United States District Court, E.D. Kentucky, Central Division, Lexington
MEMORANDUM OPINION & ORDER
M. Hood, Senior U.S. District Judge.
matter is before the Court on the parties' cross-Motions
for Summary Judgment (DE 10, 12) on Plaintiff's appeal of
the Commissioner's denial of an application for
disability insurance benefits. The matter having been fully
briefed by the parties is now ripe for this Court's
applied for disability insurance benefits (DIB) and
supplemental security income (SSI) under Titles II and XVI of
the Social Security Act (Act), alleging he became disabled on
January 1, 2006 (later amended to December 17, 2010)
(Certified Administrative Transcript (Tr.) 40-41, 80, 396,
403). After an ALJ denied Plaintiff's applications, the
agency's Appeals Council remanded to the ALJ for
additional proceedings (Tr. 208- 16, 222-25). On remand, ALJ
Ronald Kayser again found that Plaintiff had failed to
establish disability under the Act (Tr. 21-30). The
agency's Appeals Council denied Plaintiff's request
that it review the second ALJ decision, rendering it the
Commissioner's final decision for judicial review (Tr.
1-4). See 20 C.F.R. § 404.981.
appeal presents a narrow legal question concerning due
process rights at the hearing before the ALJ and, by
extension, in the subsequent administrative process. The
April 2015 notice about Plaintiff's June 2015
administrative hearing indicated that a vocational expert
would testify at the hearing (Tr. 372, 378, 386). It did not
indicate that a medical expert would testify (see
Tr. 369-87). At the start of the June 2015 administrative
hearing, Plaintiff's attorney stated that he wanted the
hearing to go ahead, but that he had been unaware that a
medical expert was testifying (Tr. 81). Counsel stated that
he “was not objecting” to the medical expert (Tr.
81). Medical expert Peter Schosheim, M.D., testified that he
was a Board certified orthopedic surgeon (Tr. 84;
see Tr. 862-65). Dr. Schosheim testified that
Plaintiff had problems secondary to his morbid obesity,
including diabetes, peripheral neuropathy, and low back pain
(Tr. 85). He did not, however, believe that Plaintiff's
conditions met or medically equaled a per se disabling listed
impairment (Tr. 85). He disagreed with the opinion of
Plaintiff's treating nurse about the extent of
Plaintiff's functional limitations (Tr. 85-86). He opined
that Plaintiff could lift, carry, push, and pull 20 pounds
occasionally and 10 pounds frequently; stand and/or walk two
hours in a workday; sit six hours in a workday; never climb
ladders, ropes, or scaffolds; occasionally climb ramps and
stairs, balance, kneel, crouch, crawl, and stoop; and would
need to avoid concentrated exposure to vibrations and all
exposure to hazardous machinery and unprotected heights (Tr.
attorney examined Dr. Schosheim extensively about the basis
for his opinions (Tr. 89-97). He indicated that he had no
further questions for Dr. Schosheim at the end of his
questioning (see Tr. 97). At the end of the hearing,
Plaintiff's attorney reiterated that he did not have
notice that there would be a medical expert at the hearing
(Tr. 105). The ALJ asked counsel if he would like a
continuance, and counsel did not believe that would serve any
purpose (Tr. 105-106). The ALJ asked counsel whether it would
have made any difference if a notice of the medical
expert's testimony had been sent out, as counsel was
“a very skilled cross examiner” (Tr. 106).
Counsel thanked the ALJ and noted that he “tried to be
prepared” (Tr. 106).
after considering the entire record, the ALJ issued a
decision finding that Plaintiff had failed to establish his
entitlement to disability benefits under the agency's
five-step sequential evaluation process (Tr. 24-30). See
generally 20 C.F.R. § 404.1520(a)(4) (outlining the
process). As relevant here, the ALJ found that Plaintiff had
several impairments that were “severe” within the
meaning of the agency's regulations, but that such
impairments did not meet or medically equal a per se
disabling listed impairment (Tr. 24-27). The ALJ found that
Plaintiff retained the residual functional capacity (RFC) to
perform a range of sedentary-to-light work (Tr. 27). Relying
on a vocational expert's testimony, the ALJ found that
this RFC would preclude Plaintiff's past relevant work,
but would allow him to perform work existing in significant
numbers in the national economy (Tr. 28-30; see Tr.
111-13). The ALJ thus concluded at step five that Plaintiff
had failed to meet the strict standard to establish
disability under the Act (Tr. 30).
Court's review of the Commissioner's decision is
limited to an inquiry into whether the findings of the
Commissioner are supported by substantial evidence, and
whether the correct legal standards were applied.
See 42 U.S.C. § 405(g); Richardson v.
Perales, 402 U.S. 389, 390, 401 (1971). “The
substantial evidence standard is met if a reasonable mind
might accept the relevant evidence as adequate to support a
conclusion.” Longworth v. Comm'r of Soc.
Sec., 402 F.3d 591, 595 (6th Cir. 2005) (internal
citations omitted). A court may not try the case de novo,
resolve conflicts in the evidence, or decide questions of
credibility. See Ulman v. Comm'r of Soc. Sec.,
693 F.3d 709, 713 (6th Cir. 2012). Even if the Court were to
resolve the factual issues differently, the
Commissioner's decision must stand if supported by
substantial evidence. See Tyra of Health & Human
Servs., 896 F.2d 1024, 1028 (6th Cir. 1990). Similarly,
an administrative decision is not subject to reversal even if
substantial evidence would have supported the opposite
conclusion. See Ulman, 693 F.3d at 714.
Social Security Administration's Hearings, Appeals, and
Litigation Law Manual (HALLEX) provides “guiding
principles, procedural guidance and information to
adjudicators and staff of the Office of Hearings and
Appeals.” Bowie v. Comm'r of Soc. Sec.,
539 F.3d 395, 397 (6th Cir. 2008) (internal quotation marks
omitted). Relevant to the case before this Court, the HALLEX
provides for notification of the claimant and his
representative if an ALJ intends to take testimony from a
medical expert. HALLEX I-2-5-36(C), 1994 WL 637371; see
also HALLEX I-2-3-15(D), 1993 WL 642999 (the notice of
hearing must include “[a] statement of whether . . .
other witness(es) will appear at the hearing in-person, via
[video teleconferencing], or by telephone”). Plaintiff
asserts that when the ALJ failed to provide notice that a
medical expert would testify at the hearing in violation of
the HALLEX, the omission resulted in a per se
violation of his due process rights to a full and fair
hearing (see generally ECF No. 10-1, Memorandum in
Support of Plaintiff's Motion for Summary Judgment (Pl.
Br.)). However, while “[i]t is well established that
due process requires that a social security hearing be
‘full and fair, '” Flatford v.
Chater, 93 F.3d 1296, 1305 (6th Cir. 1996) (citing
Richardson v. Perales, 402 U.S. 389, 401-02 (1971)),
and while the circuits are split over whether the HALLEX
creates enforceable rights, “no circuit has held that
the HALLEX creates constitutional rights because, of
course, only the Constitution, not an agency's rules or
procedures, is the source of such rights.”
Davenport v. Astrue, 417 Fed.Appx. 544, 547-48 (7th
Cir. 2011) (citations omitted). Further, courts in this
district have held that “the HALLEX procedures are not
binding on this Court, and do not create procedural due
process rights.” Lawrence v. Colvin, No.
CIV.A. 3:13-032-DCR, 2014 WL 640990, at *4 (E.D. Ky. Feb. 18,
2014) (citations omitted); accord Kendall v. Astrue,
No. CIV.A.09-239-GWU, 2010 WL 1994912, at *4 (E.D. Ky. May
19, 2010) (citing Wilson v. Comm'r of Social
Security, 378 F.3d 541 (6th Cir. 2004)) (“HALLEX
does not create a procedural due process issue as do the
Commissioner's regulations in the Code of Federal
the Court agrees with the United States that it must look to
Plaintiff's private interest “in a fair
determination of his qualification (or lack thereof) for
social security disability benefits and a meaningful
opportunity to present [his] case.” Adams v.
Massanari, 55 Fed.Appx. 279, 286 (6th Cir. 2003)
(unpublished) (quoting Flatford, 93 F.3d at 1306).
Thus, the “court's analysis focuses on step two of
the ‘full and fair' hearing test-the risk of
erroneous deprivation of [Plaintiff's] interest through
the procedure used by the ALJ, and the probable value, if
any, of additional or substitute procedural
safeguards.” Adams, 55 Fed.Appx. at 286.
“[A]n agency's violation of its procedural rules
will not result in reversible error absent a showing that the
claimant has been prejudiced on the merits or deprived of
substantial rights because of the agency's procedural
lapses.” Wilson, 378 F.3d at 546-47
(internal quotations omitted) (emphasis in original).
“Thus, plaintiff must show that failure to strictly
comply with HALLEX ‘prejudiced [him] on the merits or
deprived [him] of substantial rights because of the
agency's procedural lapses.'” Robinson v.
Colvin, No. 13-14313, 2015 WL 12711578, at *9 (E.D.
Mich. July 14, 2015) (citing Caudill v. Astrue, 2010
WL 148806, at *4 (E.D. Ky. 2010) (“[I]n the absence of
a definitive ruling from the Sixth Circuit, the Court
declines to find that a failure to follow the exact
procedures in HALLEX requires reversal absent a convincing
showing of prejudice to the plaintiff.”); Kalen v.
Astrue, 2011 WL 1793361, at *3-4 (E.D. Ky. 2011)
(unpublished) (“[A] violation of HALLEX is not grounds
for a remand unless the plaintiff was prejudiced
premise of the Social Security disability hearing process is
that it is nonadversarial. Sims v. Apfel, 530 U.S.
103, 110-11 (2000) (“Social Security proceedings are
inquisitorial rather than adversarial.”). “It is
the ALJ's duty to investigate the facts and develop the
arguments both for and against granting benefits. . .
.” Id. at 111 (citing Perales, 402
U.S. at 400-401). As part of the hearing process, ALJs
“may . . . ask for and consider opinions from medical
experts on the nature and severity of [a claimant's]
impairment(s) and on whether [his] impairment(s) equals the
requirements of” a per se disabling listed impairment.
20 C.F.R. § 404.1527(e)(2)(iii). Medical experts are
used by the agency to provide an “impartial expert
opinion.” HALLEX I-2-5-32(A), 1994 WL 637369. An ALJ
may not use a medical expert who has treated the claimant in
the past or examined the claimant on a consultative basis.
HALLEX I-2-5-32(B), 1994 WL 637369. Nor may an ALJ engage in
off-the-record discussions with the medical expert about a
claimant's case. Id.
when an ALJ determines that the testimony of a medical expert
would be beneficial in a case, the sole information that the
HALLEX requires the hearing office provide to the claimant
and his representative is the medical expert's identity.
See HALLEX I-2-3-15(D), 1993 WL 642999. There is no
equivalent to expert disclosures as one sees in the
litigation context, so the suggestion that this situation
constitutes trial by ambush is unsupportable. Compare
id. with Fed. R. Civ. P. 26(a)(2); see also
Bayliss v. Barnhart, 427 F.3d 1211, 1218 n.4 (9th Cir.
2005) (noting that neither Fed. R. Ev. 702 nor the
requirements for the admissibility of expert testimony under
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