c29:No. 79-3746

BOYCE F. MARTIN, Jr., Circuit Judge,
dissenting:
I dissent on the ground that Parker v. Califano, 644 F.2d 1199 (6th Cir. 1981), requires reversal of the District Court’s refusal to allow claimant to amend her complaint. Accordingly, I would reverse and remand.
In Parker, claimant alleged that she had been denied due process because she received neither meaningful notice nor an opportunity to be heard in the administrative appeal process. Claimant alleged mental disability in her complaint and also submitted medical evidence with a later application that showed some mental illness which predated her first application. Based on these circumstances this court held that claimant had presented a “colorable argument that she failed to understand and act upon the notice she received because of her mental condition, and that a denial of benefits based upon this failure is a denial of due process.” Id. at 1203.
In this case, claimant alleged in her original complaint that she has been mentally unstable since childhood and that she was mentally disabled as early as May 2, 1974, three years before she filed her second application for benefits. In an amended complaint which she sought leave to file, claimant alleged that sections 405(g) and (h) of the Social Security Act work to discriminate against mentally defective individuals. Claimant alleges, in effect, that mentally defective claimants are prevented from receiving meaningful notice by the very disability for which they seek social security benefits. In Parker this court held that a similar argument presented a colorable constitutional claim sufficient to confer jurisdiction on the District Court. I see no basis on which to distinguish this case from Parker. In my view, claimant should have been allowed to amend her complaint. Accordingly, I would reverse and remand for further proceedings consistent with our decision in Parker.

Passage view · GavelSight