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Terry v. Commissioner of Social Security

United States District Court, M.D. Florida, Fort Myers Division

March 30, 2017

FRANKIE M. TERRY, Plaintiff,


          CAROL MIRANDO, United States Magistrate Judge

         Plaintiff Frankie M. Terry seeks judicial review of the denial of her claim for disability insurance benefits (“DIB”) and supplemental security income (“SSI”) by the Commissioner of the Social Security Administration (“Commissioner”). The Court has reviewed the record, the briefs, and the applicable law. For the reasons discussed herein, the decision of the Commissioner is AFFIRMED.

         I. Issues on Appeal[1]

         Plaintiff raises three issues on appeal: (1) whether Plaintiff's due process rights were violated or she was otherwise prejudiced by the Administrative Law Judge's (ALJ) alleged failure to adhere to the agency's Hearings, Appeals, and Litigation Law (“HALLEX”) manual and properly proffer to Plaintiff the interrogatory responses of the medical expert (“ME”) or permit Plaintiff to cross-examine the ME; (2) whether the ALJ was required by the Appeals Council remand order to obtain the testimony of a ME; and (3) whether substantial evidence supports the ALJ's assessment of Plaintiff's Residual Functional Capacity (“RFC”).

         II. Procedural History and Summary of the ALJ's Decision

          On August 5, 2009, Plaintiff filed applications for a period of DIB and SSI alleging that she became disabled and unable to work on January 1, 2007 due to her back disorder. Tr. 240-41, 270. The applications initially were denied on October 16, 2009 and upon reconsideration on March 30, 2010. Tr. 188, 194. Plaintiff requested and received a hearing before ALJ M. Dwight Evans on May 18, 2011, during which she was represented by an attorney. Tr. 168. Plaintiff appeared and testified at the hearing. Id. On August 31, 2011, the ALJ issued a decision finding Plaintiff not disabled from July 28, 2009 through the date of the decision. Tr. 168-76. Following the ALJ's decision, Plaintiff filed a request for review by the Appeals Council, which was granted on March 27, 2013. Tr. 183-85. The Appeals Council remanded the case to the ALJ for further proceedings. Id. Plaintiff received a second hearing before ALJ Evans on November 6, 2013, during which she again was represented by an attorney. Tr. 89. Plaintiff and a vocational expert (“VE”), Jeffrey Barrett, testified at the hearing. Id.

         On May 2, 2014, the ALJ issued a decision finding Plaintiff not disabled from July 28, 2009 through the date of the decision. Tr. 47. At step one, the ALJ determined that Plaintiff had not engaged in substantial gainful activity since July 28, 2009. Tr. 37. At step two, the ALJ determined that Plaintiff has the following severe impairments: degenerative disc disease, bulging disc of the lumbar and cervical spine, neck and back pain, status post cervical discectomy and fusion, status post left knee medial patella reefing procedure, left knee pain, migraines, affective disorder and cognitive disorder. Id. At step three, the ALJ concluded that 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.” Tr. 38. The ALJ then determined that Plaintiff had the RFC to perform the full range of medium work as defined in 20 C.F.R § 416.967(c).[2] Tr. 39.

         Further, the ALJ found

[Plaintiff] is able to continuously lift/carry up to 20 pounds and occasionally lift/carry [] 21 to 50 pounds. At one time, without interruption, [Plaintiff] can sit for 2 hours, stand 6 hour[s], and walk 4 hour[s]. In an 8-hour workday [Plaintiff] can sit for 6 hours, stand for 6 hours, and walk for 6 hours. [Plaintiff] can frequently use the bilateral upper extremities for reaching (overhead). [Plaintiff] can continuously use the bilateral upper extremities for reaching (all other directions), handling, fingering, feeling, pushing and pulling. She is left hand dominant. Use of the bilateral feet for operation of foot controls is continuously. [Plaintiff] can occasionally climb ladders or scaffolds. [Plaintiff] can continuously climb stairs and ramps, balance, stoop, kneel, crouch, and crawl. [Plaintiff] can frequently tolerate exposure to unprotected height[s]. [Plaintiff] can continuously tolerate exposure to moving mechanical parts, operating a motor vehicle, humidity and wetness, dusts, odors, fumes and pulmonary irritants, extreme cold, extreme heat, and vibration. [Plaintiff] can tolerate exposure from very loud noise (jackhammer). [Plaintiff] is limited to simple, routine, repetitive tasks, or unskilled work. [Plaintiff] is able to perform work that requires frequent interaction with the public, co-workers, and supervisors.

Id. Next, the ALJ found that Plaintiff has no past relevant work. Tr. 45. Considering Plaintiff's age, education, work experience and RFC, the ALJ concluded that Plaintiff can adjust successfully to other work that exists in significant numbers in the national economy. Tr. 46. As a result, the ALJ found that Plaintiff is not disabled. Tr. 47.

         Following the ALJ's decision, Plaintiff filed a request for review by the Appeals Council, which was denied on November 16, 2015. Tr. 1-3. Accordingly, the May 2, 2014 decision is the final decision of the Commissioner. Plaintiff filed an appeal in this Court on January 19, 2016. Doc. 1. Both parties have consented to the jurisdiction of the United States Magistrate Judge, and this matter is now ripe for review. Docs. 15, 16.

         III. Social Security Act Eligibility and Standard of Review

         A claimant is entitled to disability benefits when she is unable to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to either result in death or last for a continuous period of not less than twelve months. 42 U.S.C. §§ 416(i)(1), 423(d)(1)(A); 20 C.F.R. § 404.1505(a). The Commissioner has established a five-step sequential analysis for evaluating a claim of disability. See 20 C.F.R. § 416.920.

         The Eleventh Circuit has summarized the five steps as follows:

(1) whether the claimant is engaged in substantial gainful activity; (2) if not, whether the claimant has a severe impairment or combination of impairments; (3) if so, whether these impairments meet or equal an impairment listed in the Listing of Impairments; (4) if not, whether the claimant has the residual functional capacity (“RFC”) to perform his past relevant work; and (5) if not, whether, in light of his age, education, and work experience, the claimant can perform other work that exists in “significant numbers in the national economy.”

Atha v. Comm'r, Soc. Sec. Admin., 616 F. App'x 931, 933 (11th Cir. 2015) (citing 20 C.F.R. §§ 416.920(a)(4), (c)-(g), 416.960(c)(2); Winschel v. Comm'r of Soc. Sec., 631 F.3d 1176, 1178 (11th Cir. 2011)). The claimant bears the burden of persuasion through step four; and, at step five, the burden shifts to the Commissioner. Id.; Bowen v. Yuckert, 482 U.S. 137, 146 n.5 (1987). The scope of this Court's review is limited to determining whether the ALJ applied the correct legal standards and whether the findings are supported by substantial evidence. McRoberts v. Bowen, 841 F.2d 1077, 1080 (11th Cir. 1988) (citing Richardson v. Perales, 402 U.S. 389, 390 (1971)). The Commissioner's findings of fact are conclusive if supported by substantial evidence. 42 U.S.C. § 405(g). Substantial evidence is “more than a scintilla, i.e., evidence that must do more than create a suspicion of the existence of the fact to be established, and such relevant evidence as a reasonable person would accept as adequate to support the conclusion.” Foote v. Chater, 67 F.3d 1553, 1560 (11th Cir. 1995) (internal citations omitted); see also Dyer v. Barnhart, 395 F.3d 1206, 1210 (11th Cir. 2005) (finding that “[s]ubstantial evidence is something more than a mere scintilla, but less than a preponderance”) (internal citation omitted).

         The Eleventh Circuit recently has restated that “[i]n determining whether substantial evidence supports a decision, we give great deference to the ALJ's fact findings.” Hunter v. Soc. Sec. Admin., Comm'r, 808 F.3d 818, 822 (11th Cir. 2015) (citing Black Diamond Coal Min. Co. v. Dir., OWCP, 95 F.3d 1079, 1082 (11th Cir. 1996)). Where the Commissioner's decision is supported by substantial evidence, the district court will affirm, even if the reviewer would have reached a contrary result as finder of fact, and even if the reviewer finds that the preponderance of the evidence is against the Commissioner's decision. Edwards v. Su livan, 937 F.2d 580, 584 n.3 (11th Cir. 1991); Barnes v. Sullivan, 932 F.2d 1356, 1358 (11th Cir. 1991). “The district court must view the record as a whole, taking into account evidence favorable as well as unfavorable to the decision.” Foote, 67 F.3d at 1560; see also Lowery v. Sullivan, 979 F.2d 835, 837 (11th Cir. 1992) (stating that the court must scrutinize the entire record to determine the reasonableness of the factual findings). It is the function of the Commissioner, and not the courts, to resolve conflicts in the evidence and to assess the credibility of the witnesses. Lacina v. Comm'r, 606 F. App'x 520, 525 (11th Cir. 2015) (citing Grant v. Richardson, 445 F.2d 656 (5th Cir. 1971)).

         III. Discussion

         a. Whether a leged violations of HALLEX were prejudicial to Plaintiff or denied Plaintiff her due process rights

         By a letter dated July 29, 2013, the ALJ sought the medical expert opinion of neurosurgeon Bruce G. Witkind, M.D., and requested him to review the evidence provided by the ALJ and complete a medical interrogatory regarding Plaintiff's physical ability to do work-related activities. Tr. 1055. The ALJ requested that Dr. Witkind provide the completed interrogatory and return the evidence “as soon as possible, but not later than 10 days from the date of this letter.” Id. (emphasis added). Dr. Witkind completed the medical interrogatory nearly three months later on October 18, 2013, less than three weeks before the administrative hearing. Tr. 1056-73. In evaluating Plaintiff's RFC, the ALJ considered Dr. Witkind's opinion and accorded it great weight, finding it was supported by the medical evidence as a whole, “including physical examinations and diagnostic objective testing results.” Tr. 45. The ALJ also noted “Dr. Witkind had the opportunity to review the entire medical record when making his opinion.” Id. Plaintiff contends that the ALJ violated the Social Security Administration's (“SSA”) own regulations in the HALLEX manual by not properly proffering the interrogatory responses to Plaintiff or permitting Plaintiff to cross-examine the expert. See Doc. 19 at 4-11. Plaintiff argues these violations were prejudicial to her and violated her right to due process.


         Based on his review of Plaintiff's medical records, Dr. Witkind opined that Plaintiff may work full-time at a medium level of physical demands, although she was limited to light work for three months after C6-7 surgery on March 6, 2013. Tr. 1061. Dr. Witkind also found that no significant impairments are present, and all of Plaintiff's neurological and orthopedic exams are within normal limits. Tr. 1063. As a result, Dr. Witkind concluded that Plaintiff's impairments, combined or separately, do not meet or equal any listings. Tr. 1064. The ALJ accorded great weight to Dr. Witkind's opinion, noting that:

it is supported by the medical evidence as a whole including physical examinations and diagnostic objective testing results. Furthermore, Dr. Witkind had the opportunity to review the entire medical record when making his opinion. He noted [Plaintiff] has several normal neurological and orthopedic examinations and currently had no significant impairment present. Consequently, the opinion is accepted. (Ex. 40F)

Tr. 45.

         Plaintiff argues that it was error for the ALJ to accord great weight to Dr. Witkind's opinion not only because substantial evidence does not support Dr. Witkind's opinion[3] but also because the ALJ did not proffer this evidence to Plaintiff and denied Plaintiff's request to cross-examine Dr. Witkind. Doc. 19 at 4. Plaintiff asserts that the ALJ's failure to do so resulted in prejudice to her and denied her due process. Id.

         In support, Plaintiff claims that the agency's own HALLEX manual § I-2-5-44 mandates the ALJ to proffer a copy of the ME's response to the interrogatories to the claimant or her appointed representative, allowing them to object to, comment on, or refute the proffered evidence. Id. at 5. Furthermore, Plaintiff argues that HALLEX § I-2-7-30 requires the ALJ to address any comments on the proffered evidence by issuing a formal ruling. Id. Plaintiff asserts that in Ripley v. Astrue, the court found that the ALJ erred because the ALJ did not advise plaintiff's counsel of the plaintiff's right to cross-examine the ME and thus violated the plaintiff's due process rights. No. 2:08-CV-947-Ftm-DNF, 2010 WL 1759554, at *7 (M.D. Fla. Apr. 30, 2010).

         In addition, Plaintiff argues that her counsel did not have an opportunity to review Dr. Witkind's opinion because counsel did not receive any notification of Dr. Witkind's opinion being submitted as evidence. Doc. 19 at 8; Tr. 90-91. According to Plaintiff, although her counsel notified the ALJ during the hearing that counsel had no notice of Dr. Witkind's response to the interrogatories, the ALJ insisted that counsel had sufficient time and opportunity to review Dr. Witkind's response because Dr. Witkind rendered his response on October 18, 2013, two and one half weeks before the ALJ's hearing on November 6, 2013. Doc. 19 at 8; Tr. 90-95, 1056-73.

         Plaintiff further argues that the ALJ denied her right to cross-examine Dr. Witkind, and the denial was egregious because despite the inconsistency of Dr. Witkind's opinion with the evidence as a whole, the ALJ adopted his opinion. Doc. 19 at 9-11. Plaintiff asserts that because of the ALJ's denial, Plaintiff did not have a full and fair opportunity to fully develop her case. Id. at 12. In summary, Plaintiff claims that the ALJ's violated HALLEX by not proffering a copy of Dr. Witkind's opinion to her and denied her due process by not allowing her to cross-examine Dr. Witkind. Id. at 5-6.

         In response, the Commissioner argues that HALLEX has no legal force and is not binding on the Commissioner because it is not a regulation. Doc. 24 at 4. In support, the Commissioner asserts that other circuits have held that HALLEX creates no legally enforceable rights or that the claimant must show prejudice caused by the ALJ's noncompliance with HALLEX. Id. at 5-7. The Commissioner further asserts that in Wells v. Commissioner of Social Security, the Eleventh Circuit Court held that the Commissioner's Program Operations Manual Systems (“POMS”), publicly available operating instructions for processing Social Security claims, do not have the force of law because the POMS are not formal rules binding on the SSA. Id. at 7; 430 F. App'x 785, 786 (11th Cir. 2011).

         Furthermore, the Commissioner argues that Plaintiff does not show any prejudice she suffered from the ALJ's noncompliance with the HALLEX rules. Doc. 24 at 8. The Commissioner also asserts that Plaintiff does not show the need to more fully develop the record or the ALJ's violation of her due process rights. Id. The Commissioner claims that to merit remand, Plaintiff must show prejudice before the Court finds that her due process rights are violated. Id. at 8-9. In addition, the Commissioner distinguishes this case from Ripley, the case on which Plaintiff relies to support her argument, because Ripley did not consider whether HALLEX has the force of law. Ripley, 2010 WL 1759554, at *6-7; Id. at 8 n.4. The Commissioner also argues that unlike here, in Ripley, the doctor's responses to the interrogatories were filed after the ALJ's hearing and were not submitted to the claimant. Doc. 24 at 8 n.4; Ripley, 2010 WL 1759554, at *6-7.

         First, the Court will address whether the ALJ was required to proffer the interrogatory responses of Dr. Witkind to Plaintiff, and, if so, whether he violated HALLEX by failing to do so. Second, the Court will determine whether any such violation constitutes grounds for remand or whether Plaintiff's due process rights otherwise were violated.

         “[HALLEX] is a policy manual written by the [SSA] to provide guidance on procedural matters.” See Moore v. Apfel, 216 F.3d 864, 868 (9th Cir. 2000), cited in Warren v. Astrue, 830 F.Supp.2d 1369, 1372 (S.D. Fla. 2011); Carroll v. Soc. Sec. Admin., Comm'r, 453 F. App'x 889, 892 (11th Cir. 2011) (noting that HALLEX is “an agency handbook for the SSA”). Although HALLEX gives guidelines for the ALJ's hearing process, the Eleventh Circuit “has not decided whether HALLEX carries the force of law.” McCabe v. Comm'r of Soc. Sec., 661 F. App'x 596, 599 (11th Cir. 2016); see also George v. Astrue, 338 F. App'x 803, 805 (11th Cir. 2009) (assuming that HALLEX carries the force of law would be “a very big assumption”). Other circuit courts and district courts, including one in this district, however, have found that HALLEX does not. See, e.g., Moore, 216 F.3d at 869; Hall v. Comm'r of Soc. Sec., No. 2:05-cv-559-FtM-29SPC, 2007 WL 4981325, at *10 (M.D. Fla. Feb. 9, 2007) (“HALLEX like all administrative manuals lacks the legal authority to bind the ALJ”).

         Regardless, a mere showing that the agency failed to comply with HALLEX is not enough to merit remand; the claimant must show prejudice. McCabe, 661 F. App'x at 599 (citing Brown v. Shalala, 44 F.3d 931, 935 (11th Cir. 1995)) (“even assuming (without deciding) that HALLEX carries the force of law and the agency failed to comply with it, ” the claimant must show that “she was prejudiced by this failure”); Carroll, 453 F. App'x at 892 (finding that “an agency's violation of its own governing rules must result in prejudice before [the court] will remand to the agency for compliance”) (citing Hall v. Schweiker, 660 F.2d 116, 119 (5th Cir. 1981)); see also Weber v. Comm'r of Soc. Sec., No. 2:16-cv-25-FtM-CM, 2017 WL 727765, at *3 (M.D. Fla. Feb. 24, 2017).

         HALLEX § I-2-5-44 states that when the ALJ “receives a [ME's] response to written interrogatories, the ALJ will proffer a copy of the responses using the procedures in [HALLEX] manual [§] I-2-7-30.” HALLEX § I-2-5-44(A), 1994 WL 637377. Furthermore, the ALJ

must rule on any objection or request by the claimant regarding the ME's response to interrogatories. The ALJ may rule on an objection on the record during the hearing or in a writing that the ALJ exhibits and associates with the record. [The] ALJ must allow a claimant or appointed representative to propose additional interrogatories to the ME or request a supplemental hearing to question the ME, even if the claimant or appointed representative previously had the opportunity to do so.

         HALLEX § I-2-5-44(B), 1994 WL 637377. Section I-2-7-30, which sets forth the proffer procedures, provides that the ALJ proffers evidence

by sending a letter to the claimant and appointed representative, if any, that provides the following information:
• A time limit to object to, comment on, or refute the proffered evidence, and to submit a written statement as to the facts and law that the claimant believes apply to the case in light of the evidence submitted;
• A time limit to submit written questions to the author(s) of the proffered evidence;
• When applicable (see HALLEX I-2-7-1), an opportunity to request a supplemental hearing, including the opportunity to cross-examine the author(s) of any posthearing evidence; and
• The opportunity and instructions for requesting a subpoena for the attendance of witnesses or the submission of records.
Hearing office (HO) staff will associate a copy of the proffer letter and a copy of the new evidence with the claim(s) file.

HALLEX § I-2-7-30(A), 1993 WL 643048.

         Here, it would appear the ALJ violated HALLEX because he did not proffer a copy of Dr. Witkind's responses using the procedures prescribed in HALLEX § I-2-7-30. The ALJ did not send a letter to Plaintiff or her counsel, providing the information required under HALLEX § I-2-7-30(A). During the hearing, Plaintiff's counsel stated, “[no] notification [was] sent . . . to my office indicating that [Dr. Witkind's response] was submitted into . . . evidence like that.” Tr. 91. Also, although the ALJ requested Dr. Witkind to return the completed interrogatory within ten days from the date of the letter requesting his response, Dr. Witkind completed the interrogatory nearly three months later. Tr. 1055-73. As noted, however, even if the ALJ did not comply with HALLEX, to merit remand, Plaintiff must show that she suffered prejudice from the ALJ's non-compliance. McCabe, 661 F. App'x at 599; Carroll, 453 F. App'x at 892.

         Plaintiff's request to remand based on the ALJ's alleged denial of due process also requires a showing of prejudice. Brown, 44 F.3d at 935; McCabe, 661 F. App'x at 599. “The fundamental requirement of due process is the opportunity to be heard ‘at a meaningful time and in a meaningful manner.'” Mathews v. Eldridge, 424 U.S. 319, 333 (1976). “Nevertheless, there must be a showing of prejudice before [the court] will find that the claimant's right to due process has been violated to such a degree that the case must be remanded to the [ALJ] for further development of the record.” Brown, 44 F.3d at 935. “[The] claimant cannot show prejudice by speculating that she would have benefitted from a more comprehensive hearing.” McCabe, 661 F. App'x at 599 (citing Kelley v. Heckler, 761 F.2d 1538, ...

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