United States District Court, District of Columbia
ROSEMARY M. COLLYER UNITED STATES DISTRICT JUDGE
Plaintiff Omar Harvey alleges that Defendant Carolyn Colvin, Acting Commissioner of Social Security, violated his due process rights at a hearing for reconsideration of the denial of his Social Security Benefits. The Commissioner moved to dismiss Mr. Harvey’s suit for failure to exhaust his administrative remedies. The case was referred to Magistrate Judge Deborah A. Robinson, who recommended denial of the motion to dismiss. The Court concurs with the recommendation, albeit by way of a different analysis. The Court will adopt in part the Magistrate Judge’s Report and Recommendation and will deny the Commissioner’s motion to dismiss.
A. Proceedings before the Administrative Law Judge
In 2010, Omar Harvey was assaulted by a baseball bat and his right leg bone was split in half. Am. Compl. [Dkt. 12] ¶ 39. Since the attack, he has had two leg surgeries and now walks with a cane. Id. Mr. Harvey applied for Social Security Disability Insurance benefits and Supplemental Security Income benefits in February 2011. Id. ¶ 41. The Social Security Administration (SSA) denied his application on April 21, 2011. Id. Mr. Harvey requested reconsideration, which was denied, and he then requested a hearing before an Administrative Law Judge (ALJ). Id. ¶¶ 41-42.
The hearing took place on January 28, 2013 before ALJ Guy B. Arthur. Id. ¶ 42. Mr. Harvey was represented by Ellie Saadat, whom he had never met prior to the hearing. Id. ¶¶ 43-44. Mr. Harvey alleges that when he arrived at the hearing, he was asked to wait outside the room while the ALJ and Ms. Saadat spoke privately. Id. ¶ 45. When the hearing began,  Ms. Saadat and the ALJ spoke about the background of Mr. Harvey’s case, including his level of education, his work history, his injuries, and the fact that Mr. Harvey only had certain medical records. See Certified Transcript of Hearing Proceedings (Tr.) [Dkt. 14-3] at 1-3. The ALJ then stated that the hearing could go “off the record just for a minute.” Id. at 3. There is no record of what was discussed between Ms. Saadat and the ALJ at that time. Id.
Mr. Harvey alleges that before the hearing went back on the record, Ms. Saadat “came out of the hearing room and told Mr. Harvey that the ALJ stated that there were insufficient medical records from the year preceding the hearing (2012-2013) to rule in Mr. Harvey’s favor” and that “the ALJ had advised that the best course of action would be to withdraw his hearing request.” Am. Compl. ¶¶ 48-49. Apparently, after that conversation, Mr. Harvey and Ms. Saadat then went back in the hearing room and an off the record “discussion then took place between the ALJ, Ms. Saadat, and Mr. Harvey.” Id. ¶ 50.
Mr. Harvey alleges that the ALJ stated there was insufficient medical evidence to rule for Mr. Harvey. Am. Compl. ¶¶ 52. The ALJ told Mr. Harvey that “the best course of action would be to withdraw his hearing request” and explained that “if Mr. Harvey withdrew his hearing request, he would have the opportunity for a new hearing where he could present more medical records.” Id. ¶¶ 57-58. According to Mr. Harvey, the ALJ did not ask him whether he had records from the 2012-2013 time period or suggest that he get medical records from that time. Id. ¶¶ 53-54. Nor did the ALJ ask Mr. Harvey questions about his medical conditions, his symptoms, or his medical treatment. Id. ¶ 55.
When the hearing went back on the record, the ALJ did not make any reference to what had transpired off the record, but noted that he had before him a motion “tendered by counsel to withdraw the current hearing request.” Tr. at 3-4. Mr. Harvey’s motion to withdraw his hearing request is a one page document that contains no statement of the reasons for withdrawing the request. See Am. Compl., Ex. B [Dkt. 12-2] (Withdrawal of Hearing Request).
The ALJ asked Mr. Harvey whether he made his motion to withdraw “voluntarily and without coercion” and whether he understood the legal consequences. Tr. at 4. The transcript reveals that Mr. Harvey replied “Yes (INAUDIBLE).” Id.
The ALJ continued:
[T]his does not preclude you from, in the future, going ahead and filing. In fact, if once you receive my decision you could immediately, you know, through counsel turn around and file a new application using Dr. Robie’s statement, and any other evidence that you might have. And what you want to do is build a medical record for yourself, sir, so that there’s documentation. Any judge looking at it has to find a 12-month continuous period of time medically documented. And, you know, your attorney has been arguing your case, but she can only do the best she can within the record that’s provided to her, all right?
Tr. at 4. After that, the hearing was concluded. Id. at 4-5.
The next day, January 29, 2013, the ALJ issued a notice and order dismissing Mr. Harvey’s hearing request. See Am. Compl., Ex. C [Dkt. 12-3] (Notice and Order of Dismissal). Mr. Harvey subsequently received a letter from Ms. Saadat’s office stating that he was no longer represented. Am. Compl. ¶ 77. Mr. Harvey filed a pro se request for review of the dismissal of his hearing request and his request was denied by ...