Harriman v. Commissioner of Social Security

Filing 18

ORDER ACCEPTING AND AFFIRMING THE REPORT AND RECOMMENDATION; OVERRULING the Commissioner's Objection and REVERSING the Commissioner's denial of benefits. This case is REMANDED. Signed by Judge Algenon L. Marbley on 9/26/29017. (cw)

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

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Case No. 2:16-cv-00514
JUDGE ALGENON L. MARBLEY
Magistrate Judge Jolson

OPINION & ORDER
This matter comes before the Court on Defendant-Commissioner of Social Security
Carolyn W. Colvin’s (the “Commissioner”) Objection to Magistrate Judge Jolson’s June 30,
2017 Report and Recommendation (Doc. 15). Upon independent review by this Court, and for
the reasons set forth below, the Commissioner’s Objection is hereby OVERRULED. The Court
ACCEPTS and AFFIRMS the Magistrate Judge’s Report and Recommendation.
I. BACKGROUND
Plaintiff William L. Harriman (“Harriman”) applied for disability insurance benefits and
supplemental security income (“SSI”) benefits in October 2012. He alleges that he became
disabled on April 15, 2009. After initial administrative denials of his application, Administrative
Law Judge Yerian (the “ALJ”) conducted a hearing on September 9, 2014. On July 10, 2015,
the ALJ issued a decision finding that Harriman was not disabled within the meaning of the
Social Security Act.
In his opinion denying benefits, the ALJ conducted the required five-step sequential
analysis for a disability benefits claim established by the Social Security Administration. See 20
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C.F.R. § 416.920(a)(4).1 At step one, the ALJ determined that Harriman has not engaged in
substantial gainful activity since April 15, 2009, the alleged onset date.
At step two, the ALJ found that Harriman had severe impairments, including 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.
At step three, the ALJ further found that these impairments, singly or in combination, did
not meet or medically equal one of the listed impairments described in 20 C.F.R. Part 404,
Subpart P, Appendix 1.

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The five sequential steps are as follows:
(i) At the first step, we consider your work activity, if any. If you are doing substantial
gainful activity, we will find that you are not disabled. . . .
(ii) At the second step, we consider the medical severity of your impairment(s). If you do
not have a severe medically determinable physical or mental impairment that meets the
duration requirement in § 404.1509, or a combination of impairments that is severe and
meets the duration requirement, we will find that you are not disabled. . . .
(iii) At the third step, we also consider the medical severity of your impairment(s). If you
have an impairment(s) that meets or equals one of our listings in appendix 1 to subpart P
of part 404 of this chapter and meets the duration requirement, we will find that you are
disabled. . . .
(iv) At the fourth step, we consider our assessment of your residual functional capacity
and your past relevant work. If you can still do your past relevant work, we will find that
you are not disabled. . . .
(v) At the fifth and last step, we consider our assessment of your residual functional
capacity and your age, education, and work experience to see if you can make an
adjustment to other work. If you can make an adjustment to other work, we will find that
you are not disabled. If you cannot make an adjustment to other work, we will find that
you are disabled. . . .

20 C.F.R. § 416.920(a)(4).

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Next, the ALJ found that Harriman had the residual functional capacity (“RFC’) to
perform a full range of work at all exertional levels but with certain non-exertional limitations.2
The ALJ’s assessment of Harriman’s medical impairments and his RFC determined that while
Harriman’s impairments could be expected to cause some symptomology, the record did not
reveal enough objective medical evidence to substantiate the alleged severity of the symptoms.
Thus, the ALJ determined that Harriman’s symptoms were not intense, persistent, or limiting
enough to reduce Harriman’s RFC or to preclude all work activity.
The ALJ’s determination of Harriman’s RFC was based on a consideration of the entire
case record, including the objective medical evidence, testimony from Harriman, and opinion
testimony from several consultants, physicians, psychologists, counselors, and family members.
Upon evaluating the totality of the record and determining that Harriman’s symptoms
were not substantiated by the objective medical evidence, the ALJ then weighed both Harriman’s
credibility and each of the treating and evaluating experts’ opinions.
First, the ALJ determined that Harriman was not entirely credible. The ALJ found
Harriman’s work history after the alleged onset date to be inconsistent with his alleged disabling
symptoms and limitations. Additionally, the ALJ found that Harriman was not compliant in
taking his anti-seizure medication and that he often misrepresented his symptoms and substance
abuse problems relative to the objective medical evidence.

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The ALJ found the following non-exertional limitations on Harriman’s ability to perform a full range of
work: Harriman cannot climb ladders, ropes, or scaffolds or work around hazards (such as unprotected
heights or dangerous machinery); he cannot engage in commercial driving activities; he can only perform
simple, repetitive tasks in a static environment with minimal changes in duties or processes; he should
have minimal contact with others; and he cannot work in an environment with strict production quotas or
a fast-assembly line pace.

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The ALJ next assigned great weight to the opinion assessments of the state agency
consultants.

The consultants opined that while Harriman had postural and environmental

limitations, these limitations would not prevent all work activity, an evaluation the ALJ deemed
consistent with the objective evidence in the case record.
The ALJ also assigned significant weight to the opinion of an independent psychological
consultative examiner, Dr. Sours, who observed that Harriman had only mild to moderate mental
limitations that did not preclude all work activity, an opinion consistent with the objective
medical evidence.3
The ALJ assigned some weight to the opinion assessment of another independent
psychological consultative examiner, Dr. Miller, who determined that Harriman suffered from a
significant impairment. The ALJ noted that Dr. Miller’s assessment was inconsistent with the
medical evidence and largely based on Harriman’s subjective complaints. For similar reasons,
the ALJ gave minimal weight to the opinion of Dr. Kholer, who observed Harriman only once in
order to conduct a psychological assessment for the Ohio Department of Job and Family
Services.
The ALJ assigned little to no weight to the opinion of Dr. Bonner, Harriman’s treating
physician who specialized in internal medicine. While the ALJ acknowledged that treating
physicians’ opinions are afforded controlling weight when consistent with the objective medical
evidence, the ALJ found that Dr. Bonner had limited interactions with Harriman, and noted that
her assessment was inconsistent with the medical evidence of record, based largely on
Harriman’s subjective complaints, and that Dr. Bonner did not specialize in mental health.

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After Harriman’s initial administrative hearing in September 2014, the ALJ requested additional
evidence in the form of this psychological consultative examination by Dr. Sours.

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Lastly, the ALJ assigned no weight to the testimony of Harriman’s stepmother—Kathy
Harriman—who alleged that Harriman essentially functioned as a child. The ALJ noted that the
evidence of record did not reflect this assertion and that Ms. Harriman is not a medical source.
The ALJ then applied Harriman’s RFC at both step four and step five. At step four, the
ALJ found that Harriman—a former kitchen helper, selector, and stock clerk—could not perform
any of his past relevant work. At step five, relying on vocational expert (“VE”) testimony, the
ALJ found that based on Harriman’s RFC, and given his age, education, and work experience,
Harriman could perform occupations that exist in significant numbers in the national economy,
such as hand packager, cleaner, or assembler.
Based on this five-step sequential analysis, the ALJ found that Harriman was not disabled
under the Social Security Act from his alleged onset date through the date of decision.
The Appeals Council denied Harriman’s request for a review of the ALJ’s determination
on April 12, 2016, thereby rendering the ALJ’s benefits-denial decision the Commissioner’s final
agency action. Harriman then filed suit in federal court, alleging two issues in his Statement of
Errors. First, Harriman argues that the ALJ violated his due process rights by failing to develop
the record fully and fairly. Specifically, Harriman argues that the ALJ inappropriately refused to
submit proposed post-hearing interrogatories to Dr. Sours, whose opinion the ALJ assigned
significant weight in making his non-disability determination. Since Dr. Sours’ examination was
conducted after the initial administrative hearing, Harriman argues that the ALJ’s refusal to
submit the proposed interrogatories denied him the opportunity to confront the witness and
challenge the contrary evidence gathered from this examination. The ALJ refused to submit the
interrogatories because he believed that they suggested a specific conclusion as to Harriman’s

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ability to perform work.4 Second, Harriman alleges that the ALJ erred when evaluating and
considering the mental health opinion evidence, resulting in the improper rejection of several of
Harriman’s limitations.
On June 30, 2017, the Magistrate Judge recommended that this Court reverse the
Commissioner’s non-disability determination and remand the case to the Commissioner and the
ALJ under Sentence Four of 42 U.S.C. § 405(g). Regarding the first alleged error that in failing
to submit the interrogatories to Dr. Sours, the ALJ denied Harriman his due process rights by
failing to develop the record fully and fairly, the Magistrate first agreed with Harriman that
“when the ALJ utilizes [their] discretion and determines that interrogatories will not be presented
to a witness, that determination must enjoy the support of substantial evidence.” (Doc. 15,
PageID 758 (citing Doc. 14 at 2)). The Magistrate continued that “if the ALJ improperly denies
a plaintiff the opportunity to confront the evidence against him, substantial evidence may not
support the decision.” (Doc. 15, PageID 759). Subsequently, the Magistrate determined that if
the proposed interrogatories allowed for Dr. Sours to identify a limitation between no restriction
and a restriction that would make Harriman unable to function 10% of the time, this would be
relevant and permissible since the VE testified that an individual off-task 10% of the time would
be unable to work full-time. Thus, the Magistrate determined that the ALJ violated Harriman’s

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The ALJ refused to submit Harriman’s proposed interrogatories because he felt they were inconsistent
with HALLEX provisions that guide how interrogatories should be framed. The issue surrounded the
definition of a “mild” limitation. The ALJ stated that Harriman’s proposed definition of a mild
limitation—an inability to function in a particular area “at least 10%” of the time”—suggested a specific
conclusion and was work-preclusive because it “failed to identify any limitation between no restriction
and a restriction that would put the individual off-task at least 10 percent, which generally corresponds to
a finding of disability.” (Doc. 9, PageID 86). However, Harriman argues that the proposed
interrogatories actually defined “mild” as an inability to function “less than 10% of the work day or work
week,” which would not be work-preclusive. Thus, Harriman argued that the ALJ’s refusal to submit the
interrogatories was based on a mistake of fact.

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due process rights by failing to submit the proposed interrogatories to Dr. Sours, and that the
ALJ’s decision should be reversed. Given the Magistrate’s decision to recommend reversal and
remand based on Harriman’s first alleged error, the Magistrate did not analyze Harriman’s
second alleged error.
In conclusion, the Magistrate recommended to this Court that the Commissioner’s nondisability finding be reversed and the case be remanded to the Commissioner and the ALJ for
further consideration. The Commissioner timely objected.
II. STANDARD OF REVIEW
Upon objection to a magistrate judge’s report and recommendation, this Court must
“make a de novo determination of those portions of the report or specified proposed findings or
recommendations to which objection is made.” 28 U.S.C. § 636(b)(1); see Fed. R. Civ. P. 72(b).
This de novo review, in turn, requires the Court to “determine whether the record as a whole
contains substantial evidence to support the ALJ’s decision” and to “determine whether the ALJ
applied the correct legal criteria.” Inman v. Astrue, 920 F. Supp. 2d 861, 863 (S.D. Ohio 2013).
Substantial evidence means relevant evidence that “a reasonable mind might accept as adequate
to support a conclusion.” Ealy v. Comm’r of Soc. Sec., 594 F.3d 504, 512 (6th Cir. 2010)
(quotation omitted). Substantial evidence constitutes “more than a mere scintilla, but only so
much as would be required to prevent judgment as a matter of law against the Commissioner if
this case were being tried to a jury.” Inman, 920 F. Supp. 2d at 863 (citing Foster v. Bowen,
853 F.2d 483, 486 (6th Cir. 1988)).
III. ANALYSIS
The Commissioner objects to the Magistrate Judge’s Report and Recommendation on the
ground that the Magistrate erred in determining that the ALJ violated Harriman’s due process
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rights when he refused to submit the proposed interrogatories to Dr. Sours. The Commissioner
argues that since the ALJ complied with the HALLEX Manual, and that there is no absolute right
to submit interrogatories, the ALJ’s failure to submit the interrogatories at issue does not invoke
due process concerns. The Commissioner requests that the Court reject the Magistrate’s Report
and Recommendation in its entirety because of this alleged error.
A. The ALJ’s Refusal to Submit Harriman’s Proposed Interrogatories to Dr. Sours Is Not
Supported by Substantial Evidence.
The Commissioner objects to the Magistrate Judge’s recommendation regarding the
violation of Harriman’s due process rights. The Commissioner alleges that in refusing to submit
Harriman’s proposed post-hearing interrogatories, the ALJ complied with HALLEX and
maintains the discretionary authority to decide whether interrogatories are appropriate and in
compliance (Doc. 16, PageID 762 (“The ALJ has the discretion to allow or deny the claimant to
ask questions of the psychological consultative examiner, either in person or through
interrogatories. As it was within the ALJ’s discretion, there was no violation of Plaintiff’s due
process rights when the ALJ decided not to submit the interrogatories. . .”)). The Commissioner
argues that the first case the Magistrate cites in the report and recommendation holds that “due
process does not require the Commissioner to allow a social security claimant upon request to
cross-examine every physician providing post-hearing evidence in order for the hearing to be
‘full and fair.’’’ (Doc. 16, PageID 763–64 (citing Flatford v. Chater, 93 F.3d 1296, 1305 (6th
Cir. 1996)). Reviewing the record in its entirety, this Court disagrees with the Commissioner
and finds that the ALJ’s refusal to submit Harriman’s proposed post-hearing interrogatories to
Dr. Sours was not supported by substantial evidence and therefore violated Harriman’s due
process rights.
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Similar to cross-examination, interrogatories provide the plaintiff “the opportunity to
present all of his evidence and to confront the evidence against him.” Flatford, 93 F.3d at 1306–
07. This Court agrees with both the Commissioner and Harriman that the decision to submit
interrogatories generally falls within the discretion of the ALJ. However, in social security
cases, “due process requires that a social security disability claimant have the opportunity to
cross-examine a reporting physician where reasonably necessary. . .” to fairly and fully develop
the record. Id. at 1307; see also Sturgeon v. Comm’r of Soc. Sec., 1:12-cv-833, 5 (S.D. OH Dec.
17, 2013), adopted and affirmed (S.D. OH Feb. 18, 2014) (“Due process requires in the context
of a social security hearing that the proceedings be ‘full and fair.’’); Gambill v. Shinseki, 576
F.3d 1307, 1326 (Fed. Cir. 2009) (citing Flatford v. Chater, 93 F.3d 1296 (6th Cir. 1996)
(“[E]very circuit that has ruled on the issue has held that due process affords social security
disability claimants either the right of cross-examination or the right to serve interrogatories as a
means of challenging post-hearing medical reports.”). This is particular pertinent when the
reporting physician’s examination is conducted post-hearing, because “when evidence is
gathered post-hearing at the initiation of the [ALJ] a heightened danger exists that the claimant
may not have the opportunity to cross-examine the physician if needed.” Id. If the claimant is
wrongly denied this opportunity to cross-examine, substantial evidence may not support the
ALJ’s decision. See Quattlebaum v. Comm’r of Soc. Sec., 850 F. Supp. 2d 763, 781 (S.D. Ohio
2011).
Here, this Court finds that Harriman’s proposed post-hearing interrogatories were
reasonably necessary to fully and fairly develop the record. The ALJ’s decision not to submit
them to Dr. Sours is therefore not supported by substantial evidence and in violation of
Harriman’s due process rights.
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In determining Harriman’s RFC and concluding that he is not disabled, the ALJ relied
heavily upon the medical opinion testimony of Dr. Sours, who found Harriman to have mild to
moderate limitations that would not necessarily preclude all work activity. Importantly, Dr.
Sours was the only examining physician of record whose opinion was not discredited by the ALJ
in calculating Harriman’s RFC. Given the weight assigned to Dr. Sours’ testimony, and the fact
that Dr. Sour’s examination occurred after the initial administrative hearing, allowing Harriman
the opportunity to cross-examine Dr. Sours and confront the contrary evidence through the form
of the proposed interrogatories is reasonably necessary in itself to develop and fair and full
record. This alone warrants reversal and remand if the interrogatories were appropriately scoped
and in compliance with HALLEX.
Here, the ALJ’s refusal to submit the proposed post-hearing interrogatories to Dr. Sours
appears to have been based on a factual misunderstanding and ALJ error. In refusing to submit
the proposed interrogatories, the ALJ noted that Harriman’s proposed interrogatories were not in
compliance with HALLEX. Specifically, the ALJ stated that the interrogatories definition of a
mild limitation—an inability to function in a particular area “at least 10%” of the time”—
suggested a specific conclusion and was work-preclusive because it “failed to identify any
limitation between no restriction and a restriction that would put the individual off-task at least
10 percent, which generally corresponds to a finding of disability.” (Doc. 9, PageID 86).
Therefore, the ALJ seemingly believed that any mild limitation would trigger a finding that
Harriman was unable to function at least 10% of the time and would preclude any work activity.
However, Harriman argues that the proposed interrogatories actually defined a “mild”
limitation as an inability to function “less than 10% of the work day or work week.” The record
supports Harriman’s argument, demonstrating that the proposed interrogatories included a list of
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definitions—ranging from none to extreme—that offered Dr. Sours an appropriate range of
limitation levels that indicated progressively worsening percentage levels of functioning (Doc. 9,
PageID 444). Most importantly, the record reflects that the proposed interrogatories offered a
definition of a “mild” limitation as an inability to function “less than 10% of the work day or
work week.” (Id.) (Emphasis added). Thus, the proposed interrogatories would have given
Harriman the opportunity to cross-examine Dr. Sours in a HALLEX-compliant manner that did
not suggest a specific conclusion as to Harriman’s ability to function in a work setting. Dr.
Sours could have determined that Harriman had mild limitations that would not preclude all
work activity.

However, Dr. Sours’ answers could also potentially bring forth favorable

evidence for Harriman that could significantly impact Harriman’s RFC and the ultimate
determination as to whether or not he is disabled. Since the ALJ’s refusal was based on a factual
mistake as to the proposed interrogatories compliance with HALLEX, Dr. Sours’ answers to
Harriman’s proposed interrogatories are reasonably necessary for the development of a full and
fair record, and the ALJ’s refusal to submit them is not supported by substantial evidence and in
violation of Harriman’s due process rights.
As explained more thoroughly in the Report and Recommendation, the ALJ refusal to
submit Harriman’s post-hearing interrogatories to Dr. Sours was not supported by substantial
evidence and in violation of Harriman’s due process rights because these interrogatories were
reasonably necessary to fairly and fully develop the record. Accordingly, the Court ACCEPTS
the Magistrate Judge’s Report and Recommendation on this point and REVERSES the
Commissioner’s denial of benefits and REMANDS the case to the Commissioner and the ALJ
for further review.

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IV. CONCLUSION
For these reasons, the Court ACCEPTS and AFFIRMS Magistrate Judge Jolson’s
Report and Recommendation (Doc. 15), thereby OVERRULING the Commissioner’s
objection (Doc. 16). The Commissioner’s denial of benefits is REVERSED. This case is
hereby REMANDED.
IT IS SO ORDERED.
/s/ Algenon L. Marbley
ALGENON L. MARBLEY
UNITED STATES DISTRICT JUDGE
DATED: September 26, 2017

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