Ana L. Luna v. Carolyn W. Colvin, No. 2:2014cv01015 - Document 16 (C.D. Cal. 2014)
Court Description: MEMORANDUM OPINION AND ORDER by Magistrate Judge Ralph Zarefsky. The Commissioners decision is affirmed. (mz)
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Ana L. Luna v. Carolyn W. Colvin Doc. 16 O 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 ANA L. LUNA, Plaintiff, 12 13 14 15 vs. CAROLYN W. COLVIN, Acting Commissioner of Social Security, Defendant. 16 ) ) ) ) ) ) ) ) ) ) ) CASE NO. CV 14-01015 RZ MEMORANDUM OPINION AND ORDER 17 Plaintiff Ana Luna was late for her administrative hearing so late, in fact, 18 that the hearing had concluded before she arrived. The Administrative Law Judge issued 19 a Notice to Show Cause, giving her the opportunity to justify her failure to appear on time. 20 [AR 81] She responded [AR 87-88], but the Administrative Law Judge found that her 21 excuse did not provide good cause, and he therefore reached a decision without any live 22 testimony from her. [AR 13-19] This decision to proceed without Plaintiff forms the guts 23 of Plaintiff s appeal to this Court. 24 A party has a right to appear and present evidence, but the Administrative Law 25 Judge here clearly gave appropriate notice of the hearing, and warning of potential 26 consequences if no one attended. [AR 55] Whether the hearing was to be rescheduled 27 depended, under the regulations, on whether Plaintiff showed good cause for such 28 rescheduling. The operative regulation reads: Dockets.Justia.com 1 2 The Administrative Law Judge will . . . find good cause for 3 changing the time and place of your scheduled hearing, and will 4 reschedule your hearing, if your reason is one of the following 5 circumstances and is supported by the evidence: 6 (1) You or your representative are unable to attend or to 7 travel to the scheduled hearing because of a serious physical or 8 mental condition, incapacitating injury, or death in the family. 9 ... 10 11 20 C.F.R. § 404.936(e). The Administrative Law Judge found that there was no good 12 cause, because Plaintiff s explanation rested on a naked assertion of severe mental illness 13 that was not corroborated by the record. [AR 13] 14 Plaintiff s explanation for her arrival after the hearing had concluded was not 15 very enlightening. She said that in general my depression created anxiety and made it 16 difficult to be on time. My medication was changed and felt very tired sleepy [sic]. [AR 17 87] Even though she was represented by counsel, who transcribed the note [id.], she gave 18 no detail, nor any explanation of how any depression or anxiety prevented her from being 19 on time. She gave no indication of what medication had been changed, when it was 20 changed, or of how the change affected her ability to appear on time. She provided no 21 explanatory note from a doctor, nor anything else to give any verisimilitude to her 22 statement. She did add two statements that seem divorced from reality, indicating that an 23 unknown they had put cameras or something in her house, and that they put a pump 24 inside her. Whatever the import of these statements, however, they have no ready 25 relevance to the question of what caused her not to be on time. Again, the Court notes that 26 Plaintiff was represented by counsel, and that nevertheless no more specific or detailed 27 statement of cause was provided. The Administrative Law Judge was accurate in his 28 assessment; the explanation was little more than a naked assertion of severe mental illness. -2- 1 Under those circumstances, the Administrative Law Judge was justified in 2 concluding that Plaintiff had not shown good cause for her non-appearance at the scheduled 3 time. There was not, as required by the regulations, evidence of a serious mental or 4 physical condition that in fact caused Plaintiff not to appear as scheduled. Under the 5 regulations, therefore, the Administrative Law Judge was not required to re-schedule the 6 hearing. 7 Plaintiff also contends in this Court that the Administrative Law Judge 8 breached his duty to develop the record. The duty to develop the record arises when the 9 record is ambiguous or inadequate to allow meaningful review. Mayes v. Massanari, 276 10 F.3d 453, 459-60 (9th Cir. 2001) (citing Tonapetyan v. Halter, 242 F.3d 1144, 1150 (9th 11 Cir. 2001). Plaintiff cites no authority that this duty somehow trumps her responsibility 12 to appear at a duly noticed hearing, or somehow vitiates the good cause requirement to 13 justify re-scheduling of the hearing. Furthermore, there is no indication of any ambiguity 14 or inadequacy in the record. 15 Plaintiff also argues that the Administrative Law Judge erred in not identifying 16 the reasons for rejecting the opinion of treating physician Samuel Finkelstein, M.D. But 17 Plaintiff identifies no such opinion of Dr. Finkelstein that was ignored. So far as the Court 18 can tell, Dr. Finkelstein indicated that he had been treating Plaintiff for opioid dependence, 19 and requested that she be considered for an Assistance Program. [AR 232] His records 20 show her treatment for dealing with her opioid dependence. [AR 248 et seq.] Plaintiff 21 herself acknowledges that she has been in remission from drug usage for more than three 22 years. (Plaintiff s Memorandum in Support of Complaint 12:24-25.) There is no merit to 23 Plaintiff s complaint about the Administrative Law Judge s assessment of Dr. Finkelstein. 24 In her reply memorandum, Plaintiff asserts that within the records from 25 Dr. Finkelstein lie notations about Plaintiff s depression, anxiety and poor sleep, suggesting 26 that these records bolster Plaintiff s argument that the Administrative Law Judge erred in 27 concluding that Plaintiff did not have a severe mental impairment. But the existence of an 28 impairment does not equate with the existence of severity; severity is a question of the -3- 1 ability to function. 20 C.F.R. § 404.1521. The Administrative Law Judge concluded that 2 Plaintiff did not have a severe impairment, noting that the latest treatment note was almost 3 two years old [AR 13], that Plaintiff had sought unemployment benefits, which required 4 an attestation that she was able to work, and that the consultant s examination indicated no 5 restriction on her ability to function. [AR 18] As with any other finding, the finding of 6 severity must be backed by substantial evidence. Smolen v. Chater, supra, 80 F.3d 1273, 7 1289-90 (9th Cir. 1996). Here it was. 8 Plaintiff s final argument is that the Administrative Law Judge wrongly 9 judged her credibility, because he misstated her prior earnings. The argument is misplaced, 10 as the Administrative Law Judge did not make credibility findings; indeed, since Plaintiff 11 did not testify, there was no testimony that might have been judged either credible or 12 lacking in credibility. 13 Administrative Law Judge s discussion of the non-severity of Plaintiff s impairment. [AR 14 18] The statement about Plaintiff s earnings was part of the 15 The Administrative Law Judge did not err, and substantial evidence supported 16 his determinations. Drouin v. Sullivan, 966 F.2d 1255, 1257 (9th Cir. 1992). Accordingly, 17 the Commissioner s decision is affirmed. 18 19 DATED: October 17, 2014 20 21 22 RALPH ZAREFSKY UNITED STATES MAGISTRATE JUDGE 23 24 25 26 27 28 -4-
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