The opinion of the court was delivered by: Magistrate Judge Geraldine Soat Brown
MEMORANDUM OPINION AND ORDER
Liane P. Johnson ("Johnson") filed this case seeking review of the Social Security Administration's ("SSA") denial of her application for disability insurance benefits and supplemental security income. (Compl.) [Dkt 1.]The case did not, however, follow the usual course of Social Security appeals. Rather, the Commissioner of Social Security ("Commissioner") filed a motion to dismiss, arguing that the court has no jurisdiction because Johnson failed to exhaust her administrative remedies. ("Def.'s Mot."). [Dkt 13.] Johnson has responded to the motion ("Pl.'s Resp.") [dkt 15], and the Commissioner has replied ("Def.'s Reply.") [dkt 18].
For the reasons set out below, the Commissioner's motion is denied. The Commissioner shall file by November 28, 2012, a submission setting out any argument why this case should not be remanded for an evidentiary hearing before an Administrative Law Judge on the merits of Johnson's application.*fn1
The Commissioner's motion argues that Johnson is not entitled to judicial review of a decision the Commissioner acknowledges as "final." That is not only unfair, it is incorrect as a matter of law.
Jurisdiction over appeals from the SSA is found in 42 U.S.C. § 405(g), which provides (in relevant part):
Any individual, after any final decision of the Commissioner of Social Security made after a hearing to which he was a party, irrespective of the amount in controversy, may obtain a review of such decision by a civil action commenced within sixty days after the mailing to him of notice of such decision or within such further time as the Commissioner of Social Security may allow.
The Commissioner argues that Johnson did not exhaust her administrative remedies, that Johnson did not have a hearing before an Administrative Law Judge ("ALJ"), and that Johnson therefore did not obtain a judicially reviewable decision after a hearing. (Def.'s Mot. at 6, 7.)
The sequence of events is critical to the motion. Most of the history is undisputed, but the parties have differing interpretations of certain events.
Johnson, proceeding pro se, filed an application for benefits, on April 12, 2010, which was denied initially and on reconsideration. (Def.'s Mot., Decl. of Robert Weigel ¶ 3 (a).) [Dkt 13-1].*fn2
On December 28, 2010, she filed a request for hearing by an ALJ. (Id.) On April 4, 2011, the ALJ sent Johnson a Notice of Hearing, setting the hearing for June 1, 2011. (Id. at 16-22.) The notice said (in part):
If you do not come to the hearing and I do not find that you have a good reason, I may dismiss your request for hearing. I may do so without giving you further notice.
Please complete and return the enclosed acknowledgment form within 5 days of the date you receive this notice.
If you cannot come to your hearing at the time and place I have set, please call this office immediately. Also, please mail the ...