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Hooton v. Commissioner, SSA

United States District Court, E.D. Texas, Sherman Division

September 15, 2017


          Nowak, Judge.



         Came on for consideration the report of the United States Magistrate Judge in this action, this matter having been heretofore referred to the Magistrate Judge pursuant to 28 U.S.C. § 636. On August 17, 2017, the report of the Magistrate Judge (Dkt. #26) was entered containing proposed findings of fact and recommendations that the final decision of the Commissioner of Social Security ("Commissioner") be remanded for further consideration because the Administrative Law Judge ("ALJ") did not give adequate consideration to the findings of the state agency physicians in determining Plaintiffs residual functioning capacity ("RFC") (Dkt. #26). Having received the report of the Magistrate Judge (Dkt. #26), having considered Plaintiff Stacy Hooton's ("Plaintiff) timely filed objections ("Objections") (Dkt. #27), and having conducted a de novo review of Plaintiffs claims and all relevant pleadings, the Court is of the opinion that the findings and conclusions of the Magistrate Judge are correct, and the Court hereby adopts the Magistrate Judge's report (Dkt. #26) as the findings and conclusions of the Court.


         The facts in this case originate from an appeal of the Commissioner's decision in a social security disability insurance case. The facts in this case have been set forth in detail by the Magistrate Judge, and need not be duplicated in their entirety herein (see Dkt. #26). In summary, on September 20, 2012, Plaintiff filed an application for disability and disability insurance benefits ("DIB") under Title II of the Social Security Act ("Act") alleging an onset disability date of June 17, 2011 (TR 205-208). On October 26, 2012, Plaintiff filed an amended application for DIB and an application for supplemental security income benefits ("SSI") under Title II and XVI of the Act, alleging an onset of disability date of March 23, 2011 (TR 209-17). Therein, Plaintiff alleged the following impairments: carpal tunnel syndrome, trigger finger, obesity, hiatal hernia, chronic obstructive pulmonary disease, depression, panic dis with agoraphobia, irritable bowel syndrome, diabetes mellitus, hypertension, Bell's palsy, gastroesophageal reflux disease, headaches, nasal allergies, and a remote history of drug abuse (TR 20).

         Plaintiffs applications were initially denied by notice on April 5, 2013, and again on reconsideration, after which Plaintiff requested a hearing before an ALJ (TR 138-43, 146, 149-42, 153-54). On May 6, 2014, Plaintiff submitted a request to the ALJ for the issuance of a subpoena to State agency psychological consultants Charles Langford, Ph. D., and Nancy Wilson, Ph.D., (the "non-examining physicians") to testify at the administrative hearing schedule for June 17, 2014, and/or for the ALJ to submit written interrogatories to the non-examining physicians (TR 282-353). Drs. Langford and Wilson never examined or treated Plaintiff, but did review Plaintiffs evidence in April and July of 2013, and offered opinions on Plaintiffs RFC (TR 89-90, 93-94, 114-115, 117-119). On May 29, 2014, the ALJ denied Plaintiff s request for a subpoena or written interrogatories, noting that the right to cross-examine a physician exists only for examining physicians and psychologists (TR 365-66).

         The ALJ conducted a hearing on June 17, 2014, where Plaintiff was represented by counsel (TR 37-85). On January 28, 2015, the ALJ issued an unfavorable decision, denying benefits, and finding Plaintiff not disabled at Step Five of the prescribed sequential evaluation process (TR 14- 36). The Appeals Council granted Plaintiffs request for review and on April 15, 2016, issued a partially favorable decision finding Plaintiff disabled as of September 29, 2014 (TR 4, 7). But aside from the ALJ's determination of Plaintiff s disability status, the Appeals Council adopted the ALJ's findings of fact and conclusions of law (TR 4).

         On June 14, 2016, Plaintiff filed her Complaint in this Court (Dkt. #1). On January 17, 2017, Plaintiff filed her Brief (Dkt. #13), and the Commissioner filed its Brief on May 17, 2017 (Dkt. #22). On August 17, 2017, the Magistrate Judge issued a Report and Recommendation (Dkt. #26). And, on August 31, 2017, Plaintiff filed her Objections to the Report and Recommendation of the Magistrate Judge (Dkt. #27).


         Under the law, a party who files timely written objections to a magistrate judge's report and recommendation is entitled to a de novo determination of those findings or recommendations to which the party specifically objects. 28 U.S.C. § 636(b)(1)(c); Fed.R.Civ.P. 72(b)(2)-(3). Plaintiff agrees with the Magistrate Judge's finding at Step Five that the ALJ's RFC finding was not supported by substantial evidence and that this matter should be remanded (Dkt. #27 at 1). Plaintiffs sole objection centers on Plaintiffs rights related to the non-examining physicians. As such, the Court adopts the finding and conclusion of the Magistrate Judge that the matter should be remanded as the finding and conclusion of the Court. With respect to Plaintiffs objections, Plaintiff specifically argues that (1) she has a right to subpoena non-examining physicians; (2) that the ALJ gave insufficient reasons for denying the interrogatories submitted to these physicians; (3) that in light of forthcoming regulation, any deprivation of her alleged right to subpoena and/or submit interrogatories to non-examining physicians erodes a crucial procedural safeguard; and (4) that the these alleged errors affected the fundamental fairness of the hearing (Dkt. #27).

         Objection #1: Whether Plaintiff has the Right to Subpoena the Non-examining Physicians

         Plaintiff asserts that neither the SSA nor its regulations limit a claimant's right to subpoena non-examining physicians (Dkt. #27 at 3). Plaintiffs objection, thus, reiterates the argument previously asserted in her reply brief that claimants have the right to subpoena non-examining physicians (Dkt. #27 at 2-3). Plaintiff specifically argues that the only reason prior case law has not allowed claimants to subpoena non-examining physicians is that those claimants did not exercise this purported right. (Dkt. #27 at 3). Plaintiff further argues that a proper reading of Richardson v. Per ales, proves this point (Dkt. 27 at 2); 402 U.S. 389, 404-05 (1971). In pertinent part, the portion of Per'ales Plaintiff refers to states that, "This inaction on the claimant's part supports the Court of Appeals' view ... that the claimant as a consequence is to be precluded from now complaining that he was denied the rights of confrontation and cross-examination." 402 U.S. 404.

         Plaintiff correctly asserts that Perales provides claimants with an unqualified right to subpoena examining physicians for cross-examination but the Fifth Circuit has not held that claimants have a right to subpoena non-examining physicians (Dkt. #26 at 15); Lidy v. Sullivan, 911 F.2d 1075, 1077 (5th Cir. 1990) ("The Secretary argues, first, that Perales addresses the scenario of a non-examining physician . . . [h]owever, the passage from Perales that we have quoted, supra, plainly refers to examining physicians. Hence, this argument by the Secretary is without merit."). Moreover, the Northern District of Texas has previously considered this issue and found, in agreement with courts, that no right exists for claimants to subpoena non-examining physicians. See Carroll v. Massanari, CIV. A. 500CV0267C, 2001 WL 406227, at *4 (N.D. Tex. Apr. 17, 2001), report and recommendation adopted, CIV. A. 500CV267C, 2001 WL 506979 (N.D. Tex. May 10, 2001) (finding that Lidy provides no right for a claimant to subpoena a non- examining physician); Muldner v. Comm'r of Soc. Sec. Admin., CV-16-01652-PHX-JAT, 2017 WL 2644454, at *4 (D. Ariz. June 20, 2017) (finding ALJ did not err in refusing claimant's request to subpoena non-examining physician because claimant did not demonstrate the relevance of the testimony sought); Daywalt v. Colvin, 15-396, 2015 WL 5883743, at *l-2 (W.D. Pa. Oct. 8, 2015) (finding no right for claimant to subpoena non-examining physicians); Lopez v. Chater, 8 F.Supp.2d 152, 156 (D.P.R. 1998) (finding ALJ's denial of claimant's request to subpoena non-examining physician did not violate claimant's due process rights). Plaintiff attempted to differentiate Carroll from the present case, arguing that the Carroll court refused the claimant's request because the interrogatories were repetitive and unnecessary for the full presentation of the case (Dkt. #25 at 6); 2001 WL 406227 at *4. The Magistrate Judge addressed this alleged distinction in its Report and Recommendation and noted that the Carroll court found the interrogatories requested to be repetitive and unnecessary only after determining that Carroll was not entitled to subpoena non-examining physicians (Dkt. #26 at 16).

         Nonetheless, Plaintiff argues-citing no authority for such position-that she should have been afforded the opportunity to subpoena these non-examining physicians because their testimony was necessary for the full presentation of the case (Dkt. 27 at 4). Agency regulations state that when a claimant requests a subpoena, they must "state the important facts that the witness or document is expected to prove; and indicate why these facts could not be proven without issuing a subpoena." See 20 C.F.R. §§ 404.950(d), 416.1450(d). The regulations also state that the ALJ may issue a subpoena, "[w]hen it is reasonably necessary for the full presentation of a case." Id. Plaintiff argues that these subpoenas were necessary because (1) excessive deference was afforded to the ...

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