United States District Court, M.D. Florida, Fort Myers Division
FRANKIE M. TERRY, Plaintiff,
COMMISSIONER OF SOCIAL SECURITY, Defendant.
OPINION AND ORDER
MIRANDO, United States Magistrate Judge
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
Issues on Appeal
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
Procedural History and Summary of the ALJ's
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.
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). Tr. 39.
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.
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.
Social Security Act Eligibility and Standard of
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.
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
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.
Whether a leged violations of HALLEX were
prejudicial to Plaintiff or denied Plaintiff her due process
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.
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.
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 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.
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).
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.
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.
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.
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.
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.
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”).
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).
§ 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.
§ I-2-5-44(B), 1994 WL 637377. Section I-2-7-30, which
sets forth the proffer procedures, provides that the ALJ
by sending a letter to the claimant and appointed
representative, if any, that provides the following
• 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;
• The opportunity and instructions for requesting a
subpoena for the attendance of witnesses or the submission of
Hearing office (HO) staff will associate a copy of the
proffer letter and a copy of the new evidence with the
HALLEX § I-2-7-30(A), 1993 WL 643048.
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.
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, ...