Searching over 5,500,000 cases.

Buy This Entire Record For $7.95

Official citation and/or docket number and footnotes (if any) for this case available with purchase.

Learn more about what you receive with purchase of this case.

Jose Palacios v. Michael J. Astrue


February 28, 2011


The opinion of the court was delivered by: Hon. Jay C. Gandhi United States Magistrate Judge



INTRODUCTION AND SUMMARY On March 10, 2010, plaintiff Jose Palacios ("Plaintiff") filed a complaint against defendant Michael J. Astrue ("Defendant"), the Commissioner of the Social Security Administration, seeking review of a denial of an application for disability insurance benefits ("DIB"). [Docket No. 1.]

On September 30, 2010, Defendant filed his answer, along with a certified copy of the administrative record. [Docket Nos. 18, 21.]

On April 14, 2010, this matter was transferred to the calendar of the undersigned Magistrate Judge. [Docket No. 12.] Both Plaintiff and Defendantsubsequently consented to proceed for all purposes before the Magistrate Judge pursuant to 28 U.S.C. § 636(c). [Docket Nos. 13, 14.]

Pursuant to a March 12, 2010 case management order, the parties submitted a detailed, 20-page joint stipulation for decision on November 24, 2010. [Docket No. 24.] The Court deems the matter suitable for adjudication without oral argument. In sum, having carefully studied, inter alia, the parties' joint stipulation and the administrative record ("AR"), the Court concludes that, as detailed herein, there is substantial evidence in the record, taken as a whole, to support the decision of the Administrative Law Judge ("ALJ"). Thus, the Court affirms the Commissioner's decision denying benefits.


PERTINENT FACTUAL AND PROCEDURAL BACKGROUND Plaintiff, who was 50 years old on the date of his administrative hearing, has a sixth grade education. (See AR at 60, 395, 399.) His past relevant work includes employment as a coder of circuit boards, warehouse worker, and loader/unloader (Id. at 412; see also id. at 74, 83.)

On May 10, 2005, Plaintiff filed an application for DIB alleging that he has been disabled since June 30, 1998 due to dislocated discs in his back and headaches. (See AR at 13, 44.) Plaintiff's application was denied initially and upon reconsideration, after which he filed a timely request for a hearing. (Id. at 25, 26, 33, 34-39, 40, 42, 44-48, 49-52.)

On July 25, 2007, Plaintiff, proceeding pro se, appeared and testified at a hearing ("Hearing") before an ALJ. (See AR at 395, 397-415.) Corinne Porter, a vocational expert ("VE"), also testified. (See id. at 412-13.)

On August 17, 2007, the ALJ denied Plaintiff's request for benefits. (AR at 13-20.) Applying the well-known five-step sequential evaluation process, the ALJ found, at step one, that Plaintiff has not engaged in substantial gainful activity since his alleged onset date of disability through his date of last insured. (Id. at 15.)

At step two, the ALJ found that Plaintiff suffers from severe impairments consisting of "status post several fractures and lumbar sprain/strain."1/ (AR at 15 (bold omitted).)

At step three, the ALJ determined that the evidence does not demonstrate that Plaintiff's impairments, either individually or in combination, meet or medically equal the severity of any listing set forth in the Social Security regulations.2/ (AR at 15-16.)

The ALJ then assessed Plaintiff's residual functional capacity3/ ("RFC") and determined that he can perform light work, but limited him to "occasional climbing, stooping, kneeling, crouching, crawling, any stooping, or any power gripping or forceful torquing of the wrist." (AR at 16 (bold omitted).)

The ALJ found, at step four, that Plaintiff lacks the ability to perform his past relevant work. (AR at 18.)

At step five, based on Plaintiff's RFC and the VE's testimony, the ALJ found that "there were jobs that existed in significant numbers in the national economy that [Plaintiff] could have performed," such as cleaner, sewing machine operator, or hand packer. (AR at 19(bold omitted).) Thus, the ALJ concluded that Plaintiff was not suffering from a disability as defined by the Act. (Id. at 13, 19-20.)

Plaintiff filed a timely request for review of the ALJ's decision, which was

1/ Status post multiple fractures refers to the state or condition following several fractures. Stedman's Medical Dictionary 770, 1830 (28th ed. 2006).

2/ See 20 C.F.R. pt. 404, subpt. P, app. 1. 3/ Residual functional capacity is what a claimant can still do despite existing exertional and non-exertional limitations. Cooper v. Sullivan, 880 F.2d 1152, 1155 n. 5 (9th Cir. 1989). "Between steps three and four of the five-step evaluation, the ALJ must proceed to an intermediate step in which the ALJ assesses the claimant's residual functional capacity." Massachi v. Astrue, 486 F.3d 1149, 1151 n. 2 (9th Cir. 2007).

denied by the Appeals Council. (AR at 2-4, 9.) The ALJ's decision stands as the final decision of the Commissioner.


STANDARD OF REVIEW This Court is empowered to review decisions by the Commissioner to deny benefits. 42 U.S.C. § 405(g). The findings and decision of the Social Security Administration must be upheld if they are free of legal error and supported by substantial evidence. Mayes v. Massanari, 276 F.3d 453, 458-59 (9th Cir. 2001, as amended Dec. 21, 2001). If the court, however, determines that the ALJ's findings are based on legal error or are not supported by substantial evidence in the record, the court may reject the findings and set aside the decision to deny benefits. Aukland v. Massanari, 257 F.3d 1033, 1035 (9th Cir. 2001); Tonapetyan v. Halter, 242 F.3d 1144, 1147 (9th Cir. 2001).

"Substantial evidence is more than a mere scintilla, but less than a preponderance." Aukland, 257 F.3d at 1035. Substantial evidence is such "relevant evidence which a reasonable person might accept as adequate to support a conclusion." Reddick v. Chater, 157 F.3d 715, 720 (9th Cir. 1998); Mayes, 276 F.3d at 459. To determine whether substantial evidence supports the ALJ's finding, the reviewing court must review the administrative record as a whole, "weighing both the evidence that supports and the evidence that detracts from the ALJ's conclusion." Mayes, 276 F.3d at 459. The ALJ's decision "'cannot be affirmed simply by isolating a specific quantum of supporting evidence.'" Aukland, 257 F.3d at 1035 (quoting Sousa v. Callahan, 143 F.3d 1240, 1243 (9th Cir. 1998)). If the evidence can reasonably support either affirming or reversing the ALJ's decision, the reviewing court "'may not substitute its judgment for that of the ALJ.'" Id. (quoting Matney ex rel. Matney v. Sullivan, 981 F.2d 1016, 1018 (9th Cir. 1992)).


ISSUES PRESENTED Two disputed issues are presented for decision here:

1. whether the ALJ properly assessed Plaintiff's credibility, (Joint Stip. at 3, 13-18); and

2. whether the ALJ obtained a proper informed waiver of Plaintiff's right to counsel before proceeding with the hearing. (Id. at 3-12.)

The Court addresses each argument in turn.



A. Plaintiff's Credibility

Plaintiff argues that the ALJ failed to properly assess his credibility. (See Joint Stip. at 13-15.) Plaintiff maintains that "[e]xcept for stating that there is minimal evidence prior to the Plaintiff's date last insured, the ALJ provided no credibility analysis whatsoever." (Id. at 14.)

1. The ALJ Must Provide "Clear and Convincing" Reasons For Discounting Plaintiff's Credibility

An ALJ can reject a plaintiff's subjective complaint upon (1) finding evidence of malingering, or (2) expressing clear and convincing reasons for doing so. Benton v. Barnhart, 331 F.3d 1030, 1040 (9th Cir. 2003). The ALJ may consider the following factors in weighing a plaintiff's credibility: (1) his or her reputation for truthfulness; (2) inconsistencies either in the plaintiff's testimony or between the plaintiff's testimony and his or her conduct; (3) his or her daily activities; (4) his or her work record; and (5) testimony from physicians and third parties concerning the nature, severity, and effect of the symptoms of which she complains. Thomas v. Barnhart, 278 F.3d 947, 958-59 (9th Cir. 2002).

Here, the ALJ did not find evidence of malingering. (See generally AR at 13-20.) Therefore, the ALJ's reasons for rejecting Plaintiff's credibility must rest on clear and convincing reasons. See Benton, 331 F.3d at 1040.

2. Plaintiff's Subjective Complaints

At the hearing, Plaintiff testified that "the main [problem that would prevent him from working full time] is that [he] can't sleep at night." (AR at 404.) He stated that he stopped working in 1998 due to pain. (Id. at 409-10.) He also explained that he suffers from "very strong" pain, "severe headaches to the point where it feels like [his head is] going to explode," and "tremors" in his "bones" due to rheumatoid arthritis. (Id. at 406, 407, 410.)

Plaintiff explained that between 1998 and 2002, he was taking care of his three-year old daughter, an eight-year old, and "doing [almost all] the housework and doing the chores around the house," including the grocery shopping. (AR at 411.) Plaintiff further testified that he "still" does the grocery shopping for his household and spends approximately 10 hours per week washing and detailing cars with his son. (Id. at 401-02, 411.)

When questioned by the ALJ if Plaintiff received any treatment for his complaints between 1998 and 2001, Plaintiff responded, "No. No I haven't." (AR at 406.) The ALJ also asked Plaintiff why he did not receive "any treatment in those years after [he] got injured." (Id. at 407.) Plaintiff replied that he "was never told [he] had osteoporosis[.]" (Id.)

3. The ALJ's Analysis of Plaintiff's Subjective Complaints

In assessing Plaintiff's credibility, the ALJ found that "while [Plaintiff's] medically determinable impairments could have been reasonably expected to produce some of his alleged symptoms, his statements concerning the intensity, persistence and limiting effects of these symptoms are not sufficiently credible to establish an inability to perform work within the limitations assessed . . . prior to his date last insured." (AR at 17.) The ALJ found that "there is very little medical evidence prior to his date last insured." (Id.)

The ALJ also noted that an evaluation, completed by orthopedic surgeonJoseph S. Swickard, M.D. ("Dr. Swickard") on June 19, 2000, determined Plaintiff "went through this obvious exaggerated motion of jerking during the exam for his back and neck, yet it was obvious from observing him otherwise that he could move his neck fluidly without jerking or grimacing, thus resulting in Dr. Swickard's conclusion [Plaintiff] was magnifying his symptoms." (AR at 17 (internal quotation marks omitted); see also id. at 376-79.)

Further, the ALJ indicated that both an examination by Dr. Swickard and neurosurgeon Theodore L. Sawyer, M.D. ("Dr. Sawyer"), (AR at 98-107), resulted in findings that Plaintiff's "complaints could not be objectively substantiated." (Id. at 18.)

4. The ALJ Properly Rejected Plaintiff's Subjective Complaints The Court is persuaded that the ALJ provided clear and convincing reasons for rejecting Plaintiff's credibility. Three reasons guide this determination.

First, the ALJ found that the objective medical evidence does not support Plaintiff's alleged degree of disability. (AR at 17-18.) Plaintiff cannot identify any objective evidence that supports his claims of total disability. (See generally Joint Stip. at 4-9, 13-15.) Instead, both the examining orthopedic surgeon and examining neurosurgeon agreed that there was no objective evidence to indicate that Plaintiff is unable to work. (AR at 106-07, 379; see also id. at 17-18.) Plaintiff cites to no treating or examining physician's opinion that contradicts Dr. Swickard or Dr. Sawyer's opinion. A lack of objective evidence supporting Plaintiff's symptoms cannot be the sole reason for rejecting Plaintiff's testimony. Rollins v. Massanari, 261 F.3d 853, 856-57 (9th Cir. 2001). However, it can be one of several factors used in evaluating the credibility of Plaintiff's subjective complaints. Id.

Second, the ALJ properly relied on a lack of treatment in rejecting Plaintiff's subjective complaints of pain. Johnson v. Shalala, 60 F.3d 1428, 1433-34 (9th Cir. 1995); cf. Orn v. Astrue, 495 F.3d 625, 638 (9th Cir. 2007) (claimant's failure to seek treatment due to inability to pay cannot support an adverse credibility termination). Plaintiff testified that he did not receive any treatment for his complaints during the relevant time period. Additionally, his explanation that he "was never told [he] had osteoporosis" fails to adequately explain why he did not seek treatment for such debilitating complaints of pain. (AR at 407.)

It also appears from Plaintiff's testimony that he possessed medical insurance until recently, and thus, was able to afford treatment. (See AR at 404 (Plaintiff's statement that "[n]ow that I started working a little bit, they took Medi-Cal away").) In fact, Plaintiff's own testimony that he was the primary caretaker for two young children, ages three and eight, and was responsible for the "almost everything" in terms of "housework," "chores" and shopping for groceries belies the alleged degree of disability. (Id. at 411.)

Third, the ALJ rejected Plaintiff's statements based on Dr. Swickard's observation that Plaintiff exaggerated his symptoms of pain. This is a clear and convincing reason. See Tonapetyan v. Halter, 242 F.3d 1144, 1148 (9th Cir. 2001) (ALJ properly discredited Plaintiff's subjective complaints based on her tendency to exaggerate her symptoms). Here, the ALJ noted Dr. Swickard's observations that Plaintiff "went through this obvious exaggerated motion of jerking during the exam for his back and neck." (AR at 379; see also id. at 17.) Dr. Swickard indicated that this movement "is not consistent with somebody with real neck or back problems." (Id. at 379.) Thus, the ALJ provided legally sufficient reasons for discounting Plaintiff's subjective complaints of pain.

B. Waiver of Right to Counsel

Plaintiff contends that the ALJ failed to properly obtain an informed waiver of Plaintiff's right to counsel before proceeding with the hearing. (See Joint Stip. at 4-6.) Plaintiff argues that the ALJ did not "inform Plaintiff of the ways in which an attorney could assist with the proper development of this case." (Id. at 6.)

As a result, Plaintiff maintains that he suffered prejudice because the ALJ failed "to properly develop the record" and Plaintiff "was completely unaware of the fact that he had to establish with medical evidence that he was disabled prior to June 30, 2001." (Joint Stip. at 6-9.) Plaintiff states that "[i]t is interesting that the ALJ has failed to discuss references to Plaintiff undergoing a two level anterior discectomy and fusion in his lumbar spine which appear in the Administrative Record." (Id. at 8.)

1. In the Absence of Counsel, ALJ Must Conscientiously and Scrupulously Develop the Record

A Social Security claimant has a statutory right to be represented by counsel at an administrative hearing which may be knowingly and intelligently waived. 42 U.S.C. § 406; 20 C.F.R. §§ 404.1700, 416.1500. However, a "[l]ack of counsel does not affect the validity of the hearing unless the plaintiff can demonstrate prejudice or unfairness in the administrative proceedings." Key v. Heckler, 754 F.2d 1545, 1551 (9th Cir. 1985) (quoting Vidal v. Harris, 637 F.2d 710, 713 (9th Cir. 1981)). Therefore, the relevant issue is not whether Plaintiff properly waived his right to counsel; instead, the issue is whether, in the absence of counsel, the administrative hearing was fair. Higbee v. Sullivan, 975 F.2d 558, 561-62 (9th Cir. 1992) (per curiam); Vidal, 637 F.2d at 714.

Where a claimant is unrepresented by counsel, it is "incumbent upon the ALJ to conscientiously and scrupulously probe into, inquire of, and explore all the relevant facts" at the hearing so as to protect the claimant's interests. Cox v. Califano, 587 F.2d 988, 991 (9th Cir. 1978); accord Key, 754 F.2d at 1551; Vidal, 637 F.2d at 713. When the "heavy burden imposed by Cox" is not met in this context, and the unrepresented claimant may have been prejudiced, the "interests of justice demand that the case be remanded." Vidal, 637 F.2d at 714-15.

2. Plaintiff's Waiver of his Right to Counsel

At the hearing, Plaintiff appeared before the ALJ without representation. (AR at 397-98.) At the onset of the hearing, the ALJ engaged in the following unambiguous dialogue with Plaintiff regarding his right to counsel: [ALJ]: Before I go any further, do you understand that you have the right to be represented at this hearing by an attorney?

[Plaintiff]: Yes. [ALJ]: Have you tried to find an attorney or someone else to represent you? [Plaintiff]: Yes, I tried, about a week, a week ago. [ALJ]: About a week ago. Okay. How come you waited so long? [Plaintiff]: I never thought that this was so complicated. [ALJ]: Do you feel that you're prepared to go through with the hearing today or would you like a postponement to obtain an attorney? [Plaintiff]: I believe I can continue. (Id. at 397-98.)

3. The ALJ Fully and Fairly Developed the Record and Plaintiff Fails to Demonstrate Prejudice

Having scrutinized the record, the Court finds that Plaintiff knowingly and voluntarily waived his right to counsel and the ALJ met his burden to conscientiously and scrupulously probe into all the relevant facts at the hearing. The Court's decision is grounded on three reasons.

First, as an initial matter, the Court finds that Plaintiff properly waived his right to counsel. The hearing transcript reflects that Plaintiff could not obtain a representative, not that he did not understand his right to have such a representative. Instead, Plaintiff unequivocally waived his right to counsel and rejected the ALJ's offer to postpone the hearing so that he could obtain representation. Further, as referred to by Defendant, (Joint Stip. at 9), it is notable that Plaintiff received at least two separate notices regarding his right to counsel prior to the hearing. (See AR at27-28, 29-32.)

Although Plaintiff argues that "he only was understanding about 50% of the ALJ's statements/questions," (Joint Stip. at 6), the Court notes that a translator was present at the hearing. See also Singmuongthong v. Astrue, 2010 WL 3715152, at *1, *9 (E.D. Cal. 2010) (proper waiver likely obtained where the plaintiff, who was from Laos and spoke very little English and cannot read or write in English, understood her right to counsel and an interpreter was present).

Second, even assuming arguendo Plaintiff did not properly waive his right to counsel, the Court finds that Plaintiff did not suffer any prejudice, as the record was fully and fairly developed. While Plaintiff complains that the ALJ did not "advise [him] that it was his burden to establish disability prior to June 30, 2001," (Joint Stip. at 6-7), the ALJ specifically questioned Plaintiff about his complaints during the relevant time period and his activities of daily living.

However, as discussed supra at § V.A.4, Plaintiff testified that he did not receive any treatment during that time, and he was taking care of two young children and performing the majority of the housekeeping and chores for his household. (AR at 406, 411.) The ALJ was under no duty to probe the evidence any further given Plaintiff's unambiguous testimony. See Mayes, 276 F.3d at 459-60 (The ALJ's duty to further develop the record is triggered when "there is ambiguous evidence or when the record is inadequate to allow for proper evaluation of the evidence.").

Third, Plaintiff points to no specific facts, arguments or evidence an attorney would have developed that could have changed the outcome of the proceedings. See Santos v. Massanari, 11 Fed.Appx 906, 906 (9th Cir. 2001). Plaintiff states that the record references "a two level anterior discectomy and fusion in [Plaintiff's] lumbar spine." (Joint Stip. at 8.) However, Plaintiff fails to state if in fact he underwent such back surgery, and equally notably, whether there is evidence that certain restrictions actually resulted from it. (See generally id. at 2-9.)

Accordingly, Plaintiff fails to demonstrate prejudice and any alleged error thatresulted from Plaintiff's waiver of his right to counsel was harmless. Key, 754 F.2d at 1551.

Based on the foregoing, IT IS ORDERED THAT judgment shall be entered AFFIRMING the decision of the Commissioner denying benefits.


© 1992-2011 VersusLaw Inc.

Buy This Entire Record For $7.95

Official citation and/or docket number and footnotes (if any) for this case available with purchase.

Learn more about what you receive with purchase of this case.