Trotter v. Astrue

Filing 27

MEMORANDUM OPINION AND ORDER entered. It is ordered that the decision of the Commissioner of Social Security denying the claimant benefits be reversed and remanded pursuant to sentence four of 42 U.S.C. Sec. 405(g) for further proceedings not inconsistent with this decision. Signed by Magistrate Judge William E. Cassady on 3/19/2012. (eec)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
MARY TROTTER o/b/o G. TROTTER,
Plaintiff,

:
:

v.

:

MICHAEL J. ASTRUE,
Commissioner of Social Security,

:

Defendant.

CA 11-00369-C

:
MEMORANDUM OPINION AND ORDER

The plaintiff brings this action as the legal guardian of a minor child, pursuant to
42 U.S.C. § 1383(c)(3), seeking judicial review of a final decision of the Commissioner of
Social Security denying the minor child’s application for supplemental security income
(“SSI”). The parties have consented to the exercise of jurisdiction by the Magistrate
Judge, pursuant to 28 U.S.C. § 636(c), for all proceedings in this Court. (See Doc. 25
(“In accordance with provisions of 28 U.S.C. 636(c) and Fed.R.Civ.P. 73, the parties in
this case consent to have a United States Magistrate Judge conduct any and all
proceedings in this case, including . . . order the entry of a final judgment, and conduct
all post-judgment proceedings.”).) Upon consideration of the administrative record
(“R.”) (Doc. 14), the plaintiff’s brief (Doc. 15), the Commissioner’s brief (Doc. 23), and
the arguments made by the parties at the March 14, 2012 Hearing, it is determined that
the Commissioner’s decision denying plaintiff benefits should be reversed and
remanded for further proceedings not inconsistent with this decision. 1

Any appeal taken from this memorandum opinion and order and judgment shall
be made to the Eleventh Circuit Court of Appeals. (See Doc. 25 (“An appeal from a judgment
entered by a Magistrate Judge shall be taken directly to the United States Court of Appeals for
1

Relevant Background
On December 12, 2007, the plaintiff protectively filed, on behalf of her minor
dependent, an application for SSI (R. 106-112), which was initially denied on May 30,
2008 (see R. 17, 80-83). The plaintiff filed a timely request for hearing (R. 84), and a
hearing was conducted before an Administrative Law Judge on October 1, 2009 (see R.
17, 35-76). During the hearing, at which the plaintiff was not represented, 2 the ALJ
ordered the claimant to undergo post-hearing consultative examinations, which
occurred on November 4, 2009, with Dixie Kidd, D.O., a family physician (see R.
263-266), and on November 11, 2009, with Jay Carney, Ph.D., a psychologist (see R.
259-262). On January 5, 2010, the ALJ issued a decision finding that the claimant was
not disabled (R. 17-30), and the plaintiff sought review from the Appeals Council (see R.
11). The Appeals Council refused to overturn the ALJ’s determination on May 18, 2011
(see R. 1-5)—making the ALJ’s determination the Commissioner’s final decision for
purposes of judicial review, see 20 C.F.R. § 404.981—and a complaint was filed in this
Court on November 21, 2011 (see Doc. 1).
Standard of Review
In all Social Security cases, the plaintiff bears the burden of proving that he or
she is unable to perform his or her previous work. Jones v. Bowen, 810 F.2d 1001, 1005
this judicial circuit in the same manner as an appeal from any other judgment of this district
court.”).)
The plaintiff appointed her current counsel to serve as the claimant’s
representative on February 22, 2010. (See R. 34.)
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2

(11th Cir. 1986). In evaluating whether the plaintiff has met this burden, the examiner
must consider the following four factors: (1) objective medical facts and clinical
findings; (2) diagnoses of examining physicians; (3) evidence of pain; and (4) the
plaintiff’s age, education, and work history. Id. Once the plaintiff meets this burden,
it becomes the Commissioner’s burden to prove that the plaintiff is capable—given his
or her age, education, and work history—of engaging in another kind of substantial
gainful employment that exists in the national economy. Sryock v. Heckler, 764 F.2d 834,
836 (11th Cir. 1985). Although at the fourth step “the [plaintiff] bears the burden of
demonstrating the inability to return to [his or] her past relevant work, the
Commissioner of Social Security has an obligation to develop a full and fair record.”
Shnorr v. Bowen, 816 F.2d 578, 581 (11th Cir. 1987) (citations omitted).
The task for this Court is to determine whether the ALJ’s decision to deny
plaintiff benefits is supported by substantial evidence. Substantial evidence is defined
as more than a scintilla, and means such relevant evidence as a reasonable mind might
accept as adequate to support a conclusion. Richardson v. Perales, 402 U.S. 389, 401
(1971). “In determining whether substantial evidence exists, [a court] must view the
record as a whole, taking into account evidence favorable as well as unfavorable to the
[Commissioner’s] decision.”

Chester v. Bowen, 792 F.2d 129, 131 (11th Cir. 1986).

Courts are precluded, however, from “deciding the facts anew or re-weighing the
evidence.” Davison v. Astrue, 370 Fed. App’x 995, 996 (11th Cir. 2010) (per curiam)
(citing Dyer v. Bernhart, 395 F.3d 1206, 1210 (11th Cir. 2005)).
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And, “[e]ven if the

evidence preponderates against the Commissioner’s findings, [a court] must affirm if
the decision reached is supported by substantial evidence.”

Id. (citing Crawford v.

Comm’r of Soc. Sec., 363 F.3d 1155, 1158-59 (11th Cir. 2004)).
Discussion
On appeal to this Court, the plaintiff asserts only one claim—the ALJ committed
reversible error by failing to proffer post-hearing evidence when the claimant was not
represented at the hearing.
The requirement that such a proffer be made is contained in the Administration’s
own Hearings, Appeals and Litigation Law Manual (or the “HALLEX”). See id., §
I-2-7-30 (Proffer Procedures), available at http://www.ssa.gov/OP_Home/hallex/ (last
visited Mar. 15, 2011). Under the procedures outlined in the HALLEX, where—as was
the case here—a claimant is not represented, an ALJ “must proffer all posthearing
evidence unless: [t]he evidence was submitted by the claimant . . .[; t]he claimant has
knowingly waived his or her right to examine the evidence . . . [; or t]he ALJ proposes to
issue a fully favorable decision.” Id. Further, the letter from the ALJ sent with the
proffered evidence must:
Give the claimant a time limit to object to, comment on or refute the
evidence, submit a written statement as to the facts and law that the
claimant believes apply to the case in light of the evidence submitted,
submit written questions to be sent to the author(s) of the proferred
evidence or exercise his or her rights with respect to requesting a
supplemental hearing and the opportunity to cross-examine the author(s)
of any posthearing report(s) if it is determined by the ALJ that such
questioning is needed to inquire fully into the issues.

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Advise the claimant that he/she may request a subpoena to require the
attendance of witnesses or the submission of records and the procedures
for the requesting and issuance of a subpoena.
Id.
Should a claimant respond to that letter and proffered evidence, the HALLEX
provides that:
The ALJ must address proffer comments in the rationale of the written
decision. The ALJ must make a formal ruling in the decision or by
separate order on any objections to proffered evidence, and make the
ruling a part of the record. If the record must be kept open for the
submission of additional evidence, the ALJ should set a time limit for the
submission of the evidence. The ALJ should provide the claimant a copy
of his/her ruling on any objection if the ruling is handled by separate
order.
If the claimant requests a supplemental hearing, the ALJ must grant the
request, unless the ALJ receives additional documentary evidence that
supports a fully favorable decision.
If the claimant requests an opportunity to question the author(s) of any
posthearing report other than the written response of an ME or VE to
interrogatories, the ALJ must determine if questioning of the author is
required to inquire fully into the matters at issue and, if so, whether the
questioning should be conducted through live testimony or written
interrogatories (considering the difficulty of anticipating in written
interrogatories all the questions that might arise and the claimant's
opportunity for a supplemental hearing).
If the claimant asks to question an ME or VE who has responded to
interrogatories, the ALJ should apply the provisions of [the appropriate
section of the HALLEX].
If the ALJ requests the author to appear for questioning, and the author
declines to appear voluntarily, the ALJ should apply the provisions of [the
HALLEX regarding the use of subpoenas] to determine if the claimant
should be afforded use of the subpoena and consequent
cross-examination.

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Id.
This Court has had several opportunities—most recently in Tarver v. Astrue, No.
CA 10-0247-C, 2011 WL 206217 (S.D. Ala. Jan. 21, 2011)—to address what rights, if any,
the HALLEX provides a Social Security claimant. In Tarver, the Court examined how
district courts in this Circuit, as well as other federal courts, have dealt with this
question, and concluded that
[t]here is uncertainty—based on a split among the Courts of Appeals, as
well as between the District Courts in the Eleventh Circuit —as to whether
or not that HALLEX creates judicially-enforceable rights. What is certain,
however, is that—if it does—remand is mandated only when the ALJ
violates the procedures in the HALLEX, see George v. Astrue, 338 Fed.
App’x 803, 805 (11th Cir. 2009) (“[E]ven if we assume that [the] HALLEX
carries the force of law—a very big assumption—the ALJ did not violate
it.”), and if so, that violation prejudices the claimant. See Maiben v.
Astrue, No. CA 09-0408-C, 2010 WL 761334, at *5 & n.5 (S.D. Ala. Mar. 4,
2010) (ALJ’s “undisputed” failure to comply with HALLEX is not grounds
for remand if plaintiff not prejudiced).
Id. at *3 (emphasis added and footnotes omitted); see also Warren v. Astrue, ___ F. Supp.
2d ____, 2011 WL 6368581, at *1 (S.D. Fla. Dec. 12, 2011) (“While the Eleventh Circuit
has not specifically addressed whether the HALLEX creates judicially-enforceable
rights, ‘[w]hat is certain, however, is that—if it does—remand is mandated only when
the ALJ violates procedures in the HALLEX.’”) (quoting Tarver, 2011 WL 206217, at *3).
Putting aside whether the HALLEX creates judicially-enforceable rights, “[i]t is
well established that [t]he use of [ ] adverse post-hearing [evidence] without an
opportunity to cross-examine its author and to present rebuttal evidence has been held
to violate a claimant’s right to due process of law.” Oyen v. Shalala, 865 F. Supp. 497,
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509 (N.D. Ill. 1994) (internal citation omitted); cf. Tagle v. Astrue, 279 Fed. App’x 827, 829
(11th Cir. 2008) (per curiam) (“The fundamental requirement of due process is the
opportunity to be heard ‘at a meaningful time and in a meaningful manner.’”) (quoting
Mathews v. Eldridge, 424 U.S. 319, 333 (1976)). It is, moreover, well established in this
Circuit and elsewhere “that it violates a claimant’s right to procedural due process for
the [Commissioner] to deny a claimant Social Security benefits based upon post-hearing
medical reports without giving the claimant an opportunity to subpoena and
cross-examine the authors of such reports.” Demenech v. Secretary of the Dep’t of Health
& Human Servs., 913 F.2d 882, 884 (11th Cir. 1990) (per curiam) (citing Hudson v. Heckler,
755 F.2d 781, 784 (11th Cir. 1985); Cowart v. Schweiker, 662 F.2d 731, 737 (11th Cir. 1981)).
The November 20, 2009 Proffer Letter from the ALJ to the plaintiff (Doc. 23-1)
offers the plaintiff these opportunities, but importantly, this Court cannot say that the
plaintiff ever received this letter and the proffered post-hearing evidence prior to the
ALJ’s decision to deny benefits. The Commissioner’s brief provides that “[c]ontrary to
Plaintiff’s unsupported argument, the ALJ in this case did, in fact, send a proffer letter
to Plaintiff on November 20, 2009 that contained the consultative examination reports of
Dr. Kidd and Dr. Carney in accordance with HALLEX, § I-2-7-30” (Doc. 23 at 6), citing a
copy of the letter and the declaration of Patrick J. Herbst, the Administration’s Chief of
the Court Case Preparation and Review Branch 3 of the Office of Appellate Operations,
Office of Disability Adjudication and Review, both attached as exhibits to the brief
(Docs. 23-1 & 23-2). But contrary to this assertion—that the ALJ “did, in fact, send a
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proffer letter to Plaintiff”—neither the letter nor Mr. Herbst’s declaration provide any
evidence of that. (See, e.g., Doc. 23-2, ¶ 5 (counsel for the Commissioner “contacted my
office and requested that we examine the electronic disability file of the claimant . . . to
determine whether it contained a copy of a proffer letter written by [the ALJ] and
addressed to [the plaintiff]”); ¶ 6 (“my office located the aforementioned proffer letter .
. . , which was dated November 20, 2009”); ¶ 7 (“The November 20, 2009 proffer letter
attached to this declaration is a true and accurate copy of the proffer letter that was
contained within the electronic disability file of the claimant[.]”) (emphasis added).)
Simply because a proffer letter was found in the claimant’s file—a proffer letter that is
not (while the proffered post-hearing evidence is) part of the administrative record filed
in this Court—does not mean that such a proffer letter was sent to the plaintiff. (See
Mar. 13, 2012 Aff. of Mary Trotter, presented to the Court during Mar. 14, 2012 Hearing,
¶ 9 (“I never received a copy of the examinations.”); ¶ 10 (“I never received a copy of
any correspondence from Social Security until I received the Unfavorable Decision
dated January 10, 2010.”).) And it is telling that, when given the opportunity to present
this Court with evidence that the proffer letter and post-hearing evidence was sent to
the plaintiff, the Commissioner falls short. 3 (See generally Doc. 23-2.)
By saying this, the Court in no way implies that the November 20, 2009 Letter is
not what it purports to be. There is simply no evidence that such a letter was sent to the
plaintiff.
There is evidence, however, that she did not receive it.
And given—as
demonstrated throughout the administrative record filed in this Court—the responsibility the
plaintiff exhibited, as the claimant’s guardian, to ensure that he received any benefits he was
entitled to, the Court has no reason not to believe the plaintiff’s sworn statement that she never
received the proffer letter and post-hearing evidence.
3

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Further—importantly—while the ALJ chose to give “little weight to the opinion
of Dr. Kidd” (R. 24), he did rely extensively on Dr. Carney’s opinion (see R. 23-28) and
noted, initially, that while he recognized “that the claimant has numerous severe
impairments that have set him back developmentally and that cause him to have poor
behavior[,] the recent evidence from Dr. Maertens and the consultative exam results
from Dr. Carney demonstrate the claimant is catching up and that he does well from a
behavior standpoint when he is properly medicated” (R. 24) (emphasis added). Thus,
“[t]his is not a case where, for example, the post-hearing evidence is cumulative or not
determinative of the ALJ’s decision.”

Ibarra v. Astrue, No. 08-22440-CIV, 2011 WL

900372, at *3 (S.D. Fla. Feb. 23, 2011) (citing James v. Barnhart, 177 Fed. App’x 875, 877
(11th Cir. 2006) (per curiam) (finding no due process violation where the post-hearing
report was not substantially relied upon by the ALJ and was consistent with three other
reports); Adzima v. Commissioner of Soc. Sec., No. 6:09-cv-1734-Orl-DAB, 2010 WL
5174495, at *3 & n.3 (M.D. Fla. Dec. 15, 2010) (finding that despite the general rule, due
process rights are not violated when the new evidence obtained by the ALJ is merely
cumulative)); cf. Demenech, 913 F.2d at 884 (“The Secretary contends that any reliance
upon Dr. Goldberg’s report was inconsequential because there was sufficient evidence,
exclusive of his report, to support the conclusion that Demenech had experienced a
medical improvement related to his ability to work. The Secretary’s own arguments,
however, belie this contention. While arguing in his brief that substantial evidence
exists to support the ALJ’s decision to terminate benefits, the Secretary refers to Dr.
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Goldberg’s report no fewer than eleven times.

We therefore conclude that Dr.

Goldberg's report was crucial to the ALJ’s determination and that the ALJ should have
allowed Demenech to depose and cross-examine Dr. Goldberg before rendering a
decision.”).
Conclusion
Accordingly, because the ALJ relied extensively on at least one post-hearing
examination that was not—according to the weight of evidence before this
Court—proffered to and/or received by the plaintiff in violation of the HALLEX and,
moreover, the plaintiff’s right to procedural due process, the Court finds that the
plaintiff has been prejudiced by not being afforded the opportunity to rebut the
post-hearing medical reports. See Donnersbach v. Astrue, Cause No. 1:10–CV–00135,
2011 WL 294519, at *5 (N.D. Ind. Jan. 25, 2011) (pursuant to 42 U.S.C. § 405(b)(1), “when
a hearing is held, the disability determination must be made ‘on the basis of evidence
adduced at the hearing[,]’” and “‘[p]ost-hearing evidence is therefore afforded special
treatment to ensure that the claimant is given the opportunity to respond, rebut, and
request cross-examination’”) (quoting Gardner v. Barnhart, No. 02 C 4578, 2004 WL
1470244, at *18 (N.D. Ill. June 29, 2004)).
It is therefore ORDERED that the decision of the Commissioner of Social
Security denying the claimant benefits be reversed and remanded pursuant to sentence
four of 42 U.S.C. § 405(g), see Melkonyan v. Sullivan, 501 U.S. 89 (1991), for further
proceedings not inconsistent with this decision. The remand pursuant to sentence four
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of § 405(g) makes the plaintiff a prevailing party for purposes of the Equal Access to
Justice Act, 28 U.S.C. § 2412, see Shalala v. Schaefer, 509 U.S. 292 (1993), and terminates
this Court’s jurisdiction over this matter.
DONE this the 19th day of March, 2012.
s/WILLIAM E. CASSADY
UNITED STATES MAGISTRATE JUDGE

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