Dickinson v. Commissioner of Social Security

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF OHIO

EASTERN DIVISION

Kimberly Dickinson,

Plaintiff,

v. Case No. 2:20-cv-1004

Commissioner of

Social Security,

Defendant.

OPINION AND ORDER

Plaintiff Kimberly Dickinson brings this action under 42

U.S.C. §405(g) for review of the final decision of the Commissioner

of Social Security (“Commissioner”) denying her application for a

period of disability and disability insurance benefits. In a

decision dated February 11, 2019, the administrative law judge

(“ALJ”) found that plaintiff had severe impairments consisting of

degenerative disc disease status-post remote ACDF, lumbar

degenerative disc disease, asthma, right carpal/cubital tunnel

syndrome status- post release, obesity, mild degenerative arthritis

of the right knee, and left ankle instability status-post repair.

PAGEID 56. The ALJ found that plaintiff’s residual functional

capacity (“RFC”) would permit her to perform light work with

specified physical limitations. PAGEID 57. Relying on the

testimony of a vocational expert (“VE”), the ALJ decided that

plaintiff was capable of performing her past relevant work as a

receptionist and secretary, and that plaintiff was not disabled.

PAGEID 63-64.

This matter is before the court for consideration of

plaintiff’s January 25, 2021, objections to the January 11, 2021,

report and recommendation of the magistrate judge recommending that

the decision of the Commissioner be affirmed.

I. Standard of Review

If a party objects within the allotted time to a report and

recommendation, the court “shall make a de novo determination of

those portions of the report or specified proposed findings or

recommendations to which objection is made.” 28 U.S.C.

§ 636(b)(1); see also Fed. R. Civ. P. 72(b). Upon review, the

court “may accept, reject, or modify, in whole or in part, the

findings or recommendations made by the magistrate judge.” 28

U.S.C. § 636(b)(1).

The court’s review “is limited to determining whether the

Commissioner’s decision ‘is supported by substantial evidence and

was made pursuant to proper legal standards.’” Ealy v. Comm’r of

Soc. Sec., 594 F.3d 504, 512 (6th Cir. 2010) (quoting Rogers v.

Comm’r of Soc. Sec., 486 F.3d 234, 241 (6th Cir. 2007)); see also,

42 U.S.C. § 405(g) (“The findings of the Commissioner of Social

Security as to any fact, if supported by substantial evidence,

shall be conclusive.”). Even if supported by substantial evidence,

however, “‘a decision of the Commissioner will not be upheld where

the [Commissioner] fails to follow its own regulations and where

that error prejudices a claimant on the merits or deprives the

claimant of a substantial right.’” Rabbers v. Comm’r of Soc. Sec.,

582 F.3d 647, 651 (6th Cir. 2009) (quoting Bowen v. Comm’r of Soc.

Sec., 478 F.3d 742, 746 (6th Cir. 2007)).

II. Objections

Plaintiff objects to the ALJ’s limitation of her counsel’s

examination of the VE at the hearing held on December 20, 2018.

The exchange between counsel and the ALJ, at PAGEID 623-33, was

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quoted at length in the report and recommendation and will not be

repeated verbatim here. Basically, counsel sought to question the

VE specifically about the December 27, 2016, report of Dr. Herbert

A. Grodner, M.D., who saw plaintiff on one occasion for a

consultative examination. See PAGEID 392-395, Exhibit 6F.

By way of explanation, Dr. Grodner observed in his report that

plaintiff had: a normal ears, eyes, nose and throat exam; a supple

neck; a normal cardiovascular exam, without evidence of edema; a

normal gait and reflexes, negative straight leg raise, and normal

lumbar range of motion; normal alignment of the cervical spine,

with some degenerative changes and decreased range of motion, but

no spondylosis; some mild changes for carpal tunnel syndrome on the

right side but normal grasp and manipulation; and a mild degree of

obstructive airway disease. PAGEID 393-94. Despite these

findings, he concluded that plaintiff was capable of only sedentary

and light activity, possibly on an intermittent basis; that

repetitive turning of her head or movement of the cervical spine

would be difficult; and that she should avoid asthma triggers and

prolonged weight bearing such as standing, walking, or sitting due

to her lower extremity edema. PAGEID 395.

In his written decision, the ALJ gave Dr. Grodner’s opinion

little weight. PAGEID 61. The ALJ observed that the results of

Dr. Grodner’s physical examination of the plaintiff did not support

the degree of limitations he found, and that Dr. Grodner relied

heavily on plaintiff’s subjective report of symptoms and

limitations. PAGEID 61. The ALJ stated that there was a lack of

edema on examination and in the treatment records, and that the

physical examination and diagnostic imaging showed only some

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limitation in the range of cervical motion, and normal gait, lumbar

spine and lower extremities. PAGEID 61-62.

At the hearing, the ALJ told counsel that he could not refer

to Dr. Grodner’s report in questioning the VE, but that he could

ask the VE in general terms about work restrictions and whether

they could impact the ability to work of the individual described

in the ALJ’s hypothetical to the VE. Counsel refused to do so,

stating at one point that he did not want to stop referring to Dr.

Grodner’s report. PAGEID 629. Counsel finally stated that he had

no further questions, but even at that point, the ALJ continued to

encourage counsel to ask the VE about work restrictions. PAGEID

632-633.

Plaintiff argues that the ALJ’s limitations on her questioning

of the VE deprived her of due process. “Due process requires that

a claimant’s hearing be ‘fundamentally fair.’” Watters v. Comm’r

of Soc. Sec., 530 F. App’x 419, 424-25 (6th Cir. 2013)(quoting

Richardson v. Perales, 402 U.S. 389, 401-02 (1971)); see also

Mathews v. Eldridge, 424 U.S. 319, 335 (1976). Evaluation of a due

process claim requires consideration of three factors: 1) the

private interest that will be affected by the official action; 2)

the risk of an erroneous deprivation of such interest through the

procedures used, and the probable value, if any, of additional or

substitute procedural safeguards; and 3) the government’s interest,

including the function involved and the fiscal and administrative

burdens that additional or substitute procedural requirements would

entail. Watters, 530 F. App’x at 425. Plaintiff argues in her

objections that the magistrate judge did not discuss these three

factors in her report and recommendation. However, the magistrate

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judge did address plaintiff’s due process argument and correctly

decided that the ALJ followed applicable procedures in conducting

the hearing and that there was no due process violation.

The first due process factor is satisfied here, as an

applicant for social security benefits has a Fifth Amendment

property interest in those benefits. Flatford v. Chater, 93 F.3d

1296, 1304-05 (6th Cir. 1996).

As to the second factor, the court finds that the applicable

regulations provided adequate protection, and that there was no

risk of an erroneous deprivation of such interest through the

procedures used. Under the regulations applicable to hearings

before the ALJ, the ALJ “may decide when the evidence will be

presented and when the issues will be discussed.” 20 C.F.R.

§404.944. The Hearings, Appeals and Litigation Law Manual

(“HALLEX”), a procedural guide for processing and adjudicating

social security claims, states that the “ALJ determines the subject

and scope of testimony from a claimant and any witness(es), as well

as how and when the person testifies at the hearing.” HALLEX I-2-

6-60(A)1. The claimant and the representative have the right to

question the VE fully on any pertinent matter within the VE’s area

of expertise, but the “ALJ will determine when they may exercise

this right and whether questions asked or answers given are

appropriate.” HALLEX I-2-6-74(C).

The role of the VE is to testify whether the claimant can

perform past work or make an adjustment to other work based on the

1Although the HALLEX is not binding on the court, the court

can still consider the procedural guidance it provides. See

Bowie v. Comm’r of Soc. Sec., 539 F.3d 395, 399 (6th Cir. 2008).

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claimant’s RFC, age, experience, and education. See Webb v. Comm’r

of Soc. Sec., 368 F.3d 629, 633 (6th Cir. 2004). However, in the

Sixth Circuit, a VE’s testimony must be based on a hypothetical

question posed by the ALJ that accurately portrays the claimant’s

physical and mental impairments. Cline v. Comm’r of Soc. Sec., 96

F.3d 146, 150 (6th Cir. 1996). “The vocational expert is not

expected to evaluate the claimant’s medical conditions in making

this determination. Indeed, vocational experts are not required to

have any medical training, so any evaluation of medical evidence

they perform would be outside their area of expertise.” Webb, 368

F.3d at 633. The HALLEX provides that the “ALJ will not permit

the VE to respond to questions on medical matters or to draw

conclusions not within the VE’s area of expertise.” HALLEX §I-2-6-

74(C). The Vocational Expert Handbook, also found on the Social

Security Administration’s website, states that a VE “should never

comment on medical matters, such as what you believe the medical

evidence indicates about the claimant’s diagnosis or the functional

limitations caused by the claimant’s impairment(s)[.]”

Permitting counsel to question the VE about Dr. Grodner’s

report would not have resulted in the presentation of any relevant

or admissible evidence. The ALJ only has discretion to admit

evidence that is material to the issue at hand. See 20 C.F.R.

§404.944. The VE was not qualified to answer questions concerning

Dr. Grodner’s report or to address the validity of Dr. Grodner’s

medical opinion concerning plaintiff’s work restrictions based on

the consultative examination. It is not clear why counsel

persisted in referring to the report. Perhaps counsel believed

that identifying these restrictions as coming from the report of a

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medical expert would lead the VE to assign them more importance in

his analysis of how they would impact plaintiff’s ability to work.

However, the VE could not judge the merits of Dr. Grodner’s opinion

or attribute more weight to the restrictions simply because they

were recommended by a medical source. Rather, the issue presented

to the VE was whether and how any work restrictions posed by the

ALJ or counsel would impact the ability of the individual described

in the ALJ’s hypothetical question to perform either past relevant

work or other jobs. Dr. Grodner’s opinion concerning plaintiff’s

work restrictions, regardless of its validity, was simply not

relevant to the VE’s testimony or within the VE’s area of

expertise. The ALJ was legitimately concerned that by referring to

Dr. Grodner’s report, counsel was implicitly suggesting to the VE

that he was accurately describing the restrictions found by Dr.

Grodner, when in fact the actual nature of the restrictions

proposed by Dr. Grodner was a matter to be argued before and

decided by the ALJ. See Brown v. Comm’r of Soc. Sec., 1 F. App’x

445, 452 (6th Cir. 2001)(ALJ is the trier of fact in social

security proceedings). The ALJ did not deny plaintiff a full and

fair hearing by restricting counsel’s cross-examination of the VE

concerning Dr. Grodner’s report.

Under the ALJ’s ruling, counsel could have questioned the VE

concerning work restrictions in general terms, even those of the

type identified in Dr. Grodner’s report, as long as he did not

mention that Dr. Grodner’s report was the source of those work

restrictions. Counsel elected not to do so, even though the ALJ

continued to urge him to question the VE about work restrictions.

Although due process requires that a claimant be given the right to

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cross-examine individuals who testify, that right is waived if the

attorney is silent when the opportunity to cross-examine arises.

Butler v. Comm’r of Soc. Sec., 114 F.3d 1186 (unreported), 1997 WL

259374, at *4 (6th Cir. 1997)(plaintiff was not denied due process

due to ALJ’s restriction of counsel’s questioning of VE concerning

plaintiff’s pain where counsel did not return to the hearing room

after a recess); see also Baranich v. Barnhart, 128 F. App’x 481,

489 (6th Cir. 2005)(finding that the ALJ committed no error when

attorney voluntarily abandoned questioning of vocational expert).

Plaintiff’s counsel waived any right to further cross-examination

when he declined to ask the VE about work restrictions when invited

to do so by the ALJ.

In regard to the third factor, plaintiff’s sole claim of error

is that she was denied an opportunity to fully cross-examine the

VE. The only additional procedure advocated by plaintiff is that

the case be remanded to the Commissioner for further proceedings,

which would needlessly require the expenditure of additional

government resources. Even if a new hearing were held which

included the testimony of a VE, the line of cross-examination

pursued by counsel at the previous hearing would still suffer from

the same deficiencies and would produce no results helpful to

plaintiff, as the VE would still be unqualified to evaluate the

merits of Dr. Grodner’s opinion.

As the magistrate judge correctly noted, even assuming that

the ALJ erred in his restriction of counsel’s cross-examination of

the VE, plaintiff has not alleged or shown any prejudice. See

Rabbers, 582 F.3d at 654 (the court will not remand a case for

further administrative proceedings absent prejudice on the merits

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or a deprivation of substantial procedural rights). The ALJ

evaluated the opinion and functional assessment of Dr. Grodner and

gave it little weight. PAGEID 61. Plaintiff does not argue that

the ALJ’s decision in that regard was not supported by substantial

evidence, nor does she contend that the ALJ’s RFC and nondisability

findings were not supported by substantial evidence. Rather, she

simply argues that counsel should have been permitted to pursue his

line of questioning of the VE. She has not shown how she was

prejudiced by the ALJ’s actions.

The court concludes that the ALJ did not violate plaintiff’s

due process rights, and her objections are not well taken.

III. Conclusion

In accordance with the foregoing, the court finds that no

reversible error has been shown, and that the ALJ’s restrictions on

the cross-examination of the VE at the hearing did not deny

plaintiff due process. Plaintiff’s objections (Doc. 18) are

denied. The court adopts and affirms the magistrate judge’s report

and recommendation (Doc. 17). The Commissioner’s decision is

affirmed, and this action is dismissed. The clerk shall enter

final judgment affirming the decision of the Commissioner.

Date: August 12, 2021 s/James L. Graham

James L. Graham

United States District Judge

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