Peters v. Astrue

Filing 16

MEMORANDUM RULING re 13 MOTION to Remand filed by Michael J Astrue. IT IS RECOMMENDED that the Commissioner's decision should be REVERSED and VACATED and the matter REMANDED for a new hearing pursuant to the fourth sentence of 42 U.S.C. §405(g) for another hearing. IT IS FURTHER RECOMMENDED that upon remand, the ALJ is instructed to comply with HALLEX I-2-7-30 and HALLAX I-2-7-35B and proffer any post-hearing evidence, including the consultative examination report from Dr. R. Dale Bernauer, to plaintiff and/or plaintiffs attorney. The ALJ is further instructed to update the treatment evidence on plaintiffs medical condition, further evaluate plaintiffs impairments and residual functional capacity, and obtain additional vocational expert testimony if necessary. The effect of this ruling is suspended for fourteen (14) days to allow either party to seek review from the district court. Signed by Magistrate Judge Kathleen Kay on June 11, 2014. (crt,Benoit, T)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF LOUISIANA
LAKE CHARLES DIVISION
LISA MARIE PETERS

:

DOCKET NO. 12-CV-2821

VS.

:

JUDGE MINALDI

MICHAEL J. ASTRUE,
COMMISSIONER OF SOCIAL
SECURITY

:

MAGISTRATE JUDGE KAY

MEMORANDUM OPINION

Before the court is plaintiff’s petition for review of the Commissioner’s denial of
supplemental security income and disability insurance benefits. This matter has been referred to
the undersigned magistrate judge for consideration pursuant to 28 U.S.C. § 636(b)(1)(B).
PROCEDURAL HISTORY
On April 15, 2009 plaintiff filed an application for disability insurance benefits and
supplemental security income alleging disability beginning on February 13, 2009. Tr. 85-98.
The claim was initially denied on July 27, 2009. Tr. 53-58. Plaintiff requested and was granted
an administrative hearing which was held on October 22, 2010. Tr. 24-52. At the beginning of
the hearing, plaintiff was informed of her right to representation by an attorney or other
representative and she voluntarily waived that right. Tr. 27-28, 84. Plaintiff and a vocational
expert testified at the hearing.

During the hearing the administrative law judge (“ALJ”)

informed plaintiff that he was going to send her to an orthopedist for further evaluation. Tr. 43.
The ALJ noted that depending on what information comes back from the evaluation, a
supplemental hearing may be needed. Tr. 51.
After the hearing the ALJ requested that the Office of Disability Determination Services
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(“DDS”) schedule an orthopedic consultative examination for plaintiff. Tr. 154-156. Plaintiff
was notified of this request by letter dated October 27, 2010. Tr. 157.
Dr. R. Dale Bernauer was appointed by the agency to conduct an orthopedic examination.
Tr. 383. He saw plaintiff on May 2, 2011, and issued a report and a medical source statement on
that same date. Tr. 387-93. Although the report is marked as Exhibit 20F and is made a part of
the record, there is no evidence in the record of when the ALJ received the report and no
evidence that the ALJ ever notified plaintiff that Dr. Bernauer had issued a report and that it was
being considered as evidence in the proceeding.
On June 30, 2011, the ALJ issued an unfavorable decision. Tr. 11-19. In his decision,
the ALJ found plaintiff was not disabled because she retained the residual functional capacity to
perform sedentary work with certain limitations and that there were jobs that existed in
significant numbers in the national economy that plaintiff could perform. Tr. 14-18.
On August 26, 2011, plaintiff filed a request for appellate review of this decision. Tr. 67. She submitted a statement to the Appeals Council concerning her impairments dated March 5,
2012. Tr. 398-99. On August 29, 2012 the Appeals Council denied her request for review. Tr.
1-5. On October 31, 2012 plaintiff filed suit in this court appealing the determinations of the
Commissioner. 1 Doc. 1.
Following an answer in which the Commissioner denied plaintiff’s entitlement to
disability [doc. 5], the Commissioner sought reversal and remand pursuant to 42 U.S.C. § 405(g),
sentence four. Doc. 13. In the Motion to Remand the Commissioner submits that the case
should be remanded in order to (1) proffer any evidence obtained post-hearing, including the
consultative examination report from R. Dale Bernauer, M.D., to plaintiff and/or plaintiff’s
attorney in accordance with HALLEX 1-2-7-30; (2) update the treatment evidence on plaintiff’s
1

Plaintiff is represented by counsel in this proceeding.

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medical condition; (3) further consider plaintiff’s residual functional capacity in light of the
comments above; (4) further consider whether plaintiff has past relevant work she could perform
considering the limitations established by the evidence; and (5) secure supplemental evidence
from a vocational expert to clarify the effect of the assessed limitations. Doc. 13, att. 1, pp. 1-2.
Plaintiff has filed an opposition to the Motion to Remand. Doc. 15. In plaintiff’s
opposition she submits that this court should reverse the ALJ’s decision, find that she is entitled
to benefits and remand solely for the purpose of calculation of benefits.
LAW AND ANALYSIS
The Commissioner requests a remand in accordance with the fourth sentence of 42
U.S.C. § 405(g) which provides that “[t]he court shall have power to enter, upon the pleadings
and transcript of the record, a judgment affirming, modifying, or reversing the decision of the
Commissioner of Social Security, with or without remanding the cause for a rehearing.” The
court notes that a social security case should be remanded if additional proceedings can complete
the record or cure any defects in the initial administrative hearings. See Powell v. Chater, 959
F.Supp. 1238, 1246 (C.D.Cal.1997).
The court finds that the Commissioner’s request for remand is justified. The ALJ erred in
failing to notify plaintiff of Dr. Bernauer’s report and failing to proffer it as evidence affording
plaintiff the opportunity to review the report and request a subpoena for Dr. Bernauer’s
appearance at a supplemental hearing for the propose of cross-examination. The ALJ’s error
denied plaintiff due process.
The Fifth Circuit in Lidy v. Sullivan, 911 F.2d 1075, 1077 (5th Cir.1990) held that a
claimant has an “absolute right to subpoena a reporting physician.” The court went on to find
that “[d]ue process requires that a claimant be given the opportunity to cross-examine and

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subpoena the individuals who submit reports.” Id., quoting Coffin v. Sullivan, 895 F.2d 1206,
1212 (8th Cir.1990).
When post-hearing evidence is obtained, the Hearings, Appeals, and Litigation Law
manual (HALLEX) 2 I-2-7-30 entitled “Proffer Procedures” provides that an ALJ:
[M]ust proffer all posthearing evidence unless:
•
•
•

The evidence was submitted by the claimant or the
claimant’s representative and there is no other claimant to
the hearing.
The claimant has knowingly waived his or her right to
examine the evidence. (See I-2-7-15, Waiver of the Right
to Examine Posthearing Evidence.)
The ALJ proposes to issue a fully favorable decision.

The regulation goes on to give a detailed description of precisely what the proffer letter from the
ALJ must contain. It states:
The proffer letter must:
•

•

Give the claimant a time limit to object to, comment on or
refuse 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 proffered 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.
Advise the claimant that he or 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.

2

While HALLEX does not carry the authority of law the Fifth Circuit held in Newton v. Apfel, 209 F.3d 448, 459
(5th Cir.2000), that “where the rights of individuals are affected, an agency must follow its own procedures, even
where the internal procedures are more rigorous than otherwise would be required.” quoting Hall v. Schweiker, 660
F.2d 116, 119 (5th Cir.1981). If prejudice results from a violation, the result cannot stand. Id.

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HALLEX I-2-7-35B entitled “Entering Posthearing Evidence” states:
If an ALJ enters posthearing evidence into the record without
proffer, the ALJ must ensure that the claimant waived the right to
examine the evidence and to appear at a supplemental hearing.
The waiver may have been made on-the-record at the hearing or by
a signed written statement. Regardless of the form of the waiver,
the ALJ must ensure on-the-record that the claimant (especially a
pro se claimant) is fully informed of and understands the effects of
the waiver. If the waiver was signed by a written statement, the
ALJ must enter the statement into the record as an exhibit.
At the close of the administrative hearing conducted on October 22, 2010, the following
exchange took place:
ALJ:

Okay. Well, at this point I think we’re done. We might
have to have a supplemental hearing, but it just depends
on the information that comes in. We’ll get started
working on that, we’ll be sending you out a notice on
when your evaluation’s going to be.

CLMT:

Okay.

ALJ:

Make sure you’re there on time. If you’re not on time,
they won’t see you. I mean, that’s – and it’ll be
months, probably, before you can get another one. So
please make all efforts to be there, and once I get all
that in I’ll be able to make a decision hopefully, and
we’ll go from there, okay?

CLMT:

All right. Thank you.

Tr. 51.
There is no evidence of any notice to plaintiff that a post-hearing report was prepared by
Dr. Bernauer and received by the ALJ. Also absent from the record is any type of oral or written
waiver executed by the unrepresented plaintiff in which she was informed of her rights,
acknowledged she understood her rights and affirmatively waived her right to examine the
evidence and appear at a supplemental hearing. Based on the record before us, we conclude that
the ALJ received Dr. Bernauer’s report and submitted it into evidence without even so much as
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sending a copy to plaintiff.
Further, the ALJ incorporated and relied on Dr. Bernauer’s report when making his
determination. Although he assigned “little weight” to the report, we nevertheless find that it
was a factor in his decision. See Tr. 16, 17. The court notes that Dr. Bernauer’s findings were
more favorable to plaintiff than what the ALJ ultimately assessed.
The ALJ’s use of a post-hearing report without allowing plaintiff the opportunity to
question its author, comment on its content, or present any further evidence the plaintiff may
have found necessary violated her right to due process. By neglecting to either proffer the report
to the plaintiff or secure a valid waiver of her rights, the ALJ committed error. We do not find
this error harmless. 3 This error requires remand. See Tanner v. Secretary, 932 F.2d 1110 (5th
Cir.1991).
CONCLUSION
Accordingly,
IT IS RECOMMENDED that the Commissioner’s decision should be REVERSED and
VACATED and the matter REMANDED for a new hearing pursuant to the fourth sentence of
42 U.S.C. § 405(g) for another hearing.
IT IS FURTHER RECOMMENDED that upon remand, the ALJ is instructed to
comply with HALLEX I-2-7-30 and HALLAX I-2-7-35B and proffer any post-hearing evidence,
including the consultative examination report from Dr. R. Dale Bernauer, to plaintiff and/or
plaintiff’s attorney. The ALJ is further instructed to update the treatment evidence on plaintiff’s
medical condition, further evaluate plaintiff’s impairments and residual functional capacity, and
obtain additional vocational expert testimony if necessary.

3

Because this error of law requires remand and a new hearing, we do not reach plaintiff’s assertion that an award of
immediate benefits is warranted.

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The effect of this ruling is suspended for fourteen (14) days to allow either party to seek
review from the district court. Should no party seek review the clerk is instructed to remand.
THUS DONE this 11th day of June, 2014.

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