FILED
United States Court of Appeals
Tenth Circuit
July 12, 2011
UNITED STATES COURT OF APPEALS
Elisabeth A. Shumaker
FOR THE TENTH CIRCUIT Clerk of Court
DONNA E. BUTTERICK,
Plaintiff-Appellant,
v. No. 10-6191
(D.C. No. 5:09-CV-00986-D)
MICHAEL J. ASTRUE, Commissioner (W.D. Okla.)
of the Social Security Administration,
Defendant-Appellee.
ORDER AND JUDGMENT *
Before O’BRIEN, ANDERSON, and HOLMES, Circuit Judges.
Donna E. Butterick appeals from the district court’s order affirming the
Social Security Commissioner’s denial of her application for disability insurance
benefits under the Social Security Act. Ms. Butterick argues on appeal that the
Administrative Law Judge (ALJ) committed reversible error in denying her
*
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. This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and
collateral estoppel. It may be cited, however, for its persuasive value consistent
with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
application for benefits because: (1) the ALJ improperly relied upon the testimony
of the medical expert who testified at the hearing before the ALJ; and (2) the ALJ
failed to comply with Social Security Ruling (SSR) 00-4P, 2000 WL 1898704
(Dec. 4, 2000), when he examined the vocational expert at the hearing.
Exercising jurisdiction under 28 U.S.C. § 1291 and 42 U.S.C. § 405(g), and
having reviewed the ALJ’s decision “to determine whether the factual findings
are supported by substantial evidence in the record and whether the correct legal
standards were applied,” Cowan v. Astrue, 552 F.3d 1182, 1184-85 (10th Cir.
2008) (quotation omitted), we affirm.
In support of her first issue, Ms. Butterick argues that this court should
reverse the denial of her application for disability insurance benefits and remand
this case for the narrow purpose of providing Dr. Bower, the licensed clinical
psychologist who testified as a designated “medical expert” at the hearing before
the ALJ regarding Ms. Butterick’s mental impairments, an opportunity to review
and comment on: (1) a complete set of the medical records from Ms. Butterick’s
treating general practitioner, Dr. Winn; and (2) a letter and certain handwritten
notes from Ms. Butterick’s licenced professional counselor, Joe Froehle.
Ms. Butterick argues that the requested remand is required under the provisions
governing testifying medical experts in the Commissioner’s “Hearings, Appeals
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and Litigation Law Manual” (“HALLEX”). 1 But because she has failed to show
any prejudice, we conclude that Ms. Butterick is not entitled to the requested
remand.
Although the administrative record contained a portion of Dr. Winn’s
medical records at the time of the hearing before the ALJ, see R., Vol. II
at 276-347 (Exhibit 13F), and although Dr. Bower had been provided with an
opportunity to review those records prior to the hearing, Ms. Butterick’s counsel
had submitted additional medical records from Dr. Winn to the ALJ prior to the
hearing, id. at 479-93, 516-51 (Exhibits 20F, 22F, and 23F). 2 Ms. Butterick’s
counsel had also submitted additional records to the ALJ consisting of a letter and
certain handwritten notes from Mr. Froehle, the licensed professional counselor
that Ms. Butterick was seeing in 2007. Id. at 451, 510-15 (Exhibits 18F and 21F).
Ms. Butterick’s counsel informed the ALJ about the additional records from
Dr. Winn and Mr. Froehle during the hearing, but the ALJ was unable to locate
the additional records in the administrative record that existed at that time.
1
HALLEX is available at http://www.ssa.gov/OP_Home/hallex/hallex.html.
2
We note that pages 494 through 509 of Exhibit 20F are duplicates of
medical records from Dr. Winn’s office that had previously been provided to the
ALJ as part of Exhibit 13F. See R., Vol. II at 277-84, 286-89, 291-94. We also
note that Exhibits 15F, 16F, and 17F contain duplicates of medical records from
Dr. Winn’s office that had previously been provided to the ALJ as part of Exhibit
13F.
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Id. at 18-23. As a result, the additional records from Dr. Winn and Mr. Froehle
were not formally marked as record exhibits at the time of the hearing, and, more
importantly, they were never provided to Dr. Bower for her to review as part of
her evaluation of the limitations caused by Ms. Butterick’s severe depression and
anxiety.
As set forth in Ms. Butterick’s opening and reply briefs, the latter omission
was a violation of the HALLEX provisions that govern testifying medical experts
because the applicable provisions required the ALJ to furnish the additional
records to Dr. Bower for her to review either before, during, or after the hearing.
See HALLEX I-2-5-36(A), 1994 WL 637371 (“The ALJ or designee will, before
the hearing, furnish the ME with copies of the pertinent medical reports and
written lay evidence. If additional medical evidence is received at the hearing,
the ALJ will, if possible, provide it to the ME for review before the ME testifies.
If this is not possible, the ALJ may proceed with testimony from the ME and then
send the ME interrogatories post-hearing to ascertain what impact the new
evidence may have on the testimony given in the hearing.”); HALLEX
I-2-5-38(C), 1994 WL 637373 (“The ALJ must provide the ME with relevant
evidence that will assist the ME in providing the opinion. This evidence must
include . . . photocopies of the medical evidence from the F section of the
modular file . . . .”); HALLEX I-2-6-70(A), 1993 WL 751901 (“When an ALJ
determines that the testimony of a Medical Expert . . . is needed at the
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hearing . . ., the ALJ must . . . request that the ME examine any pertinent
evidence received between the time the ME completed the case study and the time
of the hearing.”).
But based on authority from the Fifth Circuit, see Shave v. Apfel, 238 F.3d
592, 596-97 (5th Cir. 2001) (holding that only prejudicial violations of HALLEX
provisions may entitle a social security claimant to relief), the Commissioner
argues that even if the ALJ in this case violated the HALLEX provisions,
Ms. Butterick is not entitled to relief because she has not established that she was
prejudiced by the ALJ’s failure to follow the HALLEX provisions, 3 see Aplee. Br.
at 17-19. The Commissioner claims there was no prejudice because the additional
records from Dr. Winn and Mr. Froehle are not inconsistent with Dr. Bower’s
opinions regarding Ms. Butterick’s mental limitations.
We assume without deciding that we can grant relief for prejudicial
violations of the HALLEX provisions, but we refuse to grant any relief in this
case because Ms. Butterick has utterly failed to make any effort in her opening or
3
We note that the Ninth Circuit has adopted a much stricter position
regarding the HALLEX manual than the Fifth Circuit. Specifically, the Ninth
Circuit has held that the HALLEX provisions do not have the force and effect of
law because they are simply a part of an internal agency policy manual, and thus
alleged violations of the HALLEX provisions are not reviewable in federal court.
See Moore v. Apfel, 216 F.3d 864, 868-69 (9th Cir. 2000). Because Ms. Butterick
has not affirmatively shown that she was prejudiced by the alleged HALLEX
violations, however, we do not need to decide in this case whether to adopt the
approach of the Ninth Circuit.
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reply briefs to formulate or articulate a prejudice showing based on any of the
specific details contained in the additional records from Dr. Winn and
Mr. Froehle. In fact, Ms. Butterick openly concedes that it is unclear whether the
additional records from Dr. Winn would have changed Dr. Bower’s opinions
regarding Ms. Butterick’s mental limitations. See Aplt. Reply Br. at 4. As a
result, even giving Ms. Butterick the benefit of the Fifth Circuit’s approach in
Shave, she has not made the requisite showing of prejudice to be entitled to relief.
In addition, although the Commissioner has gone beyond the HALLEX provisions
in his response brief and argued that the ALJ’s factual findings regarding
Ms. Butterick’s mental RFC are based on substantial evidence, see Aplee. Br.
at 13-17, we do not need to address that issue given that Ms. Butterick is not
challenging the ALJ’s factual findings regarding her mental RFC in this appeal.
With regard to the second issue raised in this appeal by Ms. Butterick
concerning SSR 00-4P, 2000 WL 1898704, we agree with the Commissioner that
the ALJ’s failure to ask the vocational expert about any conflicts between his
testimony and information contained in the Dictionary of Occupational Titles was
harmless error. See Aplee. Br. at 21-22. Simply put, there were no conflicts to
explain.
In addition, we agree with the Commissioner that the ALJ’s mistaken designation
of the “office helper” job as being a “sedentary” job was merely a typographical
error, and it did not create any conflict with the DOT. Id. at 21 n.9.
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Finally, the ALJ found that Ms. Butterick had the physical RFC to perform
a wide range of light exertional work activity and identified a light job that she
could perform (i.e., office helper), and Ms. Butterick is not challenging the ALJ’s
physical RFC findings in this appeal. As a result, the fact that Ms. Butterick
turned fifty shortly after the hearing and would therefore apparently be
presumptively disabled under the Commissioner’s Medical-Vocational Guidelines
if limited to sedentary work is beside the point. See Aplt. Opening Br. at 14.
The judgment of the district court is AFFIRMED. Because
Ms. Butterick was permitted to proceed in forma pauperis in the district court and
none of the events specified in Fed. R. App. P. 24(a)(3)(A) have occurred, she is
not required to seek authorization to proceed in forma pauperis on appeal.
Accordingly, her motion for leave to proceed on appeal without prepayment of
costs or fees is DENIED as unnecessary.
Entered for the Court
Jerome A. Holmes
Circuit Judge
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