Dorrell v. Commissioner of Social Security
MEMORANDUM OPINION AND ORDER. The administrative decision was made in accordance with proper legal standards and is supported by substantial evidence. It is therefore AFFIRMED. The Clerk is directed to enter judgment and close the file. Signed by Magistrate Judge David A. Baker on 6/1/2015. (LAK)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
RICKY EDWARD DORRELL,
Case No. 6:14-cv-688-Orl-DAB
COMMISSIONER OF SOCIAL SECURITY,
MEMORANDUM OPINION AND ORDER
This cause came on for consideration without oral argument on review of the Commissioner’s
decision to deny Plaintiff’s application for disability benefits. For the reasons set forth herein, the
decision of the Commissioner is AFFIRMED.
Plaintiff applied for a period of disability and disability insurance benefits, alleging that he
became unable to work on December 17, 2009 (R. 249-50, 305). The agency denied Plaintiff’s
applications initially and on reconsideration. Plaintiff requested a hearing before an administrative law
judge (“the ALJ”), and an hour long hearing was held on March 14, 2012 (R. 84-130). The ALJ allowed
for the filing of post-hearing additional evidence and noted that she would “certainly consider a
supplemental hearing” (R. 128).
On March 15, 2012 and March 19, 2012, Plaintiff and his attorney requested the ALJ recuse
herself based on her “conduct” at the hearing (R. 372, 394). Plaintiff’s counsel also filed an unfair
treatment complaint against the ALJ with the Chief ALJ in Falls Church, Virginia (R. 394, Appendix
1 to brief). On June 13, 2012, the agency hearing office contacted counsel to advise that he could
request a supplemental hearing (R. 377). Counsel responded:
I would prefer to wait for decisions on the unfair treatment complaints and request for
recusal which were filed in March. If Administrative Judge Fitzgerald is not going to
recuse herself, we request that a decision be made as soon as possible so that we can
proceed with an appeal.
On June 21, 2012, the agency sent a Notice of Hearing, indicating that the same ALJ would hold
a supplemental hearing on October 12, 2012 (R. 214-31). Plaintiff’s attorney responded by letter dated
July 5, 2012, renewing his request for the ALJ to recuse herself, requesting that the ALJ cancel the
supplemental hearing, and asking her to issue a decision as soon as possible (R. 397). According to
Plaintiff’s brief, the agency responded by letter dated August 24, 2012, stating:
Our records indicate that a hearing was held in your case on March 14,
2012. We cannot take any action on your complaint at this time because
no decision has been issued in your case. If you disagree with the decision
once it is issued, you may ask the Appeals Council to review it. The
Appeals Council will address your concerns in its notice.
(Plaintiff’s Brief, Appendix 4). On September 12, 2012, Plaintiff returned an Acknowledgment or
Receipt of the Notice of the October hearing, and acknowledged that he would attend (R. 248). A
supplemental hour long hearing was held on October 12, 2012, with Plaintiff, counsel, and a Vocational
Expert present (R. 37-83). The ALJ subsequently issued an unfavorable decision, finding Plaintiff to
be not disabled (R. 13-36).
Plaintiff filed a Request for Review of the Hearing Decision on January 24, 2013 (R.11). In
counsel’s brief to the Appeals Council, he contended, among other things, that Plaintiff did not receive
a fair hearing before an impartial ALJ (R. 399-405). The Appeals Council denied Plaintiff’s request for
review on April 17, 2014 (R. 1-6). In declining to grant review, the Appeals Council “considered
whether the Administrative Law Judge's action, findings, or conclusion is contrary to the weight of the
evidence of record” and found that it was not (R. 1-2). The Appeals Council also considered Plaintiff’s
allegations that the ALJ was biased and did not afford due process, stating:
With your request for review, your representative alleged that the Administrative Law
Judge "would not allow me to present the testimony of Mr. Darrell's spouse", "would not
allow me to cross-examine the vocational expert for more than a couple of minutes, and
unnecessarily interrupted the questioning during the brief time I was allowed to ask
questions" and "terminated the hearing before Mr. Dorrell had the opportunity to fully
present his case." Your representative further alleged that in a supplemental hearing the
Administrative Law Judge "testified for the vocational expert," and "was openly hostile"
to the representative. The Appeals Council considered your allegations solely as they
relate to your case under the abuse of discretion standard in 20 CFR 404.970. After
reviewing the entire record, including the hearing recording, we have determined that
there was no abuse of discretion and that no other basis exists to grant review in this case.
We have completed our action on your request for review.
(R. 2). As the Appeals Council declined to grant review (R. 1-5), the ALJ’s decision is the final decision
of the Commissioner.
Plaintiff timely filed his complaint in this action, and the parties have consented to the
jurisdiction of the United States Magistrate Judge. The matter has been fully briefed and the case is now
ripe for review pursuant to 42 U.S.C. §§ 405(g).
Nature of Claimed Disability
Plaintiff claims to be disabled due to “Bi-polar disorder, tail bone [pain], left knee [pain], [and]
spinal stenosis” (R. 309).
Summary of Evidence Before the ALJ
Plaintiff was forty one years old as of the alleged onset date (R. 249), with a high school
education (R. 309), and past relevant work as a deck hand, heavy equipment operator, truck driver, and
companion (R. 29, 310).
In addition to the medical reports and opinions of the treating providers, the record includes
Plaintiff’s testimony and that of a Vocational Expert (“the VE”), written forms and reports completed
by Plaintiff, third party reports, and opinions from state agency examiners and reviewers. The medical
evidence relating to the pertinent time period is well detailed in the ALJ’s opinion and, in the interest
of privacy and brevity, will not be repeated here, except as necessary to address Plaintiff’s objections.
By way of summary, the ALJ found that Plaintiff had the severe impairments of: disorders of the spine,
left knee degenerative joint disease, obesity, and affective disorder (20 CFR 404.1520(c)), but does not
have an impairment or combination of impairments that meets or medically equals the severity of one
of the listed impairments in 20 CFR Part 404, Subpart P, Appendix 1 (R. 19). The ALJ then found that
Plaintiff had the residual functional capacity (“RFC”) to perform a restricted range of:
light work as defined in 20 CPR 404.1567(b) except with no more than occasional
climbing ramps and stairs. balancing, stooping, kneeling, crouching and crawling; no
climbing ladders, ropes or scaffolds; no concentrated exposure to hazards, heights or
dangerous machinery; no more than occasional interaction with supervisors, coworkers
and the general public; no more than simple, routine and repetitive tasks; needs to change
positions between sitting and standing at will.
With the assistance of the Vocational Expert, the ALJ determined that Plaintiff could not return
to past relevant work, but found that there are jobs that exist in significant numbers in the national
economy that the claimant can perform (R. 30-31), and, therefore, Plaintiff was not disabled.
Standard of Review
The scope of this Court’s review is limited to determining whether the ALJ applied the correct
legal standards, McRoberts v. Bowen, 841 F.2d 1077, 1080 (11th Cir. 1988), and whether the findings
are supported by substantial evidence, Richardson v. Perales, 402 U.S. 389, 390 (1971). The
Commissioner’s findings of fact are conclusive if supported by substantial evidence. 42 U.S.C. § 405(g).
Substantial evidence is more than a scintilla – i.e., the evidence must do more than merely create a
suspicion of the existence of a fact, and must include such relevant evidence as a reasonable person
would accept as adequate to support the conclusion. Foote v. Chater, 67 F.3d 1553, 1560 (11th Cir.
Where the Commissioner’s decision is supported by substantial evidence, the district court will
affirm, even if the reviewer would have reached a contrary result as finder of fact, and even if the
reviewer finds that the evidence preponderates against the Commissioner’s decision. Edwards v.
Sullivan, 937 F.2d 580, 584 n.3 (11th Cir. 1991); Barnes v. Sullivan, 932 F.2d 1356, 1358 (11th Cir.
1991). The district court must view the evidence as a whole, taking into account evidence favorable as
well as unfavorable to the decision. Foote, 67 F.3d at 1560; accord, Lowery v. Sullivan, 979 F.2d 835,
837 (11th Cir. 1992) (court must scrutinize the entire record to determine reasonableness of factual
Issues and Analysis
Plaintiff raises four issues for review, some of which overlap, contending: 1) he did not receive
a fair hearing before an impartial ALJ; 2) the Appeals Council failed to apply correct legal standards in
denying the request for review; 3) the ALJ erred in refusing to allow Plaintiff’s wife to testify; and 4)
the ALJ’s determination that Plaintiff could perform other work is unsupported by substantial evidence.
The Court considers these objections in the context of the sequential evaluation utilized by the ALJ.
The ALJ must follow five steps in evaluating a claim of disability. See 20 C.F.R. §§ 404.1520,
416.920. First, if a claimant is working at a substantial gainful activity, he is not disabled. 29 C.F.R.
§ 404.1520(b). Second, if a claimant does not have any impairment or combination of impairments
which significantly limit his physical or mental ability to do basic work activities, then he does not have
a severe impairment and is not disabled. 20 C.F.R. § 404.1520(c). Third, if a claimant’s impairments
meet or equal an impairment listed in 20 C.F.R. Part 404, Subpart P, Appendix 1, he is disabled. 20
C.F.R. § 404.1520(d). Fourth, if a claimant’s impairments do not prevent him from doing past relevant
work, he is not disabled. 20 C.F.R. § 404.1520(e). Fifth, if a claimant’s impairments (considering
residual functional capacity, age, education, and past work) prevent him from doing other work that
exists in the national economy, then he is disabled. 20 C.F.R. § 404.1520(f). The plaintiff bears the
burden of persuasion through Step 4, while at Step 5 the burden shifts to the Commissioner. Bowen v.
Yuckert, 482 U.S. 137, 146 n.5 (1987).
A fair hearing
The Social Security Act “contemplates that disability hearings will be individualized
determinations based on evidence adduced at a hearing.” Heckler v. Campbell, 461 U.S. 458, 467
(1983). A claimant is entitled to a hearing that is both full and fair. Clark v. Schweiker, 652 F.2d 399,
404 (5th Cir. 1981). As the Eleventh Circuit held in Miles v. Chater, “[t]he ALJ plays a crucial role in
the disability review process. Not only is [she] duty-bound to develop a full and fair record, [she] must
carefully weigh the evidence, giving individualized consideration to each claim that comes before [her].
Because of the deferential standard of review applied to [her] decision-making, the ALJ’s resolution will
usually be the final word on a claimant’s entitlement to benefits. The impartiality of the ALJ is thus
integral to the integrity of the system.” 84 F.3d 1397, 1401 (11th Cir. 1996) (citing Johnson v.
Mississippi, 403 U.S. 212, 216 (1971)).
Plaintiff alleges that the ALJ was biased and committed error in failing to recuse herself “in
direct violation of 20 C.F.R. § 404.940, HALLEX Section I-2-1-60(C), and SSR 13-2p.”1 (Plaintiff’s
brief at p. 8). As evidence of bias, Plaintiff contends that the ALJ: 1) did not allow his wife to testify,
2) interrupted his cross examination of the VE, 3) was “visibly upset” and “openly hostile” at the March
14, 2012 hearing, 4) abruptly ended that hearing and failed to recuse herself, and 5) failed to state in
writing the reasons for her refusal to recuse herself. Upon review, the Court is not persuaded.
Procedural Objections–Plaintiff objects to an alleged failure on behalf of the agency to comply
with the procedures pertaining to disqualification or recusal for bias and asserts that he did not have a
The regulations dictate that “[a]n administrative law judge shall not conduct a hearing if he or
she is prejudiced or partial with respect to any party or has any interest in the matter pending for
It is assumed that this is a typographical error. SSR 13-2p discusses evaluating cases involving drug addiction and
alcoholism; neither of which is alleged to be a factor here. Plaintiff likely is referring to SSR 13-1p, which sets forth agency
processes for addressing allegations of unfairness or bias. As pointed out by the Commissioner, however, SSR 13-1p was
adopted after the ALJ’s decision. See http://www.socialsecurity.gov/OP_Home/rulings/oasi/33/SSR2013-01-oasi-33.html. The
version of this Ruling in effect at the time of the ALJ’s decision merely indicated that the claimant would be notified in writing
about the results of the investigation into complaints about alleged bias or misconduct by ALJs. 57 Fed. Reg. 49186-03, 49187,
1992 WL 312064 (Oct. 30, 1992). That occurred here in the Appeals Council’s notification that it would not grant review.
decision.” 20 C.F.R. § 404.940. When a claimant objects to the assignment of a particular ALJ to his or
her case, he or she must notify the ALJ at the earliest opportunity. Id. The ALJ “shall consider your
objections and shall decide whether to proceed with the hearing or withdraw.” Id. If the ALJ withdraws,
the Associate Commissioner for Hearings and Appeals or his delegate will appoint another ALJ to
conduct the hearing. Id. If the ALJ declines to recuse herself, the claimant may seek reconsideration after
the hearing by raising the issue before the Appeals Council. Id. See also HALLEX 1-2-1-60(C).2
Here, Plaintiff objected to the ALJ after the first hearing. In response, the ALJ did not recuse
herself but, as evidenced by the Notice, “decide[d] to proceed with [a supplemental] hearing.” While she
addressed some of Plaintiff’s allegations of bias in her opinion (R. 23, 29 addressing Plaintiff’s
allegation that his wife could provide information on other limitations), the ALJ did not make explicit
findings as to Plaintiff’s objections as to her fairness. While a detailed explanation of the reasons for her
decision not to disqualify herself was not included in the ALJ’s decision, no prejudice is shown, as
Plaintiff raised the issues before the Appeals Council and the Appeals Council, noting that it had
reviewed the entire record (including the hearing recording), considered and directly addressed the
The pertinent provision reads:
C. Claimant Objects to ALJ Assigned to Case
If a claimant objects to the ALJ assigned to his or her case, he or she must do so at the earliest opportunity.
The ALJ will consider the objection and determine whether to proceed or withdraw.
If the ALJ decides disqualification is appropriate, the procedures in Hearings, Appeals and Litigation Law
(HALLEX) manual I-2-1-60 B above apply.
If the ALJ decides before the hearing that the claimant's reasons for objecting do not warrant
disqualification, the ALJ will set forth the reasons in writing and reiterate his or her decision in the opening
statement at the hearing.
If the claimant objects at the hearing, and the ALJ refuses at the hearing to disqualify himself or herself, the
ALJ will set forth the reasons for his or her decision on the record during the hearing.
If the claimant objects after the hearing, and the ALJ decides that the claimant's reasons for objecting do not
warrant disqualification, the ALJ will set forth the reasons for his or her decision in the jurisdiction and
procedural history section of the decision.
NOTE: If the ALJ does not withdraw and the claimant objects to the ALJ's decision, the claimant may use
non-disqualification as a basis for appeal to the Appeals Council (AC). The AC will process any issues of
bias or unfair treatment raised with the claimant's request for review pursuant to HALLEX I-3-3-2 and
I-3-1-25. See also 20 CFR 404.970 and 416.1470, and Social Security Ruling 13-1p.
I-2-1-60. DISQUALIFICATION OF AN ADMINISTRATIVE LAW JUDGE ASSIGNED TO A CASE, 1993 WL 642979,
allegations of bias and notified Plaintiff of the results of its review (R. 1-6). As the Eleventh Circuit
stated in another case involving the same attorney:
Moise presented to the Appeals Council her claim that she did not receive a full and fair
hearing before the ALJ presiding over her case. The Appeals Council addressed her
complaint of bias in its notice of action. It stated that it had reviewed those allegations
and “carefully studied all of the evidence in the record, including the recording that was
made during the hearing.” It informed Moise of the results of its review, stating it found
“no evidence of unfair treatment or other inappropriate action” by the ALJ. The Appeals
Council thus correctly followed its procedures for handling claims of bias on appeal.
Moise ex rel. Franklin v. Commissioner of Social Security, 404 Fed.Appx. 424, 426 (11th Cir. 2010).
As for objections that the hearing was inadequate, the ALJ held a supplemental hearing after the
objections were raised (thus curing any error in starting the hearing late or terminating it prematurely);
allowed for additional post-hearing filings, including the opportunity to submit interrogatories to the
Vocational Expert and to file updated information (R. 120, 127-128); and the agency fully considered
Plaintiff’s claims of unfairness and informed him of the results of this review at the Appeals Council
level. Plaintiff’s procedural due process concerns are without merit.
Substantive Objections to the ALJ’s “fairness”–As observed by the Commissioner, there is a
presumption that ALJ’s are unbiased. Schweiker v. McClure, 456 U.S. 188, 195 (1982). “This
presumption can be rebutted by a showing of conflict of interest or some other specific reason for
disqualification,” and the burden rests on the party making the assertion. Id. Plaintiff alleges bias in the
ALJ’s tone, in not allowing Plaintiff’s wife to testify, in limiting counsel’s cross-examination of the
Vocational Expert, and in terminating the hearing before Plaintiff fully presented his case.
ALJ’s “tone” and the VE examination– Upon review of the transcript, the Court does not see the
“hostility” Plaintiff alleges. Indeed, in the Court’s view, there appears to be far more testiness on the part
of counsel, than shown by the ALJ. The following excerpt of counsel exhaustively cross-examining the
Vocational Expert is illustrative:
ATTY: Now you said you had training in like doing labor surveys and I understand that.
Have you had special training in doing labor surveys?
VE: You know it's part of my graduate training.
ATTY: So how long ago was that?
ALJ: Mr. Culbertson, do you have Mr. Lovely's curriculum vitae. It's in the record.
ATTY: No, I don't have it.
ALJ: I believe it's 14B.
ATTY: Can I ask him how long ago the special training that he received on labor
surveys. If I can't -VE: I can tell you my graduate work. I completed my graduate work in 2007.
ATTY: Okay, thanks.
ALJ: There you ago.
BY THE ATTORNEY:
Q All right, thanks. Did you complete any labor surveys on the issue of towel folders and
dish cloth folders? No, you didn't did you?
Q That's okay, again, I'm not trying to give you, I'm just trying to clarify everything. So
it really comes down then to your experience doesn't it?
Q And your experience as far as -A And also consultation with other vocational experts. I mean, is there a scenario because
are you alleging that there are no towel folders in this whole entire country?
Q I'm not alleging anything. I'm just trying to find out how many towel -A I mean because
Q I'm trying to find out how many
A Okay, but, can I finish. Well, there's 50,000 -Q You asked -A There's 50,000, 20,000 there are significant jobs. We know that. You want to go on an
exact number. The thing is you have to get all the way down
ALJ: Mr. Lovely. Next question, Mr. Culbertson.
BY THE ATTORNEY:
Q Thank you. All right, so it comes down to your, and we've already established your
experience with towel folders involves seeing one job four years ago that you don't
remember where that was, right?
Q All right, now -ALJ: His personal experience in observing it.
ATTY: Judge, now that, I object to that. Come on, please.
ALJ: Object to what?
ATTY: You giving the expert witness the answer, an answer. Again, please, let me ask
the questions and let him answer the questions. All right, Mr. Lovely, so how -ALJ: Mr. Culbertson.
ALJ: You can allow questions. I can disallow questions. I can ask you to clarify
ATTY: But you can't give answers to the witness, correct?
ALJ: I can repeat an answer he's already given and please try to ask him something that
you haven't asked before.
BY THE ATTORNEY:
Q Mr. Lovely, all this said, based on your personal experience, how many towel folder
jobs actually exist in the national economy?
A I think I've already answered that question.
ALJ: You have, next question.
ALJ: Okay, well, here's the thing. The expert has testified that they do. If you don't agree
you are welcome. I'll leave the record open for you. Do you want to submit something
contradicting what Mr. Lovely has testified to?
ATTY: No, Your Honor, I'd like to keep cross-examining Mr. Lovely again, to get the,
and just to clarify, if that's all the
ALJ: That's fine but you can't keep asking him the same question, sir. Just ask him the
question. He's going to answer it and then move on, please.
ATTY: Okay, and I'm sorry you feel that way but again, if you'd let me do the continuity
ALJ: It's not a feeling. It's what been happening. Go ahead. What's your next -ATTY: Well, Your Honor, again. I respectfully disagree -ALJ: What is your next question?
ATTY: Again, can we clarify, I mean, you know. We're not playing games here. What
is the figure that you have that you think is the numbers of towel folders that he testified
actually exist? Is it other than 50,000.
ALJ: Okay, he testified to 50,000. Mr. Lovely, do you want to change your testimony as
far as the number of towel folders existing in the national economy.
VE: No, because it's an approximation as I already told you.
ALJ: Okay, next question.
ATTY: Okay and it's based on your estimate.
ALJ: He's already testified to that.
ATTY: And there's no scientific methodology that you use, correct?
ALJ: Okay, he already, sir
ATTY: I just want to clarify it.
ALJ: he's already testified to it ATTY: Can I just ask that question?
ATTY: I can't ask that question.
ALJ: It doesn't need to be clarified.
ALJ: Now, next question.
ATTY: Are the numbers, okay, of those 50,000 jobs, Mr. Lovely, how many would
require the person to be on their feet six or more hours?
ALJ: That's already been asked and answered to.
ATTY: I don't think it has, Your Honor.
ALJ: It has. You can request a copy of the CD.
While the ALJ was impatient with the repetitive nature of counsel’s questioning of the VE, she
was never rude or inappropriate and there is no showing of any bias. Too, a review of both transcripts
belies any contention that Plaintiff did not have an adequate opportunity to cross-examine the VE or that
the hearing was otherwise improperly cut short.
No error in disallowing the testimony of Plaintiff’s wife–Plaintiff next asserts that the ALJ
deprived him of his due process rights because the ALJ allegedly refused to allow his wife to testify
about his medical condition. The relevant excerpt of the transcript provides:
ATTY: I have no further questions of Mr. Dorrell, Your Honor, and Mrs. Dorrell is here
to testify also.
ALJ: What is she going to testify to?
ATTY: She's going to corroborate what Mr. Dorrell said and she might even be able to
give you some more details as far as, I think they have
ALJ: What is she going to corroborate?
ATTY: His physical and mental limitations.
ALJ: Okay, well, what is she going to tell me that he hasn't already told me?
ATTY: Well, I really don't know until she, I'm sure there's going to be more details that
he hasn't spoken about. Again, I know that she knows that they've switched him from the
Lithium. She might be able to tell you more -ALJ: Okay, well, then what really needs to happen is he needs to update that medication
list and give me that information. I don't need testimony on that.
ATTY: So you don't need any testimony from her as far as clarifying the issues and -ALJ: I certainly don't have any questions and I'm really, I'm trying to figure out what
questions you would have for her, what type of question would you want to ask her?
ATTY: I would ask her about the problems that he has with the family and other people,
the physical limitations that she sees during the day, the problems with the concentration.
ALJ: What physical limitations? He's already said, I mean when I asked him he said he
didn't have any limitations in performing household chores and when you asked him he
said, he could, what, wash dishes for 15 minutes. What else specifically do you want to
ask Mrs. Dorrell.
ATTY: Well, if that's all you got out of that then maybe I should, I need to ask Mr.
Dorrell some more questions because physically ALJ: Okay, go ahead, what else?
(R. 117-119). Plaintiff then continued testifying about his medical condition and limitations until
Plaintiff’s attorney said he had no further questions of Plaintiff (R. 120). Plaintiff’s wife did not testify.
Plaintiff asserts that the failure to allow the testimony of his wife was erroneous and prejudicial, citing
Brown v. Shalala, 44 F.3d 931, 936 (11th Cir. 1995) and DePaepe v. Richardson, 464 F.2d 92, 101 (5th
Brown involved an unrepresented3 and confused claimant and an ALJ that had failed to obtain
records of treatment about which claimant testified, agreed to get a rehabilitation report, but failed to do
so, and failed to question an available witness where the claimant had “great difficulty” explaining how
her ailments prevented her from working. Brown, 44 F.3d at 936. By contrast, Plaintiff here was
represented zealously by counsel, testified at length (and without difficulty) regarding his ailments and
why they prevented him from working, and there is no allegation that the ALJ failed to obtain treatment
or vocational records. The circumstances are not analogous. Similarly, the citation to DePaepe is
curious, as it involves completely disparate facts, and does not include the principle Plaintiff attributes
It appears from the transcript and her decision that the ALJ felt the testimony of Plaintiff’s wife
was unnecessary as it would be cumulative. There is nothing in the record to belie that conclusion.
While Plaintiff paints this objection in due process terms, there is no constitutional right to present
unlimited cumulative or repetitive evidence at an administrative hearing. See also HALLEX 1-2-660(B), 1993 WL 751900 (S.S.A. Sept. 2, 2005) (noting that the ALJ should give the claimant or his
representative “broad latitude” in questioning witnesses; however, “this latitude does not require the ALJ
to permit testimony that is repetitive and cumulative ….”). Even if the ALJ erred in prohibiting the
testimony of Plaintiff’s wife:
a showing of prejudice must be made before we will find that a hearing violated
claimant's rights of due process and requires a remand to the Secretary for
When the right to representation has not been waived, the hearing examiner’s obligation to develop a full and fair
record regarding an unrepresented claimant rises to a special duty. Brown, 44 F.3d at 934. The instant case is not a special duty
case, as Plaintiff was represented by counsel.
Plaintiff states: “When a claimant tries to present testimony in support of his subjective complaints but is precluded
from doing so by the ALJ, the claimant has done all that is necessary to establish prejudice. See Depaepe v. Richardson, 464
F.2d 92, 101 (5th Cir. 1972).” (Pl. Brief at p. 15). There is nothing in the DePaepe opinion to support this conclusion. Indeed,
DePaepe did not involve an alleged failure to allow testimony and the word “prejudice” is not in that opinion.
reconsideration. Smith, 677 F.2d at 829; Ware, 651 F.2d at 414. This at least requires
a showing that the ALJ did not have all of the relevant evidence before him in the record
(which would include relevant testimony from claimant), or that the ALJ did not consider
all of the evidence in the record in reaching his decision. See Smith, 677 F.2d at 830
(relevant inquiry is whether the record reveals evidentiary gaps which result in unfairness
or clear prejudice).
Kelley v. Heckler, 761 F.2d 1538, 1540 (11th Cir. 1985). Plaintiff has failed to show that he was
prejudiced by the failure to allow “corroborating” testimony from his wife5 and failed to show any
evidentiary gaps in the record. As the Eleventh Circuit noted on similar facts:
The failure to produce other material does not rise to the level of a constitutional
violation if the ALJ had sufficient evidence on which to base his decision. In determining
that the husband's testimony was unnecessary, the ALJ explained that McCloud's
testimony lacked credibility and was unsupported by the medical evidence. Cf. Walden
v. Schweiker, 672 F.2d 835, 839-40 (11th Cir.1982). When the medical evidence supports
the ALJ's determination, the ALJ does not err by refusing to admit lay testimony. Landry
v. Heckler, 782 F.2d 1551, 1554 (11th Cir.1986). At any rate, any error in the exclusion
of the husband's testimony was harmless.
McCloud v. Barnhart, 166 Fed.Appx. 410, 417 (11th Cir. 2006). Here, too, Plaintiff does not contest
the ALJ’s findings regarding the lack of medical evidence supporting disability, nor does Plaintiff
dispute the record supporting the adverse credibility finding. As substantial evidence supports the ALJ’s
determination, no reversible error is shown.
The VE testimony
The final objection raised by Plaintiff is the reliability of the VE testimony. Plaintiff contends
that the testimony of a vocational expert must be evaluated in accordance with the evidentiary standard
set forth in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993). According to Plaintiff,
as the VE here could only offer a “rough approximation” of the number of jobs that exist in the national
Although Plaintiff argues in his brief that his wife would have testified to much more than just corroborating
Plaintiff’s testimony and adding evidence of medication changes, the ALJ explicitly asked counsel “what is she going to tell
me that he hasn't already told me?” and counsel replied that he really did not know, other than medication changes and
unspecified “details” (R. 118). As noted by the ALJ in her decision, although Plaintiff was given the opportunity to submit
additional information regarding medication changes, no such evidence was submitted (R. 29).
economy and did not use a specific methodology for calculating the number of jobs, his testimony is not
substantial evidence supporting the conclusion at step five. The contention is without merit.
Plaintiff cites no authority holding that the evidentiary standard for courts formulated in Daubert
must be applied in social security agency hearings. Indeed, in the immigration case he cites, the Seventh
Circuit recognized: “The ground rules for qualifying expert witnesses in federal trials are given by the
Daubert decision. But Daubert interprets Fed.R.Evid. 702, and the federal rules of evidence do not apply
to the federal administrative agencies; so, strictly speaking, neither does Daubert.” Niam v. Ashcroft, 354
F.3d 652, 660 (7th Cir. 2004). To the extent Plaintiff is nonetheless advocating for this Court to find that
the Daubert standard applies in this context, despite the obvious differences between an adversarial court
hearing under the federal evidence rules and administrative hearings conducted pursuant to the Social
Security Act and the SSA’s regulations, the Court cannot oblige.
The Commissioner bears the burden of establishing that there are sufficient jobs in the national
economy that the claimant can perform given her age, education, work experience, and RFC. Winschel
v. Commissioner of Social Security, 631 F.3d 1176, 1178 (11th Cir. 2011). “The Commissioner ‘may
rely solely on the VE's testimony’ in making this decision.” Pena v. Commissioner of Social Security,
489 Fed.Appx. 401, 402 (11th Cir. 2012). When a VE testifies about the availability of jobs “statistical
specificity is not required.” Id. Moreover, the methodology used by the VE here (reliance on labor
surveys, personal experience, the Bureau of Labor Statistics, the Occupational Employment Statistics,
the DOT, information from other VE’s, and his training- R. 55-69, 72-75) has been recognized as
sufficient in this circuit to support a VE opinion. As the Eleventh Circuit observed in Bryant v.
Commissioner of Social Security:
The VE testified that she based her reductions on census figures, state information, labor
market surveys, and job analyses. Given that information, she arrived at an “approximate
percentage” of jobs that an individual with Bryant's functional limitations would be able
to perform. Thus, the record reflects that the VE had a reasoned basis for the figures at
which she arrived. The Social Security regulations provide that an ALJ may rely on a
VE's knowledge and expertise, and they do not require a VE produce detailed reports or
statistics in support of her testimony.
Bryant, 451 Fed.Appx. 838, 839 (11th Cir. 2012). See also Pena, supra (VE was not required to specify
the formula he used to arrive at the reduced figure and the rationale for that formula for his conclusion
to be reliable); Jones v. Apfel, 190 F.3d 1224, 1230 (11th Cir. 1999) (“VE testified that he compiled the
employment information from a personal survey, contact with employers and other VEs and a survey
of literature such as census reports and county business patterns.”).
Here, the VE formulated his opinion and testified at length about other jobs a hypothetical person
with Plaintiff’s RFC and background could perform and the ALJ was entitled to rely on this opinion.
As such, substantial evidence supports the ALJ’s decision that Plaintiff was not disabled under the Act.
See 20 C.F.R. § 404.1520(g) (a claimant is not disabled if he or she can perform other work that exists
in significant numbers nationally); Jones, 190 F.3d at 1228 (at step five of the sequential evaluation, a
claimant must prove he cannot perform the jobs identified by the Commissioner).
The administrative decision was made in accordance with proper legal standards and is supported
by substantial evidence. It is therefore AFFIRMED. The Clerk is directed to enter judgment
accordingly and close the file.
DONE and ORDERED in Orlando, Florida on June 1, 2015.
David A. Baker
DAVID A. BAKER
UNITED STATES MAGISTRATE JUDGE
Copies furnished to:
Counsel of Record
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