Mickey J. Puckett v. CAROLYN W. COLVIN, Acting Commissioner of Social Security Administration

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
MICKEY J. PUCKETT,
Plaintiff - Appellant,
v.
CAROLYN W. COLVIN, Acting
Commissioner of Social Security
Administration,
Defendant - Appellee.
No. 13-35975
D.C. No. 2:13-cv-00492-BAT
MEMORANDUM*
Appeal from the United States District Court
for the Western District of Washington
Brian Tsuchida, Magistrate Judge, Presiding
Submitted November 21, 2014**
Before: HUG, FARRIS, and CANBY, Circuit Judges.
Mickey Puckett appeals the dismissal for lack of subject matter jurisdiction
of his action challenging the constitutionality of the Commissioner of Social
Security’s dismissal of his request for a hearing on his applications for disability
FILED
APR 06 2015
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
* This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
** The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).

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insurance benefits and supplemental security income under Titles II and XVI of the
Social Security Act. We have jurisdiction under 28 U.S.C. § 1291. We review de
novo, and we affirm. See Dexter v. Colvin, 731 F.3d 977, 980 (9th Cir. 2013).
The district court did not err in concluding that it lacked subject matter
jurisdiction because Puckett failed to raise a colorable claim that he was denied due
process in the dismissal of his request for a hearing before an administrative law
judge (“ALJ”) after he failed to appear at the hearing. See id. (holding that
decision on hearing request is non-final and not generally reviewable unless
claimant raises colorable constitutional claim). Puckett did not raise a colorable
due process claim that he received insufficient notice of the hearing. The
Commissioner complied with the Social Security regulations by mailing two
hearing notices and attempting to contact Puckett by telephone. See 42 U.S.C.
§ 405(b)(1); 20 C.F.R. §§ 404.938(a) & (c), 416.1438(a) & (c). These actions by
the Commissioner were reasonably calculated to provide Puckett with notice of the
hearing. See Popa v. Holder, 571 F.3d 890, 897 (9th Cir. 2009) (recognizing that
due process requirements are satisfied if the procedure for providing notice of a
hearing is reasonably calculated to provide a person with notice of a hearing). The
Commissioner was not required by principles of due process to verify that Puckett
actually received notice. See Popa, 571 F.3d at 897-98 (holding that notice of
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hearing sent by regular mail to last address provided by individual satisfies
requirements of due process). In addition, Puckett did not allege a lack of actual
notice. See Lehner v. United States, 685 F.2d 1187, 1190-91 (9th Cir. 1982)
(holding that claimant who receives actual notice of agency’s action cannot
complain that agency’s notice procedures are deficient).
Puckett also failed to raise a colorable claim that the Commissioner violated
his due process right to an opportunity to be heard by dismissing his hearing
request on the date set for the hearing without first inquiring whether Puckett had
good cause for his failure to appear. The administrative law judge complied with
the Social Security regulations and was not required to inquire further whether
Puckett had good cause for his failure to appear at the hearing. See 20 C.F.R.
§§ 404.957(b)(1)(I), 416.1457(b)(1)(I). Puckett was notified prior to the hearing
that, if he failed to appear at the hearing without a good reason, the ALJ would
dismiss his request for a hearing without further notice. In addition, the ALJ
informed Puckett that he had a right to appeal the dismissal, and it was clear from
the ALJ’s decision that Puckett needed to show good cause in order to overturn the
dismissal of his hearing request.
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AFFIRMED.1
1 Puckett’s request for judicial notice, filed on April 3, 2014, is granted.
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