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Mendez v. Astrue

July 13, 2009

MARTHA ALISIA MENDEZ, PLAINTIFF,
v.
MICHAEL J. ASTRUE, COMMISSIONER, SOCIAL SECURITY ADMINISTRATION, DEFENDANT.



The opinion of the court was delivered by: Carla M. Woehrle United States Magistrate Judge

DECISION AND ORDER

The parties have consented, under 28 U.S.C. § 636(c), to the jurisdiction of the undersigned Magistrate Judge. Plaintiff seeks review of the Commissioner's denial of disability benefits. As discussed below, the court finds that the Commissioner's decision should be reversed and this matter remanded for further proceedings, on the basis that the record has not been fully developed.

I. BACKGROUND

Plaintiff Martha Alisia Mendez was born on July 8, 1972, and was thirty-four years old at the time of her administrative hearing. [Administrative Record ("AR") 122, 353.] She has a tenth grade education and past relevant work experience an office administrator. [AR 36, 150.] Plaintiff alleges disability on the basis of three discs injured in her lower back, upper extremity limitations, the need to utilize a cane, the need to lie down due to back pain, obesity and depression. [AR 39; Joint Stipulation ("JS") at 10.]

Plaintiff applied for disability insurance benefits ("DIB") on October 18, 2005, and supplemental security income ("SSI") on September 15, 2005, alleging disability since August 24, 2004. [AR 28.] After the applications were denied initially and on reconsideration, Plaintiff requested an administrative hearing on June 27, 2006. [AR 52-56.] In a written notice dated August 4, 2006, the Commissioner informed Plaintiff that her request had been granted and that Plaintiff would receive future notice setting the hearing date. [AR 56-57.] The notice informed plaintiff that she had a right to representation at the hearing, that a representative "can help you get evidence, prepare for the hearing, and present your case at the hearing," that "some private lawyers charge a fee only if you receive benefits," and that "some organizations" may provide free legal representation. [AR 56.] Subsequent notices dated May 17, 2007, and May 24, 2007, informed Plaintiff of her right to representation. [AR 60-63.]

An administrative hearing was held on June 13, 2007. [AR 353.] Plaintiff appeared without counsel. [Id.] At the start of the hearing, the ALJ stated the following:

[I]t's my responsibility to see that you have a full and fair hearing today, so I want to discuss with you some of the important rights you have and talk about how we'll proceed today. One of the most important rights you have is a right to counsel or an attorney to represent you, but there's no requirement that you be represented by counsel. You're entitled to proceed representing yourself and you can have a witness testify on your behalf. As I reviewed the exhibit file, I see that you've been sent notices advising you of your right to counsel. I see you're here without counsel at this time, so I'm thinking it appears that you've decided to proceed without counsel. Is that what you want to do?

Plaintiff responded, "Yes, sir." [AR 355.] The hearing then proceeded. [AR 355-87.] The ALJ subsequently denied benefits in a decision dated July 26, 2007. [AR 28-36.] When the Appeals Council denied review on August 19, 2008, the ALJ's decision became the Commissioner's final decision. [AR 4.]

II. PROCEEDINGS IN THIS COURT

Plaintiff's complaint was filed on October 10, 2008. On April 8, 2009, defendant filed an answer and plaintiff's Administrative Record ("AR"). On July 6, 2009, the parties filed their Joint Stipulation ("JS") identifying matters not in dispute, issues in dispute, the positions of the parties, and the relief sought by each party. This matter has been taken under submission without oral argument.

III. STANDARD OF REVIEW

Under 42 U.S.C. § 405(g), a district court may review the Commissioner's decision to deny benefits. The Commissioner's (or ALJ's) findings and decision should be upheld if they are free of legal error and supported by substantial evidence. However, if the court determines that a finding is based on legal error or is not supported by substantial evidence in the record, the court may reject the finding and set aside the decision to deny benefits. See Aukland v. Massanari, 257 F.3d 1033, 1035 (9th Cir. 2001); Tonapetyan v. Halter, 242 F.3d 1144, 1147 (9th Cir. 2001); Osenbrock v. Apfel, 240 F.3d 1157, 1162 (9th Cir. 2001); Tackett v. Apfel, 180 F.3d 1094, 1097 (9th Cir. 1999); Reddick v. Chater, 157 F.3d 715, 720 (9th Cir. 1998); Smolen v. Chater, 80 F.3d 1273, 1279 (9th Cir. 1996); Moncada v. Chater, 60 F.3d 521, 523 (9th Cir. 1995)(per curiam). "Substantial evidence is more than a scintilla, but less than a preponderance." Reddick, 157 F.3d at 720. It is "relevant evidence which a reasonable person might accept as adequate to support a conclusion." Id. To determine whether substantial evidence supports a finding, a court must review the administrative record as a whole, "weighing both the evidence that supports and the evidence that detracts from the Commissioner's conclusion." Id. "If the evidence can reasonably support either affirming or reversing," the reviewing court "may not substitute its judgment" for that of the Commissioner. Reddick, 157 F.3d at 720-721; see also Osenbrock, 240 F.3d at 1162.

IV. DISCUSSION

A. ISSUES IN ...


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