United States District Court, D. Arizona
A. Teilborg Senior United States District Judge
before the Court is Plaintiff’s Motion for Order to
Show Cause Why Defendant Should Not be Held in Contempt for
the Willful Refusal to Comply with a Stipulated Court Order,
(Doc. 25), and Defendant’s unopposed Motion for Leave
to File Sur-Reply, (Doc. 29). The Court now rules on the
issue presented in Plaintiff’s motion derives from the
alleged failure of Defendant to comply with the Court’s
June 26, 2014 Order (the “Remand Order”) that
remanded this matter to an administrative law judge
(“ALJ”) for further proceedings. See
(Doc. 18). The Remand Order expressly required the ALJ to
“(1) hold a new hearing and give Plaintiff the
opportunity to question Dr. Levison and Dr. Allison; (2)
appropriately decline to give any weight to the June 2008
report of Dr. Prieve; and (3) as necessary, proceed with the
sequential evaluation process.” (Id. at 1). On
September 9, 2015, the parties appeared before the ALJ for
supplemental proceedings. (Doc. 25 at 3). At this hearing,
the ALJ did not call Dr. Levison or Dr. Allison to testify
and stated that the two doctors “would not [be]
allow[ed]” to attend the hearing. (Doc. 25-1 at 6).
Soon thereafter, Plaintiff filed her motion to show cause.
responded by warranting that it would immediately schedule
another hearing where the ALJ would call the two doctors to
testify. (Doc. 26 at 1-2). The only sentence Defendant
devoted to explaining the ALJ’s actions is the
following footnote: “[t]he ALJ apparently felt that the
case could be fairly adjudicated without [the] testimony [of
Dr. Levison and Dr. Allison], but subsequent discussions have
clarified the need to follow the court’s order to the
letter.” (Id. at 2). That same day, Plaintiff
filed a reply to acknowledge that Defendant was attempting to
comply with the Remand Order but insisted that her motion be
held in abeyance until after the hearing. (Doc. 27).
March 21, 2016, Plaintiff filed a “Sur-Reply: Status
Report on Order to Show Cause Request” to notify the
Court that although the ALJ held another hearing on December
4, 2015, Dr. Levison appeared telephonically and was
unprepared to testify. (Doc. 28 at 1). Particularly,
Plaintiff asserts that Dr. Levison did not have
Plaintiff’s medical records before him, nor did he
remember what he had written in his original report.
(Id. at 2). Apparently, Dr. Levison also testified
that he had not been given the relevant medical exhibits to
review before the date of the hearing. (Id.)
March 31, 2016, Defendant moved for leave to file a
sur-reply, which Plaintiff did not oppose. (Doc.
The lodged sur-reply explains that Defendant subpoenaed Dr.
Levison to appear at the December 4, 2015 hearing and to
bring all relevant materials with him. The subpoena, dated
November 9, 2015, states as follows:
You are hereby required to appear and testify in the above
case at a hearing to be held by Paula Fow, an Administrative
Law Judge of the Office of Disability Adjudication and
Review. The hearing will be held on the Fourth day of
December at 9:00 AM Mountain (ARIZONA) (MSTA) o’clock
in Room E of the ADAR Phoenix 5 Building, at 3737 N. 7th
Street, Phoenix, AZ 85014.
You are further required to bring with you and produce at
said hearing the following books, correspondence, papers,
records or other documents: and any other evidence in your
possession relating to the above matter.
Telephonic testimony is acceptable.
argues that it complied with the portion of the Remand Order
obligating it to make Dr. Levison available for further
questioning because it subpoenaed the doctor to testify and
ordered him to bring all relevant documents to the hearing.
In Defendant’s view, whether Dr. Levison was
ill-prepared for the December 4, 2015 hearing concerns the
weight of his testimony, not Defendant’s compliance
with the Remand Order.
Court agrees with Defendant that the adequacy of Dr.
Levison’s testimony should be weighed by the ALJ in her
disability determination, not by the Court via a motion
challenging Defendant’s compliance with the Remand
Order. Defendant complied with the section of the Remand
Order requiring the ALJ to “hold a new hearing and give
Plaintiff the opportunity to question Dr. Levison and Dr.
Allison” when it (1) subpoenaed Dr. Levison to appear
at and bring all relevant materials to the December 4, 2015
hearing and (2) conducted the hearing. Whether Dr.
Levison sufficiently prepared for the hearing speaks not to
Defendant’s compliance with the Remand Order but to the
weight of Dr. Levison’s testimony, which is an issue
not presently before the Court. See Balla v. Idaho State
Bd. of Corrs., 869 F.2d 461, 465 (9th Cir. 1989)
(“[I]t is well settled that ‘a contempt
proceeding does not open to reconsideration the legal or
factual basis of the order alleged to have been disobeyed and
thus become a retrial of the original
controversy.’” (quoting United States v.
Rylander, 460 U.S. 752, 756 (1983))).
to the extent Plaintiff complains that the ALJ violated the
Remand Order by permitting Dr. Levison to testify
telephonically, Plaintiff has not shown that the ALJ violated
Social Security Administration (“SSA”)
Regulations by doing so. There is nothing in the Remand Order
requiring Dr. Levison to appear in person, and SSA
Regulations expressly permit a medical expert witness to
testify by telephone. See 20 C.F.R. §§
404.950(e) (2013), 404.936(c)(2) (2014). Here, the ALJ has
not issued her final disability decision, and ...