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McCormack v. Berryhill

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

March 13, 2019

SARAH E. McCORMACK PLAINTIFF
v.
NANCY A. BERRYHILL, Acting Commissioner of Social Security DEFENDANT

          MEMORANDUM OPINION AND ORDER

          LANNY KING, MAGISTRATE JUDGE

         This matter is before the Court on Plaintiff's complaint seeking judicial review, pursuant to 42 U.S.C. § 405(g), of the final decision of the Commissioner terminating her receipt of Social Security disability benefits, effective March 1, 2013. The fact and law summaries of the parties are at Dockets # 13 and 18. The parties have consented to the jurisdiction of the undersigned Magistrate Judge to determine this case, with any appeal lying before the Sixth Circuit Court of Appeals. (Docket # 11.) The matter is ripe for determination.

         Because the Administrative Law Judge (“ALJ's”) denial of Plaintiff's request for a supplemental hearing violated HALLEX procedure and Due Process, the Court will REMAND this matter to the Commissioner for a new decision and further administrative proceedings.

         Background facts and procedural history

         Plaintiff was born in 1986, and, in 1997, the Commissioner awarded her childhood disability benefits due to mental impairment. [Administrative Record (“AR”) at 23, 1155.] In March 2013, the Social Security Administration terminated her benefits, finding that her disability ceased, effective March 2013. [AR at 34.]

         In February 2017, the ALJ conducted the administrative hearing. [Hearing transcript, AR at 43- 66.] Plaintiff represented herself. [AR at 45.] The ALJ admitted Exhibits # 1A through 26F into the administrative record. [AR at 51.] The ALJ informed Plaintiff that he was trying to obtain additional medical records but had not yet received them. [AR at 50-51.]

         After the hearing, the ALJ successfully obtained additional evidence. As required by internal agency (HALLEX) rules, the ALJ sent Plaintiff a so-called “proffer” letter dated April 19, 2017. Plaintiff appended a copy of the ALJ's proffer letter to her fact and law summary at Docket # 13-1. See Social Security Administration, Office of Hearings and Appeals, Litigation Law Manual (HALLEX) I-2-7-1, 1993 WL 751906 (“post-hearing evidence -- when proffer is required”), HALLEX I-2-7-30, 1993 WL 643048 (“proffer procedures”). The letter explained that the ALJ had “secured additional evidence that I propose to enter into the record” and that the ALJ was giving Plaintiff a 10-day opportunity to review, comment on, respond to, object to, refute, or make legal argument regarding the new, enclosed post-hearing evidence. (Docket # 13-1.) The letter identified the new evidence as consisting of Exhibits # 27F through 41F. (Id.)

         On or about April 27, 2017, Plaintiff obtained (on her own initiative) and submitted to the ALJ additional evidence, Exhibits # 42F, 43F, and 44F. [AR at 1152-1167.] The Administration noted that “I called [Plaintiff] and confirmed that she is the one that mailed in the new medical evidence, so these items will not need to be proffered” to Plaintiff. [AR at 268.][1]

         In July 2017, the ALJ issued the Commissioner's final decision. [AR at 23-34.] The ALJ acknowledged that the administrative record had been supplemented to include additional post-hearing evidence -- some of which the ALJ obtained and proffered to Plaintiff (Exhibits # 27F through 41F) and some of which Plaintiff obtained and submitted to the ALJ (Exhibits # 42F, 43F, and 44F). [AR at 30.]

         The ALJ affirmed the prior termination of benefits (effective March 1, 2013) and further found that Plaintiff “has not become disabled again since [March 1, 2013].” [AR at 34.]

         The ALJ's denial of Plaintiff's request for a supplemental hearing violated the requirements of HALLEX I-2-7-1 and HALLEX I-2-7-30.

         The ALJ's proffer letter conditionally offered Plaintiff a supplemental hearing -- the condition being that, if Plaintiff requested the hearing, the ALJ would determine whether the hearing was required:

You may request a supplemental hearing. However, you will not be eligible for a supplemental hearing if:
I admit non-opinion evidence into the record but do not cite to or otherwise rely on the additional evidence when ...

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