Ainsworth v. SSA 09-CV-286-SM 06/17/10 UNITED STATES DISTRICT COURT

DISTRICT OF NEW HAMPSHIRE

Wavne S. Ainsworth, Claimant

v. Civil No. 09-cv-286-SM Opinion No.

Michael J. Astrue, Commissioner, Social Security Administration, Defendant

O R D E R

Pursuant to

(g) and 1383(c)(3), claimant,

Wayne Ainsworth, moves to reverse the Commissioner's decision

denying his application for Social Security Disability Insurance

Benefits under Title II of the Social Security Act (the "Act"),

, and Supplemental Security Income Benefits under

Title XVI of the Act,

-1383c. The Commissioner

objects and moves for an order affirming his decision.

Factual Background

I. Procedural History.

On June 15, 2004, claimant filed an application for

Disability Insurance Benefits and Supplemental Security Income

Benefits under Titles II and XVI of the Act, alleging that he had

been unable to work since December 31, 1999, due to diabetes and back disorders. His application was denied and he requested a

hearing before an Administrative Law Judge ("ALJ").

A hearing was held and, on June 12, 2006, the ALJ issued an

unfavorable decision, concluding that claimant was not disabled.

Claimant appealed that decision to this court. Subsequently,

however, the parties jointly submitted a motion seeking remand to

the ALJ, so that he might give additional consideration to the

opinions of claimant's treating sources and claimant's residual

functional capacity.

On November 14, 2007, claimant, his attorney, a vocational

expert, and a medical expert (who testified by telephone)

appeared before the ALJ. On January 30, 2008, the ALJ issued his

written decision, concluding that claimant retained the residual

functional capacity to perform the physical and mental demands of

light work, with some limitations on standing, climbing stairs,

and using arm controls to push or pull. Accordingly, the ALJ

concluded that claimant was not disabled, as that term is defined

in the Act, at any time prior to the date of his decision.

Claimant sought review of the ALJ's decision by the Appeals

Council, which denied his request. As a result, the ALJ's denial

of claimant's application for benefits became the final decision

2 of the Commissioner, subject to judicial review. Subsequently,

claimant filed a timely action in this court, asserting that the

ALJ's decision is not supported by substantial evidence and

seeking a judicial determination that he is disabled within the

meaning of the Act. Claimant then filed a "Motion for Order

Reversing Decision of the Commissioner" (document no. 13). In

response, the Commissioner filed a "Motion for Order Affirming

the Decision of the Commissioner" (document no. 15). Those

motions are pending.

II. Stipulated Facts.

Pursuant to this court's Local Rule 9.1(d), the parties have

submitted a statement of stipulated facts which, because it is

part of the court's record (document no. 16), need not be

recounted in this opinion. Those facts relevant to the

disposition of this matter are discussed as appropriate.

Discussion

I. Background - The ALJ's Findings.

In concluding that Mr. Ainsworth was not disabled within the

meaning of the Act, the ALJ properly employed the mandatory five-

step sequential evaluation process described in

and 416.920. Accordingly, he first determined that

claimant had not been engaged in substantial gainful employment

3 since December 31, 1999, the alleged onset date of his

disability. Next, he concluded that claimant suffers from the

following impairments: "diabetes mellitus, polyneuropathy,

hypertension. Hepatitis C, ASCVD with Class I Angina pectoris,

hyperlipidemia, headaches, herniated nucleus pulposus at C5-6

with radiculopathy and subsequent spinal stenosis, degenerative

joint disease in the thumbs and wrists, right knee torn meniscus,

mild degenerative disc disease in the lumbar spine, hemorrhoids,

and obesity." Administrative Record ("Admin. Rec.") at 474.

Nevertheless, the ALJ determined that those impairments,

regardless of whether they were considered alone or in

combination, did not meet or medically equal one of the

impairments listed in Part 404, Subpart P, Appendix 1.

Claimant does not challenge any of those findings.

Next, the ALJ concluded that claimant retained the residual

functional capacity ("RFC") to perform the exertional demands of

light work. He noted, however, that claimant's RFC was limited

by the following factors: "he is unable to climb stairs more than

occasionally, cannot climb ladders at all, and cannot use arm

controls to push/pull." Admin. Rec. at 475. The ALJ also

concluded that "claimant is able to sit and stand and/or walk for

a total of 6 hours each in an eight-hour work day, but while

seated needs to have the opportunity to stand for a few minutes

4 to stretch and then sit back down again." Xd. In light of those

restrictions, the ALJ concluded that claimant was not capable of

returning to any past relevant work. I_d. at 481.

Finally, at step five of the sequential analysis, the ALJ

considered whether there were any jobs in the national economy

that claimant might perform. Relying upon the testimony of a

vocational expert, as well as his own review of the medical

record, and using the Medical-Vocational Guidelines, 20 C.F.R.

p t . 404, subpt. P, A p p . 2, tables 1-3, (also known as the "Grid")

as a framework for his decision, the ALJ concluded that,

notwithstanding claimant's exertional limitations, he "has

acquired work skills from past relevant work that are

transferable to other occupations with jobs existing in

significant numbers in the national economy." Admin. Rec. at

481. Consequently, the ALJ concluded that claimant was not

"disabled," as that term is defined in the Act, through the date

of his decision. I_d. at 482.

II. Claimant's Challenges to the ALJ's Adverse Decision.

In support of his motion to reverse the decision of the

Commissioner, claimant raises three issues. He asserts that the

ALJ erred, first, by taking testimony from the independent

medical expert (Dr. Axline) via telephone; second, by failing to

5 give appropriate weight to the opinions of Dr. Pascal and Dr.

Regan; and, finally, by ascribing too much weight to the RFC

opinion of Dr. Meader. The first of those three is dispositive

of the parties' current dispute.

A. Telephonic Testimony and The Parties' Respective Positions.

The Social Security Hearings, Appeals and Litigation Law

Manual ("HALLEX") assumes that administrative law judges will

obtain expert medical or vocational testimony through alternate

means. Specifically, it provides that:

Before scheduling a hearing, the ALJ or the HO staff under the ALJ's direction must review all of the evidence to determine if additional evidence is needed to inquire fully into the matters at issue. If this review indicates that ME [medical expert] or vocational expert (VE) opinion is needed, the ALJ must obtain the opinion by requesting an ME or VE to either testify at a hearing or provide answers to written interrogatories.

The preferred method for obtaining ME or VE opinion is through in-person testimony or testimony taken via telephone or video teleconference at a hearing.

at 1-2-5-30,

(Sept. 28, 2005). Claimant

asserts, however, that the HALLEX provision approving of

telephonic testimony by a medical expert is contrary to the

governing Social Security regulations, which authorize only two

methods for taking such testimony: in person or, under limited

circumstances, via video teleconferencing. See 20 C.F.R.

6 § 404.950 ("Witnesses may appear at a hearing in person or, when

the conditions in § 404.936(c) exist, by video

teleconferencing."). See also

(c)

(authorizing the ALJ to determine whether any individual who is

to appear at the hearing shall do so personally or by video

teleconferencing).

The Social Security regulations do not directly authorize or

preclude telephonic testimony from a party, fact witness, or

expert. Not surprisingly, the parties disagree about the

significance of the regulatory silence. Because the regulations

do not speak to the issue, the government says the HALLEX

provisions authorizing telephonic testimony govern. Claimant, on

the other hand, asserts that because the regulations do not

specifically authorize telephonic testimony, the practice is

necessarily barred.

B. Precedent in this Area is Sparse.

The admissibility of telephonic testimony at a Social

Security administrative hearing is an issue that has rarely been

discussed in reported cases. The court of appeals for this

circuit has not considered the issue, and claimant has not

pointed to precedent from other circuits that considered whether

telephonic medical expert testimony may be considered, or the

7 related question of whether the HALLEX provisions conflict with

Social Security regulations.1

To be sure, a number of courts have acknowledged, in

passing, situations in which an ALJ allowed the admission of

expert medical testimony by telephone. But, those courts did not

consider whether that practice is consistent with the governing

regulations. See, e.g., Lewis v. Astrue,

(9th

Cir. 2007) (noting, without further comment, that "Irwin Weinreb,

M.D., an internist, testified by telephone as a medical expert");

Candelario v. Barnhart,

(10th Cir. 2006)

(noting that the medical expert testified by telephone). The

court is aware of only one case in which a reviewing court

considered whether a Social Security claimant's due process

rights were violated when an ALJ admitted expert medical

1 The court is aware of one unpublished opinion in which a magistrate judge recommended that the court hold an ALJ's admission of telephonic testimony by a vocational expert to be inconsistent with the governing Social Security regulations. Palaschak v. Astrue,

, No. 08-cv-1172 (N.D.N.Y. Nov. 18, 2009). Importantly, however, much of the magistrate judge's reasoning rested on the unique role played by the vocational expert and the importance of his or her ability to actually observe the claimant in person. An expert medical consultant, who has simply been asked to review a claimant's medical records and offer professional opinions based exclusively upon those documents, occupies a significantly different position. Parenthetically, the court also notes that the magistrate judge in Palaschak concluded that, given the circumstances of that case, it was harmless error for the ALJ to have taken the vocational expert's testimony by telephone. testimony presented telephonically. See Hepp v. Astrue,

(8th Cir. 2008) (concluding that claimant's constitutional

rights were not violated by the ALJ's admission of a medical

expert's telephonic testimony).

C. Remand is Warranted in this Case.

Dr. Axline's expert opinion unarguably played a critical

part in the ALJ's determination that claimant was not disabled.

The very reason this matter was remanded (by agreement of the

parties) to the ALJ was so that he might be permitted to "further

consider the weight attributed to all medical source opinion

evidence of record and reassess [claimant's] residual functional

capacity, including a function-by-function evaluation of his

exertional and nonexertional capabilities." Assented-to Motion

to Remand, Admin. Rec. at 491. See also Order of Appeals Council

Remanding Case to Administrative Law Judge, Admin. Rec. at 500.

In resolving the discrepancy(ies) between the various medical

opinions of record, the ALJ afforded "great weight" to Dr.

Axline's testimony. Amin. Rec. at 475. Accordingly, to the

extent it was error to admit Dr. Axline's testimony via

telephone, the court cannot conclude that it was harmless.

Additionally, as claimant points out, the transcript of Dr.

Axline's testimony contains many gaps (shown in the record as

9 "[INAUDIBLE]"), when his testimony could not be transcribed.

Some of those gaps are inconsequential. Others, however, make it

difficult to understand exactly what Dr. Axline was saying and/or

to discern the basis for his expert opinions. At least arguably,

then, the Commissioner has not met his obligation to provide a

copy of the "transcript of the record including the evidence upon

which the findings and decision complained of are based."

(g). See also Dandeneau v. Heckler,

(D. Me. 1985) ("The Secretary has the burden of

compiling and filing a transcript of the record 'including the

evidence upon which the findings and decision complained of are

based.'

(g). By offering this woefully defective

transcript, the Secretary has utterly failed to fulfill her

statutory obligation.").

Finally, the practice of accepting critical testimony via

telephone is not universally applauded. And, interestingly (if

not ironically), as recently as 2007, the Association of

Administrative Law Judges was highly critical of a proposal to

permit telephonic hearings.

We have strongly opposed the introduction of telephone hearings (proposed rules

(c), 416.1436(c)). A telephone hearing does not provide for the due process required for a constitutional hearing, the hearing required by the Social Security Act, or the procedure provided for by the Administrative Procedure Act. A telephone hearing adversely affects the ability

10 of the administrative law judge to ascertain the identity of the participants and to determine the credibility of either the claimant or the witnesses because their demeanor cannot be observed by the judge.

Comments of the Association of Administrative Law Judges

Regarding Social Security Administration Notice of Proposed

Rulemaking, available at http://www.aalj.org/pdf/ 08d003.pdf

(Oct. 29, 2007) .

Here, whether the practice of accepting expert testimony by

telephone is or is not authorized by the governing regulations,

remand is required. The circumstances presented in this case,

viewed as a whole, counsel strongly in favor of remanding the

matter so: (1) the ALJ can obtain the required expert medical

testimony in an appropriate manner; (2) a complete record of that

testimony can be prepared for use on appeal; and (3) the bases of

those critical expert medical opinions will be discernible.

Conclusion

For the foregoing reasons, the Commissioner's motion to

affirm his decision (document no. 15) is denied and the

claimant's motion to reverse (document no. 13) is granted to the

extent it seeks remand to the ALJ.

11 Pursuant to Sentence Four of

(g), this matter

is hereby remanded to the ALJ for further proceedings consistent

with this order. The Clerk of Court shall enter judgment in

accordance with this order and close the case.

SO ORDERED.

Steven J./McAuliffe United States District Judge

June 17, 2 010

cc: Francis M. Jackson, Esq. Karen B. Fitzmaurice, Esq. Gretchen L. Witt, Esq.

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