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Schneider v. Astrue


May 13, 2010


The opinion of the court was delivered by: Alicia G. Rosenberg United States Magistrate Judge


Julie Schneider filed this action on January 5, 2009. Pursuant to 28 U.S.C. § 636(c), the parties filed Statements of Consent to proceed before Magistrate Judge Rosenberg on March 5 and 12, 2009. (Dkt. Nos. 6-7.) On September 24, 2009, the parties filed a Joint Stipulation ("JS") that addressed the disputed issues. The Commissioner filed the Certified Administrative Record ("AR"). The Court has taken the matter under submission without oral argument.

Having reviewed the entire file, the Court reverses the Commissioner's decision and remands for further proceedings consistent with this Opinion.


On March 8, 2000, Schneider filed an application for disability insurance benefits. AR 19, 53-54. The application was denied initially and upon reconsideration. AR 40-41. On February 4, 2004, Schneider requested a hearing. AR 19, 50. The Administrative Law Judge ("ALJ") conducted a hearing on July 13, 2006. AR 451-481. On May 24, 2007, the ALJ issued a decision denying benefits. AR 16-28. Schneider filed a request for review of the ALJ's decision. AR 12. On November 6, 2008, the Appeals Council denied the request for review. AR 6-9. This lawsuit followed.


Pursuant to 42 U.S.C. § 405(g), this Court reviews the Commissioner's decision to deny benefits. The decision will be disturbed only if it is not supported by substantial evidence, or it is based upon the application of improper legal standards. Moncada v. Chater, 60 F.3d 521, 523 (9th Cir. 1995); Drouin v. Sullivan, 966 F.2d 1255, 1257 (9th Cir. 1992).

"Substantial evidence" means "more than a mere scintilla but less than a preponderance -- it is such relevant evidence that a reasonable mind might accept as adequate to support the conclusion." Moncada, 60 F.3d at 523. In determining whether substantial evidence exists to support the Commissioner's decision, the Court examines the administrative record as a whole, considering adverse as well as supporting evidence. Drouin, 966 F.2d at 1257. When the evidence is susceptible to more than one rational interpretation, the Court must defer to the Commissioner's decision. Moncada, 60 F.3d at 523.


A person qualifies as disabled and is eligible for benefits, "only if his physical or mental impairment or impairments are of such severity that he is not only unable to do his previous work but cannot, considering his age, education, and work experience, engage in any other kind of substantial gainful work which exists in the national economy." Barnhart v. Thomas, 540 U.S. 20, 21-22, 124 S.Ct. 376, 157 L.Ed. 2d 333 (2003).

A. The ALJ's Findings

Schneider last met the insured status requirements for disability insurance benefits on June 30, 2001. AR 22.

The ALJ found that Schneider had the following severe impairments: "migraine headaches, cervical facet joint syndrome, myofascial pain syndrome, numbness in both upper and lower extremities, and a history of cervical cancer." Id. Schneider had the residual functional capacity "for light work with the ability to lift and carry 20 pounds occasionally and 10 pounds frequently, stand/walk for six hours out of an eight hour day and . . . sit for six hours out of an eight hour day." AR 23. Schneider could perform her past relevant work as a sales clerk and office assistant as it was generally performed. AR 28.

B. Treating Physician

The opinion of a treating physician is given more weight than the opinion of non-treating physicians. Orn v. Astrue, 495 F.3d 625, 631 (9th Cir. 2007). When a treating physician's opinion is contradicted by another doctor, "the ALJ may not reject this opinion without providing specific and legitimate reasons supported by substantial evidence in the record. This can be done by setting out a detailed and thorough summary of the facts and conflicting clinical evidence, stating his interpretation thereof, and making findings." Id. at 632 (citations and quotation marks omitted).

"[A]n ALJ cannot avoid these requirements simply by not mentioning the treating physician's opinion and making findings contrary to it." Lingenfelter v. Astrue, 504 F.3d 1028, 1038 (9th Cir. 2008); Embrey v. Bowen, 849 F.2d 418, 422 n.3 (9th Cir. 1988) ("The ALJ must either accept the opinions of [claimant's] treating physicians or give specific and legitimate reasons for rejecting them.").

Schneider argues that the ALJ erred in ignoring the opinion of a treating physician, Dr. Furgang, who filled out a "Medical Opinion Re: Ability to Do Work-Related Activities (Physical)" form on September 5, 2000. AR 139-141. The ALJ mentioned Dr. Furgang's diagnosis of cervical facet joint syndrome and myofascial pain syndrome on April 27, 2000. AR 24, 138. The ALJ stated that the remaining medical records related to the period following expiration of Schneider's insured status in June 2001. AR 25, 27. Dr. Furgang's opinion dated September 2000 appears to have been overlooked. This matter will be remanded for consideration of Dr. Furgang's opinion.

C. Right to Counsel

"A social security [recipient] has a statutory right, which may be waived, to be represented by counsel at a hearing before an ALJ." Graham v. Apfel, 129 F.3d 1420, 1422 (11th Cir. 1997) (per curiam); Binion v. Shalala, 13 F.3d 243, 245 (7th Cir. 1994); 24 U.S.C. § 406.

However, "absence of counsel alone [is] not sufficient grounds for remand." Hall v. Sec'y of HEW, 602 F.2d 1372, 1378 (9th Cir. 1979). "The claimant must demonstrate prejudice or unfairness in the administrative proceedings to be entitled to relief by way of remand." Id. "[T]he issue is not whether the right to representation was knowingly waived, rather, it is whether, in the absence of representation, the administrative law judge met the heavy burden imposed by Cox." Vidal v. Harris, 637 F.2d 710, 714 (9th Cir. 1981). When the claimant is unrepresented, the ALJ must "'scrupulously and conscientiously probe into, inquire of, and explore all relevant facts,'" and be "'especially diligent in ensuring that favorable as well as unfavorable facts and circumstances are elicited.'" Cox v. Califano, 587 F.2d 988, 991 (9th Cir. 1978) (citations omitted). "Prejudice is not demonstrated by merely speculative eventualities." Hall, 602 F.2d at 1378.

Schneider argues she was prejudiced by lack of representation because the ALJ failed to develop the record. However, Schneider has not shown any failure to develop the record fully and fairly. Schneider argues only that the ALJ erred in ignoring Dr. Furgang's September 2000 report, which was already in the record. JS 5. Failure to consider a treating physician's opinion is the type of error that occurs whether or not a claimant is represented. Cf. Vidal, 637 F.2d at 714 (prejudice due to ALJ's inadequate examination of vocational expert that likely would have been revealed had claimant been represented by counsel at the hearing); Cox, 587 F.2d at 991 (prejudice due to misunderstanding of testimony of vocational expert and physician's letter).

D. Credibility

Given that this matter is being remanded to the Commissioner for further proceedings, the Court does not reach the issue of Schneider's credibility, which must be assessed in light of the entire record. On remand, the ALJ may revisit the issue of Schneider's credibility in light of Dr. Furgang's September 2000 opinion and the record as a whole.


IT IS HEREBY ORDERED that the decision of the Commissioner is reversed and the matter remanded for further proceedings consistent with this Opinion.

IT IS FURTHER ORDERED that the Clerk of the Court serve copies of this Order and the Judgment herein on all parties or their counsel.


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