Jose Palacios v. Michael J Astrue, No. 5:2010cv00368 - Document 25 (C.D. Cal. 2011)
Court Description: MEMORANDUM OPINION AND ORDER by Magistrate Judge Jay C. Gandhi. IT IS ORDERED THAT judgment shall be entered AFFIRMING the decision of the Commissioner denying benefits. (bem)
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Jose Palacios v. Michael J Astrue Doc. 25 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 JOSE PALACIOS, 12 13 14 15 Plaintiff, v. MICHAEL J. ASTRUE, COMMISSIONER OF SOCIAL SECURITY ADMINISTRATION, 16 17 Defendant. ) Case No. ED CV 10-0368 JCG ) ) ) ) MEMORANDUM OPINION AND ) ORDER ) ) ) ) ) ) ) 18 19 I. 20 INTRODUCTION AND SUMMARY 21 On March 10, 2010, plaintiff Jose Palacios ( Plaintiff ) filed a complaint 22 against defendant Michael J. Astrue ( Defendant ), the Commissioner of the Social 23 Security Administration, seeking review of a denial of an application for disability 24 insurance benefits ( DIB ). [Docket No. 1.] On September 30, 2010, Defendant filed his answer, along with a certified 25 26 copy of the administrative record. [Docket Nos. 18, 21.] On April 14, 2010, this matter was transferred to the calendar of the 27 28 undersigned Magistrate Judge. [Docket No. 12.] Both Plaintiff and Defendant Dockets.Justia.com 1 subsequently consented to proceed for all purposes before the Magistrate Judge 2 pursuant to 28 U.S.C. § 636(c). [Docket Nos. 13, 14.] 3 Pursuant to a March 12, 2010 case management order, the parties submitted a 4 detailed, 20-page joint stipulation for decision on November 24, 2010. [Docket No. 5 24.] The Court deems the matter suitable for adjudication without oral argument. 6 In sum, having carefully studied, inter alia, the parties joint stipulation and 7 the administrative record ( AR ), the Court concludes that, as detailed herein, there 8 is substantial evidence in the record, taken as a whole, to support the decision of the 9 Administrative Law Judge ( ALJ ). Thus, the Court affirms the Commissioner s 10 decision denying benefits. 11 II. 12 PERTINENT FACTUAL AND PROCEDURAL BACKGROUND 13 Plaintiff, who was 50 years old on the date of his administrative hearing, has a 14 sixth grade education. (See AR at 60, 395, 399.) His past relevant work includes 15 employment as a coder of circuit boards, warehouse worker, and loader/unloader (Id. 16 at 412; see also id. at 74, 83.) 17 On May 10, 2005, Plaintiff filed an application for DIB alleging that he has 18 been disabled since June 30, 1998 due to dislocated discs in his back and headaches. 19 (See AR at 13, 44.) Plaintiff s application was denied initially and upon 20 reconsideration, after which he filed a timely request for a hearing. (Id. at 25, 26, 21 33, 34-39, 40, 42, 44-48, 49-52.) 22 On July 25, 2007, Plaintiff, proceeding pro se, appeared and testified at a 23 hearing ( Hearing ) before an ALJ. (See AR at 395, 397-415.) Corinne Porter, a 24 vocational expert ( VE ), also testified. (See id. at 412-13.) 25 On August 17, 2007, the ALJ denied Plaintiff s request for benefits. (AR at 26 13-20.) Applying the well-known five-step sequential evaluation process, the ALJ 27 found, at step one, that Plaintiff has not engaged in substantial gainful activity since 28 his alleged onset date of disability through his date of last insured. (Id. at 15.) 2 1 At step two, the ALJ found that Plaintiff suffers from severe impairments 2 consisting of status post several fractures and lumbar sprain/strain. 1/ (AR at 15 3 (bold omitted).) At step three, the ALJ determined that the evidence does not demonstrate that 4 5 Plaintiff s impairments, either individually or in combination, meet or medically 6 equal the severity of any listing set forth in the Social Security regulations.2/ (AR at 7 15-16.) The ALJ then assessed Plaintiff s residual functional capacity3/ ( RFC ) and 8 9 determined that he can perform light work, but limited him to occasional climbing, 10 stooping, kneeling, crouching, crawling, any stooping, or any power gripping or 11 forceful torquing of the wrist. (AR at 16 (bold omitted).) The ALJ found, at step four, that Plaintiff lacks the ability to perform his past 12 13 relevant work. (AR at 18.) At step five, based on Plaintiff s RFC and the VE s testimony, the ALJ found 14 15 that there were jobs that existed in significant numbers in the national economy that 16 [Plaintiff] could have performed, such as cleaner, sewing machine operator, or hand 17 packer. (AR at 19 (bold omitted).) Thus, the ALJ concluded that Plaintiff was not 18 suffering from a disability as defined by the Act. (Id. at 13, 19-20.) Plaintiff filed a timely request for review of the ALJ s decision, which was 19 20 21 1/ Status post multiple fractures refers to the state or condition following several 22 fractures. Stedman s Medical Dictionary 770, 1830 (28th ed. 2006). 23 2/ See 20 C.F.R. pt. 404, subpt. P, app. 1. 24 3/ Residual functional capacity is what a claimant can still do despite existing 25 exertional and nonexertional limitations. Cooper v. Sullivan, 880 F.2d 1152, 1155 26 n. 5 (9th Cir. 1989). Between steps three and four of the five-step evaluation, the ALJ must proceed to an intermediate step in which the ALJ assesses the claimant s 27 residual functional capacity. Massachi v. Astrue, 486 F.3d 1149, 1151 n. 2 (9th 28 Cir. 2007). 3 1 denied by the Appeals Council. (AR at 2-4, 9.) The ALJ s decision stands as the 2 final decision of the Commissioner. 3 III. 4 STANDARD OF REVIEW 5 This Court is empowered to review decisions by the Commissioner to deny 6 benefits. 42 U.S.C. § 405(g). The findings and decision of the Social Security 7 Administration must be upheld if they are free of legal error and supported by 8 substantial evidence. Mayes v. Massanari, 276 F.3d 453, 458-59 (9th Cir. 2001, as 9 amended Dec. 21, 2001). If the court, however, determines that the ALJ s findings 10 are based on legal error or are not supported by substantial evidence in the record, 11 the court may reject the findings and set aside the decision to deny benefits. 12 Aukland v. Massanari, 257 F.3d 1033, 1035 (9th Cir. 2001); Tonapetyan v. Halter, 13 242 F.3d 1144, 1147 (9th Cir. 2001). 14 Substantial evidence is more than a mere scintilla, but less than a 15 preponderance. Aukland, 257 F.3d at 1035. Substantial evidence is such relevant 16 evidence which a reasonable person might accept as adequate to support a 17 conclusion. Reddick v. Chater, 157 F.3d 715, 720 (9th Cir. 1998); Mayes, 276 F.3d 18 at 459. To determine whether substantial evidence supports the ALJ s finding, the 19 reviewing court must review the administrative record as a whole, weighing both 20 the evidence that supports and the evidence that detracts from the ALJ s 21 conclusion. Mayes, 276 F.3d at 459. The ALJ s decision cannot be affirmed 22 simply by isolating a specific quantum of supporting evidence. Aukland, 257 F.3d 23 at 1035 (quoting Sousa v. Callahan, 143 F.3d 1240, 1243 (9th Cir. 1998)). If the 24 evidence can reasonably support either affirming or reversing the ALJ s decision, 25 the reviewing court may not substitute its judgment for that of the ALJ. Id. 26 (quoting Matney ex rel. Matney v. Sullivan, 981 F.2d 1016, 1018 (9th Cir. 1992)). 27 28 4 1 IV. 2 ISSUES PRESENTED 3 Two disputed issues are presented for decision here: 4 1. whether the ALJ properly assessed Plaintiff s credibility, (Joint Stip. at 5 3, 13-18); and 6 2. whether the ALJ obtained a proper informed waiver of Plaintiff s right 7 to counsel before proceeding with the hearing. (Id. at 3-12.) 8 The Court addresses each argument in turn. 9 V. 10 DISCUSSION AND ANALYSIS 11 A. Plaintiff s Credibility 12 Plaintiff argues that the ALJ failed to properly assess his credibility. (See 13 Joint Stip. at 13-15.) Plaintiff maintains that [e]xcept for stating that there is 14 minimal evidence prior to the Plaintiff s date last insured, the ALJ provided no 15 credibility analysis whatsoever. (Id. at 14.) 16 17 18 1. The ALJ Must Provide Clear and Convincing Reasons For Discounting Plaintiff s Credibility An ALJ can reject a plaintiff s subjective complaint upon (1) finding evidence 19 of malingering, or (2) expressing clear and convincing reasons for doing so. Benton 20 v. Barnhart, 331 F.3d 1030, 1040 (9th Cir. 2003). The ALJ may consider the 21 following factors in weighing a plaintiff s credibility: (1) his or her reputation for 22 truthfulness; (2) inconsistencies either in the plaintiff s testimony or between the 23 plaintiff s testimony and his or her conduct; (3) his or her daily activities; (4) his or 24 her work record; and (5) testimony from physicians and third parties concerning the 25 nature, severity, and effect of the symptoms of which she complains. Thomas v. 26 Barnhart, 278 F.3d 947, 958-59 (9th Cir. 2002). 27 Here, the ALJ did not find evidence of malingering. (See generally AR at 13- 28 20.) Therefore, the ALJ s reasons for rejecting Plaintiff s credibility must rest on 5 1 clear and convincing reasons. See Benton, 331 F.3d at 1040. 2 3 2. Plaintiff s Subjective Complaints At the hearing, Plaintiff testified that the main [problem that would prevent 4 him from working full time] is that [he] can t sleep at night. (AR at 404.) He 5 stated that he stopped working in 1998 due to pain. (Id. at 409-10.) He also 6 explained that he suffers from very strong pain, severe headaches to the point 7 where it feels like [his head is] going to explode, and tremors in his bones due 8 to rheumatoid arthritis. (Id. at 406, 407, 410.) 9 Plaintiff explained that between 1998 and 2002, he was taking care of his 10 three-year old daughter, an eight-year old, and doing [almost all] the housework 11 and doing the chores around the house, including the grocery shopping. (AR at 12 411.) Plaintiff further testified that he still does the grocery shopping for his 13 household and spends approximately 10 hours per week washing and detailing cars 14 with his son. (Id. at 401-02, 411.) 15 When questioned by the ALJ if Plaintiff received any treatment for his 16 complaints between 1998 and 2001, Plaintiff responded, No. No I haven t. (AR 17 at 406.) The ALJ also asked Plaintiff why he did not receive any treatment in those 18 years after [he] got injured. (Id. at 407.) Plaintiff replied that he was never told 19 [he] had osteoporosis[.] (Id.) 20 21 3. The ALJ s Analysis of Plaintiff s Subjective Complaints In assessing Plaintiff s credibility, the ALJ found that while [Plaintiff s] 22 medically determinable impairments could have been reasonably expected to 23 produce some of his alleged symptoms, his statements concerning the intensity, 24 persistence and limiting effects of these symptoms are not sufficiently credible to 25 establish an inability to perform work within the limitations assessed . . . prior to his 26 date last insured. (AR at 17.) The ALJ found that there is very little medical 27 evidence prior to his date last insured. (Id.) 28 The ALJ also noted that an evaluation, completed by orthopedic surgeon 6 1 Joseph S. Swickard, M.D. ( Dr. Swickard ) on June 19, 2000, determined Plaintiff 2 went through this obvious exaggerated motion of jerking during the exam for his 3 back and neck, yet it was obvious from observing him otherwise that he could move 4 his neck fluidly without jerking or grimacing, thus resulting in Dr. Swickard s 5 conclusion [Plaintiff] was magnifying his symptoms. (AR at 17 (internal quotation 6 marks omitted); see also id. at 376-79.) 7 Further, the ALJ indicated that both an examination by Dr. Swickard and 8 neurosurgeon Theodore L. Sawyer, M.D. ( Dr. Sawyer ), (AR at 98-107), resulted 9 in findings that Plaintiff s complaints could not be objectively substantiated. (Id. 10 at 18.) 11 12 4. The ALJ Properly Rejected Plaintiff s Subjective Complaints The Court is persuaded that the ALJ provided clear and convincing reasons 13 for rejecting Plaintiff s credibility. Three reasons guide this determination. 14 First, the ALJ found that the objective medical evidence does not support 15 Plaintiff s alleged degree of disability. (AR at 17-18.) Plaintiff cannot identify any 16 objective evidence that supports his claims of total disability. (See generally Joint 17 Stip. at 4-9, 13-15.) Instead, both the examining orthopedic surgeon and examining 18 neurosurgeon agreed that there was no objective evidence to indicate that Plaintiff is 19 unable to work. (AR at 106-07, 379; see also id. at 17-18.) Plaintiff cites to no 20 treating or examining physician s opinion that contradicts Dr. Swickard or Dr. 21 Sawyer s opinion. A lack of objective evidence supporting Plaintiff s symptoms 22 cannot be the sole reason for rejecting Plaintiff s testimony. Rollins v. Massanari, 23 261 F.3d 853, 856-57 (9th Cir. 2001). However, it can be one of several factors 24 used in evaluating the credibility of Plaintiff s subjective complaints. Id. 25 Second, the ALJ properly relied on a lack of treatment in rejecting Plaintiff s 26 subjective complaints of pain. Johnson v. Shalala, 60 F.3d 1428, 1433-34 (9th Cir. 27 1995); cf. Orn v. Astrue, 495 F.3d 625, 638 (9th Cir. 2007) (claimant s failure to 28 seek treatment due to inability to pay cannot support an adverse credibility 7 1 termination). Plaintiff testified that he did not receive any treatment for his 2 complaints during the relevant time period. Additionally, his explanation that he 3 was never told [he] had osteoporosis fails to adequately explain why he did not 4 seek treatment for such debilitating complaints of pain. (AR at 407.) 5 It also appears from Plaintiff s testimony that he possessed medical insurance 6 until recently, and thus, was able to afford treatment. (See AR at 404 (Plaintiff s 7 statement that [n]ow that I started working a little bit, they took Medi-Cal away ).) 8 In fact, Plaintiff s own testimony that he was the primary caretaker for two young 9 children, ages three and eight, and was responsible for the almost everything in 10 terms of housework, chores and shopping for groceries belies the alleged degree 11 of disability. (Id. at 411.) 12 Third, the ALJ rejected Plaintiff s statements based on Dr. Swickard s 13 observation that Plaintiff exaggerated his symptoms of pain. This is a clear and 14 convincing reason. See Tonapetyan v. Halter, 242 F.3d 1144, 1148 (9th Cir. 2001) 15 (ALJ properly discredited Plaintiff s subjective complaints based on her tendency to 16 exaggerate her symptoms). Here, the ALJ noted Dr. Swickard s observations that 17 Plaintiff went through this obvious exaggerated motion of jerking during the exam 18 for his back and neck. (AR at 379; see also id. at 17.) Dr. Swickard indicated that 19 this movement is not consistent with somebody with real neck or back problems. 20 (Id. at 379.) Thus, the ALJ provided legally sufficient reasons for discounting 21 Plaintiff s subjective complaints of pain. 22 B. Waiver of Right to Counsel 23 Plaintiff contends that the ALJ failed to properly obtain an informed waiver of 24 Plaintiff s right to counsel before proceeding with the hearing. (See Joint Stip. at 425 6.) Plaintiff argues that the ALJ did not inform Plaintiff of the ways in which an 26 attorney could assist with the proper development of this case. (Id. at 6.) 27 As a result, Plaintiff maintains that he suffered prejudice because the ALJ 28 failed to properly develop the record and Plaintiff was completely unaware of the 8 1 fact that he had to establish with medical evidence that he was disabled prior to June 2 30, 2001. (Joint Stip. at 6-9.) Plaintiff states that [i]t is interesting that the ALJ 3 has failed to discuss references to Plaintiff undergoing a two level anterior 4 discectomy and fusion in his lumbar spine which appear in the Administrative 5 Record. (Id. at 8.) 6 1. Scrupulously Develop the Record 7 8 In the Absence of Counsel, ALJ Must Conscientiously and A Social Security claimant has a statutory right to be represented by counsel 9 at an administrative hearing which may be knowingly and intelligently waived. 42 10 U.S.C. § 406; 20 C.F.R. §§ 404.1700, 416.1500. However, a [l]ack of counsel does 11 not affect the validity of the hearing unless the plaintiff can demonstrate prejudice or 12 unfairness in the administrative proceedings. Key v. Heckler, 754 F.2d 1545, 1551 13 (9th Cir. 1985) (quoting Vidal v. Harris, 637 F.2d 710, 713 (9th Cir. 1981)). 14 Therefore, the relevant issue is not whether Plaintiff properly waived his right to 15 counsel; instead, the issue is whether, in the absence of counsel, the administrative 16 hearing was fair. Higbee v. Sullivan, 975 F.2d 558, 561-62 (9th Cir. 1992) (per 17 curiam); Vidal, 637 F.2d at 714. 18 Where a claimant is unrepresented by counsel, it is incumbent upon the ALJ 19 to conscientiously and scrupulously probe into, inquire of, and explore all the 20 relevant facts at the hearing so as to protect the claimant s interests. Cox v. 21 Califano, 587 F.2d 988, 991 (9th Cir. 1978); accord Key, 754 F.2d at 1551; Vidal, 22 637 F.2d at 713. When the heavy burden imposed by Cox is not met in this 23 context, and the unrepresented claimant may have been prejudiced, the interests of 24 justice demand that the case be remanded. Vidal, 637 F.2d at 714-15. 25 26 2. Plaintiff s Waiver of his Right to Counsel At the hearing, Plaintiff appeared before the ALJ without representation. (AR 27 at 397-98.) At the onset of the hearing, the ALJ engaged in the following 28 unambiguous dialogue with Plaintiff regarding his right to counsel: 9 1 [ALJ]: Before I go any further, do you understand that you 2 have the right to be represented at this hearing by an 3 attorney? 4 [Plaintiff]: Yes. 5 [ALJ]: 6 Have you tried to find an attorney or someone else to represent you? 7 [Plaintiff]: Yes, I tried, about a week, a week ago. 8 [ALJ]: 9 About a week ago. Okay. How come you waited so long? 10 [Plaintiff]: I never thought that this was so complicated. 11 [ALJ]: Do you feel that you re prepared to go through with 12 the hearing today or would you like a postponement 13 to obtain an attorney? 14 [Plaintiff]: I believe I can continue. 15 (Id. at 397-98.) 16 17 18 3. The ALJ Fully and Fairly Developed the Record and Plaintiff Fails to Demonstrate Prejudice Having scrutinized the record, the Court finds that Plaintiff knowingly and 19 voluntarily waived his right to counsel and the ALJ met his burden to 20 conscientiously and scrupulously probe into all the relevant facts at the hearing. The 21 Court s decision is grounded on three reasons. 22 First, as an initial matter, the Court finds that Plaintiff properly waived his 23 right to counsel. The hearing transcript reflects that Plaintiff could not obtain a 24 representative, not that he did not understand his right to have such a representative. 25 Instead, Plaintiff unequivocally waived his right to counsel and rejected the ALJ s 26 offer to postpone the hearing so that he could obtain representation. Further, as 27 referred to by Defendant, (Joint Stip. at 9), it is notable that Plaintiff received at least 28 two separate notices regarding his right to counsel prior to the hearing. (See AR at 10 1 27-28, 29-32.) 2 Although Plaintiff argues that he only was understanding about 50% of the 3 ALJ s statements/questions, (Joint Stip. at 6), the Court notes that a translator was 4 present at the hearing. See also Singmuongthong v. Astrue, 2010 WL 3715152, at 5 *1, *9 (E.D. Cal. 2010) (proper waiver likely obtained where the plaintiff, who was 6 from Laos and spoke very little English and cannot read or write in English, 7 understood her right to counsel and an interpreter was present). 8 Second, even assuming arguendo Plaintiff did not properly waive his right to 9 counsel, the Court finds that Plaintiff did not suffer any prejudice, as the record was 10 fully and fairly developed. While Plaintiff complains that the ALJ did not advise 11 [him] that it was his burden to establish disability prior to June 30, 2001, (Joint 12 Stip. at 6-7), the ALJ specifically questioned Plaintiff about his complaints during 13 the relevant time period and his activities of daily living. 14 However, as discussed supra at § V.A.4, Plaintiff testified that he did not 15 receive any treatment during that time, and he was taking care of two young children 16 and performing the majority of the housekeeping and chores for his household. (AR 17 at 406, 411.) The ALJ was under no duty to probe the evidence any further given 18 Plaintiff s unambiguous testimony. See Mayes, 276 F.3d at 459-60 (The ALJ s duty 19 to further develop the record is triggered when there is ambiguous evidence or 20 when the record is inadequate to allow for proper evaluation of the evidence. ). 21 Third, Plaintiff points to no specific facts, arguments or evidence an attorney 22 would have developed that could have changed the outcome of the proceedings. See 23 Santos v. Massanari, 11 Fed.Appx 906, 906 (9th Cir. 2001). Plaintiff states that the 24 record references a two level anterior discectomy and fusion in [Plaintiff s] lumbar 25 spine. (Joint Stip. at 8.) However, Plaintiff fails to state if in fact he underwent 26 such back surgery, and equally notably, whether there is evidence that certain 27 restrictions actually resulted from it. (See generally id. at 2-9.) 28 Accordingly, Plaintiff fails to demonstrate prejudice and any alleged error that 11 1 resulted from Plaintiff s waiver of his right to counsel was harmless. Key, 754 F.2d 2 at 1551. 3 Based on the foregoing, IT IS ORDERED THAT judgment shall be entered 4 AFFIRMING the decision of the Commissioner denying benefits. 5 6 Dated: February 28, 2011 7 ______________________________ Hon. Jay C. Gandhi United States Magistrate Judge 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 12
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