Opinion
Civil Action No. 99-2684 Section "K"(4)
March 1, 2002
Before this Court is plaintiffs Motion in Opposition to the Magistrate's Second Report and Recommendation issued in the above captioned case on October 31, 2001 denying plaintiffs Supplemental Security Income Benefits (rec. doc. 22). Plaintiff contends that the Magistrate erred in her report and urges this Court to find that: (1) his due process right to cross examine an expert witness under Lidy v. Sullivan, 911 F.2d 1076 (5th Cir. 1990) was infringed, (2) he should have been granted a supplemental hearing with oral argument before the Magistrate to determine whether the "presumption in other areas of the/law that items placed in the mails, correctly addressed and paid for, are presumed to be received," and (3) the Magistrate should have considered his claim under Title II of the Social Security Act.
BACKGROUND
Plaintiff filed suit for Supplemental Security Income Benefits in 1996 claiming he had been disabled since February 7, 1991 as a result of right leg pain and swelling in his feet. Plaintiff has a long and thorough medical history that runs the garnet of treatments to his hands, neck, knees. ankles, and feet. in the original opinion rendered in this case on May 25, 1996, the ALJ discredited plaintiffs testimony and concluded that plaintiff was not disabled. Specifically, the ALJ reasoned that: (1) plaintiff met the disability insured status requirements of the Act on February 7, 1991, continued to meet them through December 31, 1995, and had not engaged in substantial gainful activity since the alleged onset date of February 7, 1991, (2) medical evidence established that plaintiff suffers from mild osteoarthritis of the right knee and possible gout, which are "severe" impairments, but do satisfy the criteria for disability in Appendix 1, Subpart P, Regulations No. 4, 3) under the criteria of the Social Security Rulings, plaintiffs complaints of pain were no more than mild to moderate" and insufficient to preclude all gainful activity, (4) while plaintiffs residual functional capacity precludes him from performing his past job as a service man for a gas company, he has the residual functional capacity to perform sedentary work, (6) according to the regulations, transferability of work skills is not material given plaintiffs plaintiffs age (46) and high school equivalency education.
In determining that plaintiff could perform some sedentary work, the ALJ noted that Dr. Nitsche, one of plaintiff's treating physicians, had limited him to employment that required him to lift and carry up to 10 pounds frequently and 20 pounds occasionally, stand and walk for up to one hour without interruption for a total of six hours during an eight hour workday, sit without restriction. occasionally climb, stoop. kneel, balance, crouch and crawl, handle objects with reduced grip strength . and avoid, work around height or moving machinery. However, no other treating physician restricted plaintiffs ability to perform sedentary employment.
Plaintiff requested review of the ALJ's determination by the Appeals Council and argued that the ALJ: (1) should have requested testimony of a vocational expert before concluding that plaintiff could perform sedentary work because Dr. Nitsche's original report noted fine finger dexterity problems. (2) erred in determining that Dr. Nitsche's opinion, that plaintiff had problems with his hands. was not credible, and (3) wrongly ignored medical evidence establishing plaintiffs limitations with the use of his hands.
The Appeals Council remanded the matter to the ALJ to with the direction to: (1) reconsider plaintiff's alleged problems with the use of his hands because plaintiffs "subjective complaints" were substantiated by Dr. Nitsche's report and could significantly affect plaintiffs ability to perform sedentary work and (2) further explain the weight (or lack of) given to Dr. Nitsche's report and, if necessary, obtain evidence from a vocational expert to clarify' the effect of the assessed limitations on plaintiffs occupational base.
On December 3, 1997, the ALJ convened its second hearing and took testimony from claimant and two vocational experts — one brought by plaintiff and the other by the government. Thereafter, Dr. Nitsche submitted a second report assessing plaintiffs ability to do work related activities and noted that plaintiff "could use his hands and arms adequately." (Tr. 333). Following receipt of the supplemental report, the ALJ advised plaintiff on January 22, 1998, that he had ten days to submit written comments concerning the new evidence. While plaintiff claims that he responded to the ALJ, she never received notice from plaintiff requesting permission to cross examine the substance of the supplemental report and the supplemental findings were employed in the ALJ's second decision rendered on March 25, 1998 — which again denied plaintiffs request for Social Security benefits.
Plaintiff then appealed to the district court arguing that he had been denied his right to due proceeds when he was not allowed to cross examine Dr. Nitsche. However, the magistrate judge affirmed the ALJ's denial of benefits (rec. doc. 16) and concluded that plaintiffs due process rights had not been deprived because: (1) the ALJ had forwarded a letter to plaintiffs counsel to submit written comments addressing the new evidence and advised counsel that failure to respond would be considered as a waiver of plaintiffs right to cross examine Dr. Nitsche, and (2) although he claimed to has e mailed a letter in response, plaintiff had not presented any proof that he had mailed a request for a supplemental hearing into the record, to the ALJ or to the Magistrate.
While on appeal to this Court, plaintiff explained for the first time that he had evidence of the receipt of postage and urged this Court to remand the matter to the magistrate to: (1) allow plaintiff to produce his receipt of certified mail and his letter requesting cross examination of Dr. Nitsche's supplemental report and (2) reconsider plaintiffs argument that he was denied the right to cross-examine Dr. Nitsche during the second social security proceeding in light of the new evidence.
In the second Report and Recommendation, the magistrate judge again determined that plaintiff had not been denied his right to due process when he was not permitted to cross examine Dr. Nitsche on the contents of his supplemental report because: (1) plaintiffs counsel had notice in January 1998 that he was required to submit written comments concerning the new evidence within ten days to the ALJ and the ALJ never received plaintiffs response, (2) plaintiff had not sought to introduce evidence of the letter requesting the right to cross examine the substance of the report until February 2000 — well after the matter had been requested by the Appeals Council and submitted to federal court, (3) application of the presumption noted in Otterman v. Ganus and Lidy v. Sullivan, that correctly addressed and stamped mail reaches the addressee was improper because those cases were factually distinguishable, and (4) plaintiff waived his right to cross examine the substance of Dr Nitsche's report (rec. doc. 21).
In the motion presently before the Court, plaintiff again argues that his due process rights were infringed when he was not provided the right to cross examine Dr. Nitsche and urges this Court to find that (1) he had the right to cross examine Dr. Nitsche under Lidy v. Sullivan, 911 F.2d 1076 (5th Cir. 1990). (2) he should have been granted a supplemental hearing with oral argument before the Magistrate to determine whether a presumption in other areas of the law, that items placed in the mails. correctly addressed and paid for, are presumed to be received, and (3) the Magistrate should have considered his claim under Title II of the Social Security Act.
For purposes of this motion the Court focuses only on plaintiffs right to cross examine Dr. Nitsche on his opinions contained in his supplemental report.
ANALYSIS
When a letter has been properly addressed, stamped and mailed it is presumed to reach the addressee. Moore v. Drexel Homes, Inc., 293 So.2d 500 (La.App. 4th Cir. 1974), New Orleans Silversmith, Inc. v. Wormser, 258 Sp. 2d 592 (La.App. 4th Cir. 1972). and Sawer v. Central Louisiana Electric Co., 136 So.2d 153 (La.App. 3d Cir. 1961), Lyle Cashion Co. v. McKendrick, 204 F.2d 609 (5th Cir. 1953) (affirming trial court's presumption that letter was received when it was properly mailed and not returned to sender) and Wells Fargo v. Ben Kozloff, 695 F.2d 940 (5th cir. 1983) (citing Southland Life Insurance Co. v. Greenwade, 159 S.W.2d 854 (Tex. 1942) and noting in part that a letter properly addressed. stamped and mailed may be presumed to have been received by the addressee in the due course of mail). In the case at bar, plaintiff has presented the return receipt issued to him by the postal service establishing that he properly, and timely, mailed his request to cross examine Dr. Nitsche. (Pl. Exhibit 1). Specifically, the receipt reflects that plaintiff sent his request to the ALJ on January 29, 1998 — within the 10-day time frame allotted by the ALJ. While this Court is at a loss to understand why plaintiff did not produce the receipt of certified mail at an earlier stage of the proceedings. it does indicate that plaintiff timely responded to the ALJ's direction to request cross examination of Dr. Nitsche.
There is no indication that this presumption only applies in select areas of the law.
After the Supreme Court's decision in Richardson v. Perales, 402 U.S. 389 (1971), holding in part that when a claimant has not exercised his right to subpoena a reporting physician and provide himself with the opportunity for cross examination, evidence of the physician's report can be received into evidence despite its hearsay character and absence of cross examination, all circuit courts to consider the issue have determined that due process requires that a claimant be given the opportunity to cross examine and subpoena individuals who submit reports. Lidy v. Sullivan, 911 F.2d 1075, 1077 (5th Cir. 1990). Furthermore, the Fifth Circuit has held that a waiver of the right to cross examine can not be inferred from the failure to make an express demand from cross examination. Tanner v. Secretary of Helath and Human Services, 932 F.2d 1110 (5th Cir. 1990) (citing Lonzollo v. Weinberger, 534 F.2d 712, 714 (7th Cir. 1976) and holding that in the case of reports received after the close of an administrative hearing, a waiver of the right to cross examine "must be clearly expressed or strongly implied from the circumstances.")
However, the courts have likewise held that the right to due process is not infringed when a claimant is provided the opportunity to request cross examination, but fails to do so. Hollis v. Matthews, 520 F.2d 338 (5th Cir. 1975). In Tanner, supra, the Fifth Circuit explained that in Coffin v. Sullivan, 895 F.2d 1206 (8th Cir. 1990), for example, the claimant had waived his right to cross examine the substance of a supplemental when he had failed to respond twice to the ALJ's notice of his decision to commission a vocational report after the hearing.
In the case at bar, the ALJ afforded plaintiff the opportunity to request cross examination of Dr. Nitsche's supplemental report. Plaintiffs receipt of certified mail indicates that he attempted to comply with the ALJ's directions. Without a "clear expression or strong implication" that plaintiff has waived his right to cross examine, this Court can not find that plaintiff has waived his right to cross examine Dr. Nitsche. Out of an abundance of caution and because the right to cross examine witnesses is embedded in the right to due process of law, this court REMANDS the matter to the ALJ to allow cross examination of Dr. Nitsche on the substance of his supplemental report.