, at the time she called to 22 request a continuance, either to submit any evidence in support of her request or that she could ORDER RE: MOTION TO DISMISS PAGE -5 01 have someone appear at the hearing in proxy. Plaintiff observes that the ALJ in this case did 02 not appear to be aware plaintiff had attempted to reschedule the hearing and made no effort to 03 obtain evidence from her prior to dismissing her claim. (See Dkt. 13-5 at 5-6.) She avers that 04 the ALJ’s decision does not reflect she actually gave any consideration to the factors relevant to 05 a good cause determination. (Dkt. 13-5 at 6.) See also 20 C.F.R. § 416.1457(b)(2) (“In 06 determining good cause or good reason . . . we will consider any physical, mental, educational, 07 or linguistic limitations . . . which you may have.”) Plaintiff also observes that the ALJ issued 08 her order of dismissal two days after the date of the scheduled hearing, despite the provision in 09 the regulations allowing for a ten-day period to explain a failure to appear. § 416.457(b)(1)(ii) 10 (ALJ may dismiss a request for a hearing where neither a claimant or representative appears at a 11 scheduled hearing “and within 10 days after the [ALJ] mails you a notice asking why you did 12 not appear, you do not give a good reason for the failure to appear.”) Finally, plaintiff notes 13 that, despite the fact that the ALJ had the entire record and the assistance of a vocational expert, 14 she dismissed the claim without any consideration of the merits. 15 Considering the above, the Court concludes that plaintiff presents a colorable 16 constitutional claim of a denial of a meaningful opportunity to be heard. Plaintiff was not 17 represented at the time of the hearing, and alleges she orally requested a continuance based on 18 an ongoing medical problem, and was not then informed either to submit evidence supporting 19 her claim of good cause or that she could send a proxy to the hearing. Cf. Swain v. Astrue, No. 20 CV 11-04870-JEM, 2012 U.S. Dist. LEXIS 45109 at *10-12 (C.D. Cal. Mar. 20, 2012) (ALJ 21 informed claimant’s counsel prior to hearing that an elective medical procedure (a 22 colonoscopy) did not set forth good cause to postpone a hearing, the represented claimant failed ORDER RE: MOTION TO DISMISS PAGE -6 01 to submit evidence or treatment records establishing a serious medical condition supporting 02 good cause, and the claimant did not demonstrate any prejudice given that her counsel attended 03 the hearing in her stead and “even stated, ‘There was no need after all for Ms. Swain to be 04 present at the hearing.’”) The ALJ’s order of dismissal does not acknowledge plaintiff’s 05 request for a postponement, or discuss the basis for her request in conjunction with the factors 06 relevant to a determination of good cause for failure to appear. The fact that the ALJ issued the 07 order only two days after the scheduled hearing date raises additional doubt as to whether she 08 was aware of plaintiff’s request and whether she adequately considered the existence of good 09 cause for plaintiff’s failure to appear. 10 It cannot be said that, considering the above-described facts and assertions, plaintiff’s 11 claim is wholly insubstantial, immaterial, or frivolous. On the contrary, plaintiff sets forth a 12 colorable constitutional claim of a denial of a meaningful opportunity to be heard. The Court, 13 therefore, has subject matter jurisdiction over this claim. 14 15 CONCLUSION As stated above, the Court concludes that plaintiff raises a colorable constitutional 16 claim giving rise to subject matter jurisdiction. Accordingly, defendant’s motion to dismiss 17 based on an absence of subject matter jurisdiction (Dkt. 13) is DENIED. Defendant is directed 18 to submit an Answer to plaintiff’s Complaint within sixty (60) days of the date of this Order. 19 DATED this 5th day of September, 2013. 20 A 21 Mary Alice Theiler Chief United States Magistrate Judge 22 ORDER RE: MOTION TO DISMISS PAGE -7
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