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Julieta Alvarez v. Michael J. Astrue

August 1, 2012

JULIETA ALVAREZ, PLAINTIFF,
v.
MICHAEL J. ASTRUE, COMMISSIONER OF SOCIAL SECURITY, DEFENDANT.



The opinion of the court was delivered by: VICTOR B. Kenton United States Magistrate Judge

MEMORANDUM OPINION AND ORDER (Social Security Case)

This matter is before the Court for review of the decision by the Commissioner of Social Security denying Plaintiff's application for disability benefits. Pursuant to 28 U.S.C. §636(c), the parties have consented that the case may be handled by the Magistrate Judge. The action arises under 42 U.S.C. §405(g), which authorizes the Court to enter judgment upon the pleadings and transcript of the record before the Commissioner. The parties have filed the Joint Stipulation ("JS"), and the Commissioner has filed the certified Administrative Record ("AR").

Plaintiff raises the following issues:

1. Whether the Administrative Law Judge ("ALJ") conducted a full and fair hearing;

2. Whether the ALJ complied with the Memorandum Opinion and Order of the District Court;

3. Whether the vocational expert's testimony has any value in this case; and

4. Whether competent expert testimony supports a finding of disability. (JS at 5.)

This Memorandum Opinion will constitute the Court's findings of fact and conclusions of law. After reviewing the matter, the Court concludes that the decision of the Commissioner must be affirmed.

I

THE HEARING ON REMAND BEFORE THE ALJ DID NOT AMOUNT TO A COGNIZABLE DENIAL OF DUE PROCESS TO THE PLAINTIFF

In Plaintiff's first issue (JS at 1-19), she asserts that at the hearing conducted by the ALJ following this Court's remand order (AR 742-758), the ALJ exhibited a level of bias and unfairness that denied Plaintiff due process.

As the parties understand, the standard for the Court to find a due process violation is very high. There must be a demonstration of actual bias to result in disqualification of an Administrative Law Judge. Social Security Regulations articulate the requirement that, "An Administrative Law Judge shall not conduct a hearing if he or she is prejudiced or partial with respect to any party or has any interest in the matter pending for decision." (20 C.F.R. § 404.940.) Case law reflects the same stringent requirements. Most recently, this standard was expressed by the Ninth Circuit in Valentine v. Commissioner, 574 F.3d 685, 690 (9th Cir. 2009)(holding that a presumption that an ALJ is unbiased can be rebutted by showing conflict of interest or specific reasons for disqualification other than expressions of impatience, dissatisfaction, annoyance, and even anger "that are within the bounds of what imperfect men and women sometimes display, ..." [Id. at 590, citing Rollins v. Massanari, 261 F.3d 853, 857 (9th Cir. 2001]).

As reflected in the JS, Plaintiff believes that the ALJ in this case did express a bias which amounted to a due process violation. A number of instances of such bias are cited by Plaintiff. These include the ALJ's asking Plaintiff about her citizenship or legal resident status (AR 713); interrupting counsel for Plaintiff when counsel attempted to pose questions to the vocational expert ("VE") (AR 731-733); questioning Plaintiff's work background (AR 714-715); and offering an amended onset date which, if accepted, allegedly would have led to a finding of disability commencing on the earlier onset date (AR 734-735).

After a close examination of the record, the Court cannot agree with Plaintiff that her hearing was conducted in a manner which deprived her of due process. Thus, while the ALJ did ask about Plaintiff's green card status, this occurred during a very brief interchange at the outset of the hearing, and, most importantly, there is nothing in the decision which leads the Court to indicate that the ALJ relied upon Plaintiff's immigration status in reaching his decision. This is in contrast to the first hearing, which led to the Court's remand order based on a record which indicated that the ALJ had relied upon Plaintiff's immigration status as a factor in the determination of her credibility.

With regard to questioning about Plaintiff's work background, the Court again cannot find a due process violation, because a claimant's work history is relevant under applicable regulations. See 20 C.F.R. §§ 404.1574(a)(1), 416.974(a)(1).

A more serious allegation is that the ALJ thwarted Plaintiff's counsel from asking appropriate and relevant questions to the VE. But again, when examining the record, the Court finds no due process infirmity. Essentially, several of the questions posed by Plaintiff's counsel with regard to the extent of functional limitations of a hypothetical individual were ambiguous, and the Court views the ALJ's disallowance of such questions as part of his proper function to regulate the hearing, and to adduce relevant evidence. While Plaintiff's counsel believes that the VE's similar expression of confusion as to some of the terms utilized by Plaintiff's counsel indicates that the VE was mimicking the ALJ's assertedly disingenuous confusion about these terms, the Court finds nothing in the record to attribute such motivations to the VE. When Plaintiff's counsel ultimately posed a hypothetical question which contained clear functional limitations, the ALJ permitted it.

Finally, Plaintiff's belief that the ALJ would have offered an earlier onset date for disability if Plaintiff would have amended her onset date is a speculative conclusion. There is nothing in the record which indicates that an earlier onset date of disability was in fact offered by the ALJ. In any event, on remand, the ALJ did find Plaintiff to be disabled as of February 15, 2011, based on the evidence adduced before him. It would appear that if the ALJ believed that Plaintiff's disability had an earlier onset date, he would have so found.

For the foregoing reasons, the Court finds that Plaintiff's hearing was not characterized ...


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