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Harris v. Astrue

October 30, 2009

MELVIN HARRIS, PLAINTIFF,
v.
MICHAEL J. ASTRUE, COMMISSIONER OF SOCIAL SECURITY, DEFENDANT.



The opinion of the court was delivered by: Honorable Oswald Parada United States Magistrate Judge

MEMORANDUM OPINION; ORDER

The Court*fn1 now rules as follows with respect to the disputed issues listed in the Joint Stipulation ("JS").*fn2

I. DISPUTED ISSUES

As reflected in the Joint Stipulation, the disputed issues which Plaintiff raises as the grounds for reversal and/or remand are as follows:

1. Whether the Administrative Law Judge ("ALJ") properly developed the record regarding Plaintiff's mental impairment;

2. Whether the ALJ considered the severity of Plaintiff's mental impairment;

3. Whether the ALJ considered the mental and physical demands of Plaintiff's past relevant work; and

4. Whether the ALJ appropriately established that Plaintiff could perform the jobs of electronics worker and bench assembler.

(JS at 2-3.)

II. STANDARD OF REVIEW

Under 42 U.S.C. § 405(g), this Court reviews the Commissioner's decision to determine whether the Commissioner's findings are supported by substantial evidence and whether the proper legal standards were applied. DeLorme v. Sullivan, 924 F.2d 841, 846 (9th Cir. 1991). Substantial evidence means "more than a mere scintilla" but less than a preponderance. Richardson v. Perales, 402 U.S. 389, 401, 91 S.Ct. 1420, 28 L.Ed. 2d 842 (1971); Desrosiers v. Sec'y of Health & Human Servs., 846 F.2d 573, 575-76 (9th Cir. 1988). Substantial evidence is "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Richardson, 402 U.S. at 401 (citation omitted). The Court must review the record as a whole and consider adverse as well as supporting evidence. Green v. Heckler, 803 F.2d 528, 529-30 (9th Cir. 1986). Where evidence is susceptible of more than one rational interpretation, the Commissioner's decision must be upheld. Gallant v. Heckler, 753 F.2d 1450, 1452 (9th Cir. 1984).

III. DISCUSSION

A. The ALJ Fully and Fairly Developed the Record

Plaintiff contends that the ALJ failed to properly develop the record by failing to obtain a psychiatric or psychological evaluation of Plaintiff to assess his mental impairment. (JS at 3-4.) The Court disagrees.

The ALJ has an independent duty to fully and fairly develop a record in order to make a fair determination as to disability, even where, as here, the claimant is represented by counsel. Celaya v. Halter, 332 F.3d 1177, 1183 (9th Cir. 2003); see also Tonapetyan v. Halter, 242 F.3d, 1144, 1150 (9th Cir. 2001); Crane v. Shalala, 76 F.3d 251, 255 (9th Cir. 1996). The duty is heightened when the claimant is unrepresented or is mentally ill and thus unable to protect her own interests. Celaya, 332 F.3d at 1183; Higbee v. Sullivan, 975 F.2d 558, 562 (9th Cir.1992); see also Burch v. Barnhart, 400 F.3d 676, 682-83 (9th Cir. 2005) (distinguishing Burch from Celaya at least in part, based on the fact that the plaintiff in Burch was represented by counsel). Ambiguous evidence, or the ALJ's own finding that the record is inadequate to allow for proper evaluation of the evidence, triggers the ALJ's duty to "conduct an appropriate inquiry."See Tonapetyan, 242 F.3d at 1150.

Here, the record contains no ambiguous or inadequate evidence regarding Plaintiff's mental impairment, as there is no credible evidence to support the alleged mental impairments. As a result, the ALJ's duty to develop the record as to ambiguous evidence is not triggered. See Tonapetyan, 242 F.3d at 1150; see also Mayes v. Massanari, 276 F.3d 453, 459-60 (9th Cir. 2001). The ALJ noted that "[u]nder direct and leading questioning by his representative, the claimant agreed he has concentration problems due to pain and feels depressed." (AR at 14, 28-29) Plaintiff, nevertheless, testified that he never received any mental health treatment during the relevant period. (Id. at 29.) Additionally, Plaintiff applied for disability insurance benefits alleging that he was unable to work due to a "herniated disc-back injury." (Id. at 44, 72.) There is no indication that Plaintiff alleged any mental impairments in his application for disability benefits. (Id.)

Moreover, the objective medical evidence, including the treating and consultative examiners' opinions, does not support a finding of an alleged mental impairment, or any functional limitations due to Plaintiff's cognitive functioning. The only evidence suggesting a mental impairment is Plaintiff's testimony, elicited by his attorney, claiming he suffered from crying spells, concentration issues, and depression. (Id. at 28-29.) The ALJ, however, properly discounted Plaintiff's credibility based on discrepancies between Plaintiff's complaints and the objective medical evidence, and the implausibility of Plaintiff's daily activities.*fn3 (Id. at ...


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