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Patrick S. v. Saul

United States District Court, D. Maine

August 14, 2019

PATRICK S., Plaintiff
v.
ANDREW M. SAUL, Commissioner, Social Security Administration, Defendant

          DECISION AND ORDER ON SOCIAL SECURITY DISABILITY APPEAL

          D. Brock Hornby United States District Judge.

         This case raises a narrow but important issue concerning social security disability hearings where the administrative law judge takes vocational expert testimony and the plaintiff, after hearing it, wishes to present a rebuttal expert affidavit. Following oral argument on August 12, 2019, I conclude that under the current regulations and rulings the plaintiff has the right to do so up until the administrative law judge's decision issues.

         Background

         I summarize only that part of the administrative record material to the parties' dispute. At the administrative hearing, the administrative law judge called a vocational expert to testify. After the hearing but before the administrative law judge's decision issued, the plaintiff's lawyer submitted rebuttal evidence through a different vocational expert's affidavit. Thereafter, the administrative law judge issued a decision denying benefits to the plaintiff. The administrative law judge relied upon the vocational expert's testimony at the hearing and did not mention the later vocational expert's rebuttal affidavit. The Appeals Council declined to review the decision, making the administrative law judge's ruling the final decision for judicial review. The plaintiff then filed this lawsuit, and a magistrate judge issued a report and recommended decision to affirm the Commissioner in all respects. The plaintiff objects to only that portion of the recommended decision involving the rebuttal vocational expert.

         Analysis [1]

         The Commissioner's applicable Policy Interpretation, SSR 96-9P, states:

At the hearings and appeals levels, vocational experts (VEs) are vocational professionals who provide impartial expert opinion during the hearings and appeals process either by testifying or by providing written responses to interrogatories. A VE may be used before, during, or after a hearing. Whenever a VE is used, the individual has the right to review and respond to the VE evidence prior to the issuance of a decision. The VE's opinion is not binding on an adjudicator, but must be weighed along with all other evidence.

Id. at n.8 (emphasis added).[2] The plaintiff argues that this Policy Interpretation explicitly allows him to submit his rebuttal vocational expert affidavit up until the administrative law judge's decision issued, and that it was error for the administrative law judge to fail to consider the rebuttal affidavit in weighing the original vocational expert's testimony.

         The Commissioner disagrees, relying primarily upon the so-called five-day rule. The relevant regulation states:

Each party must make every effort to ensure that the administrative law judge receives all of the evidence and must inform us about or submit any written evidence, as required in § 404.1512, no later than 5 business days before the date of the scheduled hearing. If you do not comply with this requirement, the administrative law judge may decline to consider or obtain the evidence, unless the circumstances described in paragraph (b) of this section apply.

20 C.F.R. § 404.935. The relevant portion of “paragraph (b)” refers to “[s]ome other unusual, unexpected, or unavoidable circumstance beyond your control [that] prevented you from informing us about or submitting the evidence earlier.” 20 C.F.R. § 404.935(b)(3). When the Social Security Administration proposed this regulation, it received comments expressing concern about the five-day rule. 81 Fed. Reg. 90987, 90989 (Dec. 16, 2016). In response, it stated: “[O]ur final rule contemplates that some circumstances may warrant the introduction of new evidence at or after the hearing, and includes appropriate exceptions to accommodate these circumstances.” Id. at 90990. It also wrote: “[I]f an ALJ introduces new evidence at or after a hearing, the claimant could use the [paragraph (b)(3)] exception . . . to submit rebuttal evidence.” Id. at 90991. The plaintiff argues that in this case he could not notify the administrative law judge five days before the hearing that he intended to present rebuttal evidence because, until the hearing occurred, he did not know how the administrative law judge's vocational expert would testify.

         In this case, I do not know why the administrative law judge ignored the plaintiff's rebuttal vocational expert affidavit because his decision does not even mention it. The administrative hearing occurred June 20, 2017. The plaintiff submitted the rebuttal affidavit by letter of June 30, 2017, stating:

As you know, whenever a vocational witness is used, the individual has the right to review and respond to the VE evidence prior to the issuance of a decision. Please consider this affidavit my client's objection and response to the vocational evidence.

         Letter at 1 (ECF No. 7-2). The administrative law judge's decision did not issue until August 29, 2017. Dec. at 13 (ECF No. 7-2). The decision says that if the plaintiff “submits or informs the Administrative Law Judge about written evidence before the hearing decision is issued, I will accept the evidence if . . . some . . . unavoidable circumstance beyond the claimant's control prevented the claimant from submitting or informing the Administrative Law Judge about the evidence earlier.” Id. at 1. On that basis the administrative law judge admitted the plaintiff's post-hearing written brief of June 21, 2017, treating it as “additional written ...


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