United States District Court, D. Kansas
JIMMY A. HINCK, Plaintiff,
CAROLYN W. COLVIN, Acting Commissioner of Social Security, Defendant
For Jimmy Allen Hinck, Plaintiff: David H. M. Gray, LEAD ATTORNEY, Gray, Earnest & Gray, Wichita, KS.
For Commissioner of Social Security Administration, Carolyn W. Colvin, acting Commissioner, Defendant: Brian D. Sheern, LEAD ATTORNEY, Office of United States Attorney - Wichita, Wichita, KS.
MEMORANDUM AND ORDER
John W. Lungstrum, United States District Judge.
Plaintiff seeks review of a decision of the Commissioner of Social Security (hereinafter Commissioner) denying Disability Insurance benefits (DIB) and Supplemental Security Income (SSI) benefits under sections 216(i), 223, 1602, and 1614(a)(3)(A) of the Social Security Act. 42 U.S.C. § § 416(i), 423, 1381a, and 1382c(a)(3)(A) (hereinafter the Act). Finding a denial of procedural due process, the court ORDERS that judgment shall be entered pursuant to the fourth sentence of 42 U.S.C. § 405(g) REVERSING the Commissioner's decision, and REMANDING for further proceedings consistent with this opinion.
Plaintiff's history of applications for disability benefits has been long and tortuous since his first claim was denied in August, 1995. (R. 119). Suffice it to say that Plaintiff's most recent proceedings before the Commissioner resulted in the denial of SSI and SSD benefits by an Administrative Law Judge (ALJ) in a decision issued on August 9, 2013 after remand from this court. (R. 664-76); see also Hinck v. Astrue, Civ. A. No. 11-1061-JWL, 2012 WL 628250 (D. Kan. Feb. 27, 2012). Since Plaintiff did not appeal the decision after remand to the Appeals Council, and the Council did not take jurisdiction within 60 days, the ALJ's decision became the final decision of the Commissioner after remand, and the court has jurisdiction to review this case. 20 C.F.R. § § 404.984, 416.1484. Plaintiff presents many allegations of error in the argument section of his brief. Among these is the claim that the ALJ entered a Cooperative Disability Investigations (CDI) report into the administrative record after the ALJ hearing and relied upon that report in his decision in this case without providing Plaintiff notice of the report or an opportunity to be heard with regard to the allegations in the report upon which the ALJ relied. Because the court finds error in this regard which is of Constitutional proportions, it remands for a new hearing consistent with the requirements of due process. Plaintiff may make his other arguments regarding error to the Commissioner on remand.
The court's review of a decision of the Social Security Administration (SSA) is guided by the Act. Wall v. Astrue, 561 F.3d 1048, 1052 (10th Cir. 2009). Section 405(g) of the Act provides that in judicial review " [t]he findings of the Commissioner as to any fact, if supported by substantial evidence, shall be conclusive." 42 U.S.C. § 405(g). The court must determine whether the ALJ's factual findings are supported by substantial evidence in the record and whether he applied the correct legal standard. Lax v. Astrue, 489 F.3d 1080, 1084 (10th Cir. 2007); accord, White v. Barnhart, 287 F.3d 903, 905 (10th Cir. 2001). Substantial evidence is more than a scintilla, but it is less than a preponderance; it is " such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Richardson v. Perales, 402 U.S. 389, 401, 91 S.Ct. 1420, 28 L.Ed.2d 842 (1971); see also, Wall, 561 F.3d at 1052; Gossett v. Bowen, 862 F.2d 802, 804 (10th Cir. 1988).
The court may " neither reweigh the evidence nor substitute [its] judgment
for that of the agency." Bowman v. Astrue, 511 F.3d 1270, 1272 (10th Cir. 2008) (quoting Casias v. Sec'y of Health & Human Servs., 933 F.2d 799, 800 (10th Cir. 1991)); accord, Hackett v. Barnhart, 395 F.3d 1168, 1172 (10th Cir. 2005). Nonetheless, the determination whether substantial evidence supports the Commissioner's decision is not simply a quantitative exercise, for evidence is not substantial if it is overwhelmed by other evidence or if it constitutes mere conclusion. Gossett, 862 F.2d at 804-05; Ray v. Bowen, 865 F.2d 222, 224 (10th Cir. 1989).
II. Denial of Due Process
Plaintiff's last hearing before an ALJ was held in Topeka, Kansas on March 26, 2013. (R. 664, 688-726). Plaintiff appeared and testified, and was represented at the hearing by counsel in this case. (R. 688). At the hearing, medical exhibits B-1F through B-60F were admitted into evidence. (R. 693). Plaintiff testified that he was interested in hunting and in 2007 and 2008 he had organized some hunting trips wherein he would make the preparations and get the hunters started, but that " [m]ainly they would always hunt on their own." (R. 702). He testified that he had not spent as much time on it recently. (R. 703). He testified that the only equipment he takes on his hunting trips is pop-up blinds that weigh about four or five pounds and that he just drives the participants right up to the timber, sets up the blinds, and picks them up at the timber when the hunt is over. (R. 715-16).
On March 29, 2013, the Kansas City CDI Unit received a referral from the Topeka ODAR (Office of Disability Adjudication and Review) to investigate how much the claimant is involved in the hunting business. (R. 1456). A report of the investigation was prepared on May 2, 2013, and appears in the record as Exhibit B61F. (R. 1454-64). In his decision, dated August 9, 2013, the ALJ stated that the " claimant has been seen performing heavy lifting, walking long distances over rough terrain, and doing bending, stooping, and crawling," information which was included in the CDI report. (R.673). The ALJ also cited to the CDI report, noting that Plaintiff runs a hunting guide business with his son, recently made a hunting trip to Colorado in which he went horseback riding, " bagged a bull elk, and carried the elk's head and rack out of the woods on his back." (R. 673). He noted that the report indicated that people who knew Plaintiff for years had never known him to have back problems or problems with walking, and indicated that Plaintiff ...