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Davenport v. Astrue

May 28, 2010

LOUISE DAVENPORT, PLAINTIFF,
v.
MICHAEL J. ASTRUE, COMMISSIONER OF SOCIAL SECURITY, DEFENDANT.



The opinion of the court was delivered by: George M. Marovich United States District Judge

Judge George M. Marovich

MEMORANDUM OPINION AND ORDER

Plaintiff Louise Davenport ("Davenport"), who has been seeking Social Security disability benefits for years, filed a complaint to challenge a decision of the Social Security Administration. Defendant moves to dismiss the complaint for lack of subject matter jurisdiction.

I. Background

This is the fourth time Davenport has filed a federal complaint in an attempt to obtain Social Security disability benefits. The first time Davenport filed a complaint, the district court, in February 2005, remanded her case to the Commissioner so that the Administrative Law Judge could reconsider the evidence. The second and third times Davenport filed federal complaints, her complaints were dismissed for lack of jurisdiction, because Davenport had failed to exhaust her administrative remedies. Believing she now has a final order, Davenport has again filed a federal complaint.

In 2005, after the case was remanded to the Commissioner, The Appeals Council vacated the decision of the ALJ and remanded the case to an ALJ for a hearing. The Social Security Administration sent Davenport a letter, which stated that Davenport could send in additional evidence that she wanted considered at her hearing. On September 1, 2005, ALJ Edwin Shinitzky ("ALJ Shinitzky") sent Davenport a letter informing her that she needed to attend a consultative examination so that he could evaluate her claim. Based on ALJ Shinitzky's request, the SSA scheduled Davenport for consultative examinations with three specialists. Davenport failed to attend and failed to reschedule the appointments, because she thought they were unnecessary and because she thought they were evidence of bias against her.

Notwithstanding Davenport's failure to attend the appointments, ALJ Shinitzky notified Davenport that he would conduct her hearing on May 3, 2006 at 2:45. Davenport attended, but the hearing did not happen. Davenport says ALJ Shinitzky told her that her case should be heard by Cynthia Bretthauer ("ALJ Bretthauer"), the ALJ who had originally heard Davenport's application for benefits.

A year later, on May 11, 2007, ALJ Bretthauer sent Davenport notice that ALJ Bretthauer would conduct a hearing on Davenport's case on June 5, 2007 at 11:30 a.m. Among other things, the notice stated:

I have set aside this time to hear your case. If you do not appear at the hearing and I do not find that you have good cause for failing to appear, I may dismiss your request for hearing. I may do so without giving you further notice. (Ad.Rec. at 367). Davenport did not attend. As she said in her brief, "I refused to attend the 2007 hearing--because this biased ALJ was presiding over it."

On June 8, 2007, ALJ Bretthauer sent Davenport a "Notice to Show Cause for Failure to Appear" at the hearing. Among other things, the notice stated that Davenport must, by June 22, 2007, provide a written statement of a good reason why Davenport missed the hearing. The notice also stated that if Davenport failed to show good cause, the ALJ would dismiss her request for hearing. Davenport sent ALJ Bretthauer a letter dated June 22, 2007. The letter did not state why Davenport did not attend the hearing. Rather, the letter stated reasons why Davenport believed ALJ Bretthauer to be unfair.

On July 16, 2007, ALJ Bretthauer entered an order of dismissal, thereby dismissing Davenport's request for hearing. Among other things, ALJ Bretthauer stated that she had found "no good cause for the claimant's failure to appear at the time and place of hearing." On or about September 15, 2007, Davenport filed a request with the Appeals Council for review of ALJ Bretthauer's decision to dismiss her request for hearing. On June 18, 2008, the Appeals Council denied the request for review. Davenport was not given notice of the Appeals Council's denial until July 12, 2009, and she filed her complaint with this court within sixty days thereafter.

The defendant moves to dismiss for lack of subject matter jurisdiction. For the reasons set forth below, the Court grants the motion.

II. Standard on a Motion to Dismiss

In considering whether to dismiss a case pursuant to Rule 12(b)(1) for lack of subject matter jurisdiction, a district court "may properly look beyond the jurisdictional allegations of the complaint and view whatever evidence has been submitted on the issue to determine whether in fact subject matter jurisdiction exists." Capitol Leasing Co. v. Federal Deposit Ins. Corp., 999 F.2d 188, 191 (7th Cir. 1993) (quoting Grafon Corp. v. Hausermann, 602 F.2d 781, 783 (7th ...


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