Richard McNatt v. Kenneth S. Apfel, Commissioner, Social Security Administration

*1089 KLEINFELD, Circuit Judge,

dissenting:

I respectfully dissent.

The district court did not err in concluding that it lacked jurisdiction. The statute says that an individual can obtain judicial review of a “final decision of the Commissioner of Social Security made after a hearing.” 1 All other review is expressly precluded. “No ... decision of the Commissioner of Social Security shall be reviewed by any person, tribunal or governmental agency except as herein provided.” 2

In Califano v. Sanders, 3 a social security claimant sought judicial review of a refusal to reopen a claim that had been previously dismissed. Like this case, that was a final decision dismissing the claim without an evidentiary hearing, as opposed to a decision after a hearing. The Supreme Court held that the statute limiting review to decisions made “after a hearing” could not be read to “authorize judicial review of alleged abuses of agency discretion in refusing to reopen claims for social security benefits.” 4 “This provision clearly limits judicial review to a particular type of agency action, a ‘final decision of the Secretary made after a hearing.’ ” 5

We held in Hoye v. Sullivan 6 that where a claimant failed to attend a scheduled hearing, he “waived his opportunity for a hearing and he failed to exhaust the administrative remedy upon which judicial review depends.” 7 This case is controlled by Hoye.

Arguably the term “hearing” in the statute does not mean “evidentiary hearing,” and the dismissal was final, so if Hoye could be distinguished, it would be because McNatt got a final decision after a hearing. I doubt that this is correct, because the statutory description of judicial review presupposes an evidentiary hearing. “[T]he Commissioner of Social Security shall file a certified copy of the transcript of the record including the evidence upon which the findings and decision complained of are based. 8 The findings of the Commissioner of Social Security as to any fact, if supported by substantial evidence, shall be conclusive, ... and [the reviewing court] may at any time order additional evidence to be taken before the Commissioner of Social Security... .” 9 But even if “hearing” means any appearance in the tribunal, and not just an evidentiary hearing, so that the district court would have had jurisdiction, nevertheless the district court could not properly have vacated the Commissioner’s decision.

McNatt’s lawyer did not request a continuance. Someone at a hospital had sent McNatt’s lawyer a handwritten note saying, “Mr. McNatt will be out-of-state from 12-17-96 to 12-19-96.” But so far as the excerpts of record indicate, McNatt’s lawyer did not move for a continuance before the hearing. Then when McNatt’s lawyer appeared at the time set for hearing, he again did not move for a continuance. Instead, he denied that he had authority to proceed. The ALJ asked him if he was “authorized to proceed without your client.” The lawyer replied, “I have not discussed that with the client so I in the current posture of things would not want to proceed in his absence.” That means he was not authorized to participate in the hearing, not that he asked for a continuance. An appearance by an attorney not authorized to proceed amounts to no appearance by an attorney authorized to proceed.

*1090 The ALJ gave McNatt and counsel a fair chance to clear up any mistaken impression that might have been left by the words used at the hearing. He did not dismiss forthwith, but instead issued an order to show cause, as he was required to do by the regulations. 10 He made it clear that what he wanted in response was “what underlying reason there was for him [McNatt] to be absent.” True, the order to show cause was dated December 23, with the response due January 2, so it may have been missed because of the Christmas inefficiency common to offices. This inconvenient timing was also required by the regulations. 11 But the lawyer was at the hearing and knew the order to show cause was coming. Perhaps more importantly, the dismissal order was not issued until January 31, so there was plenty of time for a late response combined with a motion for leave to file the late response. So far as I can tell from the record, McNatt personally or through counsel never asked for a continuance, never offered an excuse for failing to appear, and never asked to be relieved of the consequences of failing to appear.

In addition to making a motion for continuance on McNatt’s behalf that he never actually made and showing cause for him that he never actually showed, we are making up a reason why he needed the continuance — that “McNatt was clearly an essential witness.” That is not necessarily so, and on this scanty record, we have no idea whether that is so. In some cases of severe disability, such as coma, quadriplegia, or acute psychosis, the claimant may not be a necessary witness, and his case may be made entirely on the medical evidence. This record does not tell us what is wrong with McNatt, and the letter from someone at the hospital to his lawyer suggests that he may be institutionalized, so for all we know McNatt was not an essential witness at all.

With the record we have, I do not think we should stretch to find jurisdiction, make up an excuse for why McNatt did not appear, and assume that a continuance to allow him to appear was necessary and obligatory. We should affirm.

. 42 U.S.C. § 405 (g).

. 42 U.S.C. § 405 (h).

. Califano v. Sanders, 430 U.S. 99 , 97 S.Ct. 980 , 51 L.Ed.2d 192 (1977).

. Id. at 107-08 , 97 S.Ct. 980 .

. Id. at 108 , 97 S.Ct. 980 (emphasis added).

. Hoye v. Sullivan, 985 F.2d 990 (9th Cir. 1992).

. Id. at 991 .

. 42 U.S.C. § 405 (g) (emphasis added).

. Id.

. 20 C.F.R. § 416.1457 (b)(l)(ii).

. Id.