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Hepp v. Astrue: SOCIAL SECURITY - in-person cross not required in Social Security disability hearing; denial OK

United States Court of Appeals
No. 06-4103
Cloyd Hepp,
Plaintiff - Appellant,
Lilia S. Hepp, Widow of Cloyd
Michael J. Astrue, Commissioner
of Social Security
Defendant - Appellee.
Appeal from the United States
District Court for the
Eastern District of Arkansas.
Submitted: September 24, 2007
Filed: January 7, 2008
Before COLLOTON, BEAM and GRUENDER, Circuit Judges.
GRUENDER, Circuit Judge.
1The Honorable Susan Webber Wright, United States District Judge for the
Eastern District of Arkansas, adopting the report and recommendation of United
States Magistrate Judge Jerry Cavaneau.
2Hepp died on October 21, 2006, after this appeal was filed but before we heard
oral argument. The district court granted the motion of his widow, Lilia S. Hepp, to
be substituted as the party plaintiff. For convenience and clarity, however, we will
refer only to Cloyd Hepp in this opinion.
This is an appeal of the district courts1 order affirming a final decision of the
Commissioner of Social Security denying Cloyd Hepps2 application for disability
insurance benefits under Title II of the Social Security Act. See 42 U.S.C. 416(i),
423. Hepp argues that he was denied due process because he did not get an
opportunity to cross-examine properly one of the medical examiners. Hepp also
claims that the administrative law judges (ALJ) decision denying benefits was
unsupported by substantial evidence because the ALJs decision contained
inconsistencies and improperly weighed the medical evidence. We affirm.
Hepp alleges that he has been disabled since January 6, 1997, due to spinal
injuries and a torn rotator cuff in the right shoulder. He was covered for Title II
disability benefits until March 31, 2002.
Hepp was sixty-three years old at the time of the administrative decision. He
began experiencing lower back pain while serving in the Navy as a parachute rigger.
Hepp retired from the Navy in 1990, with a ten percent disability rating. After his
Navy service, Hepp worked seasonally in Alaska as a crab steamer and a fish
processor. As a crab steamer, he would lift large containers of cooked crab. As a fish
processor, Hepp received fish from boats and placed them in twenty, thirty, or one
hundred pound totes. He then lifted the twenty and thirty pound totes and placed them
on a conveyor belt. The hundred pound totes were transported with a forklift. Both
jobs required standing, stooping and bending for twelve to sixteen hours a day. In
January 1997, the processing plant laid Hepp off.
On August 31, 1999, Hepp filed an application for disability insurance benefits.
Prior to this filing, his last medical treatment from a physician for his back or shoulder
occurred in 1995. On October 15, 1999, the ALJ sent Hepp to Raymond West, M.D.,
for a consultative examination. Hepp reported that he used aspirin and Motrin for pain
relief, and Dr. West claimed that [o]bjectively, there is little to account for [Hepps]
back distress. Dr. West concluded that Hepp could sit for at least two-hour periods,
could stand or walk for at least thirty minute periods, and could alternate these
activities occasionally in the workplace during an average workday. Also, Hepp could
occasionally, if not frequently, lift and carry twenty to thirty pounds for 200 to 300
feet and could bend, squat, kneel or crawl occasionally for short periods in the average
Throughout 2001, Hepp received a series of medical examinations at the
Veterans Hospital. Radiology and bone density tests indicated diffuse
demineralization, degenerative changes through the spine, and osteoporosis. Hepp
was prescribed Vioxx for pain relief. On May 3, 2001, Hepp had a hearing before an
ALJ. The ALJ denied benefits to Hepp, and the Commissioners Appeals Council
refused to grant Hepps request for review. Hepp sought review in federal court. In
January 2003, the district court remanded the case back to the agency because the
ALJs findings were not supported by substantial evidence. One of the district courts
chief concerns was that neither the ALJ nor Dr. West had reviewed the 2001 radiology
and bone density tests, which required analysis by a qualified physician.
On May 21, 2003, the ALJ conducted a second hearing. Hepp testified that he
could carry twenty to thirty pounds, though not very far. He also indicated that he
takes Motrin for pain and Fosamax for osteoporosis; it appeared he no longer took
Vioxx. He helped around the house by vacuuming, mopping, sweeping, washing
3Medium work involves lifting no more than 50 pounds at a time with frequent
lifting or carrying of objects weighing up to 25 pounds. 20 C.F.R. 404.1567(c).
Heavy work involves lifting no more than 100 pounds at a time with frequent lifting
or carrying of objects weighing up to 50 pounds. 20 C.F.R. 404.1567(d).
dishes, folding cloths, cooking, driving and mowing the lawn with a push mower.
Hepp stated that when he drives for over an hour, he must pull off the road and walk
around because of the pain. A vocational expert characterized Hepps previous
employment as a parachute rigger as medium and skilled work, his job as a crab
steamer as heavy and unskilled work, and his job as a fish processor as medium and
unskilled work.3 The ALJ then requested that Hepp receive an orthopedic consultative
In July 2003, William Blankenship, M.D., conducted a consultative
examination of Hepp. Although Hepp was seventy-three inches in height throughout
his time in the Navy, Dr. Blankenships nurse recorded that Hepp was sixty-nine and
a half inches tall. Hepp admitted that it has been quite a while since his last
treatment and that he took Motrin for pain. Based on x-rays, Dr. Blankenship reported
that Hepp had a compression fracture at T7 that had healed with a fifty percent loss
of height. After testing Hepps range of motion, Dr. Blankenship concluded that Hepp
had no limitations with regards to lifting, carrying, standing, walking or sitting. Dr.
Blankenships report was submitted to the ALJ.
Hepp disagreed with Dr. Blankenships conclusions and requested the right to
cross-examine him. The ALJ agreed to schedule the cross-examination by telephone.
Hepp objected to telephone cross-examination and requested in-person crossexamination,
but the ALJ denied the request. Hepp also wanted to demonstrate that
Dr. Blankenship was biased against social security disability claimants by presenting
depositions, hearing transcripts, and medical reports in other cases involving Dr.
Blankenship to discredit and impeach his testimony. However, the ALJ limited the
4The five part test is as follows: 1) whether the claimant is currently employed;
2) whether the claimant is severely impaired; 3) whether the impairment is, or is
comparable to, a listed impairment; 4) whether the claimant can perform past relevant
work; and if not, 5) whether the claimant can perform any other kind of work. Cox
v. Barnhart, 345 F.3d 606, 608 n.1 (8th Cir. 2003); see also 20 C.F.R. 416.920.
scope of the cross-examination to Dr. Blankenships report concerning Hepps
medical condition and prohibited any questions related to any other cases or patients.
The ALJ conducted a third hearing on January 14, 2004, during which Hepp
cross-examined Dr. Blankenship by telephone. The doctor stated that he was not
certain if he had received any bone density reports, but a bone scan which revealed
dextroscoliosis only meant that there existed a curvature of the spine, which would not
necessarily cause pain. Dr. Blankenship also indicated that a loss of height does not
necessarily indicate any functional limitations. Upon further questioning, Dr.
Blankenship testified that the x-rays did not substantiate Hepps claim of numbness
in his right arm and leg. He also denied manipulating patients when conducting range
of motion tests. Finally, Hepp testified that his examination with Dr. Blankenship
only lasted about fifteen minutes.
On April 29, 2004, the ALJ issued a decision denying disability benefits. The
ALJ employed the five-step process outlined in 20 C.F.R. 416.920 to determine
whether Hepp was disabled.4 The ALJ determined that Hepp had not performed
gainful work since the alleged disability onset date and that he suffers from severe
impairments which are not listed. The ALJ then employed the Polaski factors to
evaluate the credibility of Hepps subjective claims of pain. See Polaski v. Heckler,
739 F.2d 1320, 1322 (8th Cir. 1984). The ALJ found: (1) an absence of objective
medical findings to support the allegations of disabling pain; (2) an ability to remain
active in the performance of household activities; (3) a lack of consistent medical care;
(4) a long-term use of over-the-counter medication (Motrin) for effective pain relief;
and (5) a claim by Hepp that he could lift fifty pounds occasionally. Based on these
findings, the ALJ determined that Hepps subjective claims of pain lacked credibility.
At step four, the ALJ concluded that Hepp retained the residual functional
capacity for medium work activity. The ALJs opinion then contained a paragraph
that was inconsistent with the remaining decision: [t]he claimant has demonstrated
that he is unable to perform his past relevant work. Therefore, [at step five,] the
burden of proof shifts to the Commissioner of Social Security to establish that there
are substantial numbers of jobs existing in the national economy that the claimant can
perform with his particular limitations. However, later in the opinion and consistent
with the earlier finding that Hepp could perform medium work activity at step four,
the ALJ held that Hepp could perform his past relevant work as a fish processor as
generally performed in the national economy. Consequently, the ALJ concluded that
Hepp was not disabled under the Social Security Act.
After the Appeals Council denied review, Hepp again sought judicial review,
arguing that the ALJs decision lacked substantial evidence and that the ALJ violated
his due process rights by restricting cross-examination to Dr. Blankenships medical
report of Hepp. Hepp also moved to remand the case to the ALJ in order to have new
evidence considered. The new evidence consisted of a MRI report dated January 27,
2006, and a letter from Jon H. Dodson, M.D., dated April 10, 2006. Hepp then
supplemented his motion to remand, claiming that the ALJs refusal to allow in-person
cross-examination of Dr. Blankenship violated his due process rights. The district
court denied the motion. The court determined that the additional evidence was
immaterial since it did not address Hepps condition during the time period for which
he was covered for Title II disability benefits, the information in the letter could have
been obtained as early as 2003, good cause did not exist for Hepps failure to submit
the evidence in the letter before the record closed, and Hepp was not denied due
process. The district court then affirmed the ALJs decision.
5The Supreme Court has held that a person receiving benefits has a property
interest in the continued receipt of the benefits. Mathews v. Eldridge, 424 U.S. 319,
332 (1976). The Supreme Court has not addressed whether an applicant has a
protected property interest in benefits he or she hopes to receive. Walters v. Natl
Assn of Radiation Survivors, 473 U.S. 305, 320 n.8 (1985). Only the Ninth Circuit
has found such a property interest. Gonzalez v. Sullivan, 914 F.2d 1197, 1203 (9th
Cir. 1990) (An applicant for social security benefits has a property interest in those
benefits.); see also Hamby v. Neel, 368 F.3d 549, 559 (6th Cir. 2004) (holding that
applicants have a property interest in state medicaid for which they hope to qualify).
In Richardson v. Perales, the Supreme Court assumed that due process applied to
social security disability hearings without determining whether Perales had a property
interest. 404 U.S. 389, 401-02 (1971). Like the Supreme Court in Perales, we will
Hepp appeals. He first argues that the ALJ denied him a full and fair hearing
under the Social Security Act and under the Due Process Clause of the Fifth
Amendment because the ALJ prohibited the presentation of certain evidence to prove
Dr. Blankenships bias and did not allow in-person cross examination of him. Second,
he claims that the ALJs decision was not supported by substantial evidence because
the ALJ made inconsistent findings and failed to identify what weight . . . he gave
to the different consultative medical reports. Finally, Hepp argues that the district
court improperly denied his motion to remand based on new evidence because the
court used its own medical analysis to determine that the evidence was immaterial.
A. Full and Fair Hearing
We review a challenge to the procedures of a social security disability hearing
de novo. Brueggemann v. Barnhart, 348 F.3d 689, 692 (8th Cir. 2003). A disability
claimant is entitled to a full and fair hearing under the Social Security Act.
Northcutt v. Califano, 581 F.2d 164, 167 (8th Cir. 1978). Procedural due process
under the Fifth Amendment also requires full and fair hearings for disability benefits.5
assume that due process applies without determining whether Hepp had a property
interest in the benefits.
Richardson v. Perales, 402 U.S. 389, 401-02 (1971). To determine whether the
process afforded is sufficient under the due process clause, courts must balance
[f]irst, the private interest that will be affected by the official action;
second the risk of an erroneous deprivation of such interest through the
procedures used, and the probable value, if any, of additional or
substitute procedural safeguards; and finally the Governments interest,
including the function involved and the fiscal and administrative burden
that the additional or substitute procedural requirement would entail.
Social security disability hearings are non-adversarial proceedings and therefore
do not require full courtroom procedures. See Perales, 402 U.S. at 403 (We bear in
mind that the agency operates essentially, and is intended so to do, as an adjudicator
and not as an advocate or adversary.); Flatford v. Chater, 93 F.3d 1296, 1306 (6th
Cir. 1996) (holding that the non-adversarial nature of proceedings does not necessitate
the cross-examination of every reporting physician); Kendrik v. Shalala, 998 F.2d
455, 456 (7th Cir. 1993) (stating that disability hearing procedures are informal). In
Perales, the Court held that adverse medical reports may constitute substantial
evidence in a disability hearing despite the absence of cross-examination of the
reports author. 402 U.S. at 402. The Court reached this conclusion in part because
the claimant could have cross-examined the physician but failed to exercise this right.
Id. at 404-05.
Hepp first argues that the ALJ denied him a full and fair hearing because the
ALJ did not permit the presentation of depositions, hearing transcripts and medical
reports from other prior proceedings involving Dr. Blankenship to prove that he
lacked objectivity. According to Hepp, the evidence would have shown that Dr.
Blankenship is biased against disability claimants because he has consistently found
no restrictions for a substantial number of claimants referred to him for consultative
examinations. However, the Social Security Administrations regulations provide a
claimant the right to object to a consultative examination by a physician when the
claimant believes that the designated physician lacks objectivity in general. 20 C.F.R.
404.1519j. Hepp did not object to the assignment of Dr. Blankenship as his
consultative examiner. Rather, he attempted at the hearing to challenge Dr.
Blankenships medical opinion based on his findings in other cases involving other
patients. As found in Perales, due process is not violated in social security disability
hearings when the claimant fails to exercise the procedural safeguards that would have
addressed his concerns. See Perales, 402 U.S. at 404-05. Because Hepp did not
exercise his procedural right to object to Dr. Blankenships lack of objectivity under
404.1519j, the ALJ did not violate Hepps due process rights by denying such a
challenge on cross-examination. See id. In addition, to permit Hepp the right to
submit evidence from other claimants cases to challenge the consultative examiners
lack of objectivity would substantially burden the social security disability hearings
process because it would almost certainly result in mini-trials of unrelated and
irrelevant claims. Furthermore, such a procedure would raise considerable privacy
concerns as each patients medical records were necessarily scrutinized. These
reasons, in combination with the procedural safeguards already available under
404.1519j, outweigh Hepps private interest in obtaining benefits under the Eldridge
balancing test.
Hepp next argues that the ALJ denied him a full and fair hearing because the
ALJ refused Hepps request for in-person cross-examination of Dr. Blankenship.
Hepp claims that only in-person cross-examination allows for effective credibility
determination of a witness. See, e.g., Solis v. Schweiker, 719 F.2d 301, 302 (9th Cir.
1983) ([b]ias is better elicited through rigorous in-court scrutiny [than through
written interrogatories].). We have held that [d]ue process requires that a claimant
[for social security disability benefits] be given the opportunity to cross-examine and
subpoena the individuals who submit reports, but we have not addressed the type of
cross-examination required. Coffin v. Sullivan, 895 F.2d 1206, 1212 (8th Cir. 1990).
Under the Eldridge balancing test, Hepp has a private interest in a fair
determination of his qualification for disability benefits. However, we do not believe
that, in a non-adversarial proceeding, an in-person cross-examination would
significantly increase the accuracy of determining a witnesss credibility over that of
a telephone cross-examination. Additionally, an in-person cross-examination
requirement would increase substantially the administrative costs and likely reduce
the willingness of physicians to participate as consultative examiners. Hepp took full
advantage of his opportunity to cross-examine Dr. Blankenship, albeit by telephone.
In this non-adversarial process, Hepp was provided with a full and fair hearing. We
conclude that due process under the Fifth Amendment does not require in-person
cross-examination in social security disability hearings, and the ALJ did not violate
Hepps due process rights by refusing to require Dr. Blankenship to appear in person.
Although Hepps brief does not cite the relevant Social Security Administration
regulation, 20 C.F.R. 404.950(e), it does allude to concerns that a telephone crossexamination
would violate agency regulations. We need not address this issue
because Hepp has waived it, as he did not raise it before the district court. See Pelky
v. Barnhart, 433 F.3d 575, 580 (8th Cir. 2006); Dixon v. Barnhart, 353 F.3d 602, 606
(8th Cir. 2003).
B. Substantial Evidence
Hepp argues that substantial evidence does not support the ALJs decision. We
review de novo a district courts decision affirming a denial of social security benefits.
Reutter ex rel. Reutter v. Barhnart, 372 F.3d 946, 950 (8th Cir. 2004). An ALJs
decision will be upheld if the record as a whole is supported by substantial evidence,
a standard less demanding than the preponderance of the evidence standard. Id. To
determine whether substantial evidence exists, we consider evidence that [both]
detracts from the Commissioners decision as well as evidence that supports it.
Sultan v. Barnhart, 368 F.3d 857, 863 (8th Cir. 2004) (quotation omitted).
We first address Hepps contention that we should remand because of the
inconsistent paragraph in the ALJs opinion. Hepp argues that the inconsistent
paragraph renders unclear whether the ALJ determined that Hepp could perform his
past relevant work and that the ALJ should have applied the Medical-Vocational
Guidelines because the inconsistent paragraph indicated that Hepp could not perform
his past relevant work. We have held that an arguable deficiency in opinion-writing
technique does not require us to set aside an administrative finding when that
deficiency had no bearing on the outcome. Robinson v. Sullivan, 956 F.2d 836, 841
(8th Cir. 1992) (quoting Benskin v. Bowen, 830 F.2d 878, 883 (8th Cir. 1987)).
Although an unfortunate deficiency, the incongruous paragraph had no bearing on the
outcome. First, the opinion remained clear that Hepp could perform his past relevant
work as a fish processor. Second, the ALJ clearly determined that Hepp was not
disabled at step four, and the Medical-Vocation Guidelines are applied only at step
five. Because he determined that Hepp was not disabled at step four, the ALJ did not
need to reach step five. See Nimick v. Secy of Health & Human Servs., 887 F.2d 864,
865 (8th Cir. 1989) (If a claimant is found disabled or not disabled at any step in the
sequential process, the ALJ need not proceed further.). Consequently, the deficiency
does not require reversal since it had no bearing on the outcome.
Hepp next claims that the ALJ failed to identify what weight he gave to each
of the consultative examiners medical reports. According to 20 C.F.R.
404.1527(c)(2), if the medical opinions in the record are inconsistent with each other,
the ALJ must weigh all the evidence. See 20 C.F.R. 404.1527(d). However, if
medical opinions are consistent, the ALJ need not weigh them. 20 C.F.R.
404.1527(c)(1). Because Dr. Blankenships report and Dr. Wests reports are
consistent with regards to the determinative factors, the ALJ did not err in not
identifying the weight he gave to each medical opinion.
Hepp challenges the ALJs application of the Polaski factors and his
determination that Hepps subjective claims of pain were not credible. The ALJ found
that no objective medical evidence supported Hepps allegations of disabling pain.
Dr. West stated that [o]bjectively, there is little to account for [Hepps] back
distress. Dr. Blankenship testified that bone scans that revealed dextroscoliosis
would not indicate pain and x-rays of Hepp did not substantiate his claims of
numbness in his right arm and leg. Hence, the ALJs finding is supported by both
consultative examiners. In regards to the other Polaski factors, Hepp performed a
significant range of daily activities. He testified that he could drive up to an hour
without pain and partook in household chores, such as vacuuming, sweeping,
mopping, cooking and mowing the lawn. Hepp also lacked consistent medical care
for his back. He did not receive medical treatment from 1995 to 1999 and received
only sporadic medical attention thereafter. Hepp took moderate, over-the-counter
medication for his pain. He told Dr. West and testified that Motrin worked
effectively. Although prescribed Vioxx in 2001, Hepp was not taking it at the time
of his second hearing. Finally, the ALJ found that Hepp had stated that he could lift
fifty pounds occasionally. Hepp testified that he could carry twenty to thirty pounds,
but did not state that he could lift fifty pounds occasionally. However, Dr.
Blankenships report permits the inference that Hepp could carry fifty pounds
occasionally because Hepp had no exertional limitations. Dr. Wests report indicates
that Hepp could lift twenty to thirty pounds frequently, which does not foreclose a
finding that Hepp could lift fifty pounds occasionally. Therefore, substantial evidence
supports the ALJs finding that Hepps subjective claims of pain lacked credibility.
Substantial evidence also supports the ALJs decision that Hepp could perform
medium work. Medium work requires frequent lifting or carrying of twenty-five
pounds, lifting or carrying no more than fifty pounds, standing or walking
intermittently for approximately six hours in an eight hour day, and frequent bendingstooping.
20 C.F.R. 404.1567(c); S.S.R. 83-10, 1983 WL 31251, at *6 (Soc. Sec.
Admin. 1983). Being able to do frequent lifting or carrying of objects weighing up
to 25 pounds is often more critical than being able to lift up to 50 pounds at a time.
S.S.R. 83-10, 1983 WL 31251, at *6. Dr. Wests report indicated that Hepp could lift
and carry twenty to thirty pounds occasionally, if not frequently, and Dr. Blankenship
reported that Hepp had no lifting or carrying limitations. Dr. West also concluded that
Hepp, at a minimum, could sit for two-hour periods, could stand or walk for thirty
minute periods, could alternate these activities occasionally in the workplace, and
could bend, squat, kneel or crawl occasionally for short periods in the average
workday. Dr. Blankenships report stated that Hepps ability to stand, walk or sit were
not affected by any impairments, and he could kneel, crouch, crawl and stoop
frequently. Based on Dr. Wests and Dr. Blankenships medical reports, substantial
evidence supports the ALJs determination that Hepp could perform medium work
and, therefore, his past relevant work as a fish processor as generally performed in the
national economy. See 20 C.F.R. 404.1560(b)(2).
C. Submission of New Evidence
The district court did not err in refusing to remand Hepps case to the
Commissioner for consideration of additional medical evidence. The district court
may remand a case to have additional evidence taken but only upon a showing that
there is new evidence which is material and that there is good cause for the failure to
incorporate such evidence into the record in a prior proceeding. 42 U.S.C. 405(g).
To be considered material, the new evidence must be non-cumulative, relevant, and
probative of the claimants condition for the time period for which benefits were
denied. Jones v. Callahan, 122 F.3d 1148, 1154 (8th Cir. 1997) (internal quotation
omitted). Good cause does not exist when the claimant had the opportunity to obtain
the new evidence before the administrative record closed but failed to do so without
providing a sufficient explanation. See Hinchey v. Shalala, 29 F.3d 428, 433 (8th Cir.
Hepps new evidence consists of a 2006 MRI report and a letter written by Dr.
Dodson that challenges Dr. Blankenships findings. The MRI report addresses Hepps
condition in 2006, four years after his last date of coverage. Hence, the report is not
relevant to Hepps condition during the period which benefits were denied. The
information in Dr. Dodsons letter could have been obtained prior to the closing of the
administrative record. Because Hepp does not provide an explanation for failing to
obtain the information before the record closed, he has not established good cause for
not incorporating the evidence into the record in the prior proceedings.
We conclude that the ALJ provided the claimant with sufficient due process and
that substantial evidence supports the ALJs decision. Accordingly, we affirm.
BEAM, Circuit Judge, concurs in the result.


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