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Wooten v. Berryhill

United States District Court, W.D. Kentucky, Bowling Green Division

August 2, 2017

LAURA A. HICKS WOOTEN PLAINTIFF
v.
NANCY A. BERRYHILL, Acting Commissioner of Social Security DEFENDANT

          MEMORANDUM, OPINION, AND ORDER

          H. Brent Brennenstuhl, United States Magistrate Judge

         BACKGROUND

         Before the Court is the complaint (DN 1) of Laura Ann Hicks Wooton seeking judicial review of the final decision of the Commissioner pursuant to 42 U.S.C. § 405(g). Both the Plaintiff (DN 12) and Defendant (DN 13) have filed a Fact and Law Summary.

         Pursuant to 28 U.S.C. § 636(c) and Fed.R.Civ.P. 73, the parties have consented to the undersigned United States Magistrate Judge conducting all further proceedings in this case, including issuance of a memorandum opinion and entry of judgment, with direct review by the Sixth Circuit Court of Appeals in the event an appeal is filed (DN 8). By Order entered December 22, 2016, (DN 9), the parties were notified that oral arguments would not be held unless a written request therefor was filed and granted. No such request was filed.

         FINDINGS OF FACT

         Plaintiff protectively filed an application for Disability Insurance Benefits on June 13, 2012[1] (Tr. 255-58).[2] Plaintiff alleged that she became disabled on July 14, 2011, as a result of the following impairments:

1. Degenerative disc disease, anxiety, depression
2. Degenerative Disc Disease, spinal disorders, and Sciatica
3. Supraventricular Tachycardia, Hyperlipidemia, Blood Press
4. Osteoarthritis, neuropathy in arms and hands
5. Osteoporosis
6. GERD and stress incontinence
7. History of Thyroid Cancer
8. Insomnia
9. Depression and anxiety/nervousness
10. Poor memory and concentration
11. Symptoms of Post Traumatic Stress Disorder

(Tr. 317-18).

         On August 25, 2014, Plaintiff submitted a substantial amount of additional medical records regarding her shoulder, neck, and back conditions (Tr. 75-78). The following day, during the administrative hearing, Administrative Law Judge Dwight D. Wilkerson (“ALJ”) acknowledged receipt of several new medical exhibits and indicated that he had not yet reviewed them (Tr. 75, 77, 105). The ALJ conducted the administrative hearing by video from Louisville, Kentucky (Tr. 42-44). Plaintiff and her attorney, Charles D. Burchett, participated from Bowling Green, Kentucky (Id.). Tina Stambaugh, a vocational expert, also participated in the video hearing (Tr. 71). At the close of the hearing, the ALJ indicated that he planned to review the new medical exhibits and issue a decision (Tr. 105).

         In a letter dated October 15, 2014, the ALJ advised Plaintiff's counsel that he proposed to enter additional evidence into the record (Tr. 361-62). Specifically, the ALJ proposed entering into the record the professional qualifications of Arthur Brovender, M.D., and the Doctor's responses to a medical interrogatory, prepared on September 30, 2014 (Id.). The letter advises that Plaintiff has the right to submit written comments concerning the evidence, a statement about the evidence, written questions to Dr. Brovender, and to request a supplemental hearing (Id.). The letter also indicates that if Plaintiff requests a supplemental hearing he would have the opportunity to question witnesses, including Dr. Brovender, and if the proposed witness declines to appear voluntarily the ALJ will consider whether to issue a subpoena to require his or her appearance (Id.).

         Plaintiff's attorney responded in a letter dated October 27, 2014 (Tr. 365-66). Counsel objected to the admissibility of Dr. Brovender's responses because they do not constitute a proper medical opinion, requested an opportunity to submit a medical source statement from Plaintiff's treating physician, and requested the record remain open for 30 days to allow counsel to obtain and submit the medical source statement, or, in the alternative, requested a supplemental hearing so further evidence might be presented (Id.).

         In a letter dated December 19, 2014, Plaintiff's counsel advised the ALJ that two functional capacity assessments prepared by physical therapist Laura Goulbourne were being submitted in response to the material submitted by Dr. Brovender (Tr. 367). Counsel explained that Plaintiff's treating pain management physician, Vivek Jain, M.D., responded to his request for a medical assessment by referring Plaintiff to Ms. Goulbourne with instructions to perform a full functional capacity assessment with objective testing (Id.). Plaintiff's attorney indicated no further reports would be submitted and, if a favorable decision could not be entered, then Plaintiff requested a supplemental hearing be conducted (Id.).

         On May 4, 2015, the ALJ conducted a supplemental video hearing from Louisville, Kentucky (Tr. 42-70). Plaintiff and her attorney, Charles D. Burchett, participated from Bowling Green, Kentucky (Id.). At the beginning of the proceeding, the ALJ summarized the circumstances that led to Plaintiff requesting the supplemental hearing (Tr. 45). Additionally, Plaintiff's counsel clarified that his objections, set forth in the letter dated October 27, 2014, relate to the weight to be assigned to, as opposed to the admissibility of, Dr. Brovender's responses (Tr. 46). Sharon Lane, a vocational expert, also ...


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