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Sherri Mckowen v. Michael J. Astrue

April 27, 2012

SHERRI MCKOWEN, PLAINTIFF,
v.
MICHAEL J. ASTRUE, COMMISSIONER OF THE SOCIAL SECURITY ADMINISTRATION, DEFENDANT.



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 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 summarized in the Joint Stipulation. [JS 2]. In an November 7, 2008 hearing decision that constitutes the Commissioner's final decision in this matter, an administrative law judge ("ALJ") found that plaintiff had severe impairments consisting of headaches and chronic fatigue, but that she retained the residual functional capacity ("RFC") to perform a full range of light work. [Administrative Record ("AR") 19]. The ALJ concluded that plaintiff was not disabled because her RFC did not preclude her from performing work available in significant numbers in the national economy. [AR 23-24].

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)).

Plaintiff's right to counsel and the ALJ's duty to develop the record

Plaintiff contends that she did not make a fully informed waiver of her right to counsel because she was not advised in the Commissioner's pre-hearing written notice nor by the ALJ that attorneys' fees are limited to twenty-five percent of retroactive benefits. [JS 4]. Plaintiff also contends that she was prejudiced by her lack of representation during the hearing. [JS 7].

A social security disability claimant has a "statutory right, which may be waived, to be represented by counsel before an ALJ," Graham v. Apfel, 129 F.3d 1420, 1422 (11th Cir. 1997) (per curiam), or, alternatively, to be represented by a non-attorney. See 20 C.F.R. §§ 404.949-404.950, 416.1449-416.1450.

The Commissioner shall notify each claimant in writing, together with the notice to such claimant of an adverse determination, of the options for obtaining attorneys to represent individuals in presenting their cases before the Commissioner of Social Security. Such notification shall also advise the claimant of the availability to qualifying claimants of legal services organizations which provide legal services free of charge.

42 U.S.C. § 406(c). No disclosure is required regarding a claimant's right to representation "other than the disclosure required by § 406(c)." Roberts v. Comm'r of the Social Sec. Admin., 644 F.3d 931, 934 (9th Cir. 2011) (per curiam).

Plaintiff received a pre-hearing written notice advising her, among other things, of her right to representation. During the hearing, she acknowledged receipt of that notice, and she waived her right to representation. [See AR 31-32, 57, 61; see also JS 5 & Exhibit A]. The notice plaintiff received complies with the section 406(c) disclosure requirements regarding the right to representation. See 42 U.S.C. § 406(c); Roberts, 644 F.3d at 933. Therefore, plaintiff's contention that she did not make a knowing waiver of her right to counsel lacks merit.

The existence of a knowing waiver does not preclude a claimant from arguing that she was prejudiced by the absence of counsel. "[T]he issue is not whether the right to representation was knowingly waived," but whether plaintiff can demonstrate that the absence of counsel caused prejudice or unfairness in the administrative proceedings. Vidal v. Harris, 637 F.2d 710, 713-714 (9th Cir. 1981). The ALJ is not "a mere umpire," but rather "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, 637 at 713 (quoting Cox v. Califano, 587 F.2d 988, 991 (9th Cir. 1978)).

Plaintiff argues that the ALJ did not meet his burden under Cox to develop the record to ensure that her interests were protected. More specifically, plaintiff contends that the ALJ erred in failing to obtain updated treatment reports. Plaintiff notes that the evidence in the record at the time of the October 2008 hearing was identical to that used to support the initial denial of plaintiff's claim more than a year earlier, except that plaintiff provided two additional pieces of evidence. That evidence consisted of a one-sentence note dated October 7, 2008 from plaintiff's treating gastroenterologist, Dr. Diliberto, stating that plaintiff was being treated for "GERD/Esophagitis and Gastritis," and a two-paragraph letter dated October 10, 2008 from her primary care physician, Dr. Bland of Seal Beach Medical Group. Dr. Bland stated that plaintiff had "persistent and unrelenting" fibromyalgia, chronic fatigue syndrome, chronic recurrent migraine and tension headaches, and depression with "no hope for improvement or remission in the foreseeable future." [JS 8; see AR Court ...


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