Brandyburg v. Sullivan, 91-8078

• Decision Date: 29 April 1992
• Docket Number: No. 91-8078,91-8078
• Citation: 959 F.2d 555
• Parties: , Unempl.Ins.Rep. (CCH) P 16605A, 2 NDLR P 320 Donald BRANDYBURG, Plaintiff-Appellant, v. Louis W. SULLIVAN, Secretary of Health and Human Services, Defendant-Appellee. Summary Calendar.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 555

959 F.2d 555

36 Soc.Sec.Rep.Ser. 720, Unempl.Ins.Rep. (CCH) P 16605A,

2 NDLR P 320

Donald BRANDYBURG, Plaintiff-Appellant, v. Louis W. SULLIVAN, Secretary of Health and Human Services Defendant-Appellee.

No. 91-8078

Summary Calendar.

United States Court of Appeals Fifth Circuit.

April 29, 1992.

Rehearing Denied May 26, 1992.

Mary Ellen Felps, Austin, Tex., for plaintiff-appellant.

Michael S. Shachat, Trial Atty., Dept. of Health and Human Services, Baltimore, Md., Ronald E. Ederer, U.S. Atty., James W. Jennings, Jr., Asst. U.S. Atty., San Antonio, Tex., for defendant-appellee.

Appeal from the United States District Court for the Western District of Texas.

Before GARWOOD, HIGGINBOTHAM and BARKSDALE, Circuit Judges.

GARWOOD, Circuit Judge:

Plaintiff-appellant Donald Brandyburg (Brandyburg) applied for supplemental security income (SSI) disability benefits under Title XVI of the Social Security Act. His application was denied, and, after he failed to attend a scheduled hearing before an administrative law judge (ALJ), the ALJ dismissed his request for a hearing. Brandyburg filed this suit in district court challenging the dismissal. The district court dismissed the complaint on the ground that the ALJ's dismissal did not constitute a "final decision" within the meaning of 42 U.S.C. § 405(g), and the court therefore lacked subject matter jurisdiction. Brandyburg brings this appeal. We affirm.

Facts and Proceedings Below

On October 5, 1987, Brandyburg filed an application for SSI disability benefits under Title XVI of the Social Security Act, 42 U.S.C. §§ 1381 et seq. This application was denied initially and upon reconsideration. On May 16, 1988, he filed another claim for SSI disability benefits that was denied by notice dated July 13, 1988. On October 10, 1988, he again filed a claim for benefits. This third claim was denied initially on December 8, 1988 and upon reconsideration on January 16, 1989.

On January 31, 1989, Brandyburg requested a hearing by an ALJ. On March 30, 1989, he was notified that the hearing had been set for May 4, 1989. He promptly returned an acknowledgement card indicating that he would attend the scheduled hearing. On May 1, 1989, however, he wrote to the ALJ informing him that he would be unable to attend because his wife was having heart surgery on the hearing date. He was notified that his hearing would be rescheduled, and on July 17, 1989, he was sent a notice informing him that his hearing had been set for August 4, 1989. He again promptly returned the acknowledgement card, this time indicating that he would not be able to attend because of a previously scheduled medical examination. The hearing was rescheduled a second time, and Brandyburg was advised by a notice dated September 7, 1989 that the new hearing date was September 27, 1989. The three hearing notices sent to Brandyburg each contained (in progressively larger type) the following warning: "If you do not appear at the scheduled hearing and I find that you do not have good cause for not appearing, I may dismiss your request for hearing without further notice."

On September 20, 1989, having not received Brandyburg's acknowledgement of the September 7th notice, the Social Security Administration (SSA) sent him a letter reminding him of the hearing and repeating the above warning. Brandyburg obtained the services of an attorney to assist him in his disability claim on September 22, 1989. His attorney called the ALJ's office that afternoon to request a continuance, but was told that a continuance could not be granted because a vocational expert had been hired for the hearings that day. She was also informed, however, that the ALJ would consider holding open the record to allow the presentation of post-hearing evidence, if cause was shown. She followed her telephone call up with a letter on September 22, 1989 stating that, because she had just been retained that day, she did not have adequate time to prepare Brandyburg's case or to prepare to cross-examine the vocational expert. She wrote to the ALJ again on September 25, 1989, reiterating her request and adding that she had a previously scheduled arbitration hearing on the afternoon of September 27th. On September 27, 1989, neither Brandyburg nor his attorney appeared at the hearing. The foregoing facts are undisputed. On November 11, 1989, the ALJ entered an order dismissing the request for a hearing, finding that Brandyburg had been fully advised of his right to counsel and had been given every opportunity to pursue it, but had through his conduct waived it or caused it to be outweighed by the government's need to effectively administer the hearings process. The ALJ also found that Brandyburg had been appropriately notified of the hearing and of the fact that his request for hearing was subject to dismissal if he failed to appear, and that Brandyburg had failed to appear at the hearing without good cause. Dismissal of the request for hearing left in effect as the final order of the Secretary of Health and Human Services (the Secretary) the January 16, 1989 reconsideration denial of Brandyburg's third claim for benefits.

On November 21, 1989, Brandyburg filed a request for review of the ALJ's order of dismissal by the Appeals Council. The Appeals Council denied this request by a letter dated June 21, 1990.

On August 17, 1990, Brandyburg commenced this action in district court under 42 U.S.C. § 405(g), requesting review of the decision of the Secretary to dismiss his request for a hearing. The Secretary filed a motion to dismiss the complaint, arguing that the court lacked jurisdiction because Brandyburg had failed to exhaust his administrative remedies and there had been no "final decision" of the Secretary within the meaning of section 405(g). The Secretary contended that there is a "final decision" only when the Appeals Council is asked to review the decision of an ALJ made after a hearing. Because there was no hearing before an ALJ in this case, the Secretary argued, there was no decision subject to judicial review under section 405(g). The district court granted the Secretary's motion on January 18, 1991. Brandyburg brings this appeal (1) challenging the district court's dismissal of his case as a denial of equal protection of the law; (2) contending that the dismissal of his administrative hearing request was arbitrary and capricious; and (3) arguing that he was denied his right to legal representation in his proceedings before the SSA.

Discussion

I. The Administrative Appeals Process

A brief overview of the administrative mechanism for processing SSI claims is a necessary predicate to our discussion of the legal question presented here. The first step for a claimant who is dissatisfied with the initial determination of his entitlements is to make a written request for reconsideration within sixty days after being notified of the original determination. 20 C.F.R. §§ 416.1407, 416.1409(a). The SSA will provide reconsideration through either a case review, formal or informal conference, or a disability hearing. Id. § 416.1413. If still dissatisfied, the claimant may request a hearing before an ALJ, id. § 416.1407, where the claimant has the right to appear in person, submit new evidence, examine the evidence used in making the determination at issue, and present and question witnesses, id. § 416.1429. The ALJ issues a written decision giving findings of fact and the reasons for the decision. Id. § 416.1453. This decision is binding on all parties to the hearing unless, inter alia, (1) a party requests a review of the decision by the Appeals Council within the stated time period, and the Appeals Council reviews the case, or (2) a party requests review of the decision by the Appeals Council within the stated time period, the Appeals Council denies the request for review, and the party seeks judicial review by filing an action in district court. Id. § 416.1455.

An ALJ "may" also dismiss a request for a hearing under certain circumstances, including the failure, without good cause, of the claimant or his representative to appear at a hearing after they have been notified that their failure to appear will subject them to dismissal without further notice. Id. § 416.1457(b)(1). Such a dismissal is binding unless it is vacated by an ALJ or the Appeals Council. Id. §§ 416.1459, 416.1460. The Appeals Council may deny or dismiss the request for review, or it may grant the request and either issue a decision itself or remand the case to the ALJ. Id. § 416.1467. "The Appeals Council's decision, or the decision of the administrative law judge if the request for review is denied, is binding unless you or another party file an action in Federal district court, or the decision is revised." Id. § 416.1481. Any determination during the administrative process may be reopened (1) within 12 months, for any reason; (2) within two years, if good cause is shown; or (3) at any time, if the determination was obtained by fraud. Id. §§ 416.1487-.1488.

The provisions of the Social Security Act authorizing and limiting judicial review read as follows:

"(g) Judicial review

Any individual, after any final decision of the Secretary made after a hearing to which he was a party ... may obtain a review of such decision by a civil action commenced within sixty days after the mailing to him of notice of such decision or within such further time as the Secretary may allow.... As part of his answer the Secretary shall file a certified copy of the transcript of the record including the evidence upon which the findings and the decision complained of are based. The court shall have power to enter, upon the pleadings and transcript of the record, a judgment affirming, modifying, or reversing the decision of the Secretary, with or without remanding the cause for a rehearing. The findings of the Secretary as to any fact, if supported by substantial evidence, shall be conclusive....

...