James Hilliard v. Commissioner of Social Securit

Filing

Opinion issued by court as to Appellant James Hilliard. Decision: Affirmed. Opinion type: Non-Published. Opinion method: Per Curiam. The opinion is also available through the Court's Opinions page at this link http://www.ca11.uscourts.gov/opinions.

Case: 14-15287

Date Filed: 08/11/2015

Page: 1 of 3

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 14-15287
Non-Argument Calendar
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D.C. Docket No. 3:13-cv-00870-MMH-MCR

JAMES HILLIARD,
Plaintiff-Appellant,
versus
COMMISSIONER OF SOCIAL SECURITY,
Defendant-Appellee.
________________________
Appeal from the United States District Court
for the Middle District of Florida
________________________
(August 11, 2015)
Before JORDAN, JILL PRYOR, and ANDERSON, Circuit Judges.
PER CURIAM:

Case: 14-15287

Date Filed: 08/11/2015

Page: 2 of 3

James Hilliard appeals from the district court’s order affirming the
Administrative Law Judge’s (“ALJ”) denial of his applications for a period of
disability and disability insurance benefits, 42 U.S.C. § 405(g). On appeal,
Hilliard argues that the ALJ’s ex parte communication with a medical expert
deprived Hilliard of his right to due process and was prejudicial to him because, as
a result of the communication, the ALJ gave little weight to Hilliard’s treating
physician’s opinion.
In Social Security appeals, we review the decision of an ALJ as the
Commissioner’s final decision when the ALJ denies benefits and the Appeals
Council denies review of the ALJ’s decision. Doughty v. Apfel, 245 F.3d 1274,
1278 (11th Cir. 2001). We review the Commissioner’s legal conclusions de novo
and consider whether the Commissioner’s factual findings are supported by
substantial evidence. Lewis v. Barnhart, 285 F.3d 1329, 1330 (11th Cir. 2002).
Hilliard’s brief ignores the case law regarding ex parte communications
between an ALJ and a medical expert, or ex parte communications of any sort for
that matter. Here, as in Avondale Shipyards, Inc. v. Vinson, 623 F.2d 1117, 112111 (5th Cir. 1980),1 Hilliard was afforded an opportunity to address the ex parte
communication, but failed to do so. Moreover, even assuming arguendo that the
communication was improper, it must have prejudiced Hilliard to warrant reversal.
1

In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir.1981) (en banc), we
adopted as binding precedent all Fifth Circuit decisions issued before October 1, 1981.
2

Case: 14-15287

Date Filed: 08/11/2015

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Guenther v. Comm’r, 889 F.2d 882, 884 (9th Cir. 1989). Upon review of the briefs
and the record, the Court cannot conclude that any communication between the
ALJ and Dr. Hamrick prejudiced Hilliard.2 Even completely ignoring Dr.
Hamrick’s testimony, the substantial evidence, including Hilliard’s own testimony,
supports the ALJ’s conclusion that Hilliard was not disabled within the meaning of
the Social Security Act at any time from the alleged onset date through the date of
the decision.
AFFIRMED.

2

The communication apparently involved a recommendation by the medical expert that
Hilliard be referred for another psychological exam. Such recommendation was passed on to
Hilliard’s representative the next day, and the additional exam was subsequently scheduled.
3