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Joseph Preston v. Michael J. Astrue

December 16, 2010


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


Plaintiff filed this action seeking reversal of the decision of defendant, the Commissioner of the Social Security Administration (the "Commissioner"), denying plaintiff's application for supplemental security income 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 summarized in the Joint Stipulation. [JS 2]. In a November 4, 2009 hearing decision that constitutes the Commissioner's final decision in this matter, an administrative law judge ("ALJ") found that plaintiff had a severe mood disorder, but that his residual functional capacity ("RFC") did not preclude him from performing work available in significant numbers in the national economy.

Therefore, the ALJ found plaintiff not disabled at any time after April 1, 2008.*fn1 [Administrative Record ("AR") 20].

Standard of Review

The Commissioner's denial of benefits should be disturbed only if it is not supported by substantial evidence or is based on legal error. Stout v. Comm'r, Social Sec. Admin., 454 F.3d 1050, 1054 (9th Cir. 2006); Thomas v. Barnhart, 278 F.3d 947, 954 (9th Cir. 2002). "Substantial evidence" means "more than a mere scintilla, but less than a preponderance." Bayliss v. Barnhart, 427 F.3d 1211, 1214 n.1 (9th Cir. 2005). "It is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Burch v. Barnhart, 400 F.3d 676, 679 (9th Cir. 2005)(internal quotation marks omitted). 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. Robbins v. Social Sec. Admin, 466 F.3d 880, 882 (9th Cir. 2006); Verduzco v. Apfel, 188 F.3d 1087, 1089 (9th Cir. 1999). "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. Comm'r of Social Sec. Admin., 169 F.3d 595, 599 (9th Cir.1999)).

Duty to develop the record

Plaintiff contends that the ALJ erred in failing adequately to develop the record because plaintiff was not represented by counsel during the hearing, and the ALJ failed to obtain plaintiff's treating source records. [AR 3-12].

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)). The ALJ's duty to develop the record is heightened when a claimant's ability to protect his interests is affected by a mental impairment. Higbee, 975 F.2d at 561-562; Delorme v. Sullivan, 924 F.2d 841, 849 (9th Cir. 1991). "When 'the heavy burden imposed by Cox' is not met, and the claimant may have been prejudiced, 'the interests of justice demand that the case be remanded.'" Higbee, 975 F.2d at 561 (quoting Vidal, 637 F.2d at 714-715 and citing Thompson v. Schweiker, 665 F.2d 936, 941 (9th Cir.1982); Cruz v. Schweiker, 645 F.2d 812, 814 (9th Cir.1981); and Cox, 587 F.2d at 991).

Plaintiff appeared for the hearing without a representative, and both he and his father testified. The ALJ engaged in a colloquy with plaintiff regarding the issues to be decided and plaintiff's right to representation. The ALJ explained that there were two cases before him with the same set of facts, one involving childhood benefits, and the other involving "adult benefits as a child from your father's account." [AR 23]. The ALJ told plaintiff that he had "been sent some notices in the mail," and asked, "[h]as your dad let you read any of them?" [AR 23]. Plaintiff said that he "didn't know he was getting" any notices, and had seen his father's name on notices received in the mail, but not his own name. [AR 23-24]. Asked by the ALJ whether he understood that he had a right to be represented in connection with the hearing, plaintiff answered, "No." [AR 24]. Plaintiff also answered "no" when asked if he understood how to obtain a representative. [AR 24]. The ALJ proceeded to explain plaintiff's right to be represented by an attorney or a non-attorney representative during the hearing. [AR 24]. The ALJ asked plaintiff if he wanted to proceed with the hearing or contact a representative, and plaintiff said that he wished to proceed. The ALJ told plaintiff that he could "always appeal" an adverse decision and "get a representative at that time." [AR 25]. Plaintiff said that he understood. [AR 25].

In response to questions by the ALJ about his treatment, plaintiff testified that he was taking Seroquel and another medication whose name he could not remember. [AR 27]. He said that he previously had refused to take his medication for about three weeks because it made him twitch and feel sick, and he did not like taking it. [AR 28-29]. Plaintiff said that he saw the doctor once a month for medications, and that he also had "a therapist and a psychologist." [AR 29]. He had not seen the therapist for "about a month" and believed he had missed an appointment. [AR 29].

Plaintiff said that he received his high-school diploma in 2008 and was taking a "water treatment program" class but did not like it. [AR 27, 30]. He had been "working for a school program in a cafeteria" but was "kicked out" for not listening to his work assignments and talking on his cell phone. [AR 26]. Plaintiff said that he did not think he could work but he did not know why. [AR 27].

The ALJ told plaintiff that he had the report issued in plaintiff's case by a disability hearing officer [see AR 61-64], and asked plaintiff if he remembered appearing before ...

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