CAROLYN K. DELANEY, Magistrate Judge.
Plaintiff seeks judicial review of a final decision of the Commissioner of Social Security ("Commissioner") denying applications for Disability Income Benefits ("DIB") and Supplemental Security Income ("SSI") under Titles II and XVI of the Social Security Act ("Act"), respectively. For the reasons discussed below, the court will deny plaintiff's motion for summary judgment and grant the Commissioner's cross-motion for summary judgment.
Plaintiff, born April 12, 1964, applied on December 27, 2011 for DIB and SSI, alleging disability beginning October 21, 2010. Administrative Transcript ("AT") 138-39, 158-59, 231-43. Plaintiff alleged he was unable to work due to arthritis and pain in his knees and ankles. AT 260. In a decision dated January 27, 2014, the ALJ determined that plaintiff was not disabled.
AT 39.
Plaintiff argues that the ALJ committed the following errors in finding plaintiff not disabled: (1) rendered a decision in this action despite the fact that plaintiff did not provide an adequate waiver of representation; and (2) failed to fully and fairly develop the record. Plaintiff also contends that the Appeals Council erred by failing to review the additional medical submissions provided to it by plaintiff in connection with its review of the ALJ's decision.
The court reviews the Commissioner's decision to determine whether (1) it is based on proper legal standards pursuant to 42 U.S.C. § 405(g), and (2) substantial evidence in the record as a whole supports it.
The record as a whole must be considered,
First, plaintiff contends that the ALJ erred because she did not obtain an adequate waiver of representation from plaintiff at the administrative hearing before allowing plaintiff to proceed in this action pro se. More specifically, plaintiff asserts that while the ALJ provided all required disclosures and plaintiff waived his right to representation in writing after being apprised of his rights, the ALJ still erred because plaintiff's mental capacity rendered him incapable of making an informed waiver in the absence of additional measures that the ALJ did not take.
In
Here, plaintiff proceeded through the administrative process with the assistance of a non-attorney representative until that representative withdrew from representation about 10 days prior to the administrative hearing before the ALJ was to take place. AT 227. Throughout the course of the administrative process, plaintiff received written disclosures from the Commissioner informing plaintiff of his right to obtain representation and of the availability of free legal assistance organizations. AT 26, 163, 176. Furthermore, at the beginning of the administrative hearing in this matter, the ALJ advised plaintiff of his right to representation in the following manner:
AT 95-96. Plaintiff responded with the following: "Ma'am, I've been waiting so long and been going through so much I[`m] just going to go ahead and get it over with." AT 96. Thereafter, the ALJ explained to plaintiff that he needed to sign a waiver form to effectuate his waiver and reiterated to plaintiff that doing so would serve as a recognition that he understood his right to representation but decided to waive it with regard to further proceedings.
As an initial matter, plaintiff concedes that the ALJ provided all statutorily required disclosures during the hearing before plaintiff signed the waiver form, thus effectuating a sufficient waiver of representation pursuant to the Ninth Circuit Court of Appeals' holding in
In essence, plaintiff requests that the court hold the ALJ to an even higher standard than that set forth in HALLEX I-2-6-52. However, plaintiff presents no persuasive authority for the creation of such a standard. Indeed, the binding case law in the Ninth Circuit regarding pre-waiver disclosures cuts against the standard plaintiff proposes. In
Furthermore, even if a rule were established requiring an ALJ to provide additional disclosures and obtain further information when there is evidence that a claimant may not be capable of providing an informed waiver due to a learning disability or other mental impairment, the facts presented in this action would not have mandated the ALJ to provide such disclosures because there is no evidence that plaintiff was incapable of providing an informed waiver. First, the record does not necessarily support plaintiff's contention that he did not obtain a high school education. During the administrative hearing, plaintiff stated that he "didn't graduate" high school because he "got out of there in the last month of school." AT 104. However, upon further questioning, plaintiff testified that he "graduated" high school, but did not receive a diploma and that he "got a blank thing" instead, which he believed was a certificate of completion.
Moreover, even assuming that plaintiff made it clear that he did not obtain a high school education, the mere fact that plaintiff did not achieve such a level of education does not necessarily demonstrate that plaintiff had a mental impairment that precluded him from making an informed waiver of his right to representation after the ALJ provided him with the required disclosures. There is evidence in the record indicating that plaintiff did not take special education classes while he was in school, AT 261, and there is no evidence that he struggled academically in a manner that would indicate that he lacked the mental capacity to provide an informed waiver. Furthermore, at no point in the administrative process did plaintiff allege that he had a learning disability or some other mental impairment that would call into question his ability to provide an informed waiver. Indeed, plaintiff's alleged impairments were almost exclusively physical in nature, focusing on allegations of pain resulting from plaintiff's spine, knee, and ankle impairments and the medical records plaintiff submitted in support of his applications.
Furthermore, nothing in the record suggests that plaintiff did not receive a full and fair hearing, that the record was in some way underdeveloped, or that plaintiff was otherwise unduly prejudiced due to his brief time proceeding in this action without representation. In fact, after the administrative hearing, the ALJ ordered plaintiff to attend a consultative orthopedic examination with Dr. Boporai, a specialist regarding plaintiff's alleged physical impairments, to ensure that the record regarding plaintiff's physical impairments was fully developed before rendering her decision.
In short, the ALJ obtained plaintiff's waiver of representation in manner that comported the mandates set forth in the Ninth Circuit Court of Appeals' case law and plaintiff fails to highlight any evidence that would have reasonably called into question whether plaintiff had the capacity to provide an informed waiver of his right. Accordingly, the AJ did not err by proceeding with the administrative process after plaintiff waived his right to representation in writing.
Second, plaintiff argues that the ALJ failed to fully and fairly develop the record in this matter. Plaintiff contends that the medical record was inadequate for the ALJ to render a proper decision because she did not make an effort to obtain the results of a consultation with Dr. Borde that was alluded to in a two-page referral document in the record. Plaintiff further contends that the ALJ failed to seek medical opinions from either Dr. Fagan or Dr. Borde, two of plaintiff's treating physicians. Finally, plaintiff asserts that the ALJ failed to obtain any follow up evidence regarding plaintiff's education level.
The ALJ always has a `special duty to fully and fairly develop the record and to assure that the claimant's interests are considered . . . even when the claimant is represented by counsel.'"
It is well established that a claimant bears the burden of providing medical and other evidence that support the existence of a medically determinable impairment.
Nevertheless, as the Ninth Circuit Court of Appeals has also explained:
"The ALJ may discharge this duty in several ways, including: subpoenaing the claimant's physicians, submitting questions to the claimant's physicians, continuing the hearing, or keeping the record open after the hearing to allow supplementation of the record."
Plaintiff's first assertion that the ALJ failed to fully and fairly develop the record because she did not try to obtain the results of the cardiac evaluation performed by Dr. Borde is meritless. Plaintiff contends that because Dr. Fagan's referral form in the record noted an abnormal EKG reading and referred plaintiff to Dr. Borde for a cardiac consultation means that the record was inadequate to determine whether plaintiff was disabled absent the results of Dr. Borde's cardiac evaluation. However, the mere existence of a two-page form in the record indicating abnormal EKG results and referring plaintiff for a cardiac evaluation did not render the record ambiguous or left it so inadequate as to require further development regarding plaintiff's cardiac condition.
Plaintiff's assertion that the ALJ was required to obtain an opinion from either Dr. Fagan or Dr. Borde regarding the functional impact of plaintiff's impairments in order to satisfy her duty to fully and fairly develop the record is similarly baseless. Under the regulations, an ALJ may decide to obtain a consultative examination under certain circumstances, such as when the record as a whole is insufficient to allow a proper determination.
Plaintiff's claim that the record was not adequately developed regarding his level of education is also without merit. As discussed above, the ALJ reasonably interpreted plaintiff's testimony regarding his education to mean that plaintiff completed high school. The record regarding this area of inquiry was not underdeveloped. Moreover, plaintiff never alleged having a learning disability or any other, similar mental impairment at any point throughout the course of the administrative proceedings that would have potentially brought plaintiff's level of education and academic achievement into contention such that further development on that subject would have been necessary to fairly assess plaintiff's claims.
Furthermore, plaintiff's more general argument that the record was somehow inadequate for the ALJ to properly render a decision is without merit because the record here was sufficiently developed such that the ALJ's decision was based on substantial evidence. The record contained numerous treatment records regarding plaintiff's alleged physical impairments, opinions from examining and reviewing physicians regarding the functional impact of plaintiff's alleged impairments, and testimony from both plaintiff and a vocational expert. This evidence provided the ALJ with substantial evidence on which she could base her determination that plaintiff was not disabled within the meaning of the Act. For example, the objective medical evidence in the record regarding plaintiff's musculoskeletal system — which formed the primary basis of plaintiff's complaints regarding back, knee, and leg pain — generally demonstrated that plaintiff had no more than mild symptoms that were well controlled.
In sum, the record was fully and fairly developed by the time the ALJ issued her non-disability decision and there existed substantial evidence in the record on which the ALJ based that determination. Accordingly, the ALJ did not fail to fully and fairly develop the record.
Finally, plaintiff contends that the Appeals Council failed to consider the additional medical records he submitted to it on April 12, 2015 in connection with its review of the ALJ's decision. Specifically, plaintiff asserts that the Appeals Council did not consider the following documents plaintiff submitted in connection with his appeal of the ALJ's decision: (1) treatment notes from Queen of the Valley Rehabilitation Services dated November 18, 2013 through December 23, 2014, and (2) treatment notes from Solano County Health and Social Services dated October 30, 2013 through January 6, 2014. However, a review of the Appeals Council's decision shows that it did consider that evidence. Both sets of records plaintiff claims were submitted but not considered were included by the Appeals Council in its exhibits list and its order. AT 5-6. Moreover, the Appeals Council specifically stated in its denial of review that it considered "the additional evidence listed on the enclosed Order of Appeals Council," which included both sets of records. AT 1, 6. Accordingly, plaintiff's argument that it did not consider this evidence is frivolous.
Furthermore, a review of the additional medical records shows that they do not undermine the ALJ's substantially supported decision finding plaintiff not disabled. As discussed above, there existed substantial evidence in the record to support the ALJ's decision. The two sets of additional treating records plaintiff submitted to the Appeals Council that form the basis of plaintiff's argument largely consist of physical examination notes exhibiting generally normal to mild results and recommendations that do not undermine the determinations the ALJ made in her decision such that they were no longer supported by substantial evidence.
For the reasons stated herein, IT IS HEREBY RECOMMENDED that:
1. Plaintiff's motion for summary judgment (ECF No. 18) be denied;
2. The Commissioner's cross-motion for summary judgment (ECF No. 21) be granted; and
3. Judgment be entered for the Commissioner.
These findings and recommendations are submitted to the United States District Judge assigned to the case, pursuant to the provisions of Title 28 U.S.C. § 636(b)(l). Within fourteen days after being served with these findings and recommendations, any party may file written objections with the court and serve a copy on all parties. Such a document should be captioned "Objections to Magistrate Judge's Findings and Recommendations." Any reply to the objections shall be served and filed within ten days after service of the objections. The parties are advised that failure to file objections within the specified time may waive the right to appeal the District Court's order.
The claimant bears the burden of proof in the first four steps of the sequential evaluation process.
