United States District Court, D. Connecticut
MEMORANDUM AND ORDER
MICHAEL P. SHEA, U.S.D.J.
Maria Agosto has appealed the Commissioner of Social
Security's dismissal of her application for supplemental
social security income (SSI) and disability benefits (DIB).
(ECF No. 1.) Because Agosto never obtained a final decision
from the Commissioner-her claim was dismissed because she
failed to attend her scheduled hearing-I GRANT the
Commissioner's (ECF No. 11) motion to dismiss the
complaint for lack of subject matter jurisdiction.
September 5, 2014, Agosto filed her application for DIB and
SSI. (ECF No. 11-2 at ¶ 3(a).) The Commissioner denied
Agosto's claim initially on December 29, 2014, and again
upon reconsideration on April 29, 2015. (Id. at
¶ 3(a), 6-21.) Agosto then requested a hearing with an
ALJ. (Id. at ¶ 3(b).) She was sent a notice of
hearing on May 12, 2016, which stated that a hearing on her
claim was scheduled for August 17, 2016 at 12:00 p.m.
(Id. at ¶ 3(c).) This notice stated that she
should call the New Haven, Connecticut Office of Disability
Adjudication and Review immediately if she was not able to
attend that hearing. (Id. at 33-35.) Agosto also
received a notice of hearing reminder on August 3, 2016.
(Id. at ¶ 3(c), 43.)
Agosto did not attend the August 17 hearing, and her case
therefore was dismissed without an adjudication on the
merits. On September 1, 2016, the SSA sent Agosto a request
to show cause for failure to appear at the hearing-that
notice informed Agosto that she had ten days to respond and
indicated that she should attach supporting documentation.
(ECF No. 11-2 at ¶ 3(d), 44.) On October 13, 2016, an
ALJ issued a dismissal of the request for hearing because
Agosto had failed to appeal or to show cause as to why she
did not appear. (Id. at ¶ 3(e), 46-50.) On
October 26, 2016, the New Haven office received a response
from Agosto, dated September 15, 2016, to the order to show
cause. (Id. at ¶ 3(f), 51.) The response stated
that Agosto had been in a car accident, and so she had been
unable to attend the hearing. (Id.) However, it did
not provide any supporting documentation. (Id.)
December 6, 2016, Agosto filed a request for review of the
ALJ's notice of dismissal. (ECF No. 11-2 at 53.) On
January 31, 2017, the Appeals Council denied this request.
(Id. at 54- 55.) On June 6, 2017, Agosto filed her
complaint in this Court. (ECF No. 1.) On August 2, 2017, the
Commissioner moved to dismiss for lack of subject matter
jurisdiction. (ECF No. 11.) Agosto did not file any
opposition to the Commissioner's motion.
case is properly dismissed for lack of subject matter
jurisdiction under Rule 12(b)(1) when the district court
lacks the statutory or constitutional power to adjudicate it.
. . . A plaintiff asserting subject matter jurisdiction has
the burden of proving by a preponderance of the evidence that
it exists.” Makarova v. United States, 201
F.3d 110, 113 (2d Cir. 2000). “[W]hile [I] must accept
all factual allegations in a complaint as true when
adjudicating a motion to dismiss under Fed.R.Civ.P. 12(b)(6),
. . . in adjudicating a motion to dismiss for lack of
subject-matter jurisdiction, a district court may resolve
disputed factual issues by reference to evidence outside the
pleadings, including affidavits.” State Employees
Bargaining Agent Coal. v. Rowland, 494 F.3d 71, 77 n.4
(2d Cir. 2007).
is not represented in this action, and “pleadings of a
pro se plaintiff must be read liberally and should be
interpreted to ‘raise the strongest arguments that they
suggest.'” Graham v. Henderson, 89 F.3d
75, 79 (2d Cir. 1996) (quoting Burgos v. Hopkins, 14
F.3d 787, 790 (2d Cir. 1994)). The “plaintiff's
failure to respond to a motion to dismiss does not
automatically warrant dismissal of the complaint[.]”
Gray v. Metro. Det. Ctr., No. 09-CV-4520 KAM LB,
2011 WL 2847430, at *2 (E.D.N.Y. July 15, 2011) (citing
McCall v. Pataki, 232 F.3d 321, 323 (2d Cir. 2000))
(examining the merits of the defendant's 12(b)(1) motion
to dismiss, or in the alternative for summary judgment,
before granting it, where the pro se plaintiff had failed to
respond to the motion).
U.S.C. Section 405(g)-(h) authorizes judicial review in cases
arising under Title II and Title XVI of the Social Security
Act. Section 205(g) states that a claimant may obtain review
of the Commissioner of Social Security's decision in her
case only “after a hearing to which [she] was a
party.” Section 205(h) states that “[n]o findings
of fact or decision of the Commissioner of Social Security
shall be reviewed by any person, tribunal, or governmental
agency except as provided herein.”
405(g) “clearly limits judicial review to a particular
type of agency action, a final decision of the [Commissioner]
made after a hearing.” Califano v. Sanders,
430 U.S. 99, 108 (1977) (internal citation marks omitted).
This is a jurisdictional requirement. Weinberger v.
Salfi, 422 U.S. 749, 764 (1975) (stating that this
requirement of Section 405(g) is “central to the
requisite grant of subject-matter jurisdiction”).
Although the Court of Appeals has apparently not yet
addressed the issue, district courts in the Second Circuit
have held that “where a plaintiff fails to appear at
administrative hearing . . . there was no . . . determination
of the merits by a final decision[, ]” and so
“there is nothing for the [district] court to
review.” Wolfe v. Astrue, No. 1:07-cv-0263,
2008 WL 3286188, at *1 (N.D.N.Y. Aug. 7, 2008) (internal
quotation marks omitted) (citing Hatcher v.
Barnhart, No. 06-CV-999 (JG), 2006 WL 3196849, at *3
(E.D.N.Y. Nov. 4, 2006); Plagianos v. Schweiker, 571
F.Supp. 495, 497 (S.D.N.Y. 1983); and Lesane v.
Apfel, 1999 WL 12889040, at *2 (E.D.N.Y. Nov. 17,
1999)); see also Brandyburg v. Sullivan, 959 F.2d
555, 560-62 (5th Cir. 1992). There is an exception to this
rule: federal district courts can review actions of the
Commissioner in the limited circumstance where a plaintiff
raises a “colorable” constitutional challenge to
the agency's proceedings. Califano v. Sanders,
430 U.S. 99, 109 (1977).
there was no final decision on the merits, and the
pleadings-even construed liberally in favor of Agosto-do not
suggest that the constitutional challenge exception applies.
Agosto requested an ALJ review of the Commissioner's
decision denying her SSI and DIB. (ECF No. 11-2 at ¶
3(b).) A hearing with an ALJ was scheduled, but Agosto did
not appear. (Id. at ¶¶ 3(c)-(d).) She also
did not submit a timely response to the ALJ's show-cause
order, which asked her to state why (with supporting
documentation) she had failed to attend. (Id. at
¶¶ 3(d)-(f).) Although she submitted a response
after the deadline had passed, that response did not include
any supporting documentation. (Id. at ¶ 3(f).)
Because of this failure to appear or show cause, the ALJ
entered a dismissal of her request for review. (Id.
at ¶ 3(e).) The Appeals Council then denied Agosto's
request to review the ALJ's dismissal. (Id. at
¶ 3(h).) Because the final agency decision requirement
is jurisdictional, I cannot review the dismissal either:
Section 405(g) only permits district court review of a final
decision on the merits, and, because Agosto failed to appear
for the hearing, the ALJ never made a final determination on
the merits of Agosto's case.
the pleadings do not suggest any “colorable”
constitutional challenge to the SSA's proceedings in this
case. Agosto's complaint does not indicate any
constitutional violation occurred. (See ECF No. 1.)
Further, the supporting documentation that the Commissioner
provided establishes that the Commissioner notified Agosto
twice-once on May 12, 2016 and once on August 3, 2016-about
the date and time of the hearing. (ECF No. 11-2 at ¶ 3
(c).) The Commissioner also gave Agosto ten days to show
cause as to why she had not been able to attend and then
waited a full month before dismissing Agosto's claim.
(Id. at ...