Harvey v. Colvin
| Decision Date | 01 July 2015 |
| Docket Number | Civil Action No. 13-1957 (RMC) (DAR) |
| Parties | OMAR HARVEY, Plaintiff, v. CAROLYN W. COLVIN, Acting Commissioner of Social Security, Defendant. |
| Court | U.S. District Court — District of Columbia |
Plaintiff Omar Harvey alleges that Defendant Carolyn Colvin, Acting Commissioner of Social Security, violated his due process rights at a hearing for reconsideration of the denial of his Social Security Benefits. The Commissioner moved to dismiss Mr. Harvey's suit for failure to exhaust his administrative remedies. The case was referred to Magistrate Judge Deborah A. Robinson, who recommended denial of the motion to dismiss. The Court concurs with the recommendation, albeit by way of a different analysis. The Court will adopt in part the Magistrate Judge's Report and Recommendation and will deny the Commissioner's motion to dismiss.
In 2010, Omar Harvey was assaulted by a baseball bat and his right leg bone was split in half. Am. Compl. [Dkt. 12] ¶ 39. Since the attack, he has had two leg surgeries and now walks with a cane. Id. Mr. Harvey applied for Social Security Disability Insurance benefits and Supplemental Security Income benefits in February 2011. Id. ¶ 41. The Social Security Administration (SSA) denied his application on April 21, 2011. Id. Mr. Harvey requestedreconsideration, which was denied, and he then requested a hearing before an Administrative Law Judge (ALJ). Id. ¶¶ 41-42.
The hearing took place on January 28, 2013 before ALJ Guy B. Arthur. Id. ¶ 42. Mr. Harvey was represented by Ellie Saadat, whom he had never met prior to the hearing. Id. ¶¶ 43-44. Mr. Harvey alleges that when he arrived at the hearing, he was asked to wait outside the room while the ALJ and Ms. Saadat spoke privately. Id. ¶ 45. When the hearing began,1 Ms. Saadat and the ALJ spoke about the background of Mr. Harvey's case, including his level of education, his work history, his injuries, and the fact that Mr. Harvey only had certain medical records. See Certified Transcript of Hearing Proceedings (Tr.) [Dkt. 14-3] at 1-3. The ALJ then stated that the hearing could go "off the record just for a minute." Id. at 3. There is no record of what was discussed between Ms. Saadat and the ALJ at that time. Id.
Mr. Harvey alleges that before the hearing went back on the record, Ms. Saadat "came out of the hearing room and told Mr. Harvey that the ALJ stated that there were insufficient medical records from the year preceding the hearing (2012-2013) to rule in Mr. Harvey's favor" and that "the ALJ had advised that the best course of action would be to withdraw his hearing request." Am. Compl. ¶¶ 48-49. Apparently, after that conversation, Mr.Harvey and Ms. Saadat then went back in the hearing room and an off the record "discussion then took place between the ALJ, Ms. Saadat, and Mr. Harvey." Id. ¶ 50.2
Mr. Harvey alleges that the ALJ stated there was insufficient medical evidence to rule for Mr. Harvey. Am. Compl. ¶¶ 52. The ALJ told Mr. Harvey that "the best course of action would be to withdraw his hearing request" and explained that "if Mr. Harvey withdrew his hearing request, he would have the opportunity for a new hearing where he could present more medical records." Id. ¶¶ 57-58. According to Mr. Harvey, the ALJ did not ask him whether he had records from the 2012-2013 time period or suggest that he get medical records from that time. Id. ¶¶ 53-54. Nor did the ALJ ask Mr. Harvey questions about his medical conditions, his symptoms, or his medical treatment.3 Id. ¶ 55.
When the hearing went back on the record, the ALJ did not make any reference to what had transpired off the record, but noted that he had before him a motion "tendered by counsel to withdraw the current hearing request." Tr. at 3-4. Mr. Harvey's motion to withdraw his hearing request is a one page document that contains no statement of the reasons for withdrawing the request. See Am. Compl., Ex. B [Dkt. 12-2] (Withdrawal of Hearing Request).
The ALJ asked Mr. Harvey whether he made his motion to withdraw "voluntarily and without coercion" and whether he understood the legal consequences. Tr. at 4. The transcript reveals that Mr. Harvey replied "Yes (INAUDIBLE)." Id.
The ALJ continued:
[T]his does not preclude you from, in the future, going ahead and filing. In fact, if once you receive my decision you could immediately, you know, through counsel turn around and file a new application using Dr. Robie's statement, and any other evidence that you might have. And what you want to do is build a medical record for yourself, sir, so that there's documentation. Any judge looking at it has to find a 12-month continuous period of time medically documented. And, you know, your attorney has been arguing your case, but she can only do the best she can within the record that's provided to her, all right?
Tr. at 4. After that, the hearing was concluded. Id. at 4-5.
The next day, January 29, 2013, the ALJ issued a notice and order dismissing Mr. Harvey's hearing request. See Am. Compl., Ex. C [Dkt. 12-3] (Notice and Order of Dismissal). Mr. Harvey subsequently received a letter from Ms. Saadat's office stating that he was no longer represented. Am. Compl. ¶ 77. Mr. Harvey filed a pro se request for review of the dismissal of his hearing request and his request was denied by the SSA Appeals Council on August 9, 2013. See Am. Compl., Ex. D [Dkt. 12-4] (Notice of Appeal Council Action).
SSA issues policy guidelines regarding claims for benefits in its Hearings. See Appeals and Litigation Law Manual (HALLEX) and the Program Operations Manual System (POMS).4 The POMS states that withdrawal of hearing requests made in writing or orally must include a statement of reasons for requesting withdrawal, and a statement that the claimant understands the effect of the request. POMS SI 04030.020.A(4)(a). The POMS gives the ALJauthority to refuse to approve a withdrawal request if the ALJ "believes that the appellant did not understand the consequences of a withdrawal." Id. at (4)(b).
The HALLEX Manual "communicates . . . guiding principles and procedures" to the staff of the Office of Disability Adjudication and Review (ODAR) staff, including "adjudicators. i.e., administrative law judges." HALLEX 1-1-0-3. It requires that, before an ALJ can dismiss a request for a hearing following a claimant's voluntary withdrawal, the "record [must] show[ ] that the claimant understands the effects of withdrawal (i.e., that the ALJ will dismiss the [hearing request] and the dismissal will be binding unless it is vacated by the ALJ or the Appeals Council)." Id. at I-2-4-20(A)(2).
SSA regulations require an ALJ to "make a complete record of the hearing proceedings." 20 C.F.R. §§ 404.951, 416.1451. The HALLEX manual further provides that HALLEX 1-2-640.
Mr. Harvey filed a Complaint in this Court on December 9, 2013, and amended his Complaint on March 23, 2014. In the Amended Complaint, Mr. Harvey alleges that the ALJ violated his right to due process; specifically, he claims that the ALJ deprived him of meaningful notice and the opportunity to be heard; failed to comply with his duty to inquire fully into all relevant facts and medical evidence in Mr. Harvey's case before suggesting that he withdraw his hearing request; gave him inaccurate information and failed to apprise him adequately of the consequences of withdrawing his hearing request; and allowed substantive conversations about the merits of his case to occur outside his presence and with the hearing recording turned off (therebymaking judicial review impossible). Am. Compl. ¶ 85. Mr. Harvey further alleges that the ALJ violated specific SSA regulations by (1) dismissing Mr. Harvey's hearing request without ensuring that the record reflected that Mr. Harvey understood the consequences of doing so; (2) failing to obtain a statement from Mr. Harvey, orally or in writing, about why he wished to withdraw his hearing request; and (3) failing to record or summarize all discussions that took place during Mr. Harvey's hearing. Id. ¶¶ 87-89. In support of his Amended Complaint, Mr. Harvey attached four exhibits: (1) an informal hearing transcript, prepared by counsel based on the recording of the hearing provided by the Social Security Administration; (2) Mr. Harvey's signed "Withdrawal of Hearing Request" form; (3) SSA's Notice of Dismissal of Mr. Harvey's request for a hearing; and (4) SSA's Notice of Appeals Council Action, denying Mr. Harvey's request for review of the dismissal of his request for a hearing.
In response, the Commissioner moved to dismiss Mr. Harvey's Amended Complaint on the ground that he had not exhausted his administrative remedies. See Mot. to Dismiss [Dkt. 13]; Mem. in Support of Def. Mot. to Dismiss (Def. Mem.) [Dkt. 14] at 1.5 The Commissioner further argued that Mr. Harvey had not alleged any permissible basis for waiver of the exhaustion requirement, such as "where the plaintiff raises a challenge wholly collateral to his claim for benefits and makes a colorable showing that his injury could not be remedied by the retroactive payment of benefits." Def. Mem. at 5-6. The Commissioner insisted that Mr. Harvey was not deprived of meaningful notice, that he was represented by an attorney, that he voluntarily requested the dismissal, and confirmed he understood the legal consequences of thedismissal. Id. at 6-8. Mr. Harvey opposed the motion to dismiss, arguing that because he had presented a colorable constitutional claim that the ALJ denied him a hearing in violation of his due process rights, the exhaustion requirements should be...
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