EVANS v. KIJAKAZI

Filing 12

MEMORANDUM OPINION AND ORDER signed by MAG/JUDGE L. PATRICK AULD on 03/27/2024, that the Commissioner's decision finding no disability is AFFIRMED, and that this action is DISMISSED with prejudice. (cc)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF NORTH CAROLINA
ANDRE L. E.,

)
)
)
)
)
)
)
)
)
)
)

Plaintiff,
v.
MARTIN J. O’MALLEY,
Commissioner of Social
Security,
Defendant.1

1:22CV1014

MEMORANDUM OPINION AND ORDER
OF UNITED STATES MAGISTRATE JUDGE
Plaintiff, Andre L. E., brought this action pursuant to the
Social Security Act (the “Act”) to obtain judicial review of a
final decision of Defendant, the Commissioner of Social Security
(the “Commissioner”), denying Plaintiff’s claim for Disability
Insurance Benefits (“DIB”).

(Docket Entry 2.)

The Commissioner

has filed the certified administrative record (Docket Entry 4
(cited herein as “Tr. __”)), and both parties have submitted
dispositive briefs in accordance with Rule 5 of the Supplemental
Rules for Social Security Actions under 42 U.S.C. § 405(g) (Docket
Entry

1

7

(Plaintiff’s

Brief);

Docket

Entry

10

(Commissioner’s

On December 20, 2023, President Joseph R. Biden, Jr., appointed Martin
J. O’Malley as Commissioner of the Social Security Administration. Pursuant to
Rule 25(d) of the Federal Rules of Civil Procedure, Martin J. O’Malley should
substitute for Kilolo Kijakazi as Defendant in this suit. Neither the Court nor
the parties need take any further action to continue this suit by reason of the
last sentence of section 205(g) of the Social Security Act, 42 U.S.C. § 405(g).

Brief); Docket Entry 11 (Plaintiff’s Reply)). For the reasons that
follow, the Court will enter judgment for the Commissioner.2
I.

PROCEDURAL HISTORY

Plaintiff applied for DIB (Tr. 327-31), alleging a disability
onset date of March 6, 2017 (see Tr. 327, 330).
that

application

initially

(Tr.

220-30,

Upon denial of

245-48)

and

on

reconsideration (Tr. 231-44, 252-59), Plaintiff requested a hearing
de novo before an Administrative Law Judge (“ALJ”) (Tr. 35-36, 26061).

Plaintiff, his attorney, and a vocational expert (“VE”)

attended the hearing.

(Tr. 179-219.)

The ALJ subsequently ruled

that Plaintiff did not qualify as disabled under the Act. (Tr. 1334.) The Appeals Council thereafter denied Plaintiff’s request for
review (Tr. 1-7, 324-26), thereby making the ALJ’s ruling the
Commissioner’s final decision for purposes of judicial review.
In

rendering

that

decision,

the

ALJ

made

the

following

findings later adopted by the Commissioner:
1.
[Plaintiff] meets the insured status requirements of
the . . . Act through December 31, 2023.
2.
[Plaintiff] has not engaged in substantial gainful
activity since March 6, 2017, the alleged onset date.
. . .
3.
[Plaintiff] has the following severe impairments:
diabetes
mellitus;
stroke/lacunar
infarct;
frozen
shoulder; and psoriasis.
2
On consent of the parties, this “case [wa]s referred to [the undersigned]
United States Magistrate Judge [] to conduct all proceedings . . ., to order the
entry of judgment, and to conduct all post-judgment proceedings therein.”
(Docket Entry 8 at 1.)

2

. . .
4.
[Plaintiff] 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.
. . .
5.
. . . [Plaintiff] has the residual functional
capacity to perform a reduced range of medium
work . . . .
[He] can lift and carry 50 pounds
occasionally and 25 pounds frequently. He can sit for
six hours in the eight-hour workday. He can stand or
walk for six hours in the eight-hour workday. He can
push and pull as much as he can lift and carry. [He] can
operate hand controls frequently with the bilateral
hands. He can frequently reach in all directions with
the bilateral upper extremities.
He can handle items
frequently with the bilateral hands. He can frequently
finger and feel with the bilateral hands. [He] can climb
ladders, ropes, and scaffolds occasionally.
He can
tolerate frequent exposure to unprotected heights and
moving mechanical parts.
He can tolerate frequent
exposure to vibration.
. . .
6.
[Plaintiff] is capable of performing past relevant
work as a production supervisor.
This work does not
require the performance of work-related activities
precluded by [Plaintiff]’s residual functional capacity.
. . .
In addition to past relevant work, there are other jobs
that exist in significant numbers in the national economy
that [Plaintiff] also can perform, considering [his] age,
education, work experience, and residual functional
capacity.
. . .

3

7.
[Plaintiff] has not been under a disability, as
defined in the . . . Act, from March 6, 2017, through the
date of this decision.
(Tr.

19-29

(bold

font

and

internal

parenthetical

citations

omitted).)
II.

DISCUSSION

Federal law “authorizes judicial review of the Social Security
Commissioner’s denial of social security benefits.”
Barnhart, 453 F.3d 559, 561 (4th Cir. 2006).

Hines v.

However, “the scope

of . . . review of [such a] decision . . . is extremely limited.”
Frady v. Harris, 646 F.2d 143, 144 (4th Cir. 1981).

Plaintiff has

not established entitlement to relief under the extremely limited
review standard.
A.

Standard of Review

“[C]ourts are not to try [a Social Security] case de novo.”
Oppenheim v. Finch, 495 F.2d 396, 397 (4th Cir. 1974).

Instead, “a

reviewing

of

court

must

uphold

the

factual

findings

the

ALJ

[underlying the denial of benefits] if they are supported by
substantial evidence and were reached through application of the
correct legal standard.” Hines, 453 F.3d at 561 (internal brackets
and quotation marks omitted).
“Substantial evidence means ‘such relevant evidence as a
reasonable mind might accept as adequate to support a conclusion.’”
Hunter v. Sullivan, 993 F.2d 31, 34 (4th Cir. 1992) (quoting
Richardson v. Perales, 402 U.S. 389, 390 (1971)).

4

“It consists of

more than a mere scintilla of evidence but may be somewhat less
than a preponderance.”

Mastro v. Apfel, 270 F.3d 171, 176 (4th

Cir. 2001) (internal brackets and quotation marks omitted).

“If

there is evidence to justify a refusal to direct a verdict were the
case before a jury, then there is substantial evidence.”

Hunter,

993 F.2d at 34 (internal quotation marks omitted).
“In reviewing for substantial evidence, the [C]ourt should not
undertake

to

re-weigh

conflicting

evidence,

make

credibility

determinations, or substitute its judgment for that of the [ALJ, as
adopted by the Commissioner].”

Mastro, 270 F.3d at 176 (internal

brackets and quotation marks omitted). “Where conflicting evidence
allows reasonable minds to differ as to whether a claimant is
disabled,

the

responsibility

for

that

decision

falls

on

the

[Commissioner] (or the ALJ).” Id. at 179 (internal quotation marks
omitted). “The issue before [the Court], therefore, is not whether
[the claimant] is disabled, but whether the ALJ’s finding that [the
claimant] is not disabled is supported by substantial evidence and
was reached based upon a correct application of the relevant law.”
Craig v. Chater, 76 F.3d 585, 589 (4th Cir. 1996).
When confronting that issue, the Court must take note that
“[a] claimant for disability benefits bears the burden of proving
a disability,” Hall v. Harris, 658 F.2d 260, 264 (4th Cir. 1981),
and that, in this context, “disability” means the “‘inability to
engage in

any

substantial

gainful

5

activity

by

reason

of

any

medically determinable physical or mental impairment which can be
expected to result in death or which has lasted or can be expected
to last for a continuous period of not less than 12 months,’” id.
(quoting

42

U.S.C.

423(d)(1)(A)).3

§

“To

regularize

the

adjudicative process, the Social Security Administration [(‘SSA’)]
has . . . promulgated . . . detailed regulations incorporating
longstanding medical-vocational evaluation policies that take into
account

a

claimant’s

age,

education,

and

work

experience

addition to [the claimant’s] medical condition.”

Id.

regulations

process’

establish

a

‘sequential

evaluation

in

“These
to

determine whether a claimant is disabled.” Id. (internal citations
omitted).
This sequential evaluation process (“SEP”) has up to five
steps:

“The claimant (1) must not be engaged in ‘substantial

gainful activity,’ i.e., currently working; and (2) must have a
‘severe’ impairment that (3) meets or exceeds the ‘listings’ of
specified impairments, or is otherwise incapacitating to the extent
that the claimant does not possess the residual functional capacity
[(‘RFC’)] to (4) perform [the claimant’s] past work or (5) any
other work.”

Albright v. Commissioner of Soc. Sec. Admin., 174

3

The Act “comprises two disability benefits programs.
[DIB] . . .
provides benefits to disabled persons who have contributed to the program while
employed. The Supplemental Security Income Program . . . provides benefits to
indigent disabled persons. The statutory definitions and the regulations . . .
for determining disability governing these two programs are, in all aspects
relevant here, substantively identical.” Craig, 76 F.3d at 589 n.1 (internal
citations omitted).

6

F.3d 473, 475 n.2 (4th Cir. 1999).4

A finding adverse to the

claimant at any of several points in the SEP forecloses an award
and ends the inquiry.

For example, “[t]he first step determines

whether the claimant is engaged in ‘substantial gainful activity.’
If the claimant is working, benefits are denied.
determines

if

the

claimant

benefits are denied.”

is

‘severely’

The second step

disabled.

If

not,

Bennett v. Sullivan, 917 F.2d 157, 159 (4th

Cir. 1990).
On the other hand, if a claimant carries his or her burden at
each of the first three steps, “the claimant is disabled.” Mastro,
270 F.3d at 177.

Alternatively, if a claimant clears steps one and

two, but falters at step three, i.e., “[i]f a claimant’s impairment
is not sufficiently severe to equal or exceed a listed impairment,
the ALJ must assess the claimant’s [RFC].”

Id. at 179.5

Step four

then requires the ALJ to assess whether, based on that RFC, the
claimant can “perform past relevant
does not qualify as disabled.

work”; if so, the claimant

Id. at 179-80.

However, if the

4

“Through the fourth step, the burden of production and proof is on the
claimant.
If the claimant reaches step five, the burden shifts to the
[government] . . . .” Hunter, 993 F.2d at 35 (internal citations omitted).
5

“RFC is a measurement of the most a claimant can do despite [the
claimant’s] limitations.” Hines, 453 F.3d at 562 (noting that administrative
regulations require RFC to reflect claimant’s “ability to do sustained workrelated physical and mental activities in a work setting on a regular and
continuing basis . . . [which] means 8 hours a day, for 5 days a week, or an
equivalent work schedule” (internal emphasis and quotation marks omitted)). The
RFC includes both a “physical exertional or strength limitation” that assesses
the claimant’s “ability to do sedentary, light, medium, heavy, or very heavy
work,” as well as “nonexertional limitations (mental, sensory, or skin
impairments).” Hall, 658 F.2d at 265. “RFC is to be determined by the ALJ only
after [the ALJ] considers all relevant evidence of a claimant’s impairments and
any related symptoms (e.g., pain).” Hines, 453 F.3d at 562-63.

7

claimant establishes an inability to return to prior work, the
analysis proceeds to the fifth step, whereupon the ALJ must decide
“whether the claimant is able to perform other work considering
both [the RFC] and [the claimant’s] vocational capabilities (age,
education, and past work experience) to adjust to a new job.”
Hall, 658 F.2d at 264-65.

If, at this step, the government cannot

carry its “evidentiary burden of proving that [the claimant]
remains able to work other jobs available in the community,” the
claimant qualifies as disabled.
B.

Hines, 453 F.3d at 567.6

Assignment of Error

In Plaintiff’s first and only issue on review, he argues that
“[t]he ALJ erred in failing to explain the basis for not enforcing
the subpoena the ALJ issued to [Plaintiff’s long-term disability
(‘LTD’)] carrier to obtain clinical examination findings and other
pertinent information, preventing the decision from being supported
by substantial evidence and prejudicing [Plaintiff] because the ALJ
cited the lack of supportive examination findings as the basis for
discounting the LTD examining physician’s opinion.”

(Docket Entry

7 at 6 (bold font and block formatting omitted); see also Docket
Entry 11 at 1-5.)

More specifically, Plaintiff notes that, “[o]n

6

A claimant thus can qualify as disabled via two paths through the SEP.
The first path requires resolution of the questions at steps one, two, and three
in the claimant’s favor, whereas, on the second path, the claimant must prevail
at steps one, two, four, and five. Some short-hand judicial characterizations
of the SEP appear to gloss over the fact that an adverse finding against a
claimant on step three does not terminate the analysis. See, e.g., Hunter, 993
F.2d at 35 (“If the ALJ finds that a claimant has not satisfied any step of the
process, review does not proceed to the next step.”).

8

October 28, 2021, [the] ALJ [] subpoenaed ‘any and all documents
related to the neurological examination [requested by Plaintiff’s
LTD carrier and] performed by Dr. Craig Du[B]ois on September 7,
2021, as well as any decisions made [by the LTD carrier] subsequent
to

Dr.

Du[B]ois[’s]

examination

with

regard

to

[Plaintiff’s]

eligibility for [LTD] benefits’” (Docket Entry 7 at 8 (quoting Tr.
323)),

and

that,

“[o]n

November

2,

2021,

[the

LTD

carrier]

responded [by letter]” (id. (citing Tr. 1661)), and produced “one
page of a form completed by Dr. DuBois on September 7, 2021” (id.
(citing Tr. 1662)).7

According to Plaintiff, the LTD carrier

“failed to comply with the ALJ’s subpoena by providing only one
page of [Dr. DuBois’s] medical examination checklist form without
providing the actual visit notes created at the examination, the
rest

of

the

checklist

form,

or

payment

decisions

regarding

[Plaintiff’s] LTD claim made subsequent to the examination.”
at 14 (stray comma omitted) (citing Tr. 1661-62).)

(Id.

Plaintiff

contends that, “through his attorney, [he] advised the ALJ [by
letter that Plaintiff’s LTD carrier] ‘d[id] not appear to have
complied with the subpoena’ and noted the [carrier’s] response
lacked a report from Dr. DuBois’[s] examination, lacked information

7
Dr. DuBois opined that Plaintiff could lift, carry, push, and pull up to
ten pounds occasionally, never climb stairs or ladders, and never balance, stoop,
kneel, crouch, crawl, or use foot controls. (Tr. 1662.) In a space for further
elaboration on Plaintiff’s functional impairment, Dr. DuBois wrote that Plaintiff
“ha[d] stroke deficits affecting left side [and] causing deficits with strength,
coordination, balance [and] also diabetic neuropathy cause[d] issues also [sic].”
(Id.)

9

about functional abilities, and lacked documentation regarding
[Plaintiff’s] eligibility for LTD based on the report” (id. at 15
(citing Tr. 424 n.1)), but that the ALJ proceeded to issue a
decision in which he “‘f[ound] the functional capacity form of Dr.
DuBois unpersuasive[ because t]here [we]re no clinic findings
supporting [Dr. DuBois’s] extreme limitations’” (id. at 10 (quoting
Tr. 27)), and “denied [Plaintiff’s] claim without notifying him the
ALJ would not enforce the subpoena” (id. at 19 (citing Tr. 1329)).8
In Plaintiff’s view, his LTD carrier’s “noncompliance with the
subpoena triggered the ALJ’s duty to consider whether . . . Dr.
DuBois’[s] full examination and [the LTD carrier’s] paperwork
regarding the claim payment status remained ‘reasonably necessary
for the full presentation of the case’” (id. at 15 (citing Hearing,

8
While Plaintiff’s request for review remained pending with the Appeals
Council, his counsel sent the Appeals Council a letter contending that
Plaintiff’s LTD carrier “told [Plaintiff and his counsel] that [it] would send
the [documentation listed in the subpoena] directly to the Appeals Council,” but
that “th[o]se documents [did not yet appear] in [Plaintiff’s] electronic [claims]
folder.” (Tr. 425.) Plaintiff’s counsel thus requested the Appeals Council to
“issue a subpoena to get the documents that were not produced by [Plaintiff’s LTD
carrier].” (Id.) Although the record does not contain a subpoena issued by the
Appeals Council to Plaintiff’s LTD carrier, at some point, the Appeals Council
received the first page of Dr. DuBois’s checklist medical opinions form (Tr.
177), a letter to Plaintiff from the LTD carrier dated September 29, 2021,
reflecting that Plaintiff’s LTD benefits would continue (Tr. 37), and documents
relating to the LTD carrier’s processing of Plaintiff’s LTD claim (Tr. 38-176).
The first page of Dr. DuBois’s checklist form reflects his opinions that
Plaintiff could sit constantly, stand and walk occasionally, never reach
overhead, occasionally reach in other directions, frequently engage in fine
manipulation and grasping his right hand, occasionally engage in firm grasping
with his left hand, and never engage in fine manipulation or simple grasping with
his left hand. (See Tr. 177.) The Appeals Council acknowledged receipt of those
additional documents from the LTD carrier, but “f[ound they] d[id] not show a
reasonable probability that [they] would change the outcome of the [ALJ’s]
decision.” (Tr. 2.) Plaintiff did not challenge that ruling by the Appeals
Council. (See Docket Entries 7, 11.)

10

Appeals, and Litigation Law Manual (“HALLEX”) § I-2-5-82)), but
points out that “the ALJ did not provide [Plaintiff] with notice
that [the ALJ] would not be enforcing the subpoena” or “explain in
the written decision why, or if, he determined the subpoenaed
information was not ‘reasonably necessary for the full presentation
of the case’” (id. at 16 (quoting HALLEX § I-2-5-82)).

Plaintiff

asserts that the ALJ’s above-described errors “violated wellsettled [] precedent [from the United States Court of Appeals for
the Fourth Circuit] that ALJs must build an accurate and logical
bridge between the evidence and the conclusions reached in the
decision” (id. at 18 (citing Patterson v. Commissioner of Soc. Sec.
Admin., 846 F.3d 656, 663 (4th Cir. 2017), and Monroe v. Colvin,
826 F.3d 176, 189 (4th Cir. 2016))), because “the ALJ [did not]
explain his contradictory decisions determining that the subpoena
was

both

reasonably

necessary

and

unnecessary

for

the

full

presentation of the case” (id. at 17 (bold font and underscoring
omitted); see also id. at 19 (citing Tucker v. Colvin, Civ. No. 161946, 2017 WL 2472528, at *1 (D. Md. June 8, 2017) (unpublished),
for proposition that “ALJ should have notified [the] plaintiff of
the deficiencies in her request [for a subpoena] and denied it on
the record, rather than simply ignoring it”)).

Plaintiff further

asserts that “[t]he ALJ’s failure to follow the HALLEX procedures
regarding notice and explanation for non-enforcement of an issued
subpoena harmed [Plaintiff,] because . . . Dr. DuBois’[s] opinion

11

limited [Plaintiff], at most, to sedentary work, at which point the
[M]edical[-V]ocational [G]uidelines would likely support a finding
of disability as of [Plaintiff’s] fiftieth birthday” (id. at 16
(citing Tr. 1662)), and “[t]he ALJ cited the absence of notes,
findings, or supportive explanation from a clinical examination as
the basis for discounting Dr. DuBois’[s] opinion” (id. at 17
(citing Tr. 27)).

For the reasons explained in more detail below,

Plaintiff’s contentions lack merit.
Although an “ALJ has a duty to explore all relevant facts and
inquire into the issues necessary for adequate development of the
record,” Cook v. Heckler, 783 F.2d 1168, 1173 (4th Cir. 1986), the
ALJ “is not required to act as [a] claimant’s counsel,” and “is
entitled to assume that a claimant represented by counsel is making
h[is] strongest case for benefits,” Jason L. v. O’Malley, No.
3:23CV307, 2024 WL 1152405, at *11 (S.D.W. Va. Feb. 29, 2024)
(unpublished) (internal quotation marks omitted), recommendation
adopted, 2024 WL 1149282 (S.D.W. Va. Mar. 15, 2024) (unpublished).
As part of that duty to develop the record, an ALJ “may, on his or
her own initiative or at the request of a party, issue subpoenas
for . . . the production of . . . documents that are material to an
issue at the hearing,” if the ALJ determines that such a subpoena
qualifies as “reasonably necessary for the full presentation of a
case.”

20

C.F.R.

§§

404.950(d)(1),

416.1450(d)(1)

(emphasis

added); see also HALLEX § I-2-5-78 (providing same standard for

12

issuance of subpoenas). As other courts have recognized, “[t]h[at]
language gives broad discretion to the ALJ to decide whether or not
to issue a subpoena.”

Serrano v. Kijakazi, Civ. No. 20-3985, 2021

WL 4477137, at *7 (E.D. Pa. Sept. 30, 2021) (unpublished); see also
Prince v. Berryhill, No. 3:16CV175, 2017 WL 2872837, at *11 (E.D.
Va. Jun. 19, 2017) (unpublished) (“Courts review an ALJ’s decision
whether to issue a subpoena under an abuse of discretion standard.”
(citing Taylor v. Weinberger, 528 F.2d 1153, 1156 (4th Cir. 1975)),
recommendation adopted, 2017 WL 2872421 (E.D. Va. Jul. 5, 2017)
(unpublished).
Further,

although

the

Commissioner’s

regulations

do

not

address enforcement of an ALJ’s subpoena, HALLEX provides as
follows:
If an individual refuses or fails to comply with a
subpoena, the [ALJ] will consider any change in
circumstance since issuing the subpoena and re-evaluate
whether the evidence or facts requested are reasonably
necessary for the full presentation of the case. If the
ALJ finds the information is reasonably necessary for the
full presentation of the case, he or she will prepare a
memorandum to the Office of the General Counsel (OGC)
Regional Chief Counsel, requesting enforcement of the
subpoena.
HALLEX § I-2-5-82; see also Cash v. Kijakazi, No. 21CV1105, 2023 WL
8719993, at *13 (S.D.N.Y. Mar. 22, 2023) (unpublished) (“[B]oth the
issuance and the enforcement of subpoenas are committed to the
ALJ’s discretion.” (emphasis added)), objections pending (S.D.N.Y.
May 2, 2023).

Here, Plaintiff has failed to show that the ALJ

13

abused

his

discretion

in

his

handling

of

the

subpoena

to

Plaintiff’s LTD carrier for three reasons.
First and foremost, Plaintiff has failed to demonstrate that,
after receiving the LTD carrier’s response to the subpoena, he
actually requested the ALJ to enforce the subpoena.

Plaintiff’s

counsel sent the following letter to the ALJ on December 2, 2021:
Dear [ALJ]:
This firm has been retained to represent [Plaintiff] in
his claim for [DIB]. . . .
A hearing was held on July 22, 2021. After the hearing,
[Plaintiff’s LTD] carrier . . . referred him to a
neurological examination by Dr. Craig DuBois.
In
response to a subpoena, [the LTD carrier] provided one
page of the Attending Physician Statement from Dr.
DuBois.1 That one page contains severe limitations for
[Plaintiff] in light of the residuals from a stroke and
diabetic peripheral neuropathy. Dr. DuBois’[s] opinions
are compelling because he is a neurologist, conducted an
examination of [Plaintiff], and was hired by [the LTD
carrier] to perform the examination.
All of these
factors make Dr. DuBois’[s] opinions very credible and
compelling.
Basted on Dr. DuBois’[s] limitations, we would argue that
[Plaintiff] is limited to sedentary exertion and perhaps
even less than sedentary exertion.2
Regardless,
[Plaintiff] is disabled at sedentary exertion given his
age and past relevant work.
Thank you for issuing the subpoena to obtain the
documents from [the LTD carrier].
Dr. DuBois’[s]
opinions are compelling and critical to this case.
Sincerely,
[Plaintiff’s hearing-level counsel]
1

[Plaintiff’s LTD carrier] does not appear to have
complied with the subpoena. The subpoena requested all
documents related to the neurological examination
14

performed by Dr. Craig DuBois as well as any documents
related to a decision on [Plaintiff’s] eligibility for
[LTD] benefits. Dr. DuBois almost certainly produced a
lengthy report from his examination which contained his
findings from the examination and he most likely
responded to a series of questions from [the LTD carrier]
about [Plaintiff’s] functional abilities. None of this
information was produced. [The LTD carrier] also did not
provide
documentation
regarding
a
decision
on
[Plaintiff’s] eligibility for [LTD] benefits. According
to [Plaintiff], [his LTD carrier] advised him that his
[LTD] disability benefits would be continued.
2

If we had Dr. DuBois’[s] opinions on [Plaintiff]’s
ability to stand and/or walk as well as his ability to
use his arms for reaching and handling, there is a good
chance that [Plaintiff] would be limited to less than
sedentary exertion.
(Tr.

424

(internal

parenthetical

citation

omitted)

(emphasis

added).)
As the above-quoted language makes clear, that letter serves
primarily as post-hearing argument on the probative value of Dr.
DuBois’s opinions, as the body of the letter both discusses the
impact of Dr. DuBois’s opinions on Plaintiff’s DIB claim and thanks
the ALJ for issuing the subpoena.

(See id.)

Plaintiff’s hearing

counsel relegated to a footnote his observation that the LTD
carrier “d[id] not appear to have complied with the subpoena” (id.
(emphasis added)), and then entirely failed to request that the ALJ
1) enforce the existing subpoena, 2) issue a new subpoena to the
LTD carrier or to Dr. DuBois directly, or 3) hold the record open
so that Plaintiff could take further steps to obtain the documents
he believed the LTD carrier failed to produce (see id.).

That

footnoted verbiage falls far short of a formal request that the ALJ
15

enforce the subpoena, see Prince, 2017 WL 2872837, at *13 (holding
that counsel’s letter to ALJ, after initial subpoena did not yield
documents, which provided contact information for pharmaceutical
company “should [the ALJ] wish to subpoena” the company, failed “to
directly request that the ALJ issue a subpoena for [the company’s]
records”), and Plaintiff points to no authority that required the
ALJ to sua sponte request enforcement of the subpoena, see Cash,
2023 WL 8719993, at *14 (“[T]he ALJ did not err in failing to
follow up the requested subpoenas . . . with a sua sponte request,
to the OGC, to enforce them.”).

Moreover, as Plaintiff failed to

request the ALJ to enforce the subpoena, the ALJ neither made
implicitly contradictory findings that the subpoena qualified as
“both

reasonably

necessary

and

unnecessary

for

the

full

presentation of the case” (Docket Entry 7 at 17 (bold font and
underscoring omitted)) in violation of Monroe and Patterson, nor
“‘simply ignor[ed]’” a request to enforce the subpoena without
“‘notif[ying P]laintiff of the deficiencies in his request and
den[ying] it on the record’” (id. at 19 (quoting Tucker, 2017 WL
2472528, at *1)).
Second, as the Commissioner’s regulations did not place any
obligations on the ALJ regarding enforcement of the subpoena, see
20 C.F.R. §§ 404.950(d), 416.1450(d), Plaintiff relies exclusively
on Section I-2-5-82 of the HALLEX, an SSA internal procedural
manual which lacks the force of law, see Christensen v. Harris

16

Cty., 529 U.S. 576, 587 (2000) (finding that agency interpretations
contained in “policy statements, agency manuals, and enforcement
guidelines . . . lack the force of law”); Schweiker v. Hansen, 450
U.S. 785, 789 (1981) (holding that SSA’s Claims Manual “has no
legal force,” and does not bind the agency), to argue that the ALJ
labored under a duty “to either enforce the subpoena or explain the
basis for not enforcing the subpoena” (Docket Entry 11 at 4).
Although Plaintiff acknowledges that “the HALLEX does not, in and
of itself, create judicially-enforceable rights” (id. at 3), he
maintains that “a violation of the HALLEX may be reversible error
where [] Plaintiff can show he was harmed by the error” (id.
(citing Way v. Astrue, 789 F. Supp. 2d 652, 665 (D.S.C. 2011))).
The district court in Way found “a circuit split as to whether the
Commissioner is bound by HALLEX,” Way, 780 F. Supp. 2d at 665
(citing Moore v. Apfel 216 F.3d 864, 868-69 (9th Cir. 2000) (ruling
HALLEX “does not prescribe substantive rules and therefore does not
carry the force and effect of law”), and Newton v. Apfel, 209 F.3d
448, 459 (5th Cir. 2000) (holding that, “[i]f prejudice results
from a HALLEX violation, the result cannot stand”)), as well as
that “[t]he Fourth Circuit ha[d] not ruled on th[at] issue,” id.
Ultimately, the Way court determined that, “as in Newton, the court
should consider whether the Commissioner’s failure to follow HALLEX
prejudiced a claimant who has raised the issue.”

17

Id.

This Court, however, has not cited Newton or Way in order to
find that a showing of prejudice arising out of an ALJ’s violation
of a HALLEX provision justifies remand, and, in fact, has recently
cited Moore’s holding that HALLEX “d[id] not carry the force and
effect of law,” Katerina M. L. v. O'Malley, No. 1:22CV932, 2024 WL
110682, at *6 (M.D.N.C. Jan. 10, 2024) (citing Moore, 216 F.3d at
868 (ellipses omitted)), recommendation adopted, slip op. (M.D.N.C.
Feb. 28, 2024) (Biggs, J.).

Thus, even if Plaintiff had expressly

requested the ALJ to enforce the subpoena to Plaintiff’s LTD
carrier (which, as discussed above, he did not), the ALJ’s failure
to follow the enforcement requirements of Section I-2-5-82 of the
HALLEX does not provide the Court with a judicially enforceable
basis for remand.
Third, Plaintiff relies on improper speculation to argue that
“enforcement of the subpoena [to his LTD carrier] would have
provided evidence of clinical examination findings supporting Dr.
DuBois’[s] disabling opinions.”

(Docket Entry 11 at 3; see also

Docket Entry 7 at 8 (quoting Plaintiff’s counsel’s letter to ALJ
after LTD carrier’s response to subpoena contending that “‘Dr.
DuBois

almost

certainly

produced

a

lengthy

report

from

his

examination and he most likely responded to a series of questions
from [the LTD carrier] about [Plaintiff’s] functional abilities.’”
(quoting Tr. 424 n.1) (emphasis added)).)

Notably, Plaintiff did

not offer the Court any basis for his belief that Dr. DuBois

18

“‘produced a lengthy report from his examination’” (Docket Entry 7
at 8 (quoting Tr. 424 n.1)), and the circumstances surrounding Dr.
DuBois’s completion of the form opinion do not, standing alone,
suggest the existence of such a report.
served

as

a

one-time,

consultative

Significantly, Dr. DuBois
examiner

requested

by

Plaintiff’s LTD carrier to examine Plaintiff for the purpose of
determining his continuing eligibility for LTD benefits, and, as
such, Dr. DuBois did not establish a treatment relationship with
Plaintiff.

Moreover, Dr. DuBois filled out a form expressly

provided

the

by

LTD

carrier

and

answered

all

of

the

form’s

questions regarding Plaintiff’s functional capabilities. (Tr. 17778, 1662.)

Furthermore, the LTD carrier (apparently) continued

Plaintiff’s LTD benefits on the basis of Dr. DuBois’s opinions (see
Tr. 37), and neither represented that it needed additional clinical
findings

or

other

information

from

Dr.

DuBois

to

determine

Plaintiff’s LTD eligibility (see id.), nor indicated that such
additional clinical findings existed that it chose to withhold from
production under the subpoena (see Tr. 1661).

Lastly, despite

Plaintiff’s belief that Dr. DuBois likely would have produced a
lengthy

report

of

his

clinical

findings

arising

out

of

his

examination of Plaintiff, the record does not reflect that he made
any attempt to obtain the examination documents directly from Dr.
DuBois, whose contact information appears on the form (see Tr. 178,
1662),

or

that

he

requested

the

19

ALJ

to

subpoena

Dr.

DuBois

directly.

(See Docket Entries 7, 11.)

Under such circumstances,

even if Plaintiff could show 1) he requested the ALJ to enforce the
subpoena, and 2) the ALJ’s failure to enforce the subpoena violated
a

judicially

enforceable

provision

of

law,

neither

of

which

Plaintiff has done, Plaintiff still could not demonstrate that the
ALJ’s actions prejudiced Plaintiff, as his conjecture that Dr.
DuBois’s clinical findings might exist do not suffice to establish
prejudice. See Ogletree v. Colvin, No. 5:12CV389, 2013 WL 6169161,
at *11 (M.D. Ga. Nov. 25, 2013) (unpublished) (rejecting the
plaintiff’s argument that ALJ erred by failing to enforce subpoenas
to mental health provider, where “[the p]laintiff neither claim[ed]
with certainty that other records exist[ed], nor indicate[d] what
information those other records might contain,” and holding that
“[the p]laintiff’s bare speculation [wa]s not enough to show that
the ALJ either exceeded her discretion, or that she did so in a way
that prejudiced [the p]laintiff”).
In short, Plaintiff’s first and only issue on review fails as
a matter of law.

20

III. CONCLUSION
Plaintiff has not established an error warranting relief.
IT IS THEREFORE ORDERED that the Commissioner’s decision
finding

no

disability

is

AFFIRMED,

and

that

this

action

DISMISSED with prejudice.

/s/ L. Patrick Auld
L. Patrick Auld
United States Magistrate Judge
March 27, 2024

21

is