Henry Ortiz v. Michael J Astrue, No. 2:2012cv03348 - Document 22 (C.D. Cal. 2013)
Court Description: MEMORANDUM OPINION AND ORDER by Magistrate Judge Patrick J. Walsh. For the reasons set forth above, the Agency's decision is reversed and the case is remanded for further proceedings. IT IS SO ORDERED. (ca)
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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 HENRY ORTIZ, Plaintiff, 11 12 13 14 v. CAROLYN W. COLVIN, ACTING COMMISSIONER OF THE SOCIAL SECURITY ADMINISTRATION, Defendant. 15 ) ) ) ) ) ) ) ) ) ) ) ) Case No. CV 12-3348-PJW MEMORANDUM OPINION AND ORDER 16 17 18 I. INTRODUCTION Plaintiff appeals a decision by Defendant Social Security 19 Administration ( the Agency ), denying his application for 20 Supplemental Security Income ( SSI ). 21 Administrative Law Judge ( ALJ ) erred when he required Plaintiff to 22 leave the hearing during testimony and when he rejected the 23 consultative psychologist s opinion. 24 the Agency s decision is reversed and the case is remanded for further 25 proceedings. 26 27 28 He claims that the For the reasons discussed below, 1 II. SUMMARY OF PROCEEDINGS Plaintiff was born in April 1988.1 2 (AR 35-36, 78, 104, 503.) In 3 March 2002, his mother applied for SSI on his behalf, alleging that he 4 was disabled due to walking problems, dermatitis, migraine headaches, 5 major depressive disorder, post-traumatic stress disorder, learning 6 disorder, eating disorder, anxiety, insomnia, and psychotic disorders. 7 (AR 33, 78-81, 94.) 8 33-34.) 9 reviewed under the rules governing disability for adults. His application was approved in May 2002. (AR After Plaintiff turned 18, however, his eligibility was On December 10 5, 2007, the Agency found that he was not disabled under those 11 standards. 12 before an ALJ. 13 hearing without counsel. 14 issued a decision denying benefits. 15 the decision to the Appeals Council, which denied review. 16 15.) (AR 37-40.) He then requested and was granted a hearing (AR 56-61.) (AR 496-537.) 19 III. A. On February 24, 2010, the ALJ (AR 21-29.) Plaintiff appealed (AR 6-10, This action followed. 17 18 On June 24, 2009, he appeared for the ANALYSIS Right to a Fair Hearing Plaintiff contends that the ALJ deprived him of his right to a 20 fair hearing when he required Plaintiff to leave the hearing room 21 while his mother testified. 22 following reasons, the Court agrees. 23 (Joint Stip. at 17-18.) For the Social security claimants are entitled to due process in the 24 determination of their claims. Holohan v. Massanari, 246 F.3d 1195, 25 1209 (9th Cir. 2001) (citing Richardson v. Perales, 402 U.S. 389, 401- 26 27 28 1 The ALJ gives Plaintiff s date of birth as October 13, 1985; the correct date appears to be April 11, 1988. (Compare Administrative Record ( AR ) 27 with AR 35-36, 78, 104, and 503). 2 1 02 (1971)). 2 Hepp v. Astrue, 511 F.3d 798, 804 (8th Cir. 2008), in which the 3 claimant is given an opportunity to be heard in a meaningful manner. 4 See Matthews v. Eldridge, 424 U.S. 319, 333 (1976). 5 particularly true with regard to a claimant who has already been 6 afforded benefits and is at risk of losing them because, once granted, 7 those benefits become a property right protected under the Fifth 8 Amendment. 9 This includes the right to a full and fair hearing, see This is Id. at 332. In the context of the administrative proceedings in this case, 10 due process required that Plaintiff be allowed to remain in the 11 hearing room for the taking of testimony. 12 representing himself, his exclusion from the hearing prevented him 13 from meaningfully participating in it. 14 best to fully and fairly develop the record, it was not a substitute 15 for Plaintiff s right to be present at and participate in the hearing. Because Plaintiff was And, though the ALJ did his 16 Excluding Plaintiff from the hearing was prejudicial and unfair. 17 Plaintiff did not know what testimony had been introduced when he was 18 in the hallway. 19 his mother had said or give him an opportunity to question her. 20 532.) 21 was over and that the ALJ would now question the vocational expert. 22 (AR 532.) 23 been allowed to be present when his mother testified, he would have 24 attempted to have her explain how he was unable to stand and walk for 25 six hours and how his paranoia interfered with his daily life. 26 (Plaintiff s Response to Order Re: Supplemental Briefing at 2-3.) 27 fact that Plaintiff was not able to develop the record along these 28 lines amounts to prejudice. And, when he returned, the ALJ did not tell him what (AR Instead, he told Plaintiff that the questioning of his mother As Plaintiff pointed out in his supplemental brief, had he The fact that Plaintiff was in the 3 The 1 hallway when his mother testified and had no one to represent him in 2 the hearing room was unfair. 3 The Agency believes that it was proper for the ALJ to exclude 4 Plaintiff from the hearing. (Joint Stip. at 18-20; Defendant s Reply 5 to Plaintiff s Response to Order Re: Supplemental Briefing at 2-7.) 6 It points out that the ALJ thoroughly explained to Plaintiff that he 7 had a right to counsel before the hearing started and that Plaintiff 8 waived that right. 9 Agency believes that, by waiving counsel, Plaintiff, in effect, waived (Joint Stip. at 18-19.) It appears that the 10 his right to be present at the hearing, too. 11 any connection between the two rights. 12 by the fact that he never told Plaintiff when he was taking the waiver 13 that by waiving counsel Plaintiff was also giving up his right to be 14 present at the hearing. 15 The Court does not see Nor did the ALJ, as evidenced (AR 497-99.) The Agency also argues that excluding Plaintiff from the hearing 16 was not improper because Plaintiff did not have a right to unlimited 17 cross examination of his mother. 18 Reply to Plaintiff s Response to Order Re: Supplemental Briefing at 2- 19 3.) 20 be present at the hearing and the ALJ s discretion to limit cross 21 examination. 22 flow from and was not dependent on his right to cross examine the 23 witnesses. 24 in the hearing, a hearing that had been called to determine whether 25 his benefits were going to be terminated. (Joint Stip. at 19-20; Defendant s Again, the Court does not see any connection between the right to Plaintiff s right to be present at the hearing did not He had a constitutional right to hear what was being said 26 In addition to the due process considerations, the Agency s own 27 manual governing administrative hearings provides that claimants are 28 entitled to be present during the entire hearing. 4 See HALLEX, 1 Social Security Hearings, Appeals and Litigation Law Manual, 2 Transmittal I-2-6-60 (emphasis added.). 3 regulations. 4 witnesses and question any witnesses at the hearing. ); 404.944 ( A 5 hearing is open to the parties . . . . ); 404.950(a) ( Any party to a 6 hearing has a right to appear before the administrative law judge . . 7 . . ); 404.950(e) ( The administrative law judge may ask the witnesses 8 any questions material to the issues and shall allow the parties or 9 their designated representatives to do so. ) (emphasis added). So, too, do the Agency s See, e.g., 20 C.F.R. ยงยง 404.916(b)(4) ( You may present 10 Finally, the Agency attempts to justify what the ALJ did by 11 providing a reason for him excluding Plaintiff, i.e., to ensure 12 truthful testimony from the witnesses. 13 Order Re: Supplemental Briefing at 4.) 14 does not cite to the record for this explanation because the ALJ never 15 provided it. 16 Plaintiff. 17 leave when his mother testified. 18 not allowed to invent reasons for an ALJ s actions, this justification 19 is also rejected. 20 set forth in the record that that was the reason for excluding 21 Plaintiff, it would not be enough to overcome Plaintiff s right to be 22 present at the hearing. 23 (Plaintiff s Response to With good reason, the Agency In fact, the ALJ never provided any reason for excluding (AR 520-21.) He simply announced that Plaintiff had to (AR 520-21.) Because the Agency is Further, even assuming, arguendo, that the ALJ had Plaintiff also complains that the ALJ erred when he precluded him 24 from questioning the vocational expert about the hypothetical 25 questions the ALJ had posed. 26 should have been allowed to question the vocational expert about his 27 testimony, including the bases for his assumptions. 28 Plaintiff, or his counsel, should be given an opportunity to do so. Again, the Court agrees. 5 Plaintiff On remand, 1 2 B. The Consultative Psychologist s Opinion Plaintiff contends that the ALJ failed to properly take into 3 account the opinion of consultative psychologist Scott Kopoian. 4 (Joint Stip. at 4-7.) 5 functional capacity determination conflicted with Dr. Kopoian s 6 findings -that Plaintiff would be limited to simple, 2 to 3 sequence 7 tasks for 6 to 8 hours without continuous supervision and might need 8 more than ordinary supervision--yet the ALJ did not provide any reason 9 for rejecting those findings. According to Plaintiff, the ALJ s residual (Joint Stip. at 5-6.) Defendant argues 10 that the ALJ did not err because he essentially accepted Dr. Kopoian s 11 findings and incorporated them into the residual functional capacity 12 finding. 13 stands now, the Court would be inclined to agree with the government, 14 in light of the fact that the Court is remanding the case to the 15 Agency for further proceedings, it need not resolve this claim on the 16 merits. 17 receiving any additional evidence. Though, in the context of the state of the record as it The ALJ may, however, want to revisit this issue after IV. 18 19 20 CONCLUSION For the reasons set forth above, the Agency s decision is reversed and the case is remanded for further proceedings. 21 IT IS SO ORDERED. 22 DATED: June 6, 2013 23 24 PATRICK J. WALSH UNITED STATES MAGISTRATE JUDGE 25 26 27 28 S:\PJW\Cases-Soc Sec\ORTIZ, 3348\Memo Opinion and Order.wpd 6
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