Pamela Jean Ickes v. Michael J Astrue, No. 5:2009cv01890 - Document 20 (C.D. Cal. 2010)

Court Description: DECISION AND ORDER by Magistrate Judge Carla Woehrle, IT IS ORDERED that: 1. The decision of the Commissioner is REVERSED. 2. This action is REMANDED to Defendant, pursuant to Sentence Four of 42 U.S.C. § 405(g), for further proceedings as discussed above. (SEE ORDER FOR FURTHER DETAILS) (lmh)

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Pamela Jean Ickes v. Michael J Astrue Doc. 20 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 EASTERN DIVISION 11 12 13 14 15 16 17 PAMELA JEAN ICKES, ) ) Plaintiff, ) v. ) ) MICHAEL J. ASTRUE, ) Commissioner, Social Security ) Administration, ) ) Defendant. ) ) No. EDCV 09-1890 CW DECISION AND ORDER 18 19 The parties have consented, under 28 U.S.C. § 636(c), to the 20 jurisdiction of the undersigned Magistrate Judge. 21 review of the Commissioner s denial of disability benefits. 22 discussed below, the court finds that the Commissioner s decision 23 should be reversed and this matter remanded for further proceedings, 24 on the basis that the record has not been fully developed. 25 26 I. Plaintiff seeks As BACKGROUND Plaintiff Pamela Jean Ickes was born on November 11, 1955 and was 27 fifty-three years old at the time of her administrative hearing. 28 [Administrative Record ( AR ) 19, 90.] She has a tenth grade education 1 Dockets.Justia.com 1 and no past relevant work experience. [AR 98, 94.] Plaintiff alleges 2 disability on the basis of kidney and stomach problems and dizziness. 3 [AR 94.] 4 5 II. PROCEEDINGS IN THIS COURT Plaintiff s complaint was lodged on October 8, 2009, and filed on 6 October 19, 2009. On April 14, 2010, Defendant filed an Answer and 7 Plaintiff s Administrative Record ( AR ). 8 parties filed their Joint Stipulation ( JS ) identifying matters not 9 in dispute, issues in dispute, the positions of the parties, and the 10 relief sought by each party. 11 On July 16, 2010, the submission without oral argument. 12 13 This matter has been taken under III. BACKGROUND Plaintiff applied for supplemental security income ( SSI ) under 14 Title XVI of the Social Security Act on November 28, 2007, alleging 15 disability since April 1, 2003. [AR 10.] 16 denied initially and upon reconsideration, Plaintiff requested an 17 administrative hearing on February 15, 2008. [AR 38-41.] In a written 18 notice dated March 7, 2008, the Commissioner informed Plaintiff that 19 her request had been granted and that Plaintiff would receive future 20 notice setting the hearing date. [AR 50-54.] This notice informed 21 Plaintiff that she had a right to representation at the hearing, that 22 a representative can help you get evidence, prepare for the hearing, 23 and present your case at the hearing, that some private lawyers 24 charge a fee only if you receive benefits, and that some 25 organizations may provide free legal representation. [AR 50.] A list 26 of private attorneys and a list of organizations that provided free 27 legal representation in Plaintiff s area were included with the 28 notice. After the application was [AR 52.] Subsequent notices dated March 30, 2009 and April 2, 2 1 2009, informed Plaintiff of her right to representation [AR 55-56, 68- 2 74.] The notice from April 2, 2009, also included a separate handout 3 entitled Your Right to Representation, explaining what a 4 representative could do and fee agreements. [AR 73-74.] 5 An administrative hearing was held on April 22, 2009. [AR 19.] 6 Plaintiff appeared without counsel. [Id.] At the start of the hearing, 7 the following dialogue took place between the ALJ and the Plaintiff 8 regarding her right to representation: 9 ALJ: You are not represented at this time, is that correct? 10 CLMT: That s right. 11 ALJ: Okay, and do you understand that you have a right to be 12 represented? 13 CLMT: Yes, sir. 14 ALJ: Okay, and do you have any questions concerning those 15 rights? 16 CLMT: Not that I know of. 17 ALJ: All right, are you going to wave your right to be 18 represented and proceed today? 19 CLMT: 20 [AR 21.] 21 The hearing proceeded. [AR 21-35.] Testimony was taken from 22 Plaintiff, a medical expert, and Plaintiff s friend. [AR 19.] The ALJ 23 subsequently denied benefits in a decision dated July 6, 2009. [AR 10- 24 18.] When the Appeals Council denied review on August 21, 2009, the 25 ALJ s decision became the Commissioner s final decision. [AR 1-3.] 26 27 28 Yes. IV. STANDARD OF REVIEW Under 42 U.S.C. § 405(g), a district court may review the Commissioner s decision to deny benefits. 3 The Commissioner s (or 1 ALJ s) findings and decision should be upheld if they are free of 2 legal error and supported by substantial evidence. 3 court determines that a finding is based on legal error or is not 4 supported by substantial evidence in the record, the court may reject 5 the finding and set aside the decision to deny benefits. 6 v. Massanari, 257 F.3d 1033, 1035 (9th Cir. 2001); Tonapetyan v. 7 Halter, 242 F.3d 1144, 1147 (9th Cir. 2001); Osenbrock v. Apfel, 240 8 F.3d 1157, 1162 (9th Cir. 9 1097 (9th Cir. 1999); Reddick v. Chater, 157 F.3d 715, 720 (9th Cir. 10 1998); Smolen v. Chater, 80 F.3d 1273, 1279 (9th Cir. 1996); Moncada 11 v. Chater, 60 F.3d 521, 523 (9th Cir. 1995)(per curiam). 12 However, if the See Aukland 2001); Tackett v. Apfel, 180 F.3d 1094, Substantial evidence is more than a scintilla, but less than a 13 preponderance. Reddick, 157 F.3d at 720. 14 which a reasonable person might accept as adequate to support a 15 conclusion. 16 a finding, a court must review the administrative record as a whole, 17 weighing both the evidence that supports and the evidence that 18 detracts from the Commissioner s conclusion. 19 can reasonably support either affirming or reversing, the reviewing 20 court may not substitute its judgment for that of the Commissioner. 21 Reddick, 157 F.3d at 720-721; see also Osenbrock, 240 F.3d at 1162. Id. It is relevant evidence To determine whether substantial evidence supports V. 22 Id. If the evidence DISCUSSION 23 A. THE FIVE-STEP EVALUATION 24 To be eligible for disability benefits a claimant must 25 demonstrate a medically determinable impairment which prevents the 26 claimant from engaging in substantial gainful activity and which is 27 expected to result in death or to last for a continuous period of at 28 least twelve months. Tackett, 180 F.3d at 1098; Reddick, 157 F.3d at 4 1 721; 42 U.S.C. § 423(d)(1)(A). 2 Disability claims are evaluated using a five-step test: 3 Step one: Is the claimant engaging in substantial gainful activity? If so, the claimant is found not disabled. If not, proceed to step two. Step two: Does the claimant have a severe impairment? If so, proceed to step three. If not, then a finding of not disabled is appropriate. Step three: Does the claimant s impairment or combination of impairments meet or equal an impairment listed in 20 C.F.R., Part 404, Subpart P, Appendix 1? If so, the claimant is automatically determined disabled. If not, proceed to step four. Step four: Is the claimant capable of performing his past work? If so, the claimant is not disabled. If not, proceed to step five. Step five: Does the claimant have the residual functional capacity to perform any other work? If so, the claimant is not disabled. If not, the claimant is disabled. 4 5 6 7 8 9 10 11 12 Lester v. Chater, 81 F.3d 821, 828 n.5 (9th Cir. 1995, as amended 13 April 9, 1996); see also Bowen v. Yuckert, 482 U.S. 137, 140-142, 107 14 S. Ct. 2287, 96 L. Ed. 2d 119 (1987); Tackett, 180 F.3d at 1098-99; 20 15 C.F.R. § 404.1520, § 416.920. If a claimant is found disabled or 16 not disabled at any step, there is no need to complete further 17 steps. Tackett, 180 F.3d 1098; 20 C.F.R. § 404.1520. 18 Claimants have the burden of proof at steps one through four, 19 subject to the presumption that Social Security hearings are non20 adversarial, and to the Commissioner s affirmative duty to assist 21 claimants in fully developing the record even if they are represented 22 by counsel. Tackett, 180 F.3d at 1098 and n.3; Smolen, 80 F.3d at 23 1288. If this burden is met, a prima facie case of disability is 24 made, and the burden shifts to the Commissioner (at step five) to 25 26 27 28 5 1 prove that, considering residual functional capacity ( RFC )1, age, 2 education, and work experience, a claimant can perform other work 3 which is available in significant numbers. 4 1100; Reddick, 157 F.3d at 721; 20 C.F.R. § 404.1520, § 416.920. Tackett, 180 F.3d at 1098, 5 B. THE ALJ S EVALUATION IN PLAINTIFF S CASE 6 Here, the ALJ found that Plaintiff had not engaged in substantial 7 gainful activity since November 28, 2007 (step one); that Plaintiff 8 had severe impairments, namely chronic nephrolithiasis with retained 9 kidney functions and hypertension (step two); and that Plaintiff did 10 not have an impairment or combination of impairments that met or 11 equaled a listing (step three). 12 have an RFC to perform the full range of light work. [AR 13-17.] 13 Plaintiff had no past relevant work (step four). [AR 17.] Based on 14 application of Rule 204.00 of the Medical-Vocational Guidelines 15 ( Grids ), it was determined that Plaintiff could perform work 16 existing in significant numbers in the national economy (step five). 17 [AR 18.] 18 by the Social Security Act. [Id.] [AR 12-13.] Plaintiff was found to Accordingly, Plaintiff was found not disabled as defined 19 C. 20 The parties Joint Stipulation identifies the following disputed 21 issues: 22 1. PLAINTIFF S PRESENT CLAIMS Whether the ALJ obtained a proper and informed waiver of 23 1 24 25 26 27 28 Residual functional capacity measures what a claimant can still do despite existing exertional (strength-related) and nonexertional limitations. Cooper v. Sullivan, 880 F.2d 1152, 1155 n.s. 5-6 (9th Cir. 1989). Nonexertional limitations limit ability to work without directly limiting strength, and include mental, sensory, postural, manipulative, and environmental limitations. Penny v. Sullivan, 2 F.3d 953, 958 (9th Cir. 1993); Cooper, 800 F.2d at 1155 n.7; 20 C.F.R. § 404.1569a(c). Pain may be either an exertional or a nonexertional limitation. Penny, 2 F.3d at 959; Perminter v. Heckler, 765 F.2d 870, 872 (9th Cir. 1985); 20 C.F.R. § 404.1569a(c). 6 Plaintiff s right to representation. 1 2 2. medical evidence of record. 3 4 Whether the ALJ properly considered all of the relevant 3. Whether the ALJ has properly considered Plaintiff s 5 subjective complaints and properly assessed Plaintiff s 6 credibility. 7 [JS 3.] 8 As discussed below, Issue One is dispositive. 9 D. 10 RIGHT TO REPRESENTATION A Social Security claimant has a statutory right to be 11 represented by counsel at an administrative hearing. 42 U.S.C. § 4062; 12 20 C.F.R. §§ 404.1700, 416.1500. 13 standing alone, does not deprive a claimant of a fair hearing, the 14 Commissioner has a duty to inform the claimant of the right to 15 counsel, so that the claimant may decide knowingly whether he or she 16 wishes to waive this right. 17 (11th Cir. 1991); Thompson v. Sullivan, 933 F.2d 581, 584 (7th Cir. 18 1991); Clark v. Schweiker, 652 F.2d 399, 403 (5th Cir. 1981). 19 claimant must be informed not only of his or her right to counsel, but 20 of the importance of having an attorney, of the availability of free 21 legal services to represent indigent claimants, and the limits on fees 22 to private counsel to twenty-five percent of retroactive benefits. 23 Binion v. Shalala, 13 F.3d 243, 245 (7th Cir. 1994); Smith v. Although the absence of counsel, Edwards v. Sullivan, 937 F.2d 580, 585 A 24 2 25 26 27 28 The statute states, in pertinent part, The Commissioner of Social Security shall notify each claimant in writing, together with the notice to such claimant of an adverse determination, of the options for obtaining attorneys to represent individuals in presenting their cases before the Commissioner of Social Security. Such notification shall also advise the claimant of the availability to qualifying claims of legal services organizations which provide legal services free of charge. 42 U.S.C. § 406(c). 7 1 Schweiker, 677 F.2d 826, 829 (11th Cir. 1982); Clark, 652 at 403; see 2 also Blom v. Barnhart, No. 04-C-0912, 363 F. Supp. 2d 1041, 1046 (E.D. 3 Wis. March 26, 2005)(finding uninformed waiver invalid even though 4 claimant was an attorney). 5 If a claimant s waiver is invalid, reversal is appropriate if 6 the claimant can demonstrate prejudice or unfairness in the 7 administrative proceedings. 8 Cir. 1981)(quoting Hall v. Sec. of Health, Ed. and Welfare, 602 F.2d 9 1372, 1378 (9th Cir. 1979). Vidal v. Harris, 637 F.2d 710, 713 (9th Where a claimant is unrepresented by 10 counsel, it is incumbent upon the ALJ to conscientiously and 11 scrupulously probe into, inquire of, and explore all the relevant 12 facts at the hearing so as to protect the claimant's interests. 13 v. Califano, 587 F.2d 988, 991 (9th Cir. 1978); see also Higbee v. 14 Sullivan, 975 F.2d 558, 561 (9th Cir. 1992); Key v. Heckler, 754 F.2d 15 1545, 1551 (9th Cir. 1985); Vidal, 637 F.2d at 713-14. 16 heavy burden imposed by Cox is not met in this context, and the 17 unrepresented claimant may have been prejudiced, the interests of 18 justice demand that the case be remanded. Cox When the Vidal, 637 F.2d at 714-15. 19 Here, Plaintiff s limited education and the brevity of the 20 advisements given to her at the hearing raise questions as to whether 21 she responded to the ALJ s question regarding her right to counsel 22 with full understanding. 23 question whether claimant with limited reading skills validly waived 24 right to counsel). 25 right to counsel, the record indicates that the Commissioner s heavy 26 burden to develop the record, imposed by Cox, was not met. Vidal, 637 27 F.2d at 713-14. 28 indicates that Plaintiff was prejudiced by inadequate examination of See Vidal, 637 F.2d at 714 (finding serious Even assuming that Plaintiff knowingly waived her The transcript of the administrative hearing 8 1 the medical expert: the testimony did not indicate whether he was 2 crediting Plaintiff s subjective complaints of pain in expressing his 3 opinion of Plaintiff s limitations or which medical condition he was 4 crediting to account for the pain. [AR 28-30.] The record also 5 indicates Plaintiff was unable to further develop the record, as she 6 responded to the ALJ s inquiry of whether she had any questions for 7 the medical expert with not that [she knew] of. [AR 30.] The 8 questions by the ALJ at the administrative hearing also failed to 9 fully develop the Plaintiff s own testimony, such as her limitations, 10 subjective feelings of pain, and history of medical treatment. [AR 23- 11 25.] 12 appropriate. 13 E. 14 The decision whether to remand for further proceedings is within Under these circumstances, remand for further proceedings is REMAND FOR FURTHER PROCEEDINGS 15 the discretion of the district court. Harman v. Apfel, 211 F.3d 1172, 16 1175-1178 (9th Cir. 2000). 17 further proceedings, or where the record has been fully developed, it 18 is appropriate to exercise this discretion to direct an immediate 19 award of benefits. 20 remand for further proceedings turns upon their likely utility). 21 However, where there are outstanding issues that must be resolved 22 before a determination can be made, and it is not clear from the 23 record that the ALJ would be required to find the claimant disabled if 24 all the evidence were properly evaluated, remand is appropriate. 25 Here, as set out above, outstanding issues remain before a finding of 26 disability can be made. Where no useful purpose would be served by Harman, 211 F.3d at 1179 (decision whether to Accordingly, remand is appropriate. 27 28 9 Id. 1 VI. ORDERS 2 Accordingly, IT IS ORDERED that: 3 1. The decision of the Commissioner is REVERSED. 4 2. This action is REMANDED to Defendant, pursuant to Sentence 5 Four of 42 U.S.C. § 405(g), for further proceedings as discussed 6 above. 7 8 3. The Clerk of the Court shall serve this Decision and Order and the Judgment herein on all parties or counsel. 9 10 11 12 DATED: July 29, 2010 ______________________________ CARLA M. WOEHRLE United States Magistrate Judge 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 10

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