The opinion of the court was delivered by: GLASSER
GLASSER, United States District Judge:
Defendant has moved to dismiss this action -- an appeal from the termination of disability benefits -- for lack of subject matter jurisdiction under Rule 12(b)(1) of the Federal Rules of Civil Procedure (FRCP). Sepcifically, defendant argues that since plaintiff never received a hearing before an Administrative Law Judge (ALJ), he cannot appeal to this Court for relief. For the reasons set forth herein, defendant's motion is denied and the case is remanded to the ALJ for further proceedings.
On May 27, 1982, the Social Security Administrtion (SSA) sent plaintiff a notice that his Supplemental Security Income payments were being terminated. Plaintiff received this notice and timely requested a hearing before an ALJ. On July 2, 1982, the ALJ sent plaintiff a notice that a hearing on his claim would be held on August 4, 1982. Plaintiff failed to appear at the hearing or to give any notice or explanation for his nonappearance. Pursuant to 20 CFR 416.1457(b)
he was sent, by certified mail, a "Notice To Show Cause" by August 19, 1982 why his request for a hearing should not be dismissed for failure to appear. On August 30, 1982, following plaintiff's failure to respond to this Notice, the ALJ issued an order dismissing plaintiff's request for a hearing. The three notices and the Order of Dismissal were all mailed to plaintiff's address at 80 Monument Walk, Brooklyn, New York, 11205.
Plaintiff timely appealed the dismissal to the Appeals Council, but his request for review was denied on November 8, 1982. In his present appeal to this Court, plaintiff alleges that although he received notification of the termination of his benefits and of the Order of Dismissal, he did not receive the two notices regarding the hearing date. He further alleges that the signature on the receipt for the certified mail is not his signature. Plaintiff attributes this alleged breakdown in communications to the SSA's omission of the apartment number from plaintiff's address. Plaintiff alleged at oral argument that he often fails to receive mail that is not specifically addressed to his apartment, and that for this reason he had requested the Social Security Office to hold all his mail for pick up.
42 U.S.C. § 405(g) provides that district courts shall review "a final decision of the Secretary made after a hearing to which [the plaintiff] was a party. . . ." That this provision is exclusive of other bases of review is suggested by 42 U.S.C. § 405(h), which states tht "[n]o findings of fact or decision of the Secretary shall be reviewed by any person except as herein provided." Since in the present case the decision of the Secretary was not made after a hearing to which [the plaintiff] was a party, if is defendant's position that there has been no "final decision" to serve as a jurisdictional predicate for district court review.
Defendant claims support for her interpretation of the Act from Sanders v. Califano, 430 U.S. 99, 51 L. Ed. 2d 192, 97 S. Ct. 980 (1977), and Latona v. Schweiker, 707 F.2d 79 (2d Cir. 1982). In Sanders, the Supreme Court held that § 405(g) did not grant a district court jurisdiction to review the Secretary's denial of a claimant's application to reopen a claim where a final decision denying benefits after a hearing to which the plaintiff was a party had been entered several years earlier. The Court reasoned that granting jurisdiction "would frustrate the congressional purpose . . . to impose a 60-day limitation upon judicial review of the Secretary's final decision on the initial claim for benefits." 430 U.S. at 108. In Latona, the plaintiff, also seeking to reopen a prior final decision denying him benefits after a hearing to which he was a party, sought to distinguish Sanders because the Secretary did grant Latona a second hearing before deciding not to reopen the case. The Second Circuit found, however, that Sanders limited district court jurisdiction under § 405(g) to the review of decisions that are required to be preceded by a hearing. 707 F.2d at 81 (citing Sanders, supra).
Prior to the Second Circuit's decision in Latona, but after Sanders, the courts of this district have asserted jurisdiction in cases almost identical to the one here. In Rodriguez v. Harris, 80 Civ. 1102 (E.D.N.Y., July 6, 1981), plaintiff appealed from the Secretary's dismissal of her action, offering proof that she was visiting a sick brother at the time notice of hearing and the Notice To Show Cause were sent to her. In response to the Secretary's contention that the district court did not have jurisdiction to review the Secretary's determination because of the absence of a final decision made after a hearing, Judge Nickerson reasoned that "Congress could hardly have intended to have accorded a claimant judicial review when his right to a hearing is respected but to have withheld review when that right was denied." Id., slip op. at 4.The court therefore concluded that it had jurisdiction to review the dismissal of plaintiff's claim. Finding that the ALJ was aware of the reason for the claimant's absence and that good cause was shown to the ALJ for failing to appear at the hearing, see infra not 2, Judge Nickerson ordered the case remanded for scheduling of a de novo hearing. Rodriguez was cited favorably in Granda v. Schweiker, 81 Civ. 3715 (E.D.N.Y. March 26, 1982), where Judge McLaughlin reached the same result under similar circumstances.
Additional grounds for the assertion of jurisdiction were cited by this Court in Bellantoni v. Schweiker, 566 F. Supp. 313 E.D.N.Y. 1983). In Bellantoni, the plaintiff failed to appeal the denial of his disability benefits within 60 days afte receiving notice of the Appeals Council decision, allegedly because he never received such notice. This court found that "while there is as yet no reviewable final decision of the Secretary on the issue of the claimant's disability, there is at this time a final decision of the Secretary on the question of whether the plaintiff's request for Appeals Council review was timely. This decision is reviewable under 42 U.S.C. § 405(g), since it represents a final decision of the Secretary on this issue." Id. at 315.
In reaching this result, I distinguish Sanders on two grounds. First, I noted that Sanders was premised on a concern with frustrating the congressional purpose "to impose a 60-day limitation upon judicial review of the Secretary's final decision on the initial claim for benefits." Sanders, supra, 430 U.S. at 108. "Since the claimant [in Bellantoni ] had not received a final decision of the Secretary on the merits of his disability claim so as to permit him to file a timely request for review," I reasoned that "this policy factor underlying the Sanders decision is not present." 566 F. Supp. at 315 n.3. Secondly, I noted that "unlike Sanders, precluding review here would mean that the claimant has been completely deprived of any access to judicial review of the agency's denial of his claim." Id. The claimant in Sanders had been given an opportunity for judicial review but had failed to utilize it.
Having asserted jurisdiction in Bellantoni for the narrow purpose described above, I determined that since the Secretary did not conduct any hearing on the issue of "good cause," the dismissal of the claim was not supported by substantial evidence. Id. at 315. While I indicated that I found claimant's explanation to be entirely credible and would constitute "good cause," I remanded the case to the Secretary because the issue of credibility was his to resolve. Id.4
I find that the views expressed in Bellantoni as to both the jurisdictional and remedial issues are as applicable here in distinguishing Latona as they were in distinguishing Sanders. By reviewing the decision to dismiss plaintiff's case without a hearing, this Court does not in any way permit plaintiff to circumvent any procedural steps required by the Act or its regulations. Moreover, if the exercise of the limited scope of jurisdiction asserted in Bellantoni were withheld, claimant would here be denied access to any judicial review of the dismissal of his claim.
Accordingly, I have reviewed plaintiff's asserted explanation for missing his hearing and the deadline for responding to the "Notice To Show Cause," and am now directing the ALJ to accord claimant an opportunity to substantiate his explanation at the agency level. To hold otherwise would be effectively to nullify the purpose of the ten day "Notice To Show Cause" in Mr. Crumble's case, since it would deny any opportunity, on notice, to provide an explanation for his failure to appear for a hearing on August 4, 1982.This order will serve to restore ...