Hooton v. Commissioner, SSA

Filing 28

MEMORANDUM ADOPTING 26 REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE. It is, therefore, ORDERED that the decision of the Administrative Law Judge is REMANDED. Signed by Judge Amos L. Mazzant, III on 9/15/2017. (daj, )

United States District Court
EASTERN DISTRICT OF TEXAS
SHERMAN DIVISION

STACY HOOTON
v.
COMMISSIONER, SSA

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Civil Action No. 4:16-CV-392
(Judge Mazzant/Judge Nowak)

MEMORANDUM ADOPTING REPORT AND
RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
Came on for consideration the report of the United States Magistrate Judge in this action,
this matter having been heretofore referred to the Magistrate Judge pursuant to 28 U.S.C. § 636.
On August 17, 2017, the report of the Magistrate Judge (Dkt. #26) was entered containing proposed
findings of fact and recommendations that the final decision of the Commissioner of Social
Security (“Commissioner”) be remanded for further consideration because the Administrative Law
Judge (“ALJ”) did not give adequate consideration to the findings of the state agency physicians
in determining Plaintiff’s residual functioning capacity (“RFC”) (Dkt. #26). Having received the
report of the Magistrate Judge (Dkt. #26), having considered Plaintiff Stacy Hooton’s (“Plaintiff”)
timely filed objections (“Objections”) (Dkt. #27), and having conducted a de novo review of
Plaintiff’s claims and all relevant pleadings, the Court is of the opinion that the findings and
conclusions of the Magistrate Judge are correct, and the Court hereby adopts the Magistrate
Judge’s report (Dkt. #26) as the findings and conclusions of the Court.
BACKGROUND
The facts in this case originate from an appeal of the Commissioner’s decision in a social
security disability insurance case. The facts in this case have been set forth in detail by the
Magistrate Judge, and need not be duplicated in their entirety herein (see Dkt. #26). In summary,

on September 20, 2012, Plaintiff filed an application for disability and disability insurance benefits
(“DIB”) under Title II of the Social Security Act (“Act”) alleging an onset disability date of
June 17, 2011 (TR 205-208). On October 26, 2012, Plaintiff filed an amended application for DIB
and an application for supplemental security income benefits (“SSI”) under Title II and XVI of the
Act, alleging an onset of disability date of March 23, 2011 (TR 209-17). Therein, Plaintiff alleged
the following impairments: carpal tunnel syndrome, trigger finger, obesity, hiatal hernia, chronic
obstructive pulmonary disease, depression, panic disorder with agoraphobia, irritable bowel
syndrome, diabetes mellitus, hypertension, Bell’s palsy, gastroesophageal reflux disease,
headaches, nasal allergies, and a remote history of drug abuse (TR 20).
Plaintiff’s applications were initially denied by notice on April 5, 2013, and again on
reconsideration, after which Plaintiff requested a hearing before an ALJ (TR 138-43, 146, 149-42,
153-54). On May 6, 2014, Plaintiff submitted a request to the ALJ for the issuance of a subpoena
to State agency psychological consultants Charles Langford, Ph. D., and Nancy Wilson, Ph.D., (
the “non-examining physicians”) to testify at the administrative hearing schedule for June 17,
2014, and/or for the ALJ to submit written interrogatories to the non-examining physicians (TR
282-353). Drs. Langford and Wilson never examined or treated Plaintiff, but did review Plaintiff’s
evidence in April and July of 2013, and offered opinions on Plaintiff’s RFC (TR 89-90, 93-94,
114-115, 117-119). On May 29, 2014, the ALJ denied Plaintiff’s request for a subpoena or written
interrogatories, noting that the right to cross-examine a physician exists only for examining
physicians and psychologists (TR 365-66).
The ALJ conducted a hearing on June 17, 2014, where Plaintiff was represented by counsel
(TR 37-85). On January 28, 2015, the ALJ issued an unfavorable decision, denying benefits, and
finding Plaintiff not disabled at Step Five of the prescribed sequential evaluation process (TR 14-

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36). The Appeals Council granted Plaintiff’s request for review and on April 15, 2016, issued a
partially favorable decision finding Plaintiff disabled as of September 29, 2014 (TR 4, 7). But
aside from the ALJ’s determination of Plaintiff’s disability status, the Appeals Council adopted
the ALJ’s findings of fact and conclusions of law (TR 4).
On June 14, 2016, Plaintiff filed her Complaint in this Court (Dkt. #1). On January 17,
2017, Plaintiff filed her Brief (Dkt. #13), and the Commissioner filed its Brief on May 17, 2017
(Dkt. #22). On August 17, 2017, the Magistrate Judge issued a Report and Recommendation (Dkt.
#26). And, on August 31, 2017, Plaintiff filed her Objections to the Report and Recommendation
of the Magistrate Judge (Dkt. #27).
PLAINTIFF’S OBJECTIONS
Under the law, a party who files timely written objections to a magistrate judge’s report
and recommendation is entitled to a de novo determination of those findings or recommendations
to which the party specifically objects. 28 U.S.C. § 636(b)(1)(c); Fed. R. Civ. P. 72(b)(2)-(3).
Plaintiff agrees with the Magistrate Judge’s finding at Step Five that the ALJ’s RFC finding was
not supported by substantial evidence and that this matter should be remanded (Dkt. #27 at 1).
Plaintiff’s sole objection centers on Plaintiff’s rights related to the non-examining physicians. As
such, the Court adopts the finding and conclusion of the Magistrate Judge that the matter should
be remanded as the finding and conclusion of the Court. With respect to Plaintiff’s objections,
Plaintiff specifically argues that (1) she has a right to subpoena non-examining physicians; (2) that
the ALJ gave insufficient reasons for denying the interrogatories submitted to these physicians;
(3) that in light of forthcoming regulation, any deprivation of her alleged right to subpoena and/or
submit interrogatories to non-examining physicians erodes a crucial procedural safeguard; and (4)
that the these alleged errors affected the fundamental fairness of the hearing (Dkt. #27).

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Objection #1: Whether Plaintiff has the Right to Subpoena the Non-examining Physicians
Plaintiff asserts that neither the SSA nor its regulations limit a claimant’s right to subpoena
non-examining physicians (Dkt. #27 at 3). Plaintiff’s objection, thus, reiterates the argument
previously asserted in her reply brief that claimants have the right to subpoena non-examining
physicians (Dkt. #27 at 2-3). Plaintiff specifically argues that the only reason prior case law has
not allowed claimants to subpoena non-examining physicians is that those claimants did not
exercise this purported right. (Dkt. #27 at 3). Plaintiff further argues that a proper reading of
Richardson v. Perales, proves this point (Dkt. 27 at 2); 402 U.S. 389, 404-05 (1971). In pertinent
part, the portion of Perales Plaintiff refers to states that, “This inaction on the claimant’s part
supports the Court of Appeals’ view . . . that the claimant as a consequence is to be precluded from
now complaining that he was denied the rights of confrontation and cross-examination.” 402 U.S.
404.
Plaintiff correctly asserts that Perales provides claimants with an unqualified right to
subpoena examining physicians for cross-examination but the Fifth Circuit has not held that
claimants have a right to subpoena non-examining physicians (Dkt. #26 at 15); Lidy v. Sullivan,
911 F.2d 1075, 1077 (5th Cir. 1990) (“The Secretary argues, first, that Perales addresses the
scenario of a non-examining physician . . . [h]owever, the passage from Perales that we have
quoted, supra, plainly refers to examining physicians. Hence, this argument by the Secretary is
without merit.”). Moreover, the Northern District of Texas has previously considered this issue
and found, in agreement with courts, that no right exists for claimants to subpoena non-examining
physicians. See Carroll v. Massanari, CIV. A. 500CV0267C, 2001 WL 406227, at *4 (N.D. Tex.
Apr. 17, 2001), report and recommendation adopted, CIV. A. 500CV267C, 2001 WL 506979
(N.D. Tex. May 10, 2001) (finding that Lidy provides no right for a claimant to subpoena a non-

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examining physician); Muldner v. Comm’r of Soc. Sec. Admin., CV-16-01652-PHX-JAT, 2017
WL 2644454, at *4 (D. Ariz. June 20, 2017) (finding ALJ did not err in refusing claimant’s request
to subpoena non-examining physician because claimant did not demonstrate the relevance of the
testimony sought); Daywalt v. Colvin, 15-396, 2015 WL 5883743, at *1-2 (W.D. Pa. Oct. 8, 2015)
(finding no right for claimant to subpoena non-examining physicians); Lopez v. Chater, 8 F. Supp.
2d 152, 156 (D.P.R. 1998) (finding ALJ’s denial of claimant’s request to subpoena non-examining
physician did not violate claimant’s due process rights). Plaintiff attempted to differentiate Carroll
from the present case, arguing that the Carroll court refused the claimant’s request because the
interrogatories were repetitive and unnecessary for the full presentation of the case (Dkt. #25 at
6); 2001 WL 406227 at *4. The Magistrate Judge addressed this alleged distinction in its Report
and Recommendation and noted that the Carroll court found the interrogatories requested to be
repetitive and unnecessary only after determining that Carroll was not entitled to subpoena nonexamining physicians (Dkt. #26 at 16).
Nonetheless, Plaintiff argues—citing no authority for such position—that she should have
been afforded the opportunity to subpoena these non-examining physicians because their
testimony was necessary for the full presentation of the case (Dkt. 27 at 4). Agency regulations
state that when a claimant requests a subpoena, they must “state the important facts that the witness
or document is expected to prove; and indicate why these facts could not be proven without issuing
a subpoena.” See 20 C.F.R. §§ 404.950(d), 416.1450(d). The regulations also state that the ALJ
may issue a subpoena, “[w]hen it is reasonably necessary for the full presentation of a case.” Id.
Plaintiff argues that these subpoenas were necessary because (1) excessive deference was afforded
to the opinions of the non-examining physicians, and (2) incorrect assumptions were made

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regarding the time the non-examining physicians spent reviewing Plaintiff’s files (Dkt. #27 at 5).
As Plaintiff puts it:
If Drs. Langford and Wilson worked a normal 40 hour workweek, but reviewed
200 or more files in a week—that would call into question whether they spent
sufficient time reviewing the evidence. If another person (who may or may not be
a doctor) completed the form before they reviewed the filed—that would call into
question whether the opinion would qualify as a medical opinion.

(Dkt. #27 at 5). But, the findings of state agency psychological consultants are to be regarded as
expert opinion evidence, thus, there is no reason to believe the findings of the non-examining
physicians were afforded an undue amount of deference. 20 C.F.R. §§ 404.1527(e)(2)(i),
416.927(e)(2)(i); SSR 96-6p, 1996 WL 374180, at *1-2. Furthermore, to reiterate, the Court is
aware of and Plaintiff cites no authority establishing or suggesting that the time a non-examining
physician spends reviewing a claimant’s file or the manner in which the relevant forms are
completed is relevant to or “reasonably necessary for the full presentation of a case.” See 20 C.F.R.
§§ 404.950(d), 416.1450(d). Accordingly, the Court declines to embrace Plaintiff’s wholly
speculative argument regarding the procedure of Drs. Langford and Wilson’s examinations and
overrules Plaintiff’s first objection.
Objection #2: Whether the ALJ Gave Insufficient Reasons for Denying the Interrogatories
In her next objection, Plaintiff argues that the ALJ gave insufficient reasons for denying
her request to submit interrogatories to the non-examining physicians in this case (Dkt. #27 at 45). In support of this position, Plaintiff asserts that “the agency must examine the relevant data
and articulate a satisfactory explanation for its action including a ‘rational connection between the
facts found and the choice made.’” (Dkt. # 13 at 15); Motor Vehicle Mfrs. Ass'n of U.S., Inc. v.
State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983) (quoting Burlington Truck Lines v. United
States, 371 U.S. 156, 168 (1962)). But the authority cited is inapplicable in the social security
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context and Plaintiff does not cite any case or regulation instructing an ALJ to provide a rationale
for the denial of requested interrogatories. Moreover, Plaintiff cites no case where the time an
examining physician spent on a case proved relevant to the case’s outcome. Accordingly,
Plaintiff’s second objection is denied.
Objection #3: Whether the Magistrate Judge Diminished Claimants’ Procedural Safeguards
In her third objection, Plaintiff warns that if the Magistrate Judge declines to allow her to
submit interrogatories to the non-examining physicians, then the Magistrate Judge will in effect
carve out an exception “inconsistent with American jurisprudence” (Dkt. #27 at 6). Plaintiff
argues that a forthcoming regulation which declines to afford controlling weight to any medical
opinions, makes it ever more important for claimants to be able to scrutinize how examining
physicians arrive at their conclusions (Dkt. #27 at 6); 20 C.F.R. § 404.1520c(a) (“[w]e will not
defer or give any specific evidentiary weight, including controlling weight, to any medical
opinion(s) or prior administrative medical finding(s), including those from your medical
sources.”).
The Court notes that the effects Plaintiff warns of are, once again, speculative. Plaintiff
cites no authority suggesting that in light of this forthcoming regulation, any reviewing authority
should allow claimants increased opportunity to challenge the findings of non-examining
physicians. Accordingly, Plaintiff’s third objection is denied.
Objection 4: Whether the Alleged Errors Affected the Hearing’s Fundamental Fairness
Finally, Plaintiff complains that the aforementioned alleged errors affected the
fundamental fairness of the hearing (Dkt. #27 at 7). Having found no error in the ALJ’s refusal to
allow Plaintiff to subpoena the non-examining physicians, the ALJ’s refusal to allow Plaintiff to
serve interrogatories upon the non-examining physician, and finding no erosion of the procedural

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safeguards afforded claimants, the Court rejects Plaintiff’s argument regarding the fundamental
fairness of the hearing. Accordingly, Plaintiff’s final objection is overruled.
CONCLUSION
Having received the report of the United States Magistrate Judge (Dkt. #26), having
considered Plaintiffs’ timely filed Objections (Dkt. #27), and having conducted a de novo review,
the Court is of the opinion that the findings and conclusions of the Magistrate Judge are correct

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and adopts the Magistrate Judge’s report (Dkt. #26) as the findings and conclusions of the Court.
It is, therefore, ORDERED that the decision of the Administrative Law Judge is
REMANDED.
IT IS SO ORDERED.

SIGNED this 15th day of September, 2017.

___________________________________
AMOS L. MAZZANT
UNITED STATES DISTRICT JUDGE

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