F I L E D
United States Court of Appeals
Tenth Circuit
PUBLISH
July 29, 2005
UNITED STATES COURT OF APPEALS
PATRICK FISHER
Clerk
TENTH CIRCUIT
LEONARD J. YOUNT,
Plaintiff - Appellant,
v. No. 04-7108
JO ANNE B. BARNHART,
Commissioner, Social Security
Administration,
Defendant - Appellee.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF OKLAHOMA
(D.C. No. 03-CV-485-W)
Submitted on the briefs:
Jennifer A. Johnson, Troutman and Troutman, P.C., Tulsa, Oklahoma for
Appellant.
Sheldon J. Sperling, United States Attorney, Cheryl R. Triplett, Assistant United
States Attorney, Office of the United States Attorney, Muskogee, Oklahoma; Tina
M. Waddell, Regional Chief Counsel, Michael McGaughran, Deputy Regional
Chief Counsel, Mary F. Lin, Assistant Regional Counsel, Office of General
Counsel, Region IV, Social Security Administration, Dallas, Texas for Appellee.
Before SEYMOUR, KELLY, and MURPHY, Circuit Judges.
SEYMOUR, Circuit Judge.
Leonard J. Yount appeals from an order of the district court affirming the
Commissioner’s decision denying his application for Social Security benefits. 1
Yount filed applications for disability insurance benefits and supplemental
security income benefits on January 31, 2002. He alleged disability based on
degenerative disc disease and osteoarthritis. The agency denied his application
initially and on reconsideration.
On March 12, 2003, Mr. Yount received a de novo hearing before an
administrative law judge (ALJ). He testified at the hearing that he could not
afford to see a doctor because he did not have medical insurance. At the close of
the hearing, Mr. Yount’s attorney and the ALJ discussed the fact that there was a
lack of medical evidence in the record. Mr. Yount’s attorney requested that the
Social Security Administration provide for a medical exam for Mr. Yount. The
ALJ acknowledged his duty to develop the record and stated that the request was
reasonable. The ALJ agreed to order a medical exam for Mr. Yount. On April
16, 2003, Mr. Yount was examined by Dr. Dougherty, an agency consultative
examiner.
1
After examining the briefs and appellate record, this panel has determined
unanimously to grant the parties’ request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore
ordered submitted without oral argument.
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In a letter dated May 6, 2003, the ALJ notified Mr. Yount’s attorney that he
proposed to enter Dr. Dougherty’s report and copies of Mr. Yount’s x-rays into
the record. The ALJ informed Mr. Yount that, in response to this additional
evidence, Mr. Yount could either submit written comments or questions, or
request a supplemental hearing. Mr. Yount’s attorney responded on May 8, 2003
and requested a supplemental hearing. In addition, the attorney mentioned in the
letter that she was interested in finding out if Dr. Dougherty had seen the x-rays
when he examined Mr. Yount. The ALJ did not respond to the request for a
supplemental hearing. On May 30, 2003, the ALJ issued an unfavorable decision.
In his decision, the ALJ acknowledged Mr. Yount’s request for a supplemental
hearing, and provided the following rationale to support his denial:
After viewing the consultative physical examination report, the
claimant’s attorney requested a supplemental hearing, primarily to
ask Dr. Daugherty [sic] if he saw the x-rays when he examined the
claimant. Based on the fact that most doctors rely on a report and do
not actually see x-rays, the Administrative Law Judge finds that
Exhibit 4F is a reasonable report and accepts these findings. The
request for a supplemental hearing is, therefore, denied.
Aplt. App., Vol. II, at 22.
The district court affirmed the ALJ’s decision. On appeal, Mr. Yount
contends that the ALJ’s reliance on a post-hearing medical report denied him due
process because he had no opportunity to cross-examine the physician or rebut the
report. We agree and reverse.
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Social security hearings are subject to procedural due process
considerations. Allison v. Heckler, 711 F.2d 145, 147 (10th Cir. 1983) (citing
Richardson v. Perales, 402 U.S. 389, 401-02 (1971)). We have held that “[a]n
ALJ’s use of a post-hearing medical report constitutes a denial of due process
because the applicant is not given the opportunity to cross-examine the physician
or to rebut the report.” Allison, 711 F.2d at 147. In affirming the ALJ’s decision,
the district court concluded Mr. Yount was not denied due process because he had
failed to provide a statement of the important facts expected to be proven at the
supplemental hearing and the reason why those facts could not be proven without
a hearing. Significantly, however, nothing in the ALJ’s letter to Mr. Yount
regarding his right to request a supplemental hearing indicated he was required to
provide such a statement. Rather, the ALJ’s letter stated that Mr. Yount could, in
part, submit to the ALJ written questions to be posed to the author of the medical
report. He could
also request a supplemental hearing at which [he] would have the
opportunity to appear, testify, and submit additional evidence and
written or oral statements concerning the facts and law. In addition,
[he could] request an opportunity to orally question witnesses,
including the author(s) of the [medical] report(s).
....
If [the ALJ] grant[ed the] request for a supplemental hearing,
[he could] request that the [ALJ] issue a subpoena to require the
attendance of witnesses or the submission of records. [He] must
submit a subpoena request, in writing, no later than 5 days before the
date of the supplemental hearing. Any request that [the ALJ] issue a
subpoena must provide the names of the witnesses or documents to
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be produced; the address or location of the witnesses or documents
with sufficient detail to find them; a statement of the important facts
that the witness or document is expected to prove; and the reason
why these facts cannot be proven without issuing a subpoena.
Aplt. Br. at 8 (emphasis added). Contrary to the district court’s determination
that Mr. Yount was required to show good cause for a supplemental hearing by
detailing the facts expected to be proven at the hearing and why they could not be
otherwise established, the notice provided to Mr. Yount indicated that he need
merely ask for a supplemental hearing. The good cause requirement is triggered
only if the ALJ granted a supplemental hearing and Mr. Yount thereafter wished
the ALJ to issue subpoenas.
The notice provided to Mr. Yount detailing what he was required to do in
order to request a supplemental hearing in no way commanded that he make a
good cause showing. As referenced above, social security hearings must comport
with the procedural due process requirements of notice and hearing. See Allison,
711 F.2d at 147. Hence, the district court’s affirmation of the ALJ’s decision on
the ground that Mr. Yount failed to make a good cause showing for the
supplemental hearing was in error because Mr. Yount was not given notice of
such a requirement.
On appeal, the Commissioner asserts that Mr. Yount is essentially claiming
he has an absolute right to cross-examine Dr. Dougherty. We do not view that as
an accurate characterization of claimant’s position. Mr. Yount has consistently
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argued that due process requires the agency to provide him an opportunity to
cross-examine the physician or rebut the report; he is not arguing that there is an
absolute right to cross-examination. Alternatively, the Commissioner contends
Mr. Yount sought a supplemental hearing for the sole purpose of cross-examining
Dr. Dougherty to determine if he actually saw Mr. Yount’s x-rays. Mr. Yount’s
attorney did mention in the letter to the ALJ requesting a supplemental hearing
that she was interested in finding out whether Dr. Dougherty had seen the x-rays,
but she did not indicate that was the sole purpose for her request for a hearing.
The ALJ acknowledged there was insufficient medical evidence in the
record and ordered a consultative exam for Mr. Yount. After receiving the report,
however, the ALJ failed to give Mr. Yount a meaningful opportunity to address
the post-hearing evidence. Mr. Yount’s attorney was not able to rebut the report
or to cross-examine the doctor, the vocational expert, or Mr. Yount in light of the
additional evidence presented. Under these circumstances, the ALJ’s reliance on
Dr. Dougherty’s post-hearing report violated Mr. Yount’s due process rights by
denying him a full and fair hearing. See id. Accordingly, we REVERSE the
judgment and REMAND the case for further proceedings.
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