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Tresvan v. Astrue

June 9, 2010

HANS TRESVAN, PLAINTIFF,
v.
MICHAEL J. ASTRUE, COMMISSIONER OF THE SOCIAL SECURITY ADMINISTRATION, DEFENDANT.



The opinion of the court was delivered by: Patrick J. Walsh United States Magistrate Judge

MEMORANDUM OPINION AND ORDER

I. INTRODUCTION

Before the Court is Plaintiff's appeal of a decision by Defendant Social Security Administration ("the Agency"), denying his application for Supplemental Security Income benefits ("SSI"). Plaintiff claims that the Administrative Law Judge ("ALJ") erred by failing to fulfill her duty to fully develop the record. For the following reasons, the Court agrees; the Agency's decision is reversed and the case is remanded for further proceedings.

II. SUMMARY OF PROCEEDINGS

On March 7, 2005, Plaintiff applied for SSI, claiming that, beginning on March 1, 2000, he became unable to work due to depression, blackouts, bipolar disorder, and schizophrenia.

(Administrative Record ("AR") 67-69.) The Agency denied the applications initially and on reconsideration. (AR 50, 59, 62-66.) Plaintiff then requested and was granted a hearing before an ALJ. (AR 51-56, 61.) On September 17, 2007, Plaintiff, without counsel, appeared at the hearing by telephone from prison. (AR 905-36.) On October 15, 2007, the ALJ issued a decision denying his application. (AR 23-34.) Though she determined that Plaintiff suffered from "a psychotic disorder not otherwise specified," she concluded that Plaintiff's psychotic episodes were due to his failure to take his medications as prescribed. (AR 28, 32.)

Plaintiff appealed the ALJ's decision to the Appeals Council, submitting over 400 pages of new medical records from the California Department of Corrections and Rehabilitation ("CDCR"). (AR 477-895.) After considering this new evidence, the Appeals Council denied Plaintiff's request for review. (AR 6-8, 20.) Plaintiff then filed the instant action.

III. DISCUSSION

Plaintiff claims that the ALJ failed to properly inform him of his right to have counsel and that, as a result, Plaintiff did not knowingly waive his right to counsel. (Joint Stip. at 4.) He claims further that he was prejudiced by his lack of representation at the administrative hearing because the ALJ failed to properly develop the record by obtaining medical records from the CDCR. (Joint Stip. at 4-5.)

The Agency argues that Plaintiff knowingly waived his right to counsel and was not otherwise prejudiced by the lack of representation. (Joint Stip. at 6.) According to the Agency, the ALJ fulfilled her duty to develop the record by employing a medical expert, who reviewed the medical records submitted and testified about Plaintiff's mental health and his treatment. (Joint Stip. at 7-8.) In the Agency's view, the CDCR records Plaintiff now complains of were not relevant to the ALJ's decision because they relate to his treatment after the ALJ issued her decision. (Joint Stip. at 8.) For the following reasons, the Court concludes that the ALJ failed to fully develop the record and remand is required.

Although a Social Security claimant has the right to be represented by counsel at an administrative hearing, the "[l]ack of counsel does not affect the validity of the hearing unless the [claimant] can demonstrate prejudice or unfairness in the administrative proceedings." Key v. Heckler, 754 F.2d 1545, 1551 (9th Cir. 1985) (citing Vidal v. Harris, 637 F.2d 710, 713 (9th Cir. 1981)). Thus, the critical issue is whether the administrative proceeding was fair, not whether the claimant properly waived his right to counsel. Vidal, 637 F.2d at 714 ("[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, supra."); see also Higbee v. Sullivan, 975 F.2d 558, 561-62 (9th Cir. 1992) (per curiam). Moreover, while an ALJ has a "special duty to fully and fairly develop the record and to assure that the claimant's interests are considered," Smolen v. Chater, 80 F.3d 1273, 1288 (9th Cir. 1996) (internal quotation marks omitted), where, as here, a claimant is not represented by counsel, "'it is incumbent upon the ALJ to scrupulously and conscientiously probe into, inquire of, and explore for all the relevant facts.'" Higbee, 975 F.2d at 561 (quoting Cox v. Califano, 587 F.2d 988, 991 (9th Cir. 1978)); see also Celaya v. Halter, 332 F.3d 1177, 1183 (9th Cir. 2003). The ALJ's duty to develop the record is further heightened where the claimant has a mental impairment and is unable to protect his own interests. Tonapetyan v. Halter, 242 F.3d 1144, 1150 (9th Cir. 2001); Higbee, 975 F.2d at 562.

At the outset of the hearing, the ALJ attempted to obtain a waiver of counsel from Plaintiff, who was participating in the hearing via telephone from state prison:

Q: . . . You are aware of your right to be represented, ...


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