Dopplemayr v. Commissioner of Social Security

Filing 21

ORDER and FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Allison Claire on 2/11/2013 ORDERING Clerk to randomly assign this case to a United States District Judge; Clerk randomly assigned case to Judge Lawrence K. Karlton, all future pleadin gs shall bear the new case number 2:11-cv-2409 LKK AC (SS). RECOMMENDING 13 MOTION for SUMMARY JUDGMENT be granted; 18 MOTION for SUMMARY JUDGMENT be denied; and this matter be remanded for further proceedings consistent with these findings and recommendations; and the Clerk be directed to enter judgment for plaintiff; matter referred to Judge Lawrence K. Karlton; any party may file Objections to F&R within 14 days after service. (Waggoner, D)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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KAEDEAN DOPPELMAYR,
Plaintiff,

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vs.

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No. 2:11-cv-2409 AC

MICHAEL J. ASTRUE,
Commissioner of Social Security,

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Defendant.

ORDER AND
FINDINGS AND RECOMMENDATIONS

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/

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Plaintiff seeks judicial review of a final decision of the Commissioner of Social

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Security (“Commissioner”) denying her applications for Disability Income Benefits (“DIB”) and

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for Supplemental Security Income (“SSI”) under Titles II and XVI of the Social Security Act

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(“the Act”). The parties’ cross motions for summary judgment are before the court. For the

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reasons discussed below, the undersigned recommends plaintiff’s motion be granted and the

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Commissioner’s motion be denied.

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I.

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BACKGROUND
Plaintiff protectively filed applications for DIB and SSI on August 9, 2006,

alleging disability beginning February 17, 2005. Administrative Record (“AR”) 83-85, 94-97.
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Plaintiff’s applications were initially denied on November 7, 2008, and upon reconsideration on

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January 15, 2009. AR 34, 40. A hearing was held on April 23, 2009, at which plaintiff appeared

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without counsel. The hearing was continued to allow plaintiff to obtain counsel. AR 730-33.

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On May 19, 2010, a hearing was held before administrative law judge (the “ALJ”) L. Kalei

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Fong. AR 734-44. Plaintiff was not represented by counsel at the hearing, at which she

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testified. Id.

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In a decision dated August 20, 2010, the ALJ determined that plaintiff was not

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disabled under sections 216(i), 223(d) and 1614(a)(3)(A) of the Act.1 AR 9-24. The ALJ made

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the following findings (citations to 20 C.F.R. omitted):

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1.

The claimant meets the insured status requirements of the
Social Security Act through December 31, 2010.

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Disability Insurance Benefits are paid to disabled persons who have contributed to the
Social Security program, 42 U.S.C. § 401 et seq. Supplemental Security Income is paid to
disabled persons with low income. 42 U.S.C. § 1382 et seq. Both provisions define disability,
in part, as an “inability to engage in any substantial gainful activity” due to “a medically
determinable physical or mental impairment. . . .” 42 U.S.C. §§ 423(d)(1)(a) & 1382c(a)(3)(A).
A parallel five-step sequential evaluation governs eligibility for benefits under both programs.
See 20 C.F.R. §§ 404.1520, 404.1571-76, 416.920 & 416.971-76; Bowen v. Yuckert, 482 U.S.
137, 140-142, 107 S. Ct. 2287 (1987). The following summarizes the sequential evaluation:
Step one: Is the claimant engaging in substantial gainful
activity? If so, the claimant is found not disabled. If not, proceed
to step two.
Step two: Does the claimant have a “severe” impairment?
If so, proceed to step three. If not, then a finding of not disabled is
appropriate.
Step three: Does the claimant’s impairment or combination
of impairments meet or equal an impairment listed in 20 C.F.R., Pt.
404, Subpt. P, App.1? If so, the claimant is automatically
determined disabled. If not, proceed to step four.
Step four: Is the claimant capable of performing his past
work? If so, the claimant is not disabled. If not, proceed to step
five.
Step five: Does the claimant have the residual functional
capacity to perform any other work? If so, the claimant is not
disabled. If not, the claimant is disabled.
Lester v. Chater, 81 F.3d 821, 828 n.5 (9th Cir. 1995).
The claimant bears the burden of proof in the first four steps of the sequential evaluation
process. Bowen, 482 U.S. at 146 n.5, 107 S. Ct. at 2294 n.5. The Commissioner bears the
burden if the sequential evaluation process proceeds to step five. Id.
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2.

The claimant has not engaged in substantial gainful activity
since February 17, 2005, the alleged onset date.

3.

The claimant has had the following severe impairments:
fibromyalgia, chronic fatigue syndrome, diabetes mellitus
II and depression.

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...
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4.
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The claimant does not have an impairment or combination
of impairments that meets or medically equals one of the
listed impairments in 20 CFR Part 404, Subpart P,
Appendix 1.

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...

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5.

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After careful consideration of the entire record, the
undersigned finds that the claimant has the residual
functional capacity to perform light work as defined in 20
CFR 404.1567(b) and 416.967(b) in that the claimant can
lift and carry 20 pounds occasionally and 10 pounds
frequently; can stand and walk for six hours of an eight
hour day; can sit six hours of an eight hour day; and can
push and pull without limitations. The claimant can
occasionally bend, crawl, crouch, and stoop; can
occasionally reach, handle, finger and feel and grasp. She
has a moderately impaired ability to respond to stress and
pressures associated with day-to-day work activity and to
relate and interact with supervisors, co-workers and the
public. Her ability to respond appropriately to work
situations is mildly impaired.

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...

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6.

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The claimant is unable to perform any past relevant work.
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7.

The claimant was born [in] 1969 and was 35 years old,
which is defined as a younger individual age 18-49, on the
alleged disability onset date.

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The claimant has at least a high school education and is
able to communicate in English.

9.

Transferability of job skills is not material to the
determination of disability because using the MedicalVocational Rules as a framework supports a finding that
the claimant is “not disabled,” whether or not the claimant
has transferable job skills.

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Considering the claimant’s age, education, work
experience, and residual functional capacity, there are jobs
that exist in significant numbers in the national economy
that the claimant can perform.
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The claimant has not been under a disability, as defined in
the Social Security Act, from February 17, 2005, through
the date of this decision.

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AR 12-23.

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Plaintiff requested the Appeals Council review the ALJ’s decision. AR 5.
However, on July 22, 2011, the Appeals Council denied review, leaving the ALJ’s decision as

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the final decision of the Commissioner of Social Security. AR 2-4.

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II.

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LEGAL STANDARDS
The Commissioner’s decision that a claimant is not disabled will be upheld if the

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findings of fact are supported by substantial evidence in the record and the proper legal standards

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were applied. Schneider v. Comm’r of the Soc. Sec. Admin., 223 F.3d 968, 973 (9th Cir. 2000);

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Morgan v. Comm’r of the Soc. Sec. Admin., 169 F.3d 595, 599 (9th Cir. 1999); Tackett v. Apfel,

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180 F.3d 1094, 1097 (9th Cir. 1999).

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The findings of the Commissioner as to any fact, if supported by substantial

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evidence, are conclusive. See Miller v. Heckler, 770 F.2d 845, 847 (9th Cir. 1985). Substantial

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evidence is more than a mere scintilla, but less than a preponderance. Saelee v. Chater, 94 F.3d

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520, 521 (9th Cir. 1996). “‘It means such evidence as a reasonable mind might accept as

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adequate to support a conclusion.’” Richardson v. Perales, 402 U.S. 389, 401 (1971) (quoting

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Consol. Edison Co. v. N.L.R.B., 305 U.S. 197, 229 (1938)).

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“The ALJ is responsible for determining credibility, resolving conflicts in medical

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testimony, and resolving ambiguities.” Edlund v. Massanari, 253 F.3d 1152, 1156 (9th Cir.

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2001) (citations omitted). “Where the evidence is susceptible to more than one rational

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interpretation, one of which supports the ALJ’s decision, the ALJ’s conclusion must be upheld.”
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Thomas v. Barnhart, 278 F.3d 947, 954 (9th Cir. 2002).

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III.

ANALYSIS

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Plaintiff argues that the ALJ committed the following errors in finding plaintiff

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not disabled: (1) the ALJ denied her right to a full and fair hearing; (2) the ALJ failed to fully

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develop the record; and (3) the ALJ erred in not calling on the services of a vocational expert in

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determining plaintiff’s residual functional capacity. Pl.’s Mot. Summ. J. 11-14.

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Plaintiff first contends that she was deprived of her right to a full and fair hearing

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because the ALJ proceeded with the May 19, 2010 hearing without permitting her to obtain

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counsel. Id. at 11-12. When seeking disability benefits, a claimant has a statutory right to be

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represented by counsel. 20 C.F.R. §§ 404.1700, 404.1703, 404.1705. The Commissioner is

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required to “notify each claimant in writing . . . of the options for obtaining attorneys to represent

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individuals in presenting their cases before the Commissioner . . . .” 42 U.S.C. § 406(c), see 20

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C.F.R. § 404.1706.

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On March 12, 2009, plaintiff was sent a notice that a hearing had been scheduled

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for April 23, 2009. AR 45. The notice informed plaintiff that she had the right to have a

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representative at the hearing. AR 46. Plaintiff appeared at the April 23, 2009 hearing and was

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advised by the assigned administrative law judge that she had the right to be represented by an

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attorney. AR 730. Plaintiff explained that she wanted to obtain an attorney, and the ALJ granted

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a continuance of the hearing to allow plaintiff to retain counsel. AR 731-32. On February 26,

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2010, the Commissioner sent plaintiff a notice that a hearing had been scheduled for May 6,

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2010. AR 52. The notice included information about plaintiff’s right to representation. AR 58-

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59. On May 3, 2010, plaintiff received notice that her hearing had been rescheduled to May 19,

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2010. AR 67. The rescheduling notice also contained information about plaintiff’s right to

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obtain representation. AR 71-73.

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Plaintiff appeared at the May 19, 2010 hearing without representation. AR 736.

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Plaintiff informed the ALJ that she had been in contact with an attorney – the attorney currently
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representing plaintiff in the instant proceeding – but that he had not decided whether he would

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represent plaintiff. AR 736-37. Since plaintiff’s case had been pending for four years, the ALJ

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proceeded with the hearing. AR 737-38.

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Plaintiff’s argument that the ALJ denied her right to have counsel present at the

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hearing is unavailing. Plaintiff was provided notice on several occasions of her right to have an

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attorney. When she appeared without counsel at the April 23, 2009 hearing, she was granted a

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continuance to procure representation. Although she had more than a year to find an attorney,

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she appeared at the May 19, 2010 hearing without counsel. Given that plaintiff received

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numerous notices concerning her right to representation, and more than a year continuance to

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obtain counsel, the absence of representation at the May 19, 2010 hearing is attributable to

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plaintiff, not the Commissioner. See Moua v. Astrue, No. ED CV 07-0945-VBK, 2008 WL

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2227357, *3 (C.D. Cal. May 27, 2008) (rejecting plaintiff’s argument that she was denied her

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right to have counsel at her hearing where the Commissioner provided adequate notice of the

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right to representation and plaintiff’s hearing was previously continued for three months so she

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could obtain counsel).

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Plaintiff further argues that she was denied a full and fair proceeding because,

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after plaintiff obtained an attorney, the ALJ failed to provide notice to counsel that new evidence

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had been added to her record. Pl.’s Mot. Summ. J. 11-12. At the May 19, 2010 hearing, the ALJ

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informed plaintiff that the Social Security Administration (“SSA”) did not have any medical

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records on plaintiff. AR 738. Plaintiff informed the ALJ that she had submitted paperwork to

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the SSA to allow it to obtain her medical records. Apparently the ALJ did not have possession

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of this paperwork, so plaintiff again signed the necessary forms to permit the ALJ to obtain her

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medical records. AR 738-40. The ALJ informed plaintiff that because there were no medical

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records, “there really wasn’t much that [the ALJ] could go on.” AR 740. Consequently, the ALJ

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only briefly questioned plaintiff about her impairments. AR 740-43. The ALJ concluded the

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hearing by telling plaintiff that the SSA would obtain her medical records. AR 740-44.
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On June 17, 2010, plaintiff’s counsel filed notice with the SSA that he would be

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representing plaintiff in regards to her disability claim. AR 78. Five days later, on June 23,

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2010, the ALJ sent plaintiff a letter informing plaintiff that new medical records had been added

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to the record. AR 170-71. In the letter, the ALJ notified plaintiff that she had the right to submit

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written comments concerning the evidence, a statement concerning the facts and law related to

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her case in light of the new evidence, and any additional records. AR 170. The notice also

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stated that plaintiff had a right to request a supplemental hearing, which would be granted unless

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the ALJ received new evidence supporting a fully favorable decision. Id. Plaintiff was also

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informed that if she did not respond to the letter in 10 days, the ALJ would assume that plaintiff

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did not wish to request a supplemental hearing or submit additional statements or evidence. AR

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171. A copy of the letter was not sent to plaintiff’s attorney.
In the ALJ’s August 20, 2010 decision, the ALJ stated that plaintiff’s

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“representative has not made a request for a supplemental hearing, has not augmented the record,

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nor provided any written brief in light of the foregoing sequence of events.” AR 9. Plaintiff

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argues that counsel did not respond to the June 23, 2013 notice because the ALJ failed to send

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the notice to plaintiff’s counsel. Plaintiff contends that the lack of notice resulted in a denial of

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her right to a full and fair proceeding.

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The social security regulations provide claimants with the right to appoint

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someone to represent them in any of their dealings with the SSA. 20 C.F.R. § 404.1700. A

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representative has the authority to obtain information concerning the claimant’s case, submit

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evidence, make statements of law and fact, and make requests or give notice about the

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proceedings. 20 C.F.R. § 404.1710. When a claimant has designated a representative, the

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regulations require the Commissioner to send the representative notice of any administrative

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action, determination or decisions, and requests for information or evidence. 20 C.F.R. §

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404.1715.

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Additionally, the SSA’s regulations require that notice be given when new
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evidence is obtained and an opportunity to review and comment on the evidence:
Opportunity to review and comment on evidence obtained or developed by us
after the hearing. If, for any reason, additional evidence is obtained or developed
by us after your disability hearing, and all evidence taken together can be used to
support a reconsidered determination that is unfavorable to you with regard to the
medical factors of eligibility, we will notify you, in writing, and give you an
opportunity to review and comment on the additional evidence. You will be
given 10 days from the date you receive our notice to submit your comments (in
writing or, in appropriate cases, by telephone), unless there is good cause for
granting you additional time, as illustrated by the examples in § 404.911(b). Your
comments will be considered before a reconsidered determination is issued. If
you believe that it is necessary to have further opportunity for a hearing with
respect to the additional evidence, a supplementary hearing may be scheduled at
your request. Otherwise, we will ask for your written comments on the additional
evidence, or, in appropriate cases, for your telephone comments.

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20 C.F.R. § 404.916(f).
Here, the ALJ failed to provide plaintiff with appropriate notice that new

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evidence had been obtained. At the conclusion of plaintiff’s hearing, the ALJ informed plaintiff

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that the next step in the administrative proceeding was for the ALJ to acquire plaintiff’s medical

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records. AR 744. On June 23, 2010, the ALJ sent plaintiff a letter stating that the medical

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records had been acquired and that plaintiff had the right to submit written comments and

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request a supplemental hearing. AR 170-71. There is no dispute that the letter contained the

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notice required by 20 C.F.R. § 404.916(f). However, by the time plaintiff received the notice,

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she had already notified the SSA that she had obtained representation. AR 78. It was reasonable

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for plaintiff to assume that her attorney would handle any legal matter concerning the new

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evidence. Indeed, the SSA’s regulations required notice be sent to her representative. 20 C.F.R.

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§ 404.1715. However, no action was taken on plaintiff’s behalf because the ALJ failed to send

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notice to plaintiff’s attorney. Consequently, plaintiff’s attorney did not learn that the SSA had

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obtained plaintiff’s medical records until the ALJ issued the decision denying plaintiff disability

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benefits. AR 24.

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Under these circumstances, the undersigned finds that the ALJ’s failure to comply
with the agency’s regulations denied plaintiff her statutory right to address the medical evidence
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relied upon by the ALJ in denying plaintiff benefits. See Gemson v. Astrue, No. C10-1971-

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RSL-BAT, 2011 WL 2680576, *3-4 (W.D. Wash. June 14, 2011) (finding that the ALJ violated

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the plaintiff’s statutory rights to notice and a hearing where the ALJ sent notice to the plaintiff,

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but not to her attorney). Accordingly, the matter must be remanded for further proceedings to

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provide plaintiff an opportunity to address the medical evidence.2

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IV.

CONCLUSION

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Accordingly, it is hereby ORDERED that the Clerk randomly assign this case to a
United States District Judge.

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Further, it is hereby RECOMMENDED that:

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1. Plaintiff’s motion for summary judgment (ECF No. 13) be granted;

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2. Defendant’s motion for summary judgment (ECF No. 18) be denied;

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3. The matter be remanded for further proceedings consistent with these findings

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and recommendations; and

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4. The Clerk be directed to enter judgment for plaintiff.

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These findings and recommendations are submitted to the United States District

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Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(1). Within fourteen

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(14) days after being served with these findings and recommendations, any party may file written

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objections with the court and serve a copy on all parties. Such a document should be captioned

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“Objections to Magistrate Judge's Findings and Recommendations.” Any reply to the objections

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shall be served and filed within fourteen (14) days after service of the objections. The parties are

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As the matter must be remanded for further proceedings on the ground that the ALJ
denied plaintiff her right to a full and fair proceeding, the undersigned declines to address
plaintiff’s additional arguments.
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advised that failure to file objections within the specified time may waive the right to appeal the

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District Court's order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir.1991).

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DATED: February 11, 2013.

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ALLISON CLAIRE
UNITED STATES MAGISTRATE JUDGE

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