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July 23, 2003


The opinion of the court was delivered by: James Francis, Magistrate Judge


The plaintiff, Marina Urena, brings this action pro se pursuant to 42 U.S.C. § 405(g), seeking judicial review of a determination of the Commissioner of the Social Security Administration (the "Commissioner") that dismissed the plaintiff's request for a hearing on a claim for Supplemental Security Income ("SSI") benefits. The Commissioner has filed a motion to dismiss pursuant to Rule (12) (b)(1) of the Federal Rules of Civil Procedure, claiming that the district court lacks subject matter jurisdiction.

For the reasons stated below, I recommend that the motion be granted.


Marina Urena filed a claim for disability benefits in September 1997. (Declaration of Yvonne K. Speights dated April 16, 2003 ("Speights Decl."), Exh. 1).*fn1 The Social Security Administration (the "SSA") denied both the plaintiff's initial application and her subsequent request for reconsideration. (Speights Decl., Exh. 2). In March 1998, pursuant to the SSA's guidelines, Ms. Urena requested a hearing before an Administrative Law Judge ("ALJ") challenging the SSA's determination. (Speights Decl., Exh. 5). In her application, the plaintiff indicated her mailing address as 2724 University Ave, Apt. 4D, Bronx, New York, 10468. (Speights Decl., Exh. 5). On September 15, the SSA sent the plaintiff a Hearing Notice informing her that a hearing was scheduled for October 7, 1998. This notice of hearing was sent to Ms. Urena's Bronx address. (Speights Decl., Exh. 6).

When the plaintiff failed to attend the hearing, the ALJ issued a notice directing her to provide a written statement detailing her reasons for not appearing if she wished to be eligible for another hearing. (Notice to Show Cause for Failure to Appear dated October 7, 1998 ("10/7/98 Notice to Show Cause"), attached as Exh. 8 to Speights Decl.). This notice was sent to Ms. Urena at the same address. (10/7/98 Notice to Show Cause). The plaintiff never contacted the hearing officer to explain her failure to appear, and consequently, on December 21, 1998, the ALJ issued an order of dismissal which was mailed to the plaintiff's Bronx address. (Notice of Dismissal, attached as Exh. 9 to Speights Decl.). Ms. Urena apparently did receive this notice because on January 25, 1999 she filed a request for review of the order of dismissal. (Request for Review of Hearing Decision/Order, attached as Exh. 10 to Speights Decl.).

On May 4, 2000, a hearing was held before an ALJ to determine whether the plaintiff could demonstrate good cause for her failure to attend the hearing originally scheduled for October 7, 1998. At that hearing, the plaintiff testified that she never received notice of the October 7, 1998 hearing because she had moved from the Bronx to Manhattan in late July. (Tr. 4-5).*fn2 The plaintiff further testified that she had advised the Bronx Social Security Office of an address change in August 1998, and she also believed that changing her address with the post office would automatically result in notification to the Office of Hearings and Appeals. (Tr. at 7). The ALJ advised the plaintiff to submit documents to corroborate her testimony, including any communication received from the Bronx Social Security Office confirming that she did provide notice of her address change. (Tr. at 15). The day after the administrative hearing, the plaintiff went to the SSA office and obtained a receipt that stated that she had been residing at "1405 Park Avenue, N.Y., 10029 since August 1998" and submitted this document to the Office and Hearings and Appeals. (Speights Decl., Exh. 15).

On May 26, 2000, the ALJ issued an Order of Dismissal and denied the plaintiff's request for a hearing on the merits of her SSI application. (Notice of Dismissal, dated May 26, 2000 ("5/26/00 Notice of Dismissal"), attached as Exh. 16 to Speights Decl.). In the order, the ALJ stated that the plaintiff had failed to provide any corroborating evidence that she notified her local SSI office of her change of address prior to the date that she contacted the Office of Hearings and Appeals in response to the dismissal of her hearing request. (5/26/00 Notice of Dismissal at 6). The ALJ further noted that the post-hearing documentation submitted by the plaintiff did not confirm that Ms. Urena had notified the SSA office of her change of address before she received notice of dismissal. (5/26/00 Notice of Dismissal at 6) .

On July 25, 2000, the plaintiff requested that the Office of Hearings and Appeals review the 5/26/00 Order of Dismissal. (Request for Review of Hearing Decision/Order dated July 25, 2000, attached as Exh. 17 to Speights Decl.). In her request, the plaintiff claimed that the ALJ (1) "failed to make specific findings of credibility in accordance with relevant Social Security case law" and (2) did not consider whether the plaintiff established good cause for not notifying the SSA of her address change. (Request for Review of Hearing Decision/Order at 2, 3).

On July 19,2002, the Appeals Council denied the plaintiffs's request for review. (Action of Appeals Council on Request for Review of Dismissal dated July 19, 2002, attached as Exh. 18 to Speights Decl.). The plaintiff then filed this action.


42 U.S.C. § 405(g) provides for limited judicial review of final decisions of the Commissioner. See 42 U.S.C. § 405(g). That section states, in pertinent part, that "[a]ny individual, after any final decision of the Commissioner of Social Security made after a hearing to which he was a party . . . may obtain review of such decision" in a "district court of the United States." Id. "[The Second Circuit] has interpreted Section 405(g) to confer jurisdiction only to review the SSA's merit-based decisions following actual hearings, not SSA's procedural decisions reached without a hearing." Tineo v. Barnhart, No. 01 Civ. 11636, 2002 WL 31163889, at *2 (S.D.N.Y. Sept. 30, 2002) (citing Dietsch v. Schweiker, 700 F.2d 865, 867 (2d Cir. 1983) (stating that a SSA Appeals Council dismissal predicated on a procedural default "is not reviewable by the district court because it is not a `final decision' under § 405(g)"). Therefore, when a plaintiff's claim is "dismissed on the procedural ground of failure to appear, she cannot invoke Section 405(g) jurisdiction" to review the decision. Tineo, 2002 WL 31163889, at *2 (citing Dietsch, 700 F.2d at 867). _____ Here, although Ms. Urena did have a hearing before a ALJ, it was not a hearing addressing the merits of her SSI application. Rather, the hearing focused on whether Ms. Urena could demonstrate good cause for her failure to attend the first scheduled hearing. Ultimately, the ALJ determined that she did not establish good cause and therefore dismissed her request for a hearing on the merits. This dismissal is final and binding unless it is vacated either by the ALJ or by the Appeals Council. 20 C.F.R. § 416.1459. _____ While there are certain situations where a federal court may review a claim that has not been adjudicated on the merits, none of those circumstances is applicable here. For example, courts have dispensed with the requirement of a final hearing when the plaintiff can demonstrate that her due process rights were violated because she never had a meaningful opportunity to be heard. See Califano v. Sanders, 430 U.S. 99, 109 (1977) (noting the "well-established principle that when constitutional questions are in issue, the availability of judicial review is presumed" under Section 405(g)); Dixon v. Chater, 954 F. Supp. 58, 60 (E.D.N.Y. 1997) (in the absence of final decision on the merits after a hearing, a district court can retain jurisdiction where plaintiff asserts a "colorable constitutional claim"); Scott v. Commissioner of Social Security Administration, No. 5:02 Civ. 581, 2002 WL 31164581, at *4 (N.D.N.Y. Sept. 30, 2002) (noting that Section 405(g)'s exhaustion requirement may be waived when plaintiff makes a colorable constitutional claim). Alternatively, a court may exercise mandamus jurisdiction under 28 U.S.C. § 1361 and review a social security claim not adjudicated after a hearing on the merits if the plaintiff demonstrates that (1) she has a right to have the act at issue performed, (2) the defendant is under a clear non-discretionary duty to perform that act, and (3) the plaintiff has exhausted all other avenues of relief. See City of New York v. Heckler, 742 F.2d 729, 739 (2d Cir. 1984); Rivera v. Apfel, No. 01 Civ. 0752, 2001 WL 699065, at *3 (S.D.N.Y. June 21, 2001). Here, the plaintiff does not allege that her constitutional rights were violated or that the prerequisites for mandamus jurisdiction have been met. Thus, since the plaintiff never obtained a final determination on the merits of her application, she is precluded from obtaining judicial review.


For the reasons set forth above, I recommend that the defendant's motion be granted and the complaint be dismissed. Pursuant to 28 U.S.C. ยง 636 (b)(1) and Rules 72, 6(a), and 6(e) of the Federal Rules of Civil Procedure, the parties shall have ten (10) days to file written objections to this report and recommendation. Such objections shall be filed with the Clerk of the Court, with extra copies delivered to the chambers of the Honorable Deborah A. Batts, Room 2510, and to the chambers of the ...

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