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Kick v. Colvin

United States District Court, C.D. California

March 9, 2015

MICHAEL KICK, Plaintiff,
v.
CAROLYN W. COLVIN, ACTING COMMISSIONER OF THE SOCIAL SECURITY ADMINISTRATION, Defendant.

MEMORANDUM OPINION AND ORDER

PATRICK J. WALSH, Magistrate Judge.

I. INTRODUCTION

Plaintiff appeals a decision by Defendant Social Security Administration ("the Agency"), denying his application for Widower's Insurance Benefits ("WIB"). He claims that the Administrative Law Judge ("ALJ") erred when he found that Plaintiff was not credible, failed to contact the treating doctors to further develop the record, and determined Plaintiff's residual functional capacity. For the reasons explained below, the Court concludes that the ALJ did not err.

II. SUMMARY OF PROCEEDINGS

In February 2010, Plaintiff applied for WIB based on chronic pain in his neck, shoulder, elbow, and hands; nerve surgeries; post-laminectine syndrome; osteoarthritis; fibromyalgia; lumbar disc degeneration; triglyceride anemia; and depression. (Administrative Record ("AR") 96, 103, 130, 175.) His application was denied initially and on reconsideration and he requested and was granted a hearing before an ALJ. (AR 60-61, 65, 68-79, 84-86.) On November 17, 2011, he appeared with counsel and testified at the hearing. (AR 33-59.) On December 29, 2011, the ALJ issued a decision denying benefits. (AR 11-21.) Plaintiff appealed to the Appeals Council, which denied review. (AR 1-7.) He then commenced this action.

III. ANALYSIS

A. The Development of the Record

Plaintiff contends that the ALJ erred when he failed to obtain additional medical records from his treating physicians. (Joint Stip. at 3-5.) For the following reasons, the Court concludes that the ALJ did not err.

ALJs have a duty to fully and fairly develop the record, which duty is triggered by inadequate or ambiguous evidence that impedes an ALJ's ability to properly evaluate a claim. Tonapetyan v. Halter, 242 F.3d 1144, 1150 (9th Cir. 2001); see also 20 C.F.R. ยงยง 404.1512(e), 416.912(e). A claimant has a corresponding duty to perfect the record because he bears the burden of proving his entitlement to benefits, see Bayliss v. Barnhart, 427 F.3d 1211, 1217 (9th Cir. 2005), and cannot meet that burden if he does not provide the medical records to support his claims. Furthermore, even when the ALJ errs in failing to develop the record, the claimant has the burden of proving that he was prejudiced by the error. See McLeod v. Astrue, 640 F.3d 881, 887 (9th Cir. 2010) ("Where harmfulness of the error is not apparent from the circumstances, the party seeking reversal must explain how the error caused harm.") (citing Shinseki v. Sanders, 556 U.S. 396, 409 (2009)).

In his decision, the ALJ observed:
The claimant's doctors have noted that they prepared documents for the claimant's lawyer to use to support his disability application, however since they do not appear to have been submitted, and considering the related treatment notes reveal good functioning, they would not have bolstered the claimant's application.

(AR 19.)

Plaintiff argues that, because the ALJ knew that these documents existed, he had a duty to ask about them and, by failing to do so, he failed to protect Plaintiff's interests. The Court disagrees. First, Plaintiff and his counsel were obviously aware of these documents and they never submitted them before the hearing. At the end of the hearing, the ALJ asked counsel if there was anything else for him to consider and counsel told him "no." (AR 58.) The ALJ was free to rely on this representation. After the hearing, Plaintiff and his counsel did not submit these records to the ALJ or the Appeals Council. Nor have they submitted them to the Court so that the Court could consider their significance in reaching its decision in this appeal. The inference the Court draws from Plaintiff's and his counsel's actions (or lack thereof) is that there are no records from the treating ...


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