# Overton v. O'Malley (CONSENT)

> District Court, M.D. Alabama · March 28, 2022

URL: https://www.frixlaw.com/law-library/cases/9987734

## Case

- **Court:** District Court, M.D. Alabama
- **Decided:** March 28, 2022
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9987734

## Opinion text

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF ALABAMA
NORTHERN DIVISION

COREY OVERTON, )
)
Plaintiff, )
)
v. ) CASE NO. 2:20-cv-706-JTA
)
KILOLO KIJAKAZI, ) (WO)
Acting Commissioner of Social Security, )
)
Defendant. )
MEMORANDUM OPINION AND ORDER
Pursuant to 42 U.S.C. § 405(g), the claimant, Corey Overton, brings this action to
review a final decision by the Commissioner of Social Security (“Commissioner”). (Doc.
No. 14.)1 The Commissioner denied Overton’s claim for supplemental security income
(“SSI”). (Id.) The parties have consented to the exercise of dispositive jurisdiction by a
magistrate judge pursuant to 28 U.S.C. § 636(c). (Docs. No. 9, 10.)
Based upon review of the record and the briefs submitted by the parties, the Court
finds that the Commissioner’s decision is due to be REVERSED and that this matter be
REMANDED for further proceedings pursuant to sentence four of 42 U.S.C. § 405(g).

1 Document numbers, as they appear on the docket sheet, are designated as “Doc. No.”
I. PROCEDURAL HISTORY AND FACTS
Corey Tra Von Overton (“Overton”) was born on August 4, 1989 and was 30 years
old at the time of the administrative hearing held on October 24, 2018. (R. 28, 37.)2 He

has a 9th grade special education and has previously worked as a cook from August 2007
to October 2007 and as a dish washer from March 2008 to June 2008. (R. 150.) Overton
alleges a disability onset date of June 8, 2008, due to attention-deficit/hyperactivity
disorder (“ADHD”), post-traumatic stress disorder (“PTSD”), depression, insomnia,
hypertension, alcohol abuse, vision problems, learning disorder, and language disorder.

(R. 17, 149.)
On February 7, 2018, Overton filed an application for SSI under Title XVI of the
Social Security Act, 42 U.S.C. § 1389, et seq. (R. 54-55.) Following an unfavorable initial
determination on May 3, 2018 (R. 58-62), Overton filed a request for a hearing before an
Administrative Law Judge (“ALJ”) on May 25, 2018. (R. 64-66.) A video hearing was

held on October 24, 2019. (R. 15.) Overton was absent from the hearing3 and the ALJ
issued a Notice to Show Cause for Failure to Appear on October 25, 2019. (R. 116-119.)
On November 18, 2019, the Notice to Show Cause for Failure to Appear was returned to
the agency unclaimed and unable to forward. (R. 123.) Overton filed a Request for Review
of Hearing Decision on November 25, 2019. (R. 126-129.) The ALJ returned an

unfavorable decision on November 29, 2019. (R. 15-22.) On July 8, 2020, the Appeals

2 Citations to the administrative record are consistent with the transcript of administrative
proceedings filed in this case. (Doc. No. 16.)

3 Overton alleges that he arrived fifteen minutes late due to transportation issues. (R. 122, 128.)
Council denied Overton’s request for review. (R. 1-3.) The hearing decision subsequently
became the final decision of the Commissioner.4 Overton now seeks review of the

Commissioner’s final decision. (Doc. No. 1.)
II. STANDARD OF REVIEW
Judicial review of disability claims is limited to whether the Commissioner's
decision is supported by substantial evidence and whether the correct legal standards were
applied. 42 U.S.C. § 405(g); Dyer v. Barnhart, 395 F.3d 1206, 1210 (11th Cir. 2005).
“The Commissioner's factual findings are conclusive” when “supported by substantial

evidence.” Doughty v. Apfel, 245 F.3d 1274, 1278 (11th Cir. 2001). “Substantial
evidence” is more than a mere scintilla and is “such relevant evidence as a reasonable
person would accept as adequate to support a conclusion.” Crawford v. Comm'r of Soc.
Sec., 363 F.3d 1155, 1158 (11th Cir. 2004) (quoting Lewis v. Callahan, 125 F.3d 1346,
1349 (11th Cir. 1997)). Even if the Commissioner's decision is not supported by a

preponderance of the evidence, the findings must be affirmed if they are supported by
substantial evidence. Id. at 1158-59; see also Martin v. Sullivan, 894 F.2d 1520, 1529
(11th Cir. 1990). The court may not find new facts, reweigh evidence, or substitute its
own judgment for that of the Commissioner. Bailey v. Soc. Sec. Admin., Comm’r, 791 F.
App’x 136, 139 (11th Cir. 2019); Phillips v. Barnhart, 357 F.3d 1232, 1240 n.8 (11th Cir.

2004); Dyer, 395 F.3d at 1210. However, the Commissioner's conclusions of law are

4 Doughty v. Apfel, 245 F.3d 1274, 1278 (11th Cir. 2001) (“When, as in this case, the ALJ denies
benefits and the [Appeals Council] denies review, [the court] review[s] the ALJ's decision as the
Commissioner's final decision.”) (citation omitted).
not entitled to the same deference as findings of fact and are reviewed de novo. Ingram
v. Comm'r of Soc. Sec. Admin., 496 F.3d 1253, 1260 (11th Cir. 2007).

Sentence four of 42 U.S.C. § 405(g) authorizes the district court to “enter, upon
the pleadings and transcript of the record, a judgment affirming, modifying, or reversing
the decision of the Commissioner of Social Security, with or without remanding the cause
for a rehearing.” 42 U.S.C. § 405(g). The district court may remand a case to the
Commissioner for a rehearing if the court finds “either . . . the decision is not supported
by substantial evidence, or . . . the Commissioner or the ALJ incorrectly applied the law

relevant to the disability claim.” Jackson v. Chater, 99 F.3d 1086, 1092 (11th Cir. 1996).
III. STANDARD FOR DETERMINING DISABILITY
An individual who files an application for Social Security SSI must prove that he is
disabled. See 20 C.F.R. § 416.920. The Act defines “disability” as the “inability to engage
in any substantial gainful activity by reason of any medically determinable physical or

mental impairment which can be expected to result in death or which has lasted or can be
expected to last for a continuous period of not less than 12 months.” 42 U.S.C. §
1382c(3)(A); 20 C.F.R. § 416.905(a).
Disability under the Act is determined under a five-step sequential evaluation
process. See 20 C.F.R. § 416.920(a). The evaluation is made at the hearing conducted by

the ALJ. See Washington v. Comm’r of Soc. Sec., 906 F.3d 1353, 1359 (11th Cir. 2018).
First, the ALJ must determine whether the claimant is currently engaged in substantial
gainful activity. 20 C.F.R. § 416.920(b). “Substantial gainful activity” is work activity
that involves significant physical or mental activities. 20 C.F.R. § 916.972(a). If the ALJ
finds that the claimant is engaged in substantial gainful activity, the claimant cannot claim
disability. 20 C.F.R. § 416.971. Second, the ALJ must determine whether the claimant

has a medically determinable impairment or a combination of impairments that
significantly limit the claimant's ability to perform basic work activities. 20 C.F.R. §
416.920(c). Absent such impairment, the claimant may not claim disability. Id. Third,
the ALJ must determine whether the claimant meets or medically equals the criteria of an
impairment listed in 20 C.F.R. § 404, Subpart P, Appendix 1. 20 C.F.R. §§ 416.920(d),
416.925, and 426.926. If such criteria are met, then the claimant is declared disabled. 20

C.F.R. § 416.920(d).
If the claimant has failed to establish that he is disabled at the third step, the ALJ
may still find disability under the next two steps of the analysis. At the fourth step, the
ALJ must determine the claimant's residual functional capacity (“RFC”), which refers to
the claimant's ability to work despite his impairments. 20 C.F.R. § 416.920(f). The ALJ

must determine whether the claimant has the RFC to perform past relevant work. 20 C.F.R.
§ 416.920(f). If it is determined that the claimant is capable of performing past relevant
work, then the claimant is not disabled. 20 C.F.R. § 416.920(a)(4)(iv). If the ALJ finds
that the claimant is unable to perform past relevant work, then the analysis proceeds to the
fifth and final step. 20 C.F.R. § 416.920(g). In this final analytical step, the ALJ must

decide whether the claimant is able to perform any other relevant work corresponding with
his RFC, age, education, and work experience. 20 C.F.R. § 916.920(g). Here, the burden
of proof shifts from the claimant to the ALJ in proving the existence of a significant number
of jobs in the national economy that the claimant can perform given his RFC, age,
education, and work experience. 20 C.F.R. §§ 416.912(b), 416.960(c).

IV. ADMINISTRATIVE DECISION
Within the structure of the sequential evaluation process, the ALJ in this case found
that Overton has not engaged in substantial gainful activity since February 7, 2018, the
application date, and that he has the following severe impairments: hypertension, obesity,
ADHD, PTSD, learning disorder, alcohol abuse, depression, and language disorder. (R.
17.) The ALJ concluded, however, that Overton’s impairments do not meet or medically

equal the severity of one of the listed impairments in 20 C.F.R. Part 404, Subpart P,
Appendix 1 (20 C.F.R. §§ 404.1520(d), 416.925, and 416.926). (R. 18.)
After consideration of the entire record, the ALJ determined that Overton retains the
RFC to perform light work5 as defined in 20 C.F.R. § 416.967(b). (R. 19-21.) The ALJ
found the following workplace limitations applicable to Overton:

He can push and pull as much as he can lift and carry; he can occasionally
climb ramps and stairs but should never climb ladders, ropes, or scaffolds;
he can occasionally balance, stoop, kneel, crouch, and crawl; he should have
no exposure to dangerous heights or moving parts; he is limited to simple
and routine tasks; he can have occasional interaction with supervisors and
the public; and he can tolerate few changes in a work setting.
(R. 19.)

5 “Light work involves lifting no more than 20 pounds at a time with frequent lifting or carrying
of objects weighing up to 10 pounds. Even though the weight lifted may be very little, a job is in
this category when it requires a good deal of walking or standing, or when it involves sitting most
of the time with some pushing and pulling of arm or leg controls.” 20 C.F.R. § 404.1567(b).
The ALJ determined that transferability of job skills is not an issue because Overton
does not have past relevant work. (R. 21.) Additionally, the ALJ found that Overton was

considered a younger individual as defined in 20 C.F.R. § 416.963 and he has a limited
education. (R. 21.) Based upon the testimony of the Vocational Expert (“VE”), the ALJ
further found that Overton was not disabled as defined by the Act because his age,
education, work experience, and RFC would allow him to make a successful adjustment to
other work that exists in significant numbers in the national economy. (R. 21-22.) The
ALJ concluded that Overton had not been under a disability, as defined in the Social

Security Act, at any time since February 7, 2018, the date the application was filed. (R.
22.)
V. DISCUSSION
Overton presents four arguments on appeal. First, Overton argues that the ALJ
violated his right to due process and statutory right to a hearing when the ALJ failed to

review his showing of good cause for failure to appear and failed to schedule a
supplemental hearing. (Doc. No. 14 at 1.) Second, Overton contends that the ALJ’s
determination of his RFC is inconsistent with the opinion of Dr. Michael Rosenbaum, a
state agency psychologist. (Id.) Third, Overton asserts that the ALJ’s determination of his
RFC is not based on substantial evidence. (Id.) Fourth, Overton argues that the ALJ erred

by failing to develop a full and fair record pursuant to 20 C.F.R. § 404.1512(d).
The Commissioner responds that Overton failed to show a harmful violation of due
process. (Doc. No. 15 at 4-5.) Additionally, the Commissioner contends that Overton has
not shown harmful error with respect to Dr. Rosenbaum’s opinion. (Id. at 5-12.) The
Commissioner further argues that substantial evidence supports the ALJ’s finding. (Id. at
12-13.) Finally, the Commissioner responds that the record is sufficient. (Id. at 14-15.)

The Court addresses the first issue and concludes that remand is necessary because
Overton was deprived of his right to appear and testify at his hearing, and he was prejudiced
as a result. Further, because Overton was not given an opportunity to testify in such a way
that could potentially influence the ALJ’s review of the medical evidence, remand on the
first issue impacts each subsequent issue raised by Overton. Therefore, the Court finds it
unnecessary to address the other issues on appeal. See Demenech v. Sec'y of the Dep't of

Health & Human Servs., 913 F.2d 882, 884 (11th Cir. 1990) (per curiam) (concluding that
certain arguments need not be addressed when the case would be remanded on other
issues).
Overton contends that the ALJ violated his right to due process and statutory right
to a hearing. (Doc. No. 14 at 1.) Specifically, Overton argues that under 20 C.F.R. §

404.1765(m),6 the ALJ should have given Overton an opportunity to show good cause for
failure to appear, and that under HALLEX I-2-4-25(D)(2)(b), the ALJ failed to determine
whether Overton constructively waived his right to a hearing. (Id. at 5-6.) He also asserts

6 Pursuant to 20 C.F.R. § 404.1765(m),

[i]f the representative or the other party to the hearing fails to appear after being
notified of the time and place, the hearing officer may hold the hearing anyway so
that the party present may offer evidence to sustain or rebut the charges. The
hearing officer shall give the party who failed to appear an opportunity to show
good cause for failure to appear. If the party fails to show good cause, he or she is
considered to have waived the right to be present at the hearing. If the party shows
good cause, the hearing officer may hold a supplemental hearing.

20 C.F.R. § 404.1765(m) (emphasis added).
that the ALJ did not offer Overton the opportunity to testify at a supplemental hearing. (Id.
at 7.) In addition, Overton argues that under 20 C.F.R. § 404.950(a), “any party to a hearing

has a right to appear before the ALJ, either in person or by video teleconferencing or
telephone, to present evidence and to state his or her position” and that he was not granted
that right. (Doc. No. 21 at 1-2.)
The Commissioner responds that Overton cannot rely on HALLEX because it is an
agency handbook that cannot serve as a basis to remand; that, in any event, Overton failed
to show nonconformance with HALLEX; and that even if Overton could show

nonconformance with HALLEX and HALLEX could serve as a basis for remand, Overton
does not show harmful error. (Doc. No. 15 at 4-5.)
The Court agrees with the Commissioner that an ALJ’s violation of HALLEX
cannot alone serve as grounds for remand.7 See Clance v. Comm'r of Social Sec., No. 8:20–
cv-557–T–SPF, 2021 WL 4129556, at *5 (M.D. Fla. Sep. 10, 2021) (noting that “violations

7 HALLEX (the Hearing, Appeals, and Litigation Law manual) is the policy manual written by the
Social Security Administration (“SSA”) that conveys “guiding principles, procedural guidance and
information to hearing level and Appeals Council staff.” Jasent v. Berryhill, No. 8:17–cv–2925–
T–30AEP, 2019 WL 298430, at *5 n.3 (M.D. Fla. Jan. 3, 2019) (citing HALLEX I-1-001). The
Eleventh Circuit has indicated in several unpublished decisions that HALLEX does not create
judicially enforceable rights, particularly where a plaintiff fails to establish prejudice. McCabe v.
Comm'r of Soc. Sec., 661 F. App’x 596, 599 (11th Cir. 2016) (“This Court has not decided whether
HALLEX carries the force of law .... Even assuming (without deciding) that HALLEX carries the
force of law and the agency failed to comply with it, [plaintiff] has not shown that she was
prejudiced by this failure.”); Carroll v. Soc. Sec. Admin., Comm'r, 453 F. App’x. 889, 892 (11th
Cir. 2011) (“HALLEX is an agency handbook for the SSA not mentioned in § 405(g), so it cannot
serve as the basis to remand [plaintiff's] case” especially in the absence of prejudice) (citing Hall
v. Schweiker, 660 F.2d 116, 119 (5th Cir. Unit A Sept. 1981)); George v. Astrue, 338 F. App'x
803, 805 (11th Cir. 2009) (“[E]ven if we assume that ... HALLEX carries the force of law—a very
big assumption—the ALJ did not violate it ....”).
of HALLEX cannot serve as grounds for remand in and of themselves”). However, should
the Court find that the Commissioner violated Overton’s due process rights, remand is

necessary. See id. (“The issue is whether these [HALLEX] violations prejudiced Plaintiff
such that the Commissioner violated her due process rights.”). Specifically, the Court must
assess whether the ALJ complied with the Code of Federal Regulations and the SSA’s
requirements in ensuring the fundamental right of due process. The Court must then
determine whether the ALJ’s failure to comply with these regulations and requirements
resulted in harmful prejudice.

“The fundamental requirement of due process is the opportunity to be heard at a
meaningful time and in a meaningful manner.” Matthews v. Eldridge, 424 U.S. 319, 333
(1976). After all, “there must be a showing of prejudice before it is found that the
claimant's right to due process has been violated.” Graham v. Apfel, 129 F.3d 1420, 1423
(11th Cir. 1997). An administrative hearing must be fair to comply with due process

requirements. See Withrow v. Larkin, 421 U.S. 35, 46 (1975).
In recognition of the necessity for fairness, Social Security Ruling8 (“SSR”) 79-19
established requirements for a valid waiver of personal appearance at a hearing. For

8 “Social Security Rulings are agency rulings published under the authority of the Commissioner
of Social Security ....” Sullivan v. Zebley, 493 U.S. 521, 531 n.9 (1990). Although a federal court
is not bound by Social Security Rulings, the SSA is bound. Washington v. Comm'r of Soc. Sec.,
906 F.3d 1353, 1361 (11th Cir. 2018).

This is not to say that [federal courts] are bound by agency rulings that interpret an
agency's regulations. We are not. B. B. v. Schweiker, 643 F.2d 1069, 1071 (5th
Cir. 1981). But the Rulings are binding within the Social Security Administration.
20 C.F.R. § 402.35(b)(1) (“[SSA Rulings] are binding on all components of the
Social Security Administration.”). [Courts] require the agency to follow its
regulations “where failure to enforce such regulations would adversely affect
example, the ruling provides the waiver of personal appearance must be in writing. SSR
79-19, 1979 WL 15541 at *1 (S.S.A.1979). SSR 79-19 further provides that the written

waiver of personal appearance must show:
1. a thorough explanation of the hearing procedure has been given;
2. the right to personal appearance at the hearing to testify and present
evidence has been explained;
3. an explanation has been given of the right to representation at the hearing
by an attorney or other person of the individual's choice;
4. it has been explained that, in some cases, additional evidence obtained
thorough oral testimony and personal presence before the presiding officer
may be of value in evaluating the issues;
5. the individual has been advised that, if he or she does not appear, the
claim will be decided solely on the written evidence then in file plus any
additional evidence submitted by the individual or the representative or
obstained by the hearing officer.
6. the individual has been advised that he or she may withdraw the waiver of
the right to appear at the hearing at any time prior to mailing of the notice of
the decision.
SSR 79-19, 1979 WL 15541, at *2-3.
In addition, the Social Security Act requires that a claimant receive “reasonable
notice and opportunity for a hearing” before his claim for disability benefits can be denied.

‘substantive rights of individuals.’ ” First Ala. Bank, N.A. v. United States, 981
F.2d 1226, 1230 n.5 (11th Cir. 1993) (quoting Morton v. Ruiz, 415 U.S. 199, 232,
94 S. Ct. 1055, 39 L. Ed. 2d 270 (1974)); see also Romano-Murphy v. C.I.R., 816
F.3d 707, 720 (11th Cir. 2016); Gonzalez v. Reno, 212 F.3d 1338, 1349 (11th Cir.
2000) (“Agencies must respect their own procedural rules and regulations.”). This
is the case even where ... “the internal procedures are more rigorous than otherwise
would be required.” Hall v. Schweiker, 660 F.2d 116, 119 (5th Cir. 1981) (per
curiam).

Id. (footnote omitted).
42 U.S.C.A. § 405(b)(1). The Secretary promulgates the regulations that implement the
statutory right to appear, and these regulations provide that “any party to a hearing has a

right to appear before the [ALJ], either in person or … by video teleconferencing or
telephone, to present evidence and to state his or her position.” 20 C.F.R. § 404.950(a).
Failure to have an opportunity to be heard may lead to potential prejudice and may be cause
for remand. See Mitchell v. Berryhill, No. 8:16–CV–1905–T–JRK, 2017 WL 4054509
(M.D. Fla. Sept. 14, 2017); Fears v. Berryhill, No. 6:16-CV-55, 2018 WL 1547365 (W.D.
Va. Mar. 29, 2018); Kelley v. Heckler, 761 F.2d 1538, 1540 (11th Cir. 1985). To determine

whether a claimant’s absence at an administrative hearing is cause for remand, “a court
must determine 1) whether the claimant validly waived the right to personal appearance;
and 2) whether the claimant was prejudiced as a result.” Mitchell, 2017 WL 4054509, at
*3 (citing Kelley, 761 F.2d at 1540; Hall, 660 F.2d at 119). Importantly, a claimant’s
counsel or appointed representative’s appearance at an administrative hearing on the

claimant’s behalf is not a sufficient waiver of a claimant’s right to appear. Fears v.
Berryhill, No. 6:16-CV-55, 2018 WL 1547365, at *3 (W.D. Va. Mar. 29, 2018).
Finally, “a showing of prejudice must be made before [a court] will find that a
hearing violated claimant’s rights of due process and requires a remand to the Secretary for
reconsideration.” Kelley, 761 F.2d at 1540 (citing Smith v. Schweiker, 677 F.2d 829 (11th

Cir. 1982)). This requires a showing that “the ALJ did not have all of the relevant evidence
before him in the record (which would include relevant testimony from claimant), or that
the ALJ did not consider all of the evidence in the record in reaching his decision.” Id.
SSR 79-19 provides that “a disability issue may best be resolved on the basis of detailed
testimony as to the individual's activities, background, experience, etc., presented at the
hearing. The presiding officer's personal observations of the appellant can also add

additional weight to the medical evidence or other information of record.” SSR 79-19,
1979 WL 15541, at *2.
a. No Valid Waiver
In this case, the administrative hearing was held on October 24, 2019. (R. 26.)
Overton was not present at the hearing, but his non-attorney representative was present.
(R. 28.) At the close of the hearing, Overton’s representative informed the ALJ that

Overton was not present and that she knew there was a possibility that he would not be
able to make it to the hearing due to his size and his lack of transportation. (R. 34.) The
representative asked the ALJ to issue a Notice to Show Cause for Overton’s failure to
appear should he not find for Overton. (R. 35.) The ALJ agreed, stating “what I’m going
to do in this case is I’m going to go ahead [and enter] a Notice to Show Cause to claimant

.…” (R. 35.) On October 25, 2019, the ALJ sent a Notice to Show Cause to Overton, but
it was ultimately returned to the Social Security administration as “unclaimed” or “unable
to forward.” (R. 123.) While the Notice to Show Cause indicated that a courtesy copy was
sent to Overton’s representative, the record does not reflect that a copy was ever sent or
received. Overton’s representative provided an affidavit which attests that she never

received a copy of the Notice to Show Cause and, nine days before the ALJ issued a
decision, she wrote a letter to the ALJ stating that Overton attempted to attend the hearing
but was late due to transportation issues. (R. 124.) On November 29, 2019, the ALJ issued
an unfavorable decision in which he neither considered Overton’s reasons for failure to
appear at the hearing, nor provided Overton the opportunity to testify at a supplemental
hearing. (R. 12-22.)

The Court finds no valid waiver of Overton’s right to personal appearance at the
hearing. The record before the Court does not contain a written and signed waiver of
personal appearance as required by SSR 79-19. The ALJ failed to determine whether
Overton waived his right to a hearing and the appearance of Overton’s representative alone
was not a sufficient waiver of his right to appear. Fears, 2018 WL 1547365, at *3.
Additionally, a federal court may only defer to an ALJ’s credibility determination where

the ALJ actually “had the opportunity to personally observe the claimant at the hearing.”
See Brown v. Barnhart, 298 F. Supp. 2d 773, 793 (E.D. Wis. 2004). Because Overton did
not waive his right to appear at his hearing, and because the ALJ did not show that he
reviewed Overton’s reasons for his failure to appear, the first component in determining
whether a case may be remanded based on the claimant’s absence at the administrative

hearing is satisfied. Overton did not validly waive his right to personal appearance.
Regarding Overton’s argument that the ALJ did not comply with the HALLEX I–
2–4–25(D)(2)(b), this Court is not convinced that this HALLEX provision applies here.
This provision governs when “an appointed representative appears at the scheduled hearing
without the claimant and continues to represent the claimant during the hearing” and the

claimant has “constructively waived the right to appear at the hearing if: the representative
is unable to locate the claimant; the Notice of Hearing was mailed to the claimant's last
known address; and the agency has followed the contact procedures required by 20 CFR
404.938 and 416.1438.” HALLEX I–2–4–25(D)(2). That was not the situation here as
“[Overton’s] location was known, but [he] was unable to attend the hearing due to
circumstances apparently beyond his control.” Mitchell, 2017 WL 4054509 at *5. (See R.

128.)
b. Prejudice Resulted
The Court next turns to the question of whether Overton was prejudiced by his
absence from the administrative hearing. Overton must show that the ALJ did not have all
of the relevant evidence before him in the record, including relevant testimony from
Overton, or that the ALJ did not consider all of the evidence in the record in reaching his

decision. Kelley, 761 F.2d at 1540. Because SSR 79-19 provides that a claimant’s
testimony at the hearing as to his background, activities, and experience may be the best
avenue for resolving a disability issue, and that a hearing officer’s personal observations
of the claimant can add weight to the medical evidence, it is important that a claimant be
given the opportunity to be heard. Here, the ALJ’s failure to obtain a valid waiver of

personal appearance prejudiced Overton. After reviewing the evidence in the record, the
ALJ found that Overton’s “medically determinable impairments could reasonably be
expected to cause some of the alleged symptoms; however, [Overton’s] statements
concerning the intensity, persistence, and limiting effects of these symptoms are not
entirely consistent with the medical evidence and other evidence in the record ….” (R.

20.) Yet, the ALJ did not question Overton about the statements he deems “not entirely
consistent” with the record because Overton was not present at the hearing. Instead, the
ALJ relies heavily on what was found in the medical record. Further, the ALJ’s RFC
determination regarding Overton’s ability to work for long periods of time without breaks
and ability to stand and concentrate could have also been addressed with Overton during
the hearing. Had Overton attended the hearing, he would have had an opportunity to
address inconsistencies and testify as to his ability to work for long periods of time and his
ability to concentrate. Thus, this Court finds that Overton was prejudiced as a result of his
absence from the administrative hearing.
Because there was no valid written waiver of Overton’s personal appearance and
his absence at the hearing resulted in prejudice, the ALJ committed reversible error. Until
Overton is able to appear before the ALJ in compliance with 20 C.F.R. § 404.950(a) or
provide a written waiver as required by SSR 79-19, it is premature for this Court to review
the ALJ’s determinations on the medical opinion of Dr. Rosenbaum, Overton’s RFC, or
the development of the record.
VI. CONCLUSION
For the foregoing reasons, the Court finds that the decision of the Commissioner
is not in accordance with applicable law nor supported by substantial evidence.
Therefore, it is hereby
ORDERED that the decision of the Commissioner is REVERSED pursuant
to sentence four of 42 U.S.C. § 405(g) and this matter is REMANDED for further
proceedings consistent with this opinion.
A separate judgment will be issued.
DONE this 28th day of March, 2022.
di Oat
UMTED STATES MAGISTRATE JUDGE
16

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9987734. Public record. Not legal advice.