Summary
finding that Federal Regulations control over HALLEX
Summary of this case from Lovett v. AstrueOpinion
CAUSE NO. 1:03-CV-13
July 30, 2003
MEMORANDUM OF DECISION AND ORDER
I. INTRODUCTION
The Plaintiff Carolyn Blevins-Moore ("Plaintiff") brings this action against the Defendant, Commissioner of Social Security (the "Commissioner"), seeking a writ of mandamus, pursuant to 28 U.S.C. § 1361, mandating that this case be remanded to Social Security so the ALJ can issue a "show cause" notice and allow the Plaintiff a meaningful opportunity to show "good cause" for her failure to attend her own administrative hearing.
The Plaintiff also originally brought a claim for judicial review of the final decision of the Commissioner, but we dismissed that claim for lack of subject matter jurisdiction on May 5, 2003. (Docket No. 23.) See Fed.R.Civ.P. 12(b)(1).
Currently before the Court is the Plaintiff's June 5, 2003, motion for "Summary Judgment and Issuance of Writ of Mandamus." The Commissioner submitted a response brief on July 1, 2003, and, the Plaintiff replied on July 16, 2003.
Jurisdiction of the undersigned Magistrate Judge is based on 28 U.S.C. § 636(c), all parties consenting.
For the following reasons, the Plaintiff's motion for summary judgment and issuance of a writ of mandamus will be DENIED, and the Court, on its own motion, will GRANT summary judgment in favor of the Commissioner.
II. SUMMARY JUDGMENT STANDARD
Before addressing the facts in this case, we pause to frame the inquiry on a motion for summary judgment.
Summary judgment is appropriate when the "pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). Thus, on a motion for summary judgment, the Court construes facts in favor of the non-moving party, and "[s]ummary judgment is appropriate if, on the record as a whole, a rational trier of fact could not find for the non-moving party." Rogers v. City of Chicago, 320 F.3d 748, 752 (7th Cir.2003). 320 F.3d at 752.
In this case, the parties agree, and the Court finds, no dispute to the material facts as set forth infra, so the only questions before the Court are pure questions of law.
At the May 15, 2003, Status Conference, the parties acknowledged the absence of material issues of fact, and the Court suggested that they submit simultaneous cross-motions for summary judgment. (Docket No. 24.) Although the Commissioner indicated that she would prefer not to file a cross-motion, the parties nevertheless agreed that if the Plaintiff is not entitled to summary judgment, then we should grant it in favor of the Commissioner. ( Id.)
III. PROCEDURAL AND FACTUAL BACKGROUND
After the Plaintiff, then proceeding pro se, failed to appear for her own administrative hearing four times in a row, the Administrative Law Judge Bryan Bernstein (the "ALJ") dismissed her request for a hearing, effectively sounding the death knell on her claim for disability benefits.More to the point, the Plaintiff's fourth hearing was scheduled for July 2, 2002, and on June 10, 2002, the ALJ sent the Plaintiff a letter stating:
It Is Important That You Come To Your Rescheduled Hearing
I have set aside this time to hear your case. If you do not appear at the hearing and I do not find that you have good cause for failing to appear, I may dismiss your request for hearing. I may do so without giving you further notice.
(Stone Decl., Ex. 10) (emphasis in original). Although the Plaintiff admits that she received this notice, she failed to appear and instead faxed a note to the ALJ stating:
I am unable to attend this morning because I am very, very weak My liver enzymes are high, which could be the cause of my weakness.
I had not anticipated [that] I would be so weak this morning, or I would have contacted you sooner.
I don't know what is suppose[d] to be done now? [sic] I pray you will not be angry with me, for this is out of my control. I made sure I got lots of sleep yesterday, in preparation for today . . . but it did not help.
Please let me know what happens now.
(Stone Decl., Ex. 11) (ellipses in original).
The ALJ, apparently frustrated with the Plaintiff's chronic non-attendance, issued an order finding the Plaintiff's allegation of being "very, very weak"
[i]n the context of the proceedings on the claimant's request for hearing, . . . is not good cause [to reschedule the hearing]. The claimant has not provided more than her allegation of ill health. This statement is not persuasive in view of the claimant's history of reluctance to come to [the] hearing.
(Stone Decl., Ex. 12 at 3.)
The Appeals Council subsequently denied the Plaintiff's request to review the ALJ's dismissal. (Stone Decl. ¶ 3(f), Ex. 14.)
IV. DISCUSSION
The Plaintiff contends that she is entitled to a Writ of Mandamus directing the commissioner to send this case back to the ALJ so that he may send her a "show cause" notice for her failure to appear at her fourth administrative hearing.
District courts have mandamus jurisdiction to "compel an officer or employee of the United States or any agency thereof to perform a duty owed to the plaintiff." 28 U.S.C. § 1361. A writ of mandamus is an "extraordinary remedy" which courts "do not grant lightly." Matter of Hatcher, 150 F.3d 631, 637 (7th Cir. 1998). In order to be entitled to mandamus relief, the Plaintiff must demonstrate that (1) she has "a clear right to the relief sought;" (2) "the defendant [has] a duty to perform the act in question;" and (3) "no other adequate remedy [is] available." Ahmed v. Department of Homeland Security, 328 F.3d 383, 387 (7th Cir. 2003); Iddur v. INS, 301 F.3d 492, 499 (7th Cir. 2002).
Social Security's regulations vest an ALJ with the authority to dismiss a request for a hearing without issuing a "show cause" notice when a claimant fails to appear at a hearing. However, before doing so, an ALJ must satisfy certain regulatory requirements:
An [ALJ] may dismiss a request for a hearing. . . . [if n]either you or the person you designate to act as your representative appears at the time and place set for the hearing and you have been notified before the time set for the hearing that your request for hearing may be dismissed without further notice if you did not appear at the time and place of hearing, and good cause has not been found by the administrative law judge for your failure to appear [.]20 C.F.R. § 404.957(b)(1)(i) (emphasis added) (the "Regulation").
In contrast to the situation where the claimant receives notice of possible dismissal "before the time set for the hearing," the regulations provide a mechanism which specifically requires a show cause notice when no prior notice issued:
[The ALJ may dismiss your hearing request if n]either you nor the person you designate appears at the time and place set for the hearing and within 10 days after the [ALJ] mails you a notice asking why you did not appear, [and] you do not give a good reason for the failure to appear.20 C.F.R. § 404.957(b)(1)(ii).
To interpret this regulation, Social Security's Hearings, Appeals, and Litigation Law Manual ("HALLEX") alters the inquiry slightly by providing, in a section captioned "When a
`Show Cause' Notice is Not Needed," that
If neither the claimant nor the representative appears at the scheduled hearing, the ALJ may dismiss the [hearing request] without sending a show cause notice if: . . . the record shows that the claimant was notified that the [hearing request] could be dismissed without further notice if neither the claimant nor the representative appear at the scheduled hearing . . . and there is no indication of good cause.
HALLEX I-2-4-25(C)(2)(a) (emphasis added).
Another HALLEX provision which interprets the non-applicable 20 C.F.R. § 404.957(b)(1)(ii), see Note 5 supra, provides that a "If it is necessary to develop `good cause,' send a . . . Notice to Show Cause for Failure to Appear to the claimant and representative. Give them 10 days from the date of the notice to respond, and allow an additional 5 days for mailing time."
The Plaintiff maintains that her right to a show cause notice, and the ALJ's duty (as the Commissioner's representative) to send one, stem from this HALLEX provision. Because it makes more sense to do so, we will address whether the HALLEX creates an enforceable duty before turning to whether the Plaintiff has a right to the relief requested. Finally, we will address whether another remedy is available.
A. There Was No Duty To Send A Show Cause Notice In This Case
The parties initially spar about whether the HALLEX or the Regulation is the source of an enforceable duty that the ALJ must follow. At issue is whether the ALJ had the duty to send a show cause notice because the Plaintiff allegedly provided some "indication of good cause" under the HALLEX, or whether the ALJ simply had the duty to make a good cause determination without further notice, as required by the Regulation. Because we find that the Regulation controls, the ALJ did not have a "plainly defined and peremptory duty" to send a show cause notice to the Plaintiff. Banks v. Secretary of Indiana Family and Social Services Admin., 997 F.2d 231, 245 (7th Cir. 1993); Burnett v. Bowen, 830 F.2d 731, 739 (7th Cir. 1987).
The Plaintiff supports his claim that the HALLEX rises to the level of an enforceable right which imposes a duty on the ALJ by citing the Ninth Circuit decision in McNatt v. Apfel, 201 F.3d 1084, 1088 (9th Cir. 1999), where that court enforced HALLEX I-2-4-25(D), a separate subsection of the provision at issue here. However, the Ninth Circuit subsequently clarified that in McNatt " [i]t was the Federal Regulation that had the force and effect of law, not the HALLEX [provision that interpreted it.]" Moore v. Apfel, 216 F.3d 864, 869 (9th Cir. 2000).
The parties have only cited Ninth Circuit law, and our independent research reveals no Seventh Circuit law on point.
Nevertheless, the Plaintiff argues that the HALLEX should control here because it embodies Social Security's interpretation of 20 C.F.R. § 404.957(b)(1)(i), and thus has some regulatory teeth. However, the HALLEX provision actually goes beyond the Regulation by providing a different threshold for dismissing the hearing request. After all, under the HALLEX, dismissal is appropriate only if there is no "indication of good cause," but the Regulation actually allows dismissal even if the claimant offers some arguable indication of "good cause," but the ALJ finds it to be inadequate. Therefore, because the HALLEX goes beyond the terms of the Regulation, it clearly lacks regulatory undergirding, and thus carries no force or effect of law. See Moore, 216 F.3d at 869 (noting that HALLEX is not binding on Commissioner when there is no underlying Regulation).
Moreover, the Plaintiff's argument must also fail because "[i]nterpretations of statutes or Federal Regulations contained in agency manuals [like the HALLEX] lack the force of law and are not entitled to Chevron [U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984)] deference by a reviewing court." Moore, 216 F.3d at 869 n. 2 (citing Christensen v. Harris County, 529 U.S. 576, 120 S.Ct. 1655, 1662-63, 146 L.Ed.2d 621 (2000)).
Thus, because the only duty imposed on the ALJ was that created by the Regulation, and because the ALJ complied with the Regulation, the ALJ has no clearly defined duty to issue a show cause notice.
B. The Plaintiff Does Not Have The Right To A Show Cause Notice Even Under HALLEX
Nevertheless, even assuming that the HALLEX created a duty, the Plaintiff does not have a right to a show cause notice because the ALJ complied with its requirements. Ahmed, 328 F.3d at 387; Iddur, 301 F.3d at 499.
Indeed, the undisputed evidence demonstrates that the Plaintiff was notified four times that if she failed to attend her hearing, her hearing request could be dismissed without further notice. Although the ALJ found good cause to continue the hearing on three prior occasions, the fourth time he found not even an indication of good cause, let alone good cause in fact.
Nevertheless, the Plaintiff argues that "the ALJ never provided the Plaintiff with a real chance to document her reasons for nonappearance." (Pl.'s Reply at 3.) But the Plaintiff was clearly on notice that her hearing request could be denied without notice if she failed to appear since the pre-hearing notice specifically told her that she must demonstrate good cause to continue the hearing. Yet the Plaintiff waited till the virtual last minute to fax a note to the ALJ indicating that her failure to appear this time was because she felt weak.
Moreover, the Plaintiff does not assert that she relied on the HALLEX with an expectation that the ALJ would actually make further inquiry. To the contrary, the Plaintiff concedes receiving the pre-hearing notice, and her allegation of ill health clearly represented an attempt to demonstrate good cause for her non-attendance. Certainly, the ALJ had the discretion to determine whether the Plaintiff's claim of feeling weak amounted to good cause to continue the hearing. Given the very nature of Social Security, most claimants doubtless suffer from some sort of ill health or weakness, but are at least able to appear for their own hearing, particularly since, in most instances, that is the most critical event in the life of a claim. Nevertheless, the Court agrees that the mere self-reported and unquantifiable allegation of feeling weak was not enough to provide the ALJ with an indication of good cause under the HALLEX or the Regulation.
Still, the Plaintiff claims that because she was proceeding pro se a t the time, the ALJ owed her a special obligation to go out of his way to investigate the reason for her absence. (Pl.'s Br. at 3) (noting that "the ALJ wear three hats — i.e., he acts as judge, claimant's attorney, and as the government's attorney.") However, the ALJ did go out of his way to accommodate the Plaintiff when he gave her four chances to undertake the rather simple, but critical, step of appearing for her own hearing. Certainly, the ALJ was not required to keep continuing the Plaintiff's hearing indefinitely, particularly since each hearing required him to orchestrate the attendance of a vocational expert whose valuable time and preparation was wasted by the Plaintiff's chronic non-attendance.
Finally, we are somewhat troubled by the Plaintiff's arguments which appear to challenge the ALJ's good cause determination as unsupported by the evidence. Such arguments distinctly resonate an appellate tone, yet the Seventh Circuit has "reiterate[d], what seems constantly to need reiteration, clearly established though the proposition is, that mandamus is not to be allowed to do service for an appeal. If broadly usuable to obtain appellate review of nonfinal orders, mandamus would eviscerate the final-decision rule, the cornerstone of federal appellate jurisdiction." Heisenberg v. United States District Court for the Southern District of Illinois, 910 F.2d 374 (7th Cir. 1990).
Accordingly, because the ALJ's good cause determination actually complied with the HALLEX, the Plaintiff does not have a clear right to a show cause notice.
C. Another Adequate Remedy Is Available
Finally, there is another adequate remedy available because the Plaintiff can still seek to reopen her application. Ahmed, 328 F.3d at 387; Iddur, 301 F.3d at 499. Of course, in so doing, she will be required to demonstrate good cause, 20 C.F.R. § 404.988(b), through new and material evidence. 20 C.F.R. § 404.989(a)(1). Although the Plaintiff complains that this new and material evidence standard would impose an unduly high burden on her, it should not be too difficult to come forward with evidence showing that her condition precluded travel on the day of the hearing, and which was not before the ALJ when he dismissed her hearing request. After all, this would be the same evidence she would have to present if we granted her motion and she attempted to show good cause for failing to attend the hearing.
Accordingly, because the Plaintiff does not have a clear right to the relief sought, because the ALJ does not have a duty to perform the act requested, and because other remedies are available, the Plaintiff's motion for summary judgment and for the issuance of a writ of mandamus will be denied.
V. THE COMMISSIONER IS ENTITLED TO SUMMARY JUDGMENT
Having determined that the Plaintiff is not entitled to summary judgment, the Court, on its own motion, will grant summary judgment in favor of the Commissioner because there are no genuine issues of material fact and the Commissioner is entitled to judgment as a matter of law despite the Plaintiff's evidence. See Osler Institute, Inc. v. Forde, 333 F.3d 832, 836 (7th Cir. 2003) ("When there are no issues of material fact in dispute, a district court may grant summary judgment on its own motion — as long as the losing party is given notice and an opportunity to come forward with its evidence."); Jones v. Union Pacific R. Co., 302 F.3d 735, 740 (7th Cir. 2002) (noting that when one party "moved for summary judgment both parties were on notice that summary judgment was under active consideration" and that sua sponte grant of summary judgment in favor of non-moving party did not violate any procedural safeguards); Goldstein v. Fidelity and Guar. Ins. Underwriters, Inc., 86 F.3d 749, 750 (7th Cir. 1996) ("The party against whom summary judgment is entered must have notice that the court is considering dropping the ax on [it] before it actually falls."). Of course, this approach is entirely consistent with the parties' expectations per the May 15, 2003 status conference. (Docket No. 24.)
CONCLUSION
For the foregoing reasons, the Plaintiff's motion for summary judgment and issuance of a writ of mandamus is DENIED. Because there are no issues of material fact, and because the Commissioner is entitled to judgment as a matter of law, the Court, on its own motion, hereby GRANTS summary judgment in favor of the Commissioner and against the Plaintiff. The clerk is directed to enter judgment in favor of the Commissioner and against the Plaintiff.
SO ORDERED.