Louise Davenport v. Michael Astrue

NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with
Fed. R. App. P. 32.1
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted March 30, 2011*
Decided March 30, 2011
Before
WILLIAM J. BAUER, Circuit Judge
RICHARD A. POSNER, Circuit Judge
ANN CLAIRE WILLIAMS, Circuit Judge
No. 10-2789
LOUISE DAVENPORT, Appeal from the United States District
Plaintiff-Appellant, Court for the Northern District of Illinois,
Eastern Division.
v.
No. 09 C 4952
MICHAEL J. ASTRUE,
Commissioner of Social Security, George M. Marovich,
Defendant-Appellee. Judge.
ORDER
Louise Davenport appeals the district court’s dismissal of her complaint challenging
the Commissioner’s denial of Social Security disability insurance benefits without a
hearing. The court ruled that there was no subject-matter jurisdiction because her case
lacked a “final decision of the Commissioner of Social Security made after a hearing,” see
42 U.S.C. § 405(g). We affirm, though on slightly different grounds.
*
After examining the briefs and the record, we have concluded that oral argument is
unnecessary. Thus, the appeal is submitted on the briefs and the record. See FED. R. A PP. P.
34(a)(2)(C).
No. 10-2789 Page 2
Davenport is a 45-year-old woman who claims to have suffered since 1998 from a
number of maladies, including various organ diseases, arthritis, diabetes, headaches,
dizziness, nausea, and fatigue. In 2001 she applied for disability insurance benefits and
supplemental security income. ALJ Cynthia Bretthauer denied Davenport’s claims, but a
district court remanded the case after finding that Bretthauer had committed numerous
errors in developing and evaluating the record.
On remand the Appeals Council sent Davenport’s case to ALJ Edwin Shinitzky for a
hearing. Shinitzky scheduled several consultative examinations for Davenport and sent the
case back to Bretthauer. Davenport protested going back to Bretthauer, having already filed
with the agency an “Unfair Treatment Complaint” of bias against her. She also refused to
take the scheduled consultative examinations, which she considered unnecessary.
Bretthauer sent Davenport notice of a hearing scheduled for June 2007. Davenport
never responded to this notice and did not appear at the hearing. Bretthauer followed up
with a Notice to Show Cause for Failure to Appear, which explained that Davenport
needed to submit a written statement setting forth a “good reason” (as defined in 20 C.F.R.
§§ 404.957(b)(2), 416.1457(b)(2)) for not attending the hearing to avoid dismissal. Davenport
responded that Bretthauer was biased and requested her removal from the case. One
month later Bretthauer dismissed Davenport’s request for a hearing and denied her
disability claims. She explained that Davenport provided no good reason for failing to
attend the hearing and did not attend several consultative examinations scheduled for her.
Davenport requested review of this dismissal, but the Appeals Council denied the request.
Davenport then timely filed a federal complaint against the agency within 60 days of
receiving the Appeals Council decision. She argued that the agency violated due process by
(1) disregarding procedures outlined in its brochure titled “How to File an Unfair
Treatment Complaint”; (2) ignoring procedures contained in the Commissioner of Social
Security's “Hearings, Appeals and Litigation Law Manual” (commonly referred to as the
“HALLEX”); and (3) permitting Bretthauer to oversee her case. The district court granted
the Commissioner’s motion to dismiss, believing that it lacked subject-matter jurisdiction
over Davenport’s complaint because her administrative claims never resulted in a “final
decision of the Commissioner of Social Security made after a hearing,” see 42 U.S.C.
§ 405(g), and because her allegation of bias did not state a colorable due-process claim.
On appeal Davenport argues that she received a “final” administrative decision
when the Appeals Council denied her request for review of Bretthauer’s dismissal of her
request for a hearing. (In her reply brief Davenport says that she “gives up on the final
decision argument,” but we don’t interpret this as abandonment; rather, we think that she
is conveying her difficulty understanding the agency’s position on the issue.)
No. 10-2789 Page 3
Judicial review of decisions of the Social Security Administration is authorized by
42 U.S.C. § 405(g). That section “clearly limits judicial review to a particular type of agency
action, a ‘final decision of the Secretary made after a hearing.’” Califano v. Sanders, 430 U.S.
99, 108 (1977) (quoting 42 U.S.C. § 405(g)). In Davenport’s case, no hearing occurred; she
concedes that she “refused to attend” the June 2007 hearing before Bretthauer. By refusing
to attend, Davenport “waived [her] opportunity for a hearing and failed to exhaust the
administrative remedy upon which judicial review depends.” Hoye v. Sullivan, 985 F.2d 990,
991 (9th Cir. 1992); see also Subia v. Comm’r of Soc. Sec., 264 F.3d 899, 902 (9th Cir. 2001);
Brandyburg v. Sullivan, 959 F.2d 555, 557-62 (5th Cir. 1992); Doe v. Sec. of Health and Human
Servs., 744 F.2d 3, 4 (1st Cir. 1984) (per curiam). Federal courts typically decline to review
unexhausted claims. See, e.g., Porter v. Nussle, 534 U.S. 516, 523-25 (2002) (exhaustion
required by the Prison Litigation Reform Act, 42 U.S.C. § 1997e(a)); Alvarado-Fonseca v.
Holder, 631 F.3d 385, 391 (7th Cir. 2011) (exhaustion required in the immigration context
under 8 U.S.C. § 1252(d)(1)); Socha v. Pollard, 621 F.3d 667, 671 (7th Cir. 2010) (exhaustion
required in the habeas corpus context under 28 U.S.C § 2254(b)(1)(A)).
Although some of the Social Security decisions affirming dismissals in no-hearing
cases cite a lack of subject-matter jurisdiction, their reasoning suggests only a failure to
exhaust because courts may “waive” the hearing requirement if the claimant establishes
that the agency was enforcing it unconstitutionally, Subia, 264 F.3d at 902; see also Califano,
430 U.S. at 109; Mathews v. Eldridge, 424 U.S. 319, 331-32 (1976). Davenport advanced three
arguments before the district court to excuse her failure to exhaust. The court addressed
only her contention that Bretthauer’s bias violated due process; it passed over her two
other arguments that the agency violated due process by disregarding procedures
contained in the “Unfair Treatment Complaint” brochure and in the HALLEX. We may
resolve these issues here if their resolution is straightforward. See Singleton v. Wulff, 428 U.S.
106, 121 (1976). Because Davenport preserved and briefed these claims on appeal and
because we can readily conclude that they are meritless, “it is in the interest of judicial
economy that we address” them. See Kaczmarek v. Rednour, 627 F.3d 586, 595 (7th Cir. 2010).
Due process requires that a Social Security disability claimant be offered a “full and
fair” hearing. Ventura v. Shalala, 55 F.3d 900, 902 (3d Cir. 1995); see Richardson v. Perales, 402
U.S. 389, 401-02 (1971). This standard is violated if a claimant is not offered a chance to
present evidence or where the ALJ exhibits bias or animus against the claimant during a
hearing. See United States v. Thouvenot, Wade & Moerschen, Inc., 596 F.3d 378, 386 (7th Cir.
2010); Ventura, 55 F.3d at 902-03. Davenport does not deny that she had a chance to attend
her hearing and present evidence. Rather, she contends that, in previously ruling against
her, Bretthauer was biased because she failed to “fully develop the record with evidence
from treating sources,” she gave credence to an allegedly fraudulent consultative
No. 10-2789 Page 4
examination report, and she “ignored” evidence of disability on the record. But “[b]ias
cannot be inferred from a mere pattern of rulings by a judicial officer; it requires evidence
that the officer had it in for the party for reasons unrelated to the officer’s view of the law.”
Keith v. Barnhart, 473 F.3d 782, 789 (7th Cir. 2007); see Marozsan v. United States, 90 F.3d 1284,
1290 (7th Cir. 1996) (“[J]udicial rulings alone almost never constitute valid basis for a bias
or partiality motion.”). Nothing in the record shows that ALJ Bretthauer had any “personal
enmity” toward Davenport that would violate due process. See Hoye, 985 F.2d at 992. Her
refusal to attend her hearing and exhaust is therefore not excused.
Davenport nonetheless contends that we should excuse her refusal to attend
because the agency violated due process by ignoring procedures in the “Unfair Treatment
Complaint” brochure. Davenport says that the brochure “promise[d]” that “a new ALJ
[will] preside over the hearing if the claimant felt the ALJ could not be fair.” But an
agency’s brochure does not itself create a due-process command; the brochure is a
nonbinding, informal policy statement that the agency can alter at will as it was not
adopted through rulemaking procedures. See Schweiker v. Hansen, 450 U.S. 785, 789 (1981)
(concluding that manual rules promulgated for claims representatives do not bind the
SSA). And anyway the brochure contains no such promise—it merely states that the agency
will “look into” a complaint concerning an unfair ALJ, but nowhere guarantees a new
judge. See “How to File an Unfair Treatment Complaint,” SSA Pub. No. 05-10071 (2004 ed.).
See also 20 C.F.R. § 404.940 (“If the administrative law judge does not withdraw [after
considering the claimant’s objection], you may, after the hearing, present your objections to
the Appeals Council as reasons why the hearing decision should be revised or a new
hearing held before another administrative law judge.”) (emphasis added).
Davenport similarly asserts that the agency violated due process, thereby excusing
her refusal to attend the hearing, when it ignored procedures in the HALLEX, available at
http://www.ssa.gov/OP_Home/hallex/hallex.html (last visited Mar. 10, 2011). For example
she contends that Bretthauer violated the HALLEX when she did not issue a favorable
decision based upon evidence in the record despite Davenport’s absence. Circuits are split
over whether the HALLEX creates enforceable rights. See, e.g., Lockwood v. Comm’r Soc. Sec.
Admin., 616 F.3d 1068, 1072 (9th Cir. 2010) (the HALLEX is merely a non-binding, internal
administrative guide); Ferriell v. Comm’r of Soc. Sec., 614 F.3d 611, 618 n.4 (6th Cir. 2010)
(same); Power v. Barnhart, 292 F.3d 781, 785-86 (D.C. Cir. 2002) (same); DeChirico v. Callahan,
134 F.3d 1177, 1184 (2d Cir. 1998) (same); but see Shave v. Apfel, 238 F.3d 592, 596-97 (5th Cir.
2001) (prejudicial violations of the HALLEX entitle a claimant to relief); Newton v. Apfel, 209
F.3d 448, 459-60 (5th Cir. 2000) (same). But no circuit has held that the HALLEX creates
constitutional rights because, of course, only the Constitution, not an agency’s rules or
procedures, is the source of such rights. See United States v. Caceres, 440 U.S. 741, 751-52
No. 10-2789 Page 5
(1979). Because Davenport has not otherwise shown that the agency violated due process,
her failure to exhaust when she refused to attend her hearing defeats her claim for benefits.
AFFIRMED.