Stanley B. Doremus vs Commissioner of Social Security

Filing 31

Order Plaintiff's objections to the R&R be, and the same hereby are overruled; and this case be, and the same hereby is dismissed for lack of jurisdiction. Judge James G. Carr on 6/18/14. (C,D)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF OHIO
WESTERN DIVISION

Stanley B. Doremus,

Case No. 3:13CV217
Plaintiff,

v.

ORDER

Carolyn W. Colvin,
Acting Commissioner of Social Security,
Defendant.

This is a Social Security case.
After the Social Security Administration (SSA) denied his request for benefits, plaintiff
Stanley B. Doremus requested a hearing before an administrative law judge (ALJ). However,
plaintiff failed to appear at the hearing, and the ALJ dismissed his hearing request. Plaintiff then
filed this suit under 42 U.S.C. § 405(g), challenging that dismissal.
Pending is the Magistrate Judge’s Report and Recommendation, which suggests I dismiss
this case for lack of jurisdiction. (Doc. 22). Plaintiff filed a timely objection (Doc. 23).
For the following reasons, I overrule plaintiff’s objections and dismiss this case for lack of
jurisdiction.
Background
Plaintiff applied for Social Security benefits in December, 2007, but the SSA denied his
application. (Doc. 13-4 at 2; Doc. 22 at 2).

The ALJ assigned to plaintiff’s case mailed plaintiff a Notice of Hearing, which stated the
hearing would occur on March 17, 2011. The Notice admonished plaintiff about the importance of
appearing, and it warned him that failing to appear could lead to the dismissal of his case. The
Notice also included instructions on how plaintiff could request to reschedule the hearing.
During a phone call with SSA personnel on March 14 – three days before the hearing –
plaintiff acknowledged receipt of the Notice and said he would attend the hearing.
Nevertheless, plaintiff failed to appear.
The next day, the ALJ sent plaintiff, through both ordinary and certified mail, a Notice to
Show Cause for Failure to Appear. This Notice directed plaintiff to provide a written explanation
for his failure to appear, but plaintiff did not respond.
Accordingly, the ALJ dismissed plaintiff’s hearing request. The Appeals Council affirmed
that decision, leading plaintiff to file suit in this court.
The Magistrate Judge, relying on Hilmes v. Sec’y of Health & Human Servs., 983 F.2d 67
(6th Cir. 1993), concluded that “the dismissal of [plaintiff’s] hearing request is not within the
jurisdictional purview of § 405(g)[.]” (Doc. 22 at 4). This is so, the Magistrate Judge explained,
because § 405(g) permits review only of a “final decision of the Commissioner . . . made after a
hearing[.]” 42 U.S.C. § 405(g) (emphasis added).
Because plaintiff did not attend his hearing, the Magistrate Judge ruled “there is no final
decision . . . for this Court to review[.]” (Doc. 22 at 5). The Magistrate Judge recognized the court
could have asserted jurisdiction over plaintiff’s case if he had raised “a colorable constitutional
claim.” (Id.). However, the Magistrate Judge determined plaintiff had not alleged such a claim.
For these reasons, the Magistrate Judge recommended dismissal for lack of jurisdiction.

2

Discussion
Because plaintiff has filed an objection, I conduct a de novo review of those parts of the
R&R to which he has objected. 28 U.S.C. § 636(b)(1).
Plaintiff’s objection concerns the propriety of the ALJ’s decision to dismiss his hearing
request; he does not directly address the Magistrate Judge’s recommendation that I lack jurisdiction
over this case.
However, my analysis must begin with jurisdiction.
Section 405(g) authorizes judicial review of SSA decisions. That section “clearly limits
review to a particular type of agency action, a final decision of the Secretary made after a hearing.”
Califano v. Sanders, 430 U.S. 99, 108 (1977).
In this case, no hearing occurred: plaintiff failed to attend the March 17, 2011 hearing, and
the ALJ dismissed his hearing request after plaintiff ignored the Notice to Show Cause for Failure
to Appear.1
“[W]hen, as here, the Commissioner dismisses a claim without a hearing due to the
claimant’s unexcused failure to appear, federal courts lack jurisdiction to review the dismissal.”
Kiiker v. Astrue, 354 F. App’x 408, 409 (10th Cir. 2010); see also Hilmes, supra, 983 F.2d at 70;
Brandyburg v. Sullivan, 959 F.2d 555, 558-562 (5th Cir. 1992); Van Williams v. Soc. Sec. Admin.,
152 F. App’x 153, 154-155 (3d Cir. 2005).
Because there was no hearing in this case, it necessarily follows that there is no “final
decision” for me to review.

1

It is undisputed that plaintiff failed to attend the hearing. Although plaintiff attempted to
appear at the hearing telephonically, SSA personnel had advised him before the hearing that
appearing by telephone was not permitted. (Doc. 27, Ex. 1).
3

As the Magistrate Judge correctly noted, I may still review the Commissioner’s decision if
plaintiff has raised a colorable constitutional claim. Weaver v. Comm’r of Soc. Sec., 2014 WL
1364976, *5 (N.D. Ohio) (“A court may not review the Commissioner's dismissal of a hearing
request . . . absent a colorable constitutional challenge.”).
But on this score too, I agree with the Magistrate Judge that plaintiff has raised no such
claim.
Conclusion
It is, therefore, ORDERED THAT:
1.

Plaintiff’s objections to the R&R be, and the same hereby are overruled; and

2.

This case be, and the same hereby is dismissed for lack of jurisdiction.

So ordered.
/s/ James G. Carr
Sr. U.S. District Judge

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