FAULKNER v. COLVIN

Filing 24

ORDER DENYING MOTION TO DISMISS. For the reasons explained, the Commissioner's Motion to Dismiss is DENIED. [Filing No. 16.] The Court will issue a briefing schedule for the parties to solely address whether substantial evidence and the appro priate procedures underlie the Commissioner's decision that good cause did not exist for Ms. Faulkner's failure to appear at the scheduled hearing. SEE ORDER. Signed by Judge Jane Magnus-Stinson on 7/31/2015. (BGT) Modified on 7/31/2015 (BGT).

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
INDIANAPOLIS DIVISION
KENDRA FAULKNER O/B/O D.J.K.,
Plaintiff,

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vs.
CAROLYN W. COLVIN, Acting Commissioner
of Social Security Administration,
Defendant.

1:14-cv-01767-JMS-TAB

ORDER DENYING MOTION TO DISMISS
The Commissioner of Social Security (the “Commissioner”) moves to dismiss a challenge
by Plaintiff Kendra Faulkner, on behalf of minor D.J.K., to the Commissioner’s decision
dismissing her application for benefits, arguing that this Court lacks jurisdiction under 42 U.S.C.
§ 405(g). For the reasons explained below, the Commissioner’s Motion to Dismiss is DENIED.
[Filing No. 16.]
I.
BACKGROUND
The relevant background facts, which consist solely of the procedural history of this case,
are undisputed. Ms. Faulkner filed for social security benefits on behalf of her daughter, D.J.K.,
on January 29, 2013. [Filing No. 17-1 at 2.] Her application was denied at the initial stage and
upon reconsideration. [Filing No. 17-1 at 2-3.] Ms. Faulkner requested a hearing, and one was
scheduled for May 12, 2014. [Filing No. 17-1 at 3.] Ms. Faulkner failed to appear at the hearing,
and the Administrative Law Judge (“ALJ”) dismissed her case. [Filing No. 17-1 at 3.]
On July 3, 2014, Ms. Faulkner requested Appeals Council review of the ALJ’s dismissal.
[Filing No. 17-1 at 3.] The Appeals Council remanded the case back to the ALJ to consider
additional information in determining whether Ms. Faulkner has good cause for not appearing at

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the hearing. [Filing No. 17-1 at 13.] On July 28, 2014, the ALJ again dismissed Ms. Faulkner’s
request for a hearing, finding that there was no good cause for her failure to appear at the hearing.
[Filing No. 17-1 at 18-20.]
Ms. Faulkner requested Appeals Council review of the ALJ’s dismissal. [Filing No. 17-1
at 3.] The Appeals Council denied review on August 26, 2014. [Filing No. 17-1 at 3.] Ms.
Faulkner filed this action on October 29, 2014.
II.
LEGAL STANDARDS
Judicial review of decisions by the Commissioner is governed by 42 U.S.C. § 405(g),
which provides in relevant part as follows: “Any individual, after any final decision of the
Commissioner of Social Security made after a hearing to which he was a party . . . may obtain a
review of such decision by a civil action . . . .” What constitutes a final decision “is left to the
[Commissioner] to flesh out by regulation.” Weinberger v. Salfi, 422 U.S. 749, 766 (1975). The
regulations adopted by the Commissioner set forth the administrative review process a claimant
must undergo before receiving a “final decision” of the Commissioner.

See 20 C.F.R.

§ 416.1400(a).
III.
DISCUSSION
The Commissioner seeks dismissal of this action, arguing that the Court lack’s jurisdiction
under 42 U.S.C. § 405(g) because the Commissioner did not issue a final decision as defined by
the statute. [Filing No. 17 at 5-6.] Specifically, the Commissioner argues that no final decision
was issued as to the claim of disability since the request for hearing was dismissed without
decision. [Filing No. 17 at 6.]

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Ms. Faulkner responds that she has exhausted all avenues of administrative relief. [Filing
No. 20 at 3.] She points the Court to Boley v. Colvin, 761 F.3d 803 (7th Cir. 2014), and argues
that she, like the claimant in Boley, “should be entitled to judicial review as the Appeals Council’s
last directive essentially exhausted her administrative remedies.” [Filing No. 20 at 3.]
The Commissioner replies that there is no provision for further review of the Appeals
Council’s August 26, 2014, denial of review, given that a dismissal action is not considered a final
decision. [Filing No. 23 at 1.] Moreover, the Commissioner argues that Boley is distinguishable
from the instant case because the ALJ’s grounds for dismissal were different and, in any event,
Boley did not address the regulations on which the Commissioner relies showing that no “final
decision” was issued by the Commissioner in this case. [Filing No. 23 at 2.]
In Boley, the claimant’s application for benefits was denied initially and on reconsideration.
761 F.3d at 804. She failed to request a hearing within the sixty-day timeframe to do so, but
alleged that she had good cause for this failure. Id. The ALJ dismissed the claimant’s subsequent
request for a hearing as untimely, reasoning that the claimant lacked “good cause” to file an
untimely request. Id. (citing 20 C.F.R. §§ 404.911, 404.933(c)). The Seventh Circuit held that
federal courts had jurisdiction to review the denial of the hearing because the phrase “after a
hearing” in § 405(g) “means whatever process the Social Security Administration deems adequate
to produce a final decision.” Id. at 804-05.
Thus, while the Commissioner is correct that much of the Boley opinion focused on the
meaning of “at a hearing,” the Seventh Circuit defined that phrase to encompass whatever process
is necessary to receive a final decision from the agency. In reaching this holding, the Seventh
Circuit made clear that, at bottom, Ҥ 405(g) allows judicial review when a claim has been
presented and finally decided.” Id. at 806. For the claimant in Boley that meant that because she

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“filed a claim for benefits and pursued it as far as the agency permitted[,] . . . she is entitled to
judicial review of her contention that the agency mishandled her case.” Id. The same is equally
true here. Like the claimant in Boley, Ms. Faulkner filed a claim for benefits on behalf of her
daughter and pursued it as far as the agency permitted. [See Filing No. 17-1 at 2-3.]
The Commissioner argues that Boley is distinguishable because it is concerned whether
there was good cause to request a hearing outside the deadline, while this case concerns whether
good cause existed to for Ms. Faulkner’s failure to appear at the scheduled hearing. But the
Commissioner does not explain how this bears on the jurisdictional question. The Court does not
see how it could given that the substance of the specific legal challenge does not affect whether
the Court has jurisdiction to consider it. See id. at 805 (defining subject-matter jurisdiction as “the
power to decide whether a legal argument is sound”). Moreover, Boley is strikingly similar to this
case. In both cases, the ALJ decided that dismissal of the application of benefits was warranted
because the claimants failed to follow the proper administrative procedures and that neither had
good cause for doing so. And again, in this case, like in Boley, Ms. Faulkner pursued her case “as
far as the agency permitted.” Id. at 806. The ALJ determined that she lacked good cause for her
failure to appear at the scheduled hearing and the Appeals Council denied review of that decision.
[Filing No. 17-1 at 2-3.] Because she pursued her case as far as the agency allowed, she is “entitled
to judicial review of her contention that the agency mishandled her case.” Id. at 806.
The regulations upon which the Commissioner relies to argue that the ALJ did not issue a
“final decision” in this case—20 C.F.R. §§ 416.1459, 416.1455(b)—do not alter the Court’s
conclusion. 20 C.F.R. § 416.1459 provides that “[t]he dismissal of a request for a hearing is
binding, unless it is vacated by an administrative law judge or the Appeals Council,” and
§ 416.1455(b) states that the ALJ’s decision is binding on all parties unless the claimant “requests

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a review of the decision by the Appeals Council within the stated time period, the Appeals Council
denies your request for review, and you seek judicial review of your case by filing an action in a
Federal district court.” Both of these regulations establish that decisions of the Commissioner are
binding unless further action to challenge them is taken. But neither undermine the clear direction
from Boley that, again, as long as a claimant “filed a claim for benefits and pursued it as far as the
agency permitted[,] . . . she is entitled to judicial review of her contention that the agency
mishandled her case.” 761 F.3d at 806.
The judicial review permitted, however, does not encompass review of the Commissioner’s
decision denying benefits initially and upon reconsideration. Instead, as in Boley, judicial review
is limited to whether “substantial evidence, and appropriate procedures, underlie the decision that
[Ms. Faulkner] lack ‘good cause’ for her [failure to appear at the scheduled hearing].” Id. at 808.
This is the question that Ms. Faulkner has pursued “as far as the agency permitted,” and thus it is
all that she may challenge in this action.
IV.
CONCLUSION
For the reasons explained, the Commissioner’s Motion to Dismiss is DENIED. [Filing
No. 16.] The Court will issue a briefing schedule for the parties to solely address whether
substantial evidence and the appropriate procedures underlie the Commissioner’s decision that
good cause did not exist for Ms. Faulkner’s failure to appear at the scheduled hearing.

_______________________________

Date: July 31, 2015

Hon. Jane Magnus-Stinson, Judge
United States District Court
Southern District of Indiana
Distribution via ECF to all counsel of record
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