James Hilliard v. Commissioner of Social Security

612 F. App'x 582

• Court: Court of Appeals for the Eleventh Circuit
• Decided: August 11, 2015
• Docket: 14-15287
• Status: Unpublished

Opinion

PER CURIAM:

James Hilliard appeals from the district court’s order affirming the Administrative Law Judge’s (“ALJ”) denial of his applications for a period of disability and disability insurance benefits, 42 U.S.C. § 405(g). On appeal, Hilliard argues that the ALJ’s ex parte communication with a medical expert deprived Hilliard of his right to due process and was prejudicial to him because, as a result of the communication, the ALJ gave little weight to Hilliard’s treating physician’s opinion.

In Social Security appeals, we review the decision of an ALJ as the Commissioner’s' final decision when the ALJ denies benefits and the Appeals Council denies review of the ALJ’s decision. Doughty v. Apfel, 245 F.3d 1274, 1278 (11th Cir.2001). We review the Commissioner’s legal conclusions de novo and consider whether the Commissioner’s factual findings are supported by substantial evidence. Lewis v. Barnhart, 285 F.3d 1329, 1330 (11th Cir.2002).

Hilliard’s brief ignores the case law regarding ex parte communications between an ALJ and a medical expert, or ex parte communications of any sort for that matter. Here, as in Avondale Shipyards, Inc. v. Vinson, 623 F.2d 1117, 1121-22 (5th Cir.1980), 1 Hilliard was afforded an opportunity to address the ex parte communication, but failed to do so. Moreover, even assuming arguendo that the communication was improper, it must have prejudiced Hilliard to warrant reversal. Guenther v. Comm’r, 889 F.2d 882, 884 (9th Cir.1989). Upon review of the briefs and the record, the Court cannot conclude that any communication between the ALJ and Dr. Hamrick prejudiced Hilliard. 2 Even completely ignoring Dr. Hamrick’s testimony, the substantial evidence, including Hilli-ard’s own testimony, supports the ALJ’s conclusion that Hilliard was not disabled within the meaning of the Social Security Act at any time from the alleged onset date through the date of the decision.

AFFIRMED.

1 . In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir.1981) (en banc), we adopted as binding precedent all Fifth Circuit decisions issued before October 1, 1981.

2 . The communication apparently involved a recommendation by the medical expert that Hilliard be referred for another psychological exam. Such recommendation was passed on to Hilliard's representative the next day, and the additional exam was subsequently scheduled.