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Villegas v. Astrue

November 1, 2010

ELOISA VILLEGAS, PLAINTIFF,
v.
MICHAEL J. ASTRUE, COMMISSIONER OF THE SOCIAL SECURITY ADMINISTRATION, DEFENDANT(S).



The opinion of the court was delivered by: Andrew J. Wistrich United States Magistrate Judge

MEMORANDUM OF DECISION

Plaintiff filed this action seeking reversal of the decision of the defendant, the Commissioner of the Social Security Administration (the "Commissioner"), denying plaintiff's application for disability insurance benefits and supplemental security income ("SSI") benefits. The parties have filed a Joint Stipulation ("JS") setting forth their contentions with respect to each disputed issue.

Administrative Proceedings

The procedural facts are undisputed. [See JS 2-3]. Plaintiff filed an application for disability insurance benefits and SSI benefits on October 18, 2007. She alleged that she had been disabled since August 1, 2007 due to a heart problem, kidney problem, heart attacks, and high blood pressure. [JS 2; Administrative Record ("AR") 133-141, 176]. In a March 20, 2009 written hearing decision that constitutes the Commissioner's final decision in this matter, an Administrative Law Judge (the "ALJ") concluded that plaintiff was not disabled. [AR19-31]. The ALJ found that plaintiff had severe impairments consisting of coronary artery disease, status post coronary bypass graft surgeries, and tendinitis of both hands, but that her impairments did not preclude her from performing a range of light work. The ALJ found that plaintiff could not perform her past relevant work as a waitress and lost and found clerk, but that she could perform alternative work available in significant numbers in the national economy. [JS 3; AR 19-31].

Standard of Review

The Commissioner's denial of benefits should be disturbed only if it is not supported by substantial evidence or if it is based on the application of incorrect legal standards. Ukolov v. Barnhart, 420 F.3d 1002, 1004 (9th Cir. 2005); Thomas v. Barnhart, 278 F.3d 947, 954 (9th Cir. 2002). Substantial evidence is more than a mere scintilla but less than a preponderance. Richardson v. Perales, 402 U.S. 389, 401 (1971); Thomas, 278 F.3d at 954. Substantial evidence means "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Richardson, 402 U.S. at 401 (quoting Consolidated Edison Co. of New York v. N.L.R.B., 305 U.S. 197, 229 (1938)); Thomas, 278 F.3d at 954. The court is required to review the record as a whole, and to consider evidence detracting from the decision as well as evidence supporting the decision. Verduzco v. Apfel, 188 F.3d 1087, 1089 (9th Cir. 1999); Andrews v. Shalala, 53 F.3d 1035, 1039 (9th Cir. 1995). "Where the evidence is susceptible to more than one rational interpretation, one of which supports the ALJ's decision, the ALJ's conclusion must be upheld." Thomas, 278 F.3d at 954 (citing Morgan v. Commissioner of Social Sec. Admin., 169 F.3d 595, 599 (9th Cir.1999)).

Discussion

Duty to develop record regarding plaintiff's subjective symptoms Plaintiff contends that the ALJ erred in failing adequately to develop the record regarding her subjective symptoms and limitations. [See JS 4-25].

The ALJ is not "'a mere umpire' during disability proceedings. Rather, the ALJ has 'a special duty to fully and fairly develop the record and to assure that the claimant's interests are considered.'" Widmark v. Barnhart, 454 F.3d 1063, 1068 (9th Cir. 2006) (quoting Higbee v. Sullivan, 975 F.2d 558, 561 (9th Cir. 1992)(per curiam) and Brown v. Heckler, 713 F.2d 441, 443 (9th Cir.1983)). When 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 relevant facts. The ALJ must be especially diligent in ensuring that favorable as well as unfavorable facts and circumstances are elicited." Vidal v. Harris, 637 F.2d 710, 713 (9th Cir. 1981) (quoting Cox v. Califano, 587 F.2d 988, 991 (9th Cir. 1978)).

Plaintiff was not represented during the hearing and waived her right to counsel. [See AR 75-76]. After asking plaintiff to describe her past work, the ALJ said: "[L]et's just hear very briefly about your medical problems." [AR 78]. The ALJ remarked that plaintiff had submitted a "stack of papers" and asked whether she had submitted all of her relevant records. [AR 78]. Plaintiff replied that she "didn't have the records for my orthopedic doctor . . . and then my Dr. Enriquez . . ., so I'm missing two." [AR 79].*fn1 The following colloquy ensued:

BY THE ADMINISTRATIVE LAW JUDGE:

Q: Yeah, but what is your orthopedist treating you for?

A: For my hands.

Q: For your ...


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