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Perez v. Astrue

September 29, 2009


The opinion of the court was delivered by: Margaret A. Nagle United States Magistrate Judge


Plaintiff filed a Complaint on October 25, 2007, seeking review of the denial by the Social Security Commissioner ("Commissioner") of plaintiff's applications for a period of disability ("POD"), disability insurance benefits ("DIB"), and supplemental security income ("SSI"). On February 28, 2008, the parties consented to proceed before the undersigned United States Magistrate Judge. The parties filed a Joint Stipulation on December 9, 2008, in which: plaintiff seeks an order remanding the matter for the consideration of evidence not properly addressed by the ALJ; and defendant seeks an order affirming the Commissioner's decision. The Court has taken the parties' Joint Stipulation under submission without oral argument.


On August 30, 2005, plaintiff filed applications for a POD, DIB, and SSI. (Administrative Record ("A.R.") 60-62, 245-46.) Plaintiff alleges an inability to work since December 1, 2002, due to diabetes, high blood pressure, high cholesterol, obesity, arthritis, kidney problem(s), back injury, leg pain, depression, and anxiety. (A.R. 41, 49, 120.) She has past relevant work experience as an "in-home aid."*fn1 (A.R. 69, 120.)

The Commissioner denied plaintiff's applications initially (A.R. 49-53) and upon reconsideration (A.R. 41-46). Thereafter, plaintiff filed a written request for hearing, and on October 11, 2006, plaintiff, who was not represented by counsel, testified, with the assistance of a Spanish language interpreter, at a hearing before Administrative Law Judge Robert A. Evans ("ALJ"). (A.R. 10, 248-57.) On October 23, 2006, the ALJ denied plaintiff's claims, and the Appeals Council subsequently denied plaintiff's request for review of the ALJ's decision. (A.R. 3-5, 21-27.)


In his written decision, the ALJ found that plaintiff met the insured status requirements of the Social Security Act through December 31, 2007, and plaintiff has not engaged in substantial gainful activity since December 1, 2002, her alleged disability onset date. (A.R. 23.)

The ALJ further found that plaintiff suffers from "severe" back pain and obesity, but she does not have an impairment or combination of impairments that meets or medically equals one of the listed impairments set forth in 20 C.F.R. Part 404, Subpart P, Appendix 1. (A.R. 23-24.)

The ALJ determined that plaintiff retains the residual functional capacity ("RFC") to perform work that would require her to: lift and carry 50 pounds occasionally and 25 pounds frequently; stand and/or walk for 6 hours out of an 8 hour workday; stand every 2 hours to stretch for 5 to 10 minutes, secondary to back pain; perform no fine manipulation, secondary to her allegations of neuropathy; and secondary to her obesity, never climb, occasionally balance, stoop, kneel, crouch, crawl, and not perform work that would require her to walk on uneven terrain or work at heights. (A.R. 24.) The ALJ further found that plaintiff's statements concerning the intensity, persistence, and limiting effects of her subjective pain symptoms were "not entirely credible." (A.R. 26.)

Based on the ALJ's RFC assessment and the testimony of a vocational expert, the ALJ found that plaintiff is capable of performing her past relevant work as a home attendant. (A.R. 26.) Accordingly, the ALJ concluded that plaintiff has not been under a disability, as defined in the Social Security Act, from December 1, 2002, through the date of the ALJ's decision. (A.R. 27.)


Under 42 U.S.C. § 405(g), this Court reviews the Commissioner's decision to determine whether it is free from legal error and supported by substantial evidence in the record as a whole. Orn v. Astrue, 495 F.3d 625, 630 (9th Cir. 2007). Substantial evidence is "'such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.'" Id. (citation omitted). The "evidence must be more than a mere scintilla but not necessarily a preponderance." Connett v. Barnhart, 340 F.3d 871, 873 (9th Cir. 2003). While inferences from the record can constitute substantial evidence, only those "'reasonably drawn from the record'" will suffice. Widmark v. Barnhart, 454 F.3d 1063, 1066 (9th Cir. 2006)(citation omitted).

Although this Court cannot substitute its discretion for that of the Commissioner, the Court nonetheless must review the record as a whole, "weighing both the evidence that supports and the evidence that detracts from the [Commissioner's] conclusion." Desrosiers v. Sec'y of Health and Human Servs., 846 F.2d 573, 576 (9th Cir. 1988); see also Jones v. Heckler, 760 F.2d 993, 995 (9th Cir. 1985). "The ALJ is responsible for determining credibility, resolving conflicts in medical testimony, and for resolving ambiguities." Andrews v. Shalala, 53 F.3d 1035, 1039-40 (9th Cir. 1995).

The Court will uphold the Commissioner's decision when the evidence is susceptible to more than one rational interpretation. Burch v. Barnhart, 400 F.3d 676, 679 (9th Cir. 2005). However, the Court may review only the reasons stated by the ALJ in his decision "and may not affirm the ALJ on a ground upon which he did not rely." Orn, 495 F.3d at 630; see also Connett, 340 F.3d at 874. The Court will not reverse the Commissioner's decision if it is based on harmless error, which exists only when it is "clear from the record that an ALJ's error was 'inconsequential to the ultimate non-disability determination.'" Robbins v. Soc. Sec. Admin., 466 F.3d 880, 885 (9th Cir. 2006)(quoting Stout v. Comm'r, 454 F.3d 1050, 1055-56 (9th Cir. 2006)); see also Burch, 400 F.3d at 679.


Plaintiff alleges the following five issues: (1) whether the ALJ properly apprised plaintiff of her right to counsel and whether her waiver of counsel was properly obtained; (2) whether the ALJ fully and fairly developed the record; (3) whether the ALJ erred by failing to find that plaintiff's diabetes with neuropathy was a "severe" impairment; (4) whether the ALJ erred in determining that plaintiff is capable of returning to her past relevant work; and (5) whether the ALJ properly evaluated plaintiff's subjective symptom testimony. (Joint Stipulation ("Joint Stip.") at 3-4.) The Court addresses plaintiff's first and second issues together, because they are interrelated.

I. The ALJ Failed To Develop The Record Adequately And To Ensure That Plaintiff's Interests Were Protected, Despite The Fact That Plaintiff Was Proceeding Without Counsel

Plaintiff had a statutory right to counsel at the administrative hearing, which she could knowingly and intelligently waive. Duns v. Heckler, 586 F.Supp. 359, 364 (N.D. Cal. 1984)(citing Ware v. Schweiker, 651 F.2d 408 (5th Cir. 1982)); Floyd v. Schweiker, 550 F.Supp. 863 (N.D. Ill. 1982). Even if her waiver was deficient, plaintiff must demonstrate prejudice or unfairness in the proceedings to obtain a remand. Hall v. Sec'y of Health, Educ. & Welfare, 602 F.2d 1372, 1378 (9th Cir. 1979). The real issue, however, is not whether the waiver was knowing or intelligent, but whether, without the representation, the ALJ met his heightened duty "to conscientiously and scrupulously probe into, inquire of, and explore for all the relevant facts" to protect plaintiff's interests. Vidal v. Harris, 637 F.2d 710, 713 (9th Cir. 1981); Cox v. Califano, 587 F.2d 988 (9th Cir. 1978). This duty includes diligently ensuring that both favorable and unfavorable facts and circumstances are elicited at the administrative hearing. Key v. Heckler, 754 F.2d 1545, 1551 (9th Cir. 1985). The ALJ must fully and fairly develop the record, and when a claimant is not represented by counsel, an ALJ must be "especially diligent in exploring for all the relevant facts." Tonapetyan v. Halter, 242 F.3d 1144, 1150 (9th Cir. 2001). Only if plaintiff can demonstrate prejudice or unfairness in the administrative proceeding, as a result of not having counsel present, is remand warranted. Vidal, 637 F.2d at 713.

The Manual on Social Security Administration Hearings, Appeals and Litigation Law (HALLEX) I-2-6-52 sets forth the procedures ALJs are to follow to ensure that a plaintiff proceeding without counsel has made an informed choice to waive representation. HALLEX I-2-6-52 states:

[I]f the claimant is unrepresented, the ALJ must ensure that the claimant is capable of making an informed choice about representation. For example, the ALJ should ask an unrepresented claimant the following questions on the record:

* Did you receive the hearing acknowledgment letter and its enclosure(s)? (If not, the ALJ will provide the claimant with a copy and the opportunity to read the letter.) The ALJ will enter into the record the acknowledgment ...

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