Harriman v. Commissioner of Social Security

Filing 15

REPORT AND RECOMMENDATION: Magistrate Judge RECOMMENDS that the Court REVERSE the Commissioner's nondisability finding and REMAND this case under Sentence Four of § 405(g). Objections to R&R due by 7/14/2017. Signed by Magistrate Judge Kimberly A. Jolson on 6/30/2017. (ew)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
WILLIAM L. HARRIMAN,
Plaintiff,
v.

Civil Action 2:16-cv-514
Judge Algenon L. Marbley
Magistrate Judge Jolson

COMMISSIONER OF SOCIAL
SECURITY,
Defendant.

REPORT AND RECOMMENDATION
Plaintiff, William L. Harriman, brings this action under 42 U.S.C. § 405(g) for review of
a final decision of the Commissioner of Social Security (“Commissioner”) denying his
application for disability insurance benefits and supplemental security income. For the reasons
that follow, it is RECOMMENDED that the Court REVERSE the Commissioner’s
nondisability finding and REMAND this case to the Commissioner and Administrative Law
Judge (“ALJ”) under Sentence Four of § 405(g).
I.

BACKGROUND
Plaintiff applied for disability insurance benefits and supplemental security income in

October 2012, alleging disability beginning April 15, 2009. (Doc. 12 at 2). His claim was
denied initially on February 1, 2013, and upon reconsideration on June 10, 2013. (Id.). An
Administrative Law Judge (the “ALJ”) held a hearing on September 9, 2014. (Id.). Thereafter,
Dr. Floyd Sours examined Plaintiff on November 19, 2014 at the request of the ALJ. (Id. at 7).
Dr. Sours completed a medical source statement concerning Plaintiff’s mental ability to
do work-related activities. (Tr. 623, PAGEID #: 665). Dr. Sours opined that Plaintiff had

moderate impairments in his ability to: make judgments on simple or complex work-related
decisions; understand, remember, and execute complex instructions; and respond appropriately
to usual work situations and to changes in a routine work setting. (Tr. 623–24, PAGEID #: 665–
66). He found these determinations supported by Plaintiff’s memory problems and borderline
intellect as reflected in past testing. (Id.).
Following Dr. Sours’s completion of the medical source statement, Plaintiff’s counsel
requested that the ALJ send Dr. Sours interrogatories or, alternatively, a subpoena for crossexamination. (Doc. 12 at 5; Tr. 43, PAGEID #: 85). The ALJ explained his response to the
request as follows:
I refused to send the interrogatory, as it was counsel’s mental residual functional
capacity form, which I found did not satisfy the requirements of HALLEX as a
proper interrogatory. I informed counsel that I would entertain the subpoena
request if they submitted that request in accordance with HALLEX. Counsel
resubmitted the form, albeit with cosmetic changes, thus I again refused to send it
out.
I held a conference on April 15, 2015, in which we discussed our positions on the
interrogatory form. We also discussed the subpoena issue, which was basically
withdrawn, as I would not allow them to pose those questions to the consultant.
(Tr. 43, PAGEID #: 85).
The ALJ denied benefits in a written decision on July 10, 2015. (Id.). Specifically, the
ALJ found that Plaintiff meets the Social Security Act’s special earnings requirements at all
times relevant to the decision, and that he has not engaged in substantial gainful activity since
the alleged onset date of April 15, 2009.

(Tr. 46, PAGEID #: 88).

The ALJ likewise

determined that Plaintiff suffers from the severe impairments of seizure disorder, status-post
traumatic brain injury, obstructive sleep apnea, anxiety-related and affective disorders, attention
deficit disorder, cognitive disorder, and alcohol use disorder in questionable early remission, but
he does not have an impairment or combination of impairments that meets or equals a listed
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impairment. (Tr. 46–50, PAGEID #: 88–92). The ALJ determined Plaintiff has the RFC to:
perform a full range of work at all exertional levels but with the following nonexertional limitations: he cannot climb ladders, ropes, or scaffolds or work
around hazards, such as unprotected heights or dangerous machinery. He cannot
engage in commercial driving activities. Mentally, the claimant can perform
simple, repetitive tasks in a relatively static environment where there are
infrequent changes in duties or processes not involving more than occasional
contact with others, strict production quotas, or a fast assembly-line pace.
(Tr. 51, PAGEID #: 93).
The ALJ looked to the hearing testimony of the vocational expert and determined that
Plaintiff is incapable of performing past relevant work. (Tr. 57, PAGEID #: 99). However, he
found that there are other jobs in the national economy that Plaintiff is able to perform,
considering Plaintiff’s RFC and the relevant vocational factors. (Id.). Based upon the foregoing,
the ALJ determined that Plaintiff has not been under a disability as defined in the Social Security
Act from April 15, 2009 through the date of the decision, and the ALJ denied benefits. (Tr. 58–
59, PAGEID #: 100–101).
The ALJ’s decision became final when the Appeals Council denied review on April 12,
2016. (Doc. 12 at 2). Plaintiff filed this case on June 8, 2016 (Doc. 1), and the Commissioner
filed the administrative record on August 15, 2016 (Doc. 9). Plaintiff filed a Statement of
Specific Errors on October 8, 2016 (Doc. 12), and the Commissioner responded on November
23, 2016 (Doc. 13). Plaintiff replied on December 7, 2017 (Doc. 14).
II.

STANDARD OF REVIEW
Under 42 U.S.C. § 405(g), “[t]he findings of the [Commissioner] as to any fact, if

supported by substantial evidence, shall be conclusive. . . .” “[S]ubstantial evidence is defined as
‘more than a scintilla of evidence but less than a preponderance; it is such relevant evidence as a
reasonable mind might accept as adequate to support a conclusion.’” Rogers v. Comm’r of Soc.

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Sec., 486 F.3d 234, 241 (6th Cir. 2007) (quoting Cutlip v. Sec’y of HHS, 25 F.3d 284, 286 (6th
Cir. 1994)). The Commissioner’s findings of fact must also be based upon the record as a whole.
Harris v. Heckler, 756 F.2d 431, 435 (6th Cir. 1985). To that end, the Court must “take into
account whatever in the record fairly detracts from [the] weight” of the Commissioner’s
decision. Rhodes v. Comm’r of Soc. Sec., No. 2:13-cv-1147, 2015 WL 4881574, at *2 (S.D.
Ohio Aug. 17, 2015).
Even if the ALJ’s decision satisfies the substantial evidence standard, “a decision of the
Commissioner will not be upheld where the SSA fails to follow its own regulations and where
that error prejudices a claimant on the merits or deprives the claimant of a substantial right.”
Rabbers v. Comm’r of Soc. Sec., 582 F.3d 647, 651 (6th Cir. 2009) (quoting Bowen v. Comm’r of
Soc. Sec., 478 F.3d 742, 746 (6th Cir. 2007)). “An ALJ’s failure to follow agency rules and
regulations ‘denotes a lack of substantial evidence, even where the conclusion of the ALJ may be
justified based upon the record.’” Cole v. Astrue, 661 F.3d 931, 937 (6th Cir. 2011) (quoting
Blakely v. Comm’r of Soc. Sec., 581 F.3d 399, 407 (6th Cir. 2009)).
III.

DISCUSSION
In his Statement of Specific Errors, Plaintiff argues that the ALJ denied him due process

rights by failing to fully and fairly develop the record. (Doc. 12 at 7). Plaintiff likewise claims
that the ALJ failed to properly evaluate the mental health opinion of record.
A.

The ALJ’s Development of the Record

HALLEX I-2-5-42B provides guidance on the ALJ’s preparation of interrogatories. It
provides, in pertinent part, that the ALJ must phrase each question in a way that will not direct or
suggest any specific conclusion, but will elicit a clear and complete response that will, as much
as possible, be expressed in terms the claimant will understand. Id. Here, the ALJ found that

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Plaintiff’s proposed interrogatories suggested a specific conclusion to the extent that they “failed
to identify any limitation between no restriction and a restriction that would put the individual
off-task at least 10 percent (mild), which generally corresponds to finding of disability.” (Tr. 44,
PAGEID #: 86). On this basis, the ALJ found that the interrogatories “violated the principles set
out in HALLEX,” and refused to send them to Dr. Sours. (Id.). The ALJ also characterized the
interrogatories as Plaintiff’s own version of a medical source statement, stating that the questions
posed were “in some respects, already asked and answered.” (Id.).
Plaintiff disagrees and states that the “submitted interrogatories actually define ‘mild’ as
an inability in an area ‘less than 10% of the work day or work week.’” (Doc. 12 at 5 (emphasis
in original) (citing Tr. 402, PAGEID #: 444)). Plaintiff argues that the ALJ improperly refused
to send the interrogatories based on his mistaken belief that only two answers could result—a
finding of no mental health limitations or limitations that necessarily result in a finding of
disability. (Id. at 7). Further, to the extent that the ALJ considered the interrogatories asked and
answered, Plaintiff’s counsel explained that he was requesting the information to “address issues
physically not otherwise covered by the consultant in his narrative report or his assessment dated
November 22, 2014.” (Tr. 418, PAGEID #: 460). Plaintiff acknowledges that it is in the ALJ’s
discretion whether to allow interrogatories but argues that, “when the ALJ utilizes that discretion
and determines that interrogatories will not be presented to a witness, that determination must
enjoy the support of substantial evidence.” (Doc. 14 at 2).
This Court agrees with Plaintiff. Interrogatories, like cross-examination, allow a plaintiff
“the opportunity present all of his evidence and to confront the evidence against him.” Flatford
v. Chater, 93 F.3d 1296, 1306–1307 (6th Cir. 1996); see also Hibbard v. Colvin, No. CIV.A. 13165-DLB, 2014 WL 349379, at *3 (E.D. Ky. Jan. 31, 2014) (noting that, due to the non-

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adversarial nature of social security cases, interrogatories may often “provide a meaningful
opportunity for a disability claimant to confront evidence he believes to be adverse to his
claim”). Consequently, if the ALJ improperly denies a plaintiff the opportunity to confront the
evidence against him, substantial evidence may not support the decision. See Rahe v. Astrue,
840 F. Supp. 2d 1119, 1138 (N.D. Iowa 2011); see also Quattlebaum v. Comm’r of Soc. Sec.,
850 F. Supp. 2d 763, 781 (S.D. Ohio 2011) (finding, inter alia, the ALJ’s failure to follow-up
with interrogatories left the Court without a basis for meaningful judicial review).
In this case, whether the interrogatories allow for the identification of any limitation
between no restriction and a restriction that would put the individual off-task at least 10 percent
of the time is relevant because, at the September 2014 hearing, the vocational expert testified that
an individual off-task 10 percent of the time would be unable to sustain full-time employment.
(Tr. 127, PAGEID #: 169). However, the vocational expert also testified that “most employers
expect one to be on task or productive 90 to 95 percent of the time.” (Id.). Thus, according to
the vocational expert’s testimony, if an individual were off-task less than 10% of the time, that
individual would not be precluded from full-time employment.

(Id.).

Based on these

circumstances, the Court finds that the ALJ failed to fully develop the record, and his decision
should be reversed. See Lashley v. Sec. of Health and Human Servs., 708 F.2d 1048, 1052 (6th
Cir. 1983).
B. The ALJ’s Evaluation of Plaintiff’s Mental Health Record
The Court’s decision to recommend reversal and remand on the first assignment of error
alleviates the need for analysis on Plaintiff’s second assignment of error. Nevertheless, if the
recommendation is adopted, the ALJ may consider Plaintiff’s remaining assignment of error on
remand if appropriate.

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IV.

CONCLUSION
For the reasons stated, it is RECOMMENDED that the Court REVERSE the

Commissioner’s nondisability finding and REMAND this case to the Commissioner and
Administrative Law Judge (“ALJ”) under Sentence Four of § 405(g).
Procedure on Objections
If any party objects to this Report and Recommendation, that party may, within fourteen
(14) days of the date of this Report, file and serve on all parties written objections to those
specific proposed findings or recommendations to which objection is made, together with
supporting authority for the objection(s).

A judge of this Court shall make a de novo

determination of those portions of the report or specified proposed findings or recommendations
to which objection is made. Upon proper objections, a judge of this Court may accept, reject, or
modify, in whole or in part, the findings or recommendations made herein, may receive further
evidence or may recommit this matter to the magistrate judge with instructions. 28 U.S.C.
§ 636(b)(1). Failure to object to the Report and Recommendation will result in a waiver of the
right to have the district judge review the Report and Recommendation de novo, and also
operates as a waiver of the right to appeal the decision of the District Court adopting the Report
and Recommendation. See Thomas v. Arn, 474 U.S. 140, 152–53 (1985).
IT IS SO ORDERED.

Date: June 30, 2017

/s/ Kimberly A. Jolson
KIMBERLY A. JOLSON
UNITED STATES MAGISTRATE JUDGE

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