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Penner v. Schweiker

decided: February 28, 1983.



Hunter, Garth, Circuit Judges, and Stern,*fn* District Judge Garth, Circuit Judge, concurring.

Author: Hunter


HUNTER, Circuit Judge:

1. The Secretary of Health and Human Services dismissed Herman Penner's request for a hearing to review the denial of his application for disability insurance benefits. Mr. Penner filed suit in the United States District Court for the Western District of Pennsylvania seeking judicial review of that decision. The district court held that, under section 205(g) of the Social Security Act, 42 U.S.C. § 405(g) (1976 & Supp. IV 1980),*fn1 it lacked jurisdiction to review the Secretary's decision and dismissed the complaint. Mr. Penner appealed to this court.

2. We find that Mr. Penner raised before the district court a colorable constitutional claim that the Secretary violated his due process rights by failing to provide him with adequate notice of his right to request a hearing. We hold that, by so doing, Mr. Penner properly presented a constitutional challenge to the Secretary's decision within the meaning of Califano v. Sanders, 430 U.S. 99, 51 L. Ed. 2d 192, 97 S. Ct. 980 (1977), and thus the district court did have jurisdiction to review the Secretary's refusal to grant Mr. Penner a hearing. Accordingly we reverse the district court's order dismissing Mr. Penner's complaint.


3. On March 7, 1979, Herman Penner filed an application for disability insurance benefits under Title II of the Social Security Act ("Act"). 42 U.S.C. §§ 401-433 (1976 & Supp. IV 1980). At the time of his application, Mr. Penner was 58 years old and lived in Pittsburgh, Pennsylvania. He was married and was the father of two adult married children.

4. In the late 1930's Mr. Penner attended the University of Pittsburgh in Pittsburgh, Pennsylvania. After receiving his undergraduate degree in 1941, he entered the university's law school where he was described as a "brilliant" student. During his second year in law school, however, he was drafted into the Army and was required to drop out of school. Less than ninety days after entering the service, he suffered a severe emotional breakdown which resulted in his immediate discharge. Because his emotional condition continued to deteriorate after his discharge, Mr. Penner underwent a prefrontal lobotomy in April of 1946.

5. Following his operation Mr. Penner had to "grow up" again. Initially he had to be fed and diapered by his family, but slowly he learned to take care of his own personal needs. Beginning in 1957 he was employed by his father in the family meat packing business. His performance on the job was erratic and unreliable, and his attendance at work was not mandatory. His ability to relate to other people and to changing situations was limited because of substantial changes in mood and personality. His brief attempts at other employment were repeatedly unsuccessful due to his unstable emotional state. In 1974 Mr. Penner's father died, and the family business folded. Since that time his family has occasionally given him odd jobs, apparently to prevent him from feeling totally useless. App. at A52, A57, A71-72.

6. Mr. Penner has been diagnosed as having a schizophrenic reaction with depressive features. Physically he is healthy and is able to walk, swim, and perform small chores at his synagogue. He is able to take care of his basic personal hygiene and the cleaning of his apartment. Mr. Penner's I.Q. is high and his speech is clear, yet he displays significant gaps in memory and insight. He often forgets dates, places, and sequences of events. He does not handle his own financial affairs. He often becomes confused when telling a story and is not able to logically follow through with thoughts. His swings in mood are severe and have resulted in his inability to function in an unfamiliar work environment at a consistent level. Because of his inner anger and confusion resulting from his mental limitations, Mr. Penner has been described as a "bad risk" with a poor prognosis for rehabilitation. See app. at A55.

7. After considering Mr. Penner's medical and occupational history, the SSA denied his application for disability benefits on May 23, 1979. At the prompting of his family, Mr. Penner contacted an attorney about his denial on August 17, 1979. The attorney immediately sent a letter to the Social Security Administration ("SSA") advising it that he represented Mr. Penner and requesting review of the denial notice by an Administrative Law Judge. Five days later he sent another letter asking that the SSA "re-examine" the file to make a further determination in the case. On the same day Mr. Penner filed a formal request for reconsideration. The form was marked by the SSA office to indicate that Mr. Penner may need assistance in supplying information and listed his attorney's address and telephone number. App. at A39, A44.*fn2

8. On December 13, 1979, the original determination denying disability benefits was affirmed. A notice was sent to Mr. Penner on January 2, 1980. The SSA failed, however, in violation of its own regulations,*fn3 to send any notice to his attorney that Mr. Penner's request for reconsideration had been turned down. The SSA's failure was despite the fact that Mr. Penner's attorney had notified the SSA of his representation of Mr. Penner and despite the fact that the SSA interviewer had indicated on Mr. Penner's Request for Reconsideration form that Mr. Penner required assistance.

9. Because he had received no information on the reconsideration request, in late July of 1980 Mr. Penner's attorney asked an associate to check the SSA records. The associate reviewed the records and discovered a copy of the January 2, 1980 denial notice sent to Mr. Penner. Mr. Penner's attorney immediately filed a request for a hearing.*fn4 The SSA received the request on July 30, 1980, almost ...

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