Clement v. SSA

Filing 13

MEMORANDUM OPINION & ORDER: (1) Commissioner's Motion for Summary Judgment 12 is GRANTED; (2) Plaintiff's Motion for Summary Judgment 10 is DENIED. Signed by Judge Joseph M. Hood on 4/6/2018.(STC)cc: COR

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF KENTUCKY
CENTRAL DIVISION AT LEXINGTON
HAROLD LEE CLEMENT,
Plaintiff,
v.
COMMISSIONER OF SOCIAL
SECURITY,
Defendant.

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Civil Case No.
16-cv-391-JMH

MEMORANDUM OPINION & ORDER

***

This matter is before the Court on the parties’ crossMotions for Summary Judgment (DE 10, 12) on Plaintiff’s appeal
of the Commissioner’s denial of an application for disability
insurance benefits.1

The matter having been fully briefed by the

parties is now ripe for this Court’s review.
I.
Plaintiff applied for disability insurance benefits (DIB)
and supplemental security income (SSI) under Titles II and XVI
of the Social Security Act (Act), alleging he became disabled on
January 1, 2006 (later amended to December 17, 2010) (Certified
Administrative Transcript (Tr.) 40-41, 80, 396, 403). After an
ALJ

denied

Plaintiff’s

applications,

the

agency’s

Appeals

Council remanded to the ALJ for additional proceedings (Tr. 2081

These are not traditional Rule 56 motions for summary judgment. Rather,
it is a procedural device by which the parties bring the administrative
record before the Court.

16,

222-25).

On

remand,

ALJ

Ronald

Kayser

again

found

that

Plaintiff had failed to establish disability under the Act (Tr.
21-30). The agency’s Appeals Council denied Plaintiff’s request
that

it

review

the

second

ALJ

decision,

rendering

it

the

Commissioner’s final decision for judicial review (Tr. 1-4). See
20 C.F.R. § 404.981.
Plaintiff’s

appeal

presents

a

narrow

legal

question

concerning due process rights at the hearing before the ALJ and,
by

extension,

April

2015

in

notice

the

subsequent

about

administrative

Plaintiff’s

June

2015

process.

The

administrative

hearing indicated that a vocational expert would testify at the
hearing (Tr. 372, 378, 386). It did not indicate that a medical
expert would testify (see Tr. 369-87). At the start of the June
2015 administrative hearing, Plaintiff’s attorney stated that he
wanted the hearing to go ahead, but that he had been unaware
that a medical expert was testifying (Tr. 81). Counsel stated
that he “was not objecting” to the medical expert (Tr. 81).
Medical expert Peter Schosheim, M.D., testified that he was a
Board certified orthopedic surgeon (Tr. 84; see Tr. 862-65). Dr.
Schosheim testified that Plaintiff had problems secondary to his
morbid obesity, including diabetes, peripheral neuropathy, and
low

back

pain

Plaintiff’s
disabling

(Tr.

85).

conditions

listed

He

met

impairment

did
or
(Tr.
2

not,

however,

medically
85).

He

believe

equaled
disagreed

a

per
with

that
se
the

opinion

of

Plaintiff’s

treating

nurse

about

the

extent

of

Plaintiff’s functional limitations (Tr. 85-86). He opined that
Plaintiff

could

lift,

carry,

push,

and

pull

20

pounds

occasionally and 10 pounds frequently; stand and/or walk two
hours in a workday; sit six hours in a workday; never climb
ladders,

ropes,

or

scaffolds;

occasionally

climb

ramps

and

stairs, balance, kneel, crouch, crawl, and stoop; and would need
to avoid concentrated exposure to vibrations and all exposure to
hazardous machinery and unprotected heights (Tr. 87-88).
Plaintiff’s

attorney

examined

Dr.

Schosheim

extensively

about the basis for his opinions (Tr. 89-97). He indicated that
he had no further questions for Dr. Schosheim at the end of his
questioning (see Tr. 97). At the end of the hearing, Plaintiff’s
attorney reiterated that he did not have notice that there would
be a medical expert at the hearing (Tr. 105). The ALJ asked
counsel if he would like a continuance, and counsel did not
believe that would serve any purpose (Tr. 105-106). The ALJ
asked counsel whether it would have made any difference if a
notice of the medical expert’s testimony had been sent out, as
counsel was “a very skilled cross examiner” (Tr. 106). Counsel
thanked the ALJ and noted that he “tried to be prepared” (Tr.
106).
Ultimately, after considering the entire record, the ALJ
issued a decision finding that Plaintiff had failed to establish
3

his entitlement to disability benefits under the agency’s fivestep sequential evaluation process (Tr. 24-30). See generally 20
C.F.R.

§

404.1520(a)(4)

(outlining

the

process).

As

relevant

here, the ALJ found that Plaintiff had several impairments that
were “severe” within the meaning of the agency’s regulations,
but that such impairments did not meet or medically equal a per
se disabling listed impairment (Tr. 24-27). The ALJ found that
Plaintiff

retained

the

residual

functional

capacity

(RFC)

to

perform a range of sedentary-to-light work (Tr. 27). Relying on
a vocational expert’s testimony, the ALJ found that this RFC
would preclude Plaintiff’s past relevant work, but would allow
him

to

national

perform
economy

work
(Tr.

existing

in

28-30;

see

significant
Tr.

numbers

111-13).

The

in

ALJ

the
thus

concluded at step five that Plaintiff had failed to meet the
strict standard to establish disability under the Act (Tr. 30).
II.
The
limited

Court’s
to

an

review
inquiry

of

the

into

Commissioner’s

whether

the

decision

findings

of

is
the

Commissioner are supported by substantial evidence, and whether
the

correct

legal

standards

were

applied.

See

42

U.S.C.

§

405(g); Richardson v. Perales, 402 U.S. 389, 390, 401 (1971).
“The substantial evidence standard is met if a reasonable mind
might accept the relevant evidence as adequate to support a
conclusion.” Longworth v. Comm’r of Soc. Sec., 402 F.3d 591, 595
4

(6th Cir. 2005) (internal citations omitted). A court may not
try the case de novo, resolve conflicts in the evidence, or
decide questions of credibility. See Ulman v. Comm’r of Soc.
Sec., 693 F.3d 709, 713 (6th Cir. 2012). Even if the Court were
to resolve the factual issues differently, the Commissioner’s
decision must stand if supported by substantial evidence. See
Tyra of Health & Human Servs., 896 F.2d 1024, 1028 (6th Cir.
1990). Similarly, an administrative decision is not subject to
reversal even if substantial evidence would have supported the
opposite conclusion. See Ulman, 693 F.3d at 714.
III.
The Social Security Administration’s Hearings, Appeals, and
Litigation

Law

Manual

(HALLEX)

provides

“guiding

principles,

procedural guidance and information to adjudicators and staff of
the Office of Hearings and Appeals.” Bowie v. Comm’r of Soc.
Sec., 539 F.3d 395, 397 (6th Cir. 2008) (internal quotation
marks omitted).

Relevant to the case before this Court, the

HALLEX

for

provides

representative

if

an

notification

of

the

claimant

ALJ

to

take

testimony

intends

and

his

from

a

medical expert. HALLEX I-2-5-36(C), 1994 WL 637371; see also
HALLEX I-2-3-15(D), 1993 WL 642999 (the notice of hearing must
include “[a] statement of whether . . . other witness(es) will
appear at the hearing in-person, via [video teleconferencing],
or by telephone”).

Plaintiff asserts that when the ALJ failed
5

to provide notice that a medical expert would testify at the
hearing in violation of the HALLEX, the omission resulted in a
per se violation of his due process rights to a full and fair
hearing (see generally ECF No. 10-1, Memorandum in Support of
Plaintiff’s

Motion

for

Summary

Judgment

(Pl.

Br.)).

However,

while “[i]t is well established that due process requires that a
social security hearing be ‘full and fair,’” Flatford v. Chater,
93

F.3d

1296,

1305

(6th

Cir.

1996)

(citing

Richardson

v.

Perales, 402 U.S. 389, 401-02 (1971)), and while the circuits
are split over whether the HALLEX creates enforceable rights,
“no

circuit

rights

has

held

because,

of

that

the

course,

HALLEX

only

the

creates

constitutional

Constitution,

not

an

agency’s rules or procedures, is the source of such rights.”
Davenport v. Astrue, 417 F. App’x 544, 547-48 (7th Cir. 2011)
(citations omitted). Further, courts in this district have held
that “the HALLEX procedures are not binding on this Court, and
do

not

create

procedural

due

process

rights.”

Lawrence

v.

Colvin, No. CIV.A. 3:13-032-DCR, 2014 WL 640990, at *4 (E.D. Ky.
Feb. 18, 2014) (citations omitted); accord Kendall v. Astrue,
No. CIV.A.09-239-GWU, 2010 WL 1994912, at *4 (E.D. Ky. May 19,
2010) (citing Wilson v. Comm’r of Social Security, 378 F.3d 541
(6th

Cir.

2004))

(“HALLEX

does

not

create

a

procedural

due

process issue as do the Commissioner’s regulations in the Code
of Federal Regulations.”).
6

Accordingly, the Court agrees with the United States that
it

must

look

to

Plaintiff’s

private

interest

“in

a

fair

determination of his qualification (or lack thereof) for social
security

disability

benefits

and

a

meaningful

opportunity

to

present [his] case.” Adams v. Massanari, 55 F. App’x 279, 286
(6th

Cir.

2003)

(unpublished)

(quoting

Flatford,

93

F.3d

at

1306). Thus, the “court’s analysis focuses on step two of the
‘full and fair’ hearing test—the risk of erroneous deprivation
of [Plaintiff’s] interest through the procedure used by the ALJ,
and the probable value, if any, of additional or substitute
procedural

safeguards.”

Adams,

55

F.

App’x

at

286.

“[A]n

agency’s violation of its procedural rules will not result in
reversible error absent a showing that the claimant has been
prejudiced

on

the

merits

or

deprived

of

substantial

rights

because of the agency’s procedural lapses.” Wilson, 378 F.3d at
546-47

(internal

quotations

omitted)

(emphasis

in

original).

“Thus, plaintiff must show that failure to strictly comply with
HALLEX ‘prejudiced [him] on the merits or deprived [him] of
substantial rights because of the agency’s procedural lapses.’”
Robinson v. Colvin, No. 13-14313, 2015 WL 12711578, at *9 (E.D.
Mich. July 14, 2015) (citing Caudill v. Astrue, 2010 WL 148806,
at *4 (E.D. Ky. 2010) (“[I]n the absence of a definitive ruling
from

the

failure

Sixth
to

Circuit,

follow

the

the
exact

Court

declines

procedures
7

in

to

find

HALLEX

that

a

requires

reversal

absent

a

convincing

showing

of

prejudice

to

the

plaintiff.”); Kalen v. Astrue, 2011 WL 1793361, at *3-4 (E.D.
Ky. 2011) (unpublished) (“[A] violation of HALLEX is not grounds
for a remand unless the plaintiff was prejudiced thereby.”))).
A basic premise of the Social Security disability hearing
process is that it is nonadversarial. Sims v. Apfel, 530 U.S.
103,

110-11

(2000)

(“Social

Security

proceedings

are

inquisitorial rather than adversarial.”). “It is the ALJ’s duty
to investigate the facts and develop the arguments both for and
against granting benefits. . . .” Id. at 111 (citing Perales,
402 U.S. at 400-401). As part of the hearing process, ALJs “may
. . . ask for and consider opinions from medical experts on the
nature

and

severity

of

[a

claimant’s]

impairment(s)

and

on

whether [his] impairment(s) equals the requirements of” a per se
disabling listed impairment. 20 C.F.R. § 404.1527(e)(2)(iii).
Medical experts are used by the agency to provide an “impartial
expert opinion.” HALLEX I-2-5-32(A), 1994 WL 637369. An ALJ may
not use a medical expert who has treated the claimant in the
past or examined the claimant on a consultative basis. HALLEX I2-5-32(B), 1994 WL 637369. Nor may an ALJ engage in off-therecord discussions with the medical expert about a claimant’s
case. Id.
Furthermore, when an ALJ determines that the testimony of a
medical

expert

would

be

beneficial
8

in

a

case,

the

sole

information that the HALLEX requires the hearing office provide
to the claimant and his representative is the medical expert’s
identity. See HALLEX I-2-3-15(D), 1993 WL 642999. There is no
equivalent to expert disclosures as one sees in the litigation
context, so the suggestion that this situation constitutes trial
by ambush is unsupportable. Compare id. with Fed. R. Civ. P.
26(a)(2); see also Bayliss v. Barnhart, 427 F.3d 1211, 1218 n.4
(9th Cir. 2005) (noting that neither Fed. R. Ev. 702 nor the
requirements

for

the

admissibility

of

expert

testimony

under

Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579 (1993), apply
to the admission of evidence in Social Security administrative
proceedings); Brault v. Soc. Sec. Admin., Com’r, 683 F.3d 443,
446 n.2 (2d Cir. 2012) (same).
Perhaps most important, Plaintiff, by and through counsel,
had a meaningful opportunity to cross-examine the expert. See
Chandler v. Comm’r of Soc. Sec., 124 F. App’x 355, 359 (6th Cir.
2005).

Plaintiff

protests

that

his

attorney

needed

to

fully

research the medical expert’s qualifications (Pl. Br. 3), but
that was the first question the ALJ asked Dr. Schosheim, who
responded that he was a Board-certified orthopedic surgeon (Tr.
84), which Plaintiff does not suggest was untrue. In fact, given
the opportunity, Plaintiff’s counsel never asked any follow-up
questions about Dr. Schosheim’s qualifications when given the
opportunity

(see

Tr.

89-97).

Even
9

if

there

had

been

a

prejudicial

violation

of

Plaintiff’s

due

process

rights,

he

waived it when his attorney explicitly stated that he was not
objecting to the testimony of Dr. Schosheim (Tr. 81 (“I am not
objecting to him.”)). See Deleon ex rel. J.D. v. Comm’r of Soc.
Sec. Admin., No. 1:12-CV-1149, 2013 WL 3865106, at *12 (N.D.
Ohio July 24, 2013) (“Since Plaintiff waived her opportunity to
cross-examine, her attempt now to rely on a claimed inability to
cross-examine Dr. Strassman to support her claim for reversal is
unpersuasive

and

without

merit.”)

(citing

Chandler,

124

F.

App’x. at 359 (finding no lack of due process where ALJ provided
claimant an opportunity to submit his own interrogatories but
claimant never did); Chamberlain v. Shalala, 47 F.3d 1489, 1496
(8th Cir. 1995) (“If the claimant’s attorney fails to object to
the

post-hearing

reports

[or]

remains

silent

when

the

opportunity to request cross-examination arises, the right to
cross-examination is waived.” (internal citations omitted))).
At

the

end

of

the

day,

while

the

HALLEX

provided

that

Plaintiff and his representative should be informed that the ALJ
intended to call a medical expert and be provided the medical
expert’s

identity,

the

omission

here

did

not

render

the

administrative hearing unfair or incomplete because Plaintiff
cannot show that he was prejudiced by that failure. Plaintiff’s
counsel was able to cross-examine the medical expert thoroughly
at the hearing. Further, the medical expert’s testimony was just
10

one

piece

of

the

evidence

that

the

ALJ

considered

when

he

determined that Plaintiff had failed to meet the strict standard
to

establish

(considering
treatment

disability
Dr.

under

Schosheim’s

records

and

a

the

Act.

testimony,

prior

medical

but

(See
also

expert’s

Tr.

24-28

Plaintiff’s
testimony

in

determining RFC; discounting the opinion of Plaintiff’s treating
nurse due not only to Dr. Schosheim’s contrary opinion, but also
because the nurse’s opinion was not supported by later medical
evidence and was inconsistent with Plaintiff’s activity level).
On the record before the Court and in light of relevant
case law, the ALJ’s failure to notify Plaintiff or his counsel
that

a

medical

expert

would

testify

at

the

hearing

did

not

violate Plaintiff’s right to due process, and the decision of
the Commissioner is affirmed.
Accordingly, IT IS ORDERED:
(1)

That the Commissioner’s Motion for Summary Judgment

[DE 12] is GRANTED;
(2)

That Plaintiff’s Motion for Summary Judgment [DE 10]

is DENIED.
This the 6th day of April, 2018.

11