Stacia Hartwell v. Michael J Astrue, No. 5:2012cv01652 - Document 19 (C.D. Cal. 2013)
Court Description: MEMORANDUM DECISION AND ORDER by Magistrate Judge Stephen J. Hillman (sbu)
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1 2 3 4 5 6 7 8 9 UNITED STATES DISTRICT COURT 10 CENTRAL DISTRICT OF CALIFORNIA-EASTERN DIVISION 11 12 13 14 15 STACIA HARTWELL, as Guardian 16 Ad Litem for JRH, a minor, Plaintiff, 17 v. 18 MICHAEL J. ASTRUE, 19 Commissioner of Social Security, 20 21 22 Defendant. ) ) ) ) ) ) ) ) ) ) ) Case No. EDCV 12-01652 (SH) MEMORANDUM DECISION AND ORDER This matter is before the Court for review of the decision by the Commissioner of 23 Social Security denying plaintiff s application for Supplemental Security Income. 24 Pursuant to 28 U.S.C. § 636(c), the parties have consented that the case may be handled 25 by the undersigned. The action arises under 42 U.S.C. § 405(g), which authorizes the 26 Court to enter judgment upon the pleadings and transcript of the record before the 27 Commissioner. The plaintiff and the defendant have filed their pleadings (Plaintiff s 28 Brief in Support of Complaint ( Plaintiff s Brief ); Defendant s Brief In Support of 1 1 Defendant s Answer ( Defendant s Brief )), and the defendant has filed the certified 2 transcript of record. After reviewing the matter, the Court concludes that the decision of 3 4 5 6 7 8 the Commissioner should be affirmed. On March 13, 2009, plaintiff Stacia Hartwell filed applications for Supplemental Security Income and for other benefits and medical assistance under the Social Security Act on behalf of her son, minor JRH ( claimant ), alleging that his disability began on October 18, 2008. (See Administrative Record [ AR ] 114-115). On June 7, 2011 9 (following a hearing on May 4, 2011), an Administrative Law Judge ( ALJ ) issued a 10 decision. The ALJ found that claimant was not disabled within the meaning of the Social 11 Security Act because he did not have an impairment or combination of impairments that 12 resulted in either marked limitations in two domains of functioning or extreme 13 limitation in one domain of functioning. (See AR 13-25). 14 Following the Appeals Council s denial of plaintiff s request for a review of the 15 hearing decision (see AR 1-3), plaintiff filed an action in this Court. 16 Plaintiff makes two challenges to the ALJ s decision. First, she alleges the ALJ 17 18 19 20 erred by failing to obtain informed waiver of her right to representation at the hearing. Second, she claims that the ALJ improperly considered the record with respect to claimant s academic abilities and his ability to relate to others. 21 22 DISCUSSION 23 24 ISSUE NO. 1 25 Plaintiff argues that the ALJ impermissibly failed to obtain an informed waiver of 26 plaintiff s right to representation and that as such, consideration of her claim was 27 prejudiced. She claims that she repeatedly explained to the ALJ that she did not 28 understand the proceedings, did not know what was expected of her, and did not understand the technical aspects of the case, including the medical expert s testimony. 2 1 Plaintiff contends that as a result, the ALJ did not properly develop the record. 2 Defendant asserts that plaintiff knowingly elected to waive her right to representation by 3 4 5 6 7 8 signing a form at a prehearing conference when plaintiff was not prepared to move forward with the hearing. The Ninth Circuit has held that lack of counsel in a social security benefits hearing requires remand only if the claimant can demonstrate prejudice or unfairness in the administrative proceeding.1 Vidal v. Harris, 637 F.2d 710, 713 (9th Cir. 1981)( Lack of 9 counsel does not affect the validity of the hearing and hence warrant remand, unless the 10 claimant can demonstrate prejudice or unfairness ). When a claimant is not represented 11 by counsel, the ALJ has a special duty to scrupulously and conscientiously probe into, 12 inquire of, and explore all relevant facts, and he must be especially diligent in ensuring 13 that favorable as well as unfavorable facts and circumstances are elicited. (Id.) 14 Here, the ALJ determined that although plaintiff came unrepresented, the hearing 15 should nonetheless continue. In reaching this conclusion, the ALJ explicitly noted that at 16 the prehearing conference on December 10, 2010, plaintiff signed a written waiver of her 17 18 19 20 21 right to appear with a representative unless a representative was appointed before the hearing.2 (AR 13; see AR 95). During the hearing, the ALJ explained that plaintiff had not managed to obtain representation prior to the hearing date so under her waiver, she could no longer seek continuances to try and retain an attorney. The ALJ further 22 23 1 Plaintiff cites to Ninth Circuit and a number of non-Ninth Circuit cases to argue that her lack of representation at the hearing was problematic. To the extent that 24 she bases her claim on those cases outside of the Ninth Circuit, the Court does not consider the law within this Circuit 25 e.g., Cox them in its analysis as 988, 991 (9th Cir. 1978). has long been established. See, v. Califano, 587 F.2d 26 2 The Court notes that plaintiff does not argue that her signature on the waiver was obtained through improper means or that she did not know what she was signing. In 27 addition, the record does not provide any reason to doubt the waiver s validity. She also did not know right to counsel, nor can she do so 28 does not argue that she clearly shows about herwas provided adequate information about genuinely. The record plaintiff her right to representation and how to obtain the assistance of an attorney. (See AR 75, 77, 85, 97, 102). 3 1 explained to plaintiff that to grant another continuance would mean inconveniencing 2 claimants in other cases. (AR 31-32). 3 4 5 6 7 8 Even assuming that plaintiff s waiver of representation was improper, it was nonetheless immaterial. First, the ALJ acted in a way that protected claimant s interests. See Tonapetyan v. Halter, 242 F.3d 1144, 1150 (9th Cir. 2001)(explaining the independent duty of the ALJ to assure that a claimant s interests are considered and act diligently to protect those interests when the claimant is unrepresented). He allowed 9 plaintiff time at the conclusion of the hearing to examine the exhibits and write down any 10 objections she had. (AR 33, 52.) When plaintiff complained that she had difficulty 11 understanding the medical expert s testimony, the ALJ explained in detail the two ways 12 in which minors can qualify for social security benefits. (AR 39-40, 46-49). He also 13 allowed her multiple opportunities to testify to anything that might be of importance to 14 claimant s case and even told her to take your time. (AR 45, 50). 15 Second, as stated before, the Ninth Circuit has ruled that the claimant s lack of 16 representation is problematic only if she was prejudiced by the hearing. Vidal, 637 F.2d 17 at 713. Here, plaintiff seems to argue that she was prejudiced by the absence of counsel 18 because the ALJ improperly characterized and considered the record. (See Plaintiff s 19 Brief at 5-6.) For reasons explained below, this contention is unavailing. 20 ISSUE NO. 2 21 Plaintiff contends that the ALJ misstated evidence regarding claimant s medical 22 and school records when determining his functional equivalence of the listings.3 23 24 25 26 3 To determine whether a child s impairments functionally equal the listings such that he would qualify for benefits, the ALJ is to assess the functional limitations 27 caused by the child s impairments. The ALJ will consider how the child functions in six 28 domains: (1) acquiring and using information; (2) attending and completing tasks; (3) interacting and relating with others; (4) moving about and manipulating objects; (5) caring for yourself; and (6) health and physical well-being. See 20 C.F.R. § 416.926a(a)(b)(1). At issue are domains (1), (2), (3) and (6). (See AR 19-24). 4 1 Defendant counters that the ALJ properly considered and characterized the evidence and 2 that his findings were supported by substantial evidence. 3 4 5 6 7 8 The long-settled rule is that a court will not set aside the denial of a disability claim unless the Secretary s findings are not supported by substantial evidence in the record as a whole. Molina v. Astrue, 674 F.3d 1104, 1121 (9th Cir. 2012)(citing Stone v. Heckler, 761 F.2d 530, 531 (9th Cir. 1985)). Therefore, plaintiff carries the burden of showing that the ALJ s decision was not supported by substantial evidence. Magallanes 9 v. Bowen, 881 F.2d 747, 750 (9th Cir. 1989)( The burden of proof rests upon 10 claimant. )). 11 Plaintiff first disputes the ALJ s consideration of academic evidence, arguing that 12 claimant has actually been performing at lower than an average or adequate academic 13 level. Plaintiff cites to the fact that claimant attended special education classes with 14 testing accommodations and that he gets frustrated and overwhelmed with grade level 15 standards. (Plaintiff s Brief at 6-7). She also points to his D letter grades in classes like 16 math, English writing, and English reading. (Id. at 7). 17 As an initial matter, plaintiff concedes that claimant has average IQ scores. (Id. at 18 6-7). Although plaintiff correctly notes that a report from December 2, 2010 found 19 claimant overwhelmed and frustrated with grade level standards, the very same report 20 noted that he read and comprehended at grade level, he did not have processing disorders 21 in the areas of visual, auditory, memory or conceptualization, and it found that he was 22 mainstreamed for lunch, computers, PE, recess and English language arts classes. (AR 23 24 246-248). 25 With respect to claimant s grades, as defendant persuasively argues, claimant did 26 receive Ds but only because he was not turning in work or failed to complete 27 assignments. (Defendant s Brief at 9; see AR 249). Additionally, he scored advanced on 28 language arts and math subjects for state-mandated academic testing. (AR 246). 5 1 At best, the record shows that claimant may have a mild limitation with respect to 2 acquiring and using information given his academic record. Even if the Court were to 3 assume this was the case, such an assumption would not entitle plaintiff to relief since the 4 functional listings require marked and severe limitations in two domains or an 5 extreme limitation in one domain. See 20 C.F.R. § 416.926a(d). Furthermore, when 6 evidence is susceptible to more than one rational interpretation, it is the conclusion of the 7 ALJ that must be upheld. Morgan v. Comm r of Soc. Sec. Admin, 169 F.3d 595, 599 8 9 (9th Cir. 1999). 10 Plaintiff also disputes the ALJ s finding that claimant was less than markedly 11 limited in interacting and relating with others. She points to a history of behavioral 12 problems, including classroom disruptions and outbursts, threatening others with physical 13 injury, and not listening to classroom instructions. (Plaintiff s Brief at 8-10). 14 The ALJ found that although there was a long history of problems dealing with 15 peers, siblings, and adults at home and at school, claimant s behavior improved in 2009 16 with the treatment of his seizures. In addition, he noted that claimant was not referred 17 18 19 20 21 22 23 for further evaluation or treatment despite continuing complaints, and there was no indication of disciplinary action being taken at school. (AR 22). The ALJ s findings are supported by substantial evidence in the record. The record indicates that in 2009, claimant s behavior improved. For example, a psychological evaluation in July 2009 described him as pleasant and cooperative throughout the evaluation. He appeared to make an adequate effort on the tasks presented to him. (AR 24 214). The same report concluded that claimant s ability to socially integrate with his 25 peers in an age appropriate manner was not impaired. (AR 217). A psychoeducational 26 report from November 2009 indicated that with respect to claimant s social skills, he has 27 friends, interacts on his own terms, [and] makes impulsive choices. (AR 239). Older 28 assessments also describe claimant as friendly and quite cooperative, noting that he is generally well behaved, but has been known to act aggressively toward another 6 1 child who takes a preferred toy. (AR 185). Finally, the record contains additional 2 references to claimant s participation in group social activities, like martial arts classes. 3 4 5 6 7 8 (AR 246). Although it is true that claimant s record at school contains a number of disciplinary reports (see, e.g., AR 256-259), including a letter from the Food Service Manager at claimant s school reporting that he was causing problems at the after-school program, the very same letter described claimant as a great boy with a wonderful sense 9 of humor. (AR 177). Again, when the evidence supports multiple rational 10 interpretations, the ALJ s findings are entitled to deference. Morgan, 169 F.3d at 599. 11 Therefore, plaintiff has failed to prove that the ALJ improperly characterized the 12 evidence and that his findings were not supported by substantial evidence. 13 14 15 ORDER 16 For the foregoing reasons, the decision of the Commissioner is affirmed and 17 18 plaintiff s Complaint is dismissed. DATED: April 30, 2013 19 20 21 22 23 24 STEPHEN J. HILLMAN UNITED STATES MAGISTRATE JUDGE 25 26 27 28 7
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