Magee v. Commissioner Social Security Administration
Opinion and Order: The Commissioners decision that plaintiff is not disabled was supported by substantial evidence in the record and is therefore affirmed. This case is dismissed. Signed on 6/19/2017 by Judge Michael J. McShane. (cp)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
Civ. No. 3:16-cv-00917-MC
OPINION AND ORDER
Acting Commissioner of the Social Security
Plaintiff Sean Magee brings this action for judicial review of the Commissioner’s
decision denying his application for disability insurance benefits (SSDI). This Court has
jurisdiction under 42 U.S.C. §§ 405(g) and 1383(c)(3).
Magee alleges disability due to a number of conditions including: affective spectrum
disorder, dysthymic disorder, anxiety disorder, personality disorder, social phobia, ADHD,
obesity, irritable bowel syndrome (IBS), somatoform disorder, and sleep apnea. After a hearing,
the administrative law judge (ALJ) concluded Magee could perform the jobs of inventory clerk,
forklift driver, and hand packager. TR 28. 1 Magee argues the ALJ erred in: 1) failing to explain
his adverse credibility finding; 2) rejecting or ignoring medical opinions regarding absenteeism
or tardiness; 3) distinguishing between telephonic and in-person interaction with the public; and
“TR” refers to the Transcript of Social Security Administrative Record [ECF No. 8] provided by the Commissioner.
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4) violating Mr. Magee’s due process right to a full and fair hearing. Because the
Commissioner’s decision is based on proper legal standards and supported by substantial
evidence, the Commissioner’s decision is AFFIRMED.
STANDARD OF REVIEW
The reviewing court shall affirm the Commissioner’s decision if the decision is based on
proper legal standards and the legal findings are supported by substantial evidence in the record.
42 U.S.C. § 405(g); Batson v. Comm’r of Soc. Sec. Admin., 359 F.3d 1190, 1193 (9th Cir. 2004).
“Substantial evidence is ‘more than a mere scintilla but less than a preponderance; it is such
relevant evidence as a reasonable mind might accept as adequate to support a conclusion.’” Hill
v. Astrue, 698 F.3d 1153, 1159 (9th Cir. 2012) (quoting Sandgathe v. Chater, 108 F.3d 978, 980
(9th Cir. 1997)). To determine whether substantial evidence exists, we review the administrative
record as a whole, weighing both the evidence that supports and that which detracts from the
ALJ’s conclusion. Davis v. Heckler, 868 F.2d 323, 326 (9th Cir. 1989). “If the evidence can
reasonably support either affirming or reversing, ‘the reviewing court may not substitute its
judgment’ for that of the Commissioner,” and therefore must affirm. Gutierrez v. Comm’r of Soc.
Sec. Admin., 740 F.3d 519, 523 (9th Cir. 2014) (quoting Reddick v. Chater, 157 F.3d 715, 720-21
(9th Cir. 1996)).
The Social Security Administration utilizes a five-step sequential evaluation to determine
whether a claimant is disabled. 20 C.F.R. §§ 404.1520 & 416.920 (2012). The initial burden of
proof rests upon the claimant to meet the first four steps. If claimant satisfies his or her burden
with respect to the first four steps, the burden shifts to the Commissioner for step five. 20 C.F.R.
§ 404.1520. At step five, the Commissioner’s burden is to demonstrate that the claimant is
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capable of making an adjustment to other work after considering the claimant’s residual
functional capacity (RFC), age, education, and work experience. Id. If the Commissioner fails to
meet this burden, then the claimant is disabled. 20 C.F.R. §§ 404.1520(a)(4)(v);
416.920(a)(4)(v). If, however, the Commissioner proves that the claimant is able to perform
other work existing in significant numbers in the national economy, the claimant is not disabled.
Bustamante v. Massanari, 262 F.3d 949, 953-54 (9th Cir. 2001).
Claimant alleges disability as of March 31, 2010, the date on which his last steady work
ended. Claimant alleges that his symptoms, particularly anxiety, date back to his childhood. TR
205. The ALJ found that claimant suffers from the following severe impairments: affective
disorder, anxiety disorder, personality disorder, irritable bowel syndrome (IBS), obesity, and
somatoform disorder. TR 18. However, the ALJ determined that claimant has the RFC to
perform a significant number of jobs existing in the national economy, including claimant’s past
relevant work. TR 20. Accordingly, the ALJ found plaintiff did not qualify as disabled under the
Social Security Act. TR 20.
1. The ALJ’s Adverse Credibility Determination
Plaintiff argues that ALJ erred in failing to explain his adverse credibility findings. The
ALJ in this case concluded that “claimant’s medically determinable impairments could
reasonably be expected to cause alleged symptoms,” but found claimant’s “statements
concerning the intensity, persistence, and limiting effects of these symptoms” to be not entirely
credible. TR 21.
In evaluating the intensity and persistence of symptoms, the ALJ must take into
consideration all available evidence, both medical evidence and other evidence, about how
symptoms affect a claimant. 20 C.F.R. §404.1529(c). The Cotton test places a burden on the
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claimant to show: 1) objective medical evidence of impairment and; 2) that the impairment, or
combination of impairments, could reasonably produce some degree of the reported symptoms.
Smolen v. Chater, 80 F.3d 1273, 1282 (9th Cir. 1996). Once a claimant meets the Cotton test,
and there is not affirmative evidence of malingering, the ALJ may reject the claimant’s
testimony regarding the severity of their symptoms only by providing clear and convincing
reasons supported by specific evidence in the record. Id. at 1283-84; Dodrill v. Shalala, 12 F.3d
915, 918 (9th Cir. 1993). Examples of clear and convincing reasons include conflicting medical
evidence, effective medical treatment, medical noncompliance, inconsistencies either in the
claimant’s testimony or between his testimony and his conduct, daily activities inconsistent with
the alleged symptoms, a sparse work history, testimony that is vague or less than candid, and
testimony from physicians and third parties about the nature, severity, and effect of the
symptoms complained of. Tommasetti v. Astrue, 533 F.3d 1035, 1040 (9th Cir. 2008);
Lingenfelter v. Astrue, 504 F.3d 1028, 1040 (9th Cir. 2007); Light v. Social Sec. Admin., 119
F.3d 789,792 (9th Cir. 1997).
The ALJ gave specific, clear and convincing reasons for discounting claimant’s
testimony regarding the intensity and persistence of claimant’s symptoms. Claimant has
undergone treatment for symptoms of anxiety, sleep apnea, depression, and IBS, among other
ailments. Despite claimant’s subjective complaints, medical reports show that he has stated
various levels of improvement for most or all of these ailments throughout his years of treatment.
The ALJ devotes a substantial portion of his decision explaining how specific medical records
conflict with claimant’s testimony regarding the intensity and persistence of his symptoms.
While counseling notes primarily report claimant’s subjective complaints, the ALJ also
considered claimant’s medical management and treatment notes showing claimant benefits from
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medication, objectively appears well-groomed, and does not exhibit behavior that would prevent
him from full-time work. TR 24. The ALJ discusses medical records describing the use of a
CPAP to successfully treat claimant’s sleep apnea. TR 21. The ALJ also discusses the positive
results that claimant experienced from therapy sessions regarding symptoms of anxiety and
depression. TR 23-24.
The claimant’s psychological examinations also contradict his testimony at the hearing
and suggest claimant is preoccupied with his medical conditions. A neuropsychological
examination by Dr. Walker indicates that claimant has a “significant preoccupation about his
health and somatic functioning.” Standing in stark contrast to claimant’s subjective reports of
cognitive impairments, Dr. Walker’s report concluded that claimant’s verbal intellect, overall
working memory, executive functioning, and immediate recall were all found to be in the HighAverage range. TR 22-23. TR 23. Similarly, Dr. Pollack’s June 2010 evaluation states that
claimant “interprets” his academic and health concerns as being “evidence of psychiatric
conditions, such as mood or anxiety disorder, attention deficit disorder, and dyslexia.” TR 21.
Dr. Pollack, however, opined that claimant’s primary issue was “a personality disorder with both
Schizoid and avoidant features.” TR 21.
There is abundant evidence in the record that therapy and medication were improving
claimant’s symptoms of anxiety and depression. TR 661 (on 3/28/13 claimant indicates to Onishi
that depression is improving on Scopalamine); TR 598 (on 1/9/14 claimant indicates that he
started with a new therapist and was having positive results including better mood and
accomplishment of daily activities, though anxiety was still a problem); TR 524-25
(“Throughout the sessions the client reported that he had a decrease in his anxiety symptoms as
well as a decrease in depression symptoms,” though he “continues to struggle” with those
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symptoms). This Court recognizes that, as noted by Dr. Pollack, there is no “magic bullet” that
will cure a medical condition like anxiety disorder or depression, but claimant received medical
treatment that provided moderate relief from his symptoms. Taken as a whole, the medical
records provide strong evidence that claimant is not completely credible regarding his
representations as to the intensity, persistence, and limiting effects of his medical conditions.
Finally, the claimant’s daily living activities as described in the ALJ’s opinion
demonstrate that claimant can manage functions not consistent with his complaints of intensity.
Specifically, claimant participates in social events such as a book club, going out to dinner, going
out to movies, shopping, and using public transportation in addition to household chores such as
vacuuming, doing laundry and dishes, and cleaning. TR 19.
There is substantial evidence on the record to support the ALJ’s adverse credibility
2. Rejecting or Ignoring Medical Opinions Regarding Absenteeism or Tardiness
Claimant argues that the ALJ erred in rejecting the opinions of various medical service
providers stating that Mr. Magee would frequently be absent or tardy due to his medical
conditions. The Court will address these issues separately.
A. Dr. Onishi’s Opinion and Absenteeism
Where there exists conflicting medical evidence, the ALJ is charged with determining
credibility and resolving any conflicts. Chaudhry v. Astrue, 688 F.3d 661, 671 (9th Cir. 2012).
When a treating physician’s opinion is contradicted by another medical opinion, the ALJ may
reject the opinion of a treating physician only by providing “specific and legitimate reasons
supported by substantial evidence in the record.” Orn v. Astrue, 495 F.3d 625, 632 (9th Cir.
2007). Specific and legitimate reasons for rejecting an opinion include its reliance on a
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claimant’s discredited subjective complaints or its inconsistency with medical records or a
claimant’s daily activities. Tommasetti, 533 F.3d at 1040.
Dr. Onishi has been claimant’s primary care physician since May 2012. TR 517. Dr.
Onishi’s statement dated May 2014 lists claimant’s diagnoses as including fibromyalgia,
depression, sleep apnea, ADHD, seasonal allergies, IBS, alopecia, hypogonadism, central
hypothyroidism, diabetes, and erectile dysfunction. TR 517. Dr. Onishi opined that, due to his
impairments, claimant cannot lift more than 5 pounds and can never climb, balance, stoop, kneel,
crouch, crawl, reach, or handle. TR 518. Dr. Onishi also opined that claimant would miss two or
more days of work per month and would have impaired concentration 10 to 20 percent of the
standard workweek due to his impairments. TR 520. He further states that claimant is “unlikely
to [be] able to work full 2 days straight but might [be] able to do several hours daily or several
days per w[ee]k.” TR 520. The ALJ decision accorded limited weight to these findings, stating
that the record does not contain medical records or subjective complaints to support such
extreme limitations as proposed by Dr. Onishi. TR 26.
The ALJ did not err in finding that Dr. Onishi’s opinion was unsupported by the record.
Although the record does, in fact, contain subjective complaints by claimant to support some of
Dr. Onishi’s opinion, those complaints were properly discredited by the ALJ as described above.
“An ALJ may reject a treating physician's opinion if it is based ‘to a large extent’ on a claimant's
self-reports that have been properly discounted as incredible.” Tommasetti, 533 F.3d at 1041.
The claimant himself does not complain of symptoms that would justify the severe physical
restrictions set forth by Dr. Onishi—in fact, the claimant testified at his hearing that the “main
thing” keeping him from working was his “difficulty with anxiety,” not physical ailments. TR
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Dr. Onishi did not provide any support for his claims regarding claimant’s attendance.
When asked to explain his opinion that claimant would miss two or more workdays per month
due to his impairments, Dr. Onishi did not offer a medical basis for the conclusion—he only
stated that it was unlikely that claimant could even work two days in a row. The ALJ is not
required to accept a physician’s opinion that is brief, conclusory, or inadequately supported by
clinical findings. Bayliss v. Barnhart, 427 F.3d 1211, 1216 (9th Cir. 2005); Crane v. Shalala, 76
F.3d 251, 253 (9th Cir. 1996). Dr. Onishi’s opinion regarding absenteeism is not shared by any
other physician in the record; in fact, it is contradicted by other physicians who opined that
claimant “can be expected to maintain regular attendance with minimal absences.” TR 61, TR
75. His opinion is brief, conclusory, and based on diagnoses that appear, from the limited
medical records of claimant’s visits to Dr. Onishi, to be based primarily on claimant’s subjective
Because Dr. Onishi’s opinion was based largely on claimant’s subjective reporting and is
inconsistent with claimant’s medical records and daily living activities, the ALJ did not err in
assigning little weight to his opinion.
Claimant argues that the ALJ erred in rejecting or ignoring medical opinions regarding
tardiness as “vague” and in failing to include such a restriction in the RFC. In support of this
argument, Mr. Magee refers to several cases discussing a SSD claimant’s medical absences. King
v. Colvin, No. 14-CV-02322-JSC, 2015 WL 1870755 (N.D. Cal. Apr. 23, 2015); Orn, 495 F.3d
625. Lawson v. Colvin, No. C13-5049-JCC, 2013 WL 6095518 (W.D. Wash. Nov. 20, 2013).
However, all of these cases discuss absenteeism, not tardiness. In addition to the questionable
legal grounds for including a tardiness limitation in claimant’s RFC, such a limitation is not
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supported by the record taken as a whole. The only medical record of frequent tardiness from a
treating physician arises in two sentences from Dr. Scherr, and reads in full:
During treatment, Mr. Magee had a chronic problem with tardiness, often 10-20 minutes
late to sessions. That remained a subject of our work in part because it related to both
motivation and resistance in treatment and in part because such difficulties likely affect
his achievement or success at work and in other relationships.
This concern is echoed by reviewing Drs. Boyd and Greenspan, who note that although claimant
might “frequently be tardy” due to his dysthymic and anxiety disorders, he “can be expected to
maintain normal attendance with minimal absences.” TR 61, TR 75. As the Commissioner points
out in her brief, medical records of claimant’s bi-weekly visits to psychologists Paul Guinther
and Richard Nobles do not document chronic tardiness. Similarly, claimant made weekly visits
to his therapist, Heather Repetto, over the course of a year, but there are no records of tardiness
in her very detailed reports. The ALJ “is free to accept or reject restrictions in a hypothetical
question that are not supported by substantial evidence.” Greger v. Barnhart, 464 F.3d 968, 973
(9th Cir. 2006). For the foregoing reasons, the Court finds that ALJ did not err by not including a
restriction for “tardiness” in claimant’s RFC.
3. Distinguishing Between Telephonic and In-Person Interaction with the Public
While the ALJ determined that claimants RFC was limited with respect to in-person
interaction with the public, no such limitation was placed on telephonic interaction. Claimant
argues that the ALJ erred in failing to include in the RFC determination a limitation involving
public contact by telephone.
Claimant previously worked for HSBC for three years in the credit card division. TR 214.
According to his own testimony at the hearing, he fielded deescalated calls when “the
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representatives were unable to handle the caller, or the customer requested a supervisor.” TR 39.
Fielding calls from customers who were upset enough to ask to speak to a manager demonstrates
an ability to interact with the public via telephone under stressful circumstances. Claimant asserts
that he has suffered from the relevant medical condition, social anxiety, since childhood.
Therefore, the social anxiety preceded claimant’s work at HSBC’s call center and was apparently
managed sufficiently to allow claimant to remain gainfully employed there. The ALJ noted that
plaintiff’s social activities include “keeping in touch with others via telephone.” TR 19.
Similarly, the ALJ noted plaintiff’s mother’s testimony that his social activities include “talking
on the phone.” TR 27. Claimant’s prior work at a call center and plaintiff’s telephonic social
activities constitute substantial evidence for the ALJ’s distinction between interaction with the
public telephonically versus in-person.
4. Defendant’s Motion to Strike Plaintiff’s Affidavit in Support of Plaintiff’s Brief
Claimant has submitted an affidavit in support of his argument that the ALJ failed to
conduct a full and fair hearing in this case. Defendant has moved to strike this affidavit, citing 42
U.S.C. §405(g) as limiting a federal court’s judicial review to the closed administrative record.
Because the Court considers the affidavit for purposes other than proving disability, the
defendant’s motion is denied. See Abatie v. Alta Health & Life Ins. Co., 458 F.3d 955, 972–73
(9th Cir. 2006)(“When a plan administrator has failed to follow a procedural requirement of
ERISA, the court may have to consider evidence outside the administrative record. For example,
if the administrator did not provide a full and fair hearing, as required by ERISA, 29 U.S.C. §
1133(2), the court must be in a position to assess the effect of that failure and, before it can do
so, must permit the participant to present additional evidence.”)
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5. Failure to Conduct a Full and Fair Hearing
Claimant argues that his due process right to a full and fair hearing was violated as a
result of the ALJ’s comments at the hearing. During the claimant’s testimony at the hearing, the
transcript shows the following exchange:
ALJ: Okay. Do me a favor, okay, Mr. Magee. Try to just listen to his question and then
answer that. Because these hearings usually don’t last that long because there’s no reason
for them. So what happens is he asks you a question, I ask you a question, you know, you
just keep on going.
CLMT: I’ll try to be-ALJ: I understand it’s important to you but it’s also important, I’ve got another case
coming up in 10 minutes so we need to kind of speed it up a little. Okay?
The affidavit presented along with claimant’s brief details other circumstances of the
6. The written record will not show this, but the ALJ mimicked my way of speaking,
and told me he didn’t have time to hear my case.
7. The judge’s interruption made me feel disrespected, and like the judge did not care
what I had to say, but only wanted me to get out of the way.
ECF No. 20 p. 2. The affidavit also recites some testimony claimant would have given if he had
not been interrupted. In making its determination, the Court considers the allegations in the
Claimant alleges that the ALJ’s comments and behavior exacerbated claimant’s social
anxiety, which in turn had the effect of restricting the remainder of his testimony. The transcript
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shows that the hearing lasted from 3:05 p.m. to 3:28 p.m., for a total of 23 minutes. Claimant
argues that under the totality of the circumstances (the brevity of the hearing, the ALJ’s
comments, and the comments’ effects on the claimant), his due process rights were violated.
Claimant asks the Court to remand this case for a full and fair hearing of his claim.
Plaintiff cites several specific cases in support of his due process argument. The most
relevant cases—those involving due process complaints resulting from the conduct of an ALJ
during a Social Security disability benefits hearing—are Vartanyan v. Chater, 199 F.3d 1334
(9th Cir. 1999)(unpublished) 2, Frampton v. Astrue, 405 F. App'x 112 (9th Cir.
2010)(unpublished), and Ventura v. Shalala, 55 F.3d 900 (3d Cir. 1995).
The court in Vartanyan addressed whether the ALJ’s actions during a hearing amounted
to impermissible bias. 199 F.3d at *1. An ALJ is presumed to be unbiased and the claimant bears
the burden of showing otherwise. Schweiker v. McClure, 456 U.S. 188, 195 (1982); Verduzco v.
Apfel, 188 F.3d 1087, 1089 (9th Cir. 1999). This burden for showing that an ALJ was biased is
very heavy, and depends on a showing that “a reasonable person with knowledge of all the facts
would conclude that the judge's impartiality might reasonably be questioned.” Yagman v.
Republic Ins., 987 F.2d 622, 626 (9th Cir.1993)(internal quotations omitted). In Vartanyan, the
ALJ announced during the hearing that he would enter a copy of a New York Times article into
the record as an exhibit. 199 F.3d at *1. The article had two headlines: “Agency is Called Lax in
Disability Benefits Fraud” and “An effort to weed out ‘crooks’ who cost taxpayers millions of
dollars a year.” Id. The article reported that many immigrants defrauded the Social Security
Administration in applying for disability benefits by “feigning mental illness and providing false
District courts may consider unpublished opinions as persuasive authority; however, such opinions are not
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medical histories.” Id. The ALJ in Vartanyan went further by asking claimant’s daughter, a
witness at the hearing, whether she was receiving AFDC (Aid to Families with Dependent
Children) benefits. Id. at *2. When she responded affirmatively, the ALJ replied “Congress is
going to do something about that in this session, maybe.” Id. The 9th Circuit said that these
statements by the ALJ during the hearing “cast serious doubt on the ALJ’s judgment, if not his
impartiality. It was inexcusable, improper, and insensitive to introduce this exhibit into
evidence.” Id. Despite the Vartanyan court’s clear opinion that the ALJ’s comments and actions
were inappropriate, it found that they did not rise to the level of bias warranting a rehearing.
The 9th Circuit was similarly unwilling to remand for a new hearing in Frampton, which
specifically addressed limitations to the total time allotted for a hearing. Because the ALJ in
Frampton only allotted one hour to the hearing, the ALJ was unable to hear the testimony of her
husband. 405 F. App'x at 113. The ALJ, however, offered to consider a supplemental hearing
and allowed claimant to submit written testimony in lieu of an additional hearing. Id. The court
concluded that, although the restriction of the hearing to one hour “causes some concern,” the
facts did not amount to a violation of Frampton’s due process rights. Id.
The 3rd Circuit Court of Appeals in Ventura did remand that case for a new hearing on
the grounds that the ALJ’s conduct during the SSDI hearing demonstrated bias which violated
claimant’s due process right to a full and fair hearing. 55 F.3d at 902. The ALJ in that case
repeatedly and aggressively interrupted the claimant and the claimant’s lay counsel. Id. at 90304. The ALJ in Ventura said the following with respect to claimant’s former attorney:
Claimant: There have been four days in the last six years when I haven't had pain.
ALJ: How come you didn't tell me the truth about the attorneys?
Claimant: I told you every—I answered every question.
ALJ: But what I asked you about the attorneys, you didn't tell me the truth. You didn't tell
me the truth about why they didn't want her sanctioned.
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ALJ: Why didn't you? That's what I'm asking.
Rep.: Answer the question.
Claimant: You know, I—you know. Are you the doctor?
ALJ: Answer my question.
Claimant: I will.
ALJ: Now. Answer my question, sir.
Claimant: You think I'm going to be—truly I'm sorry, but I'm not afraid. I'm just not
ALJ: I don't care if you[‘re] afraid or not. Answer my question. Why didn't you tell me
the truth about the attorneys.
Id. at 903.
The facts before us are far less severe than either Vartanyan or Ventura. The ALJ in this
case said, trying to hasten Mr. Magee’s testimony, that “these hearings usually don’t last that
long because there’s no reason for them.” TR 46-47. Telling a claimant that there is no reason
for their hearing would be inappropriate and demoralizing for anyone hoping to convince a judge
of the merits of their case. It is a particularly insensitive comment to make in light of the
remarkably brief hearing afforded to a claimant with a well-documented history of social
However, claimant has not cleared the high bar set by the 9th Circuit to overcome the
presumption that an ALJ is unbiased. It is unclear from the written transcript whether the ALJ
was maligning the hearing or whether the ALJ’s statement was anything more than an ill-phrased
attempt to quicken the pace of testimony. I would like to believe the latter but this does not
diminish the demoralizing effect on the claimant. He deserved better. That being said, the
comments here do not resemble those in Ventura. This Court also considers it relevant that Mr.
Magee, unlike the claimant in Ventura, was represented by an attorney capable of skillfully
developing the record.
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The final issue is what weight the Court should give to the fact that the hearing lasted
only 23 minutes. The 9th Circuit in Frampton expressed “some concern” where the time for the
hearing was limited to one hour, but was afforded an option to submit further testimony in
writing or at a later hearing. 405 F. App'x at 113. The Court is unwilling to assign too much
weight to the length of the hearing because claimant has not clearly explained what additional
testimony he would have presented. Claimant’s affidavit did not contain any significant new
testimony that would sway the record in claimant’s favor. Additionally, the hearing transcript
shows no difficulty on part of Plaintiff’s attorney to develop the record to his satisfaction. When
plaintiff’s attorney completed his examination of his client he said “[o]kay. All right. I don’t
have any other questions.” TR 48. He then allowed the ALJ to proceed to question the
Vocational Expert (VE). When the ALJ asked if he had any questions for the VE, claimant’s
attorney’s only question was “[c]an I have the DOT code for that customer service job you
identified?” Claimant’s attorney’s ability to develop the record weighs significantly against
claimant’s argument that he was denied his due process right to a full and fair hearing.
For the above reasons, the Court finds that claimant’s due process rights to a full and fair
hearing were not violated.
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The Commissioner’s decision that plaintiff is not disabled was supported by substantial
evidence in the record and is therefore AFFIRMED. This case is dismissed.
IT IS SO ORDERED.
DATED this 19th day of January, 2017.
_______/s/ Michael J. McShane ________
United States District Judge
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