SPEER v. COMMISSIONER OF SOCIAL SECURITY
Filing
15
MEMORANDUM JUDGMENT ORDER denying 10 Plaintiff's Motion for Summary Judgment and granting 13 Defendant's Motion for Summary Judgment. The decision of the Commissioner of Social Security is affirmed. See Memorandum Judgment Order for further details. Signed by Judge Gustave Diamond on 7/23/12. (gpr)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
JUANITA SPEER,
Plaintiff,
v.
Civil Action No. 11-84J
MICHAEL J. AS TRUE ,
COMMISSIONER OF
SOCIAL SECURITY,
Defendant.
MEMORANDUM JUDGMENT ORDER
AND NOW, this
of the parties'
~ of July, 2012, upon due consideration
cross-motions for summary judgment pursuant to
plaintiff's request for review of the decision of the Commissioner
of
Social
Security
("Commissioner" )
plaintiff's
denying
application for supplemental security income under Title XVI of
the
Social
Security
Act
("Act"),
IT
IS
ORDERED
that
the
Commissioner's motion for summary judgment (Document No. 13) be,
and the same hereby is, granted and plaintiff's motion for summary
judgment (Document No. 10) be, and the same hereby is, denied.
As the factfinder, an Administrative Law Judge ("ALJ") has an
obligation to weigh all of the facts and evidence of record and
may
rej ect
or discount
reasons for doing so.
Cir.
1999).
any evidence
if
Plummer v. Apfel,
Importantly,
the
ALJ explains
186 F.3d 422,
429
the
(3d
where the ALJ's findings of fact are
supported by substantial evidence, a reviewing court is bound by
those findings, even if it would have decided the factual inquiry
differently.
Fargnoli v.
Massanari,
247 F.3d 34,
38
(3d Cir.
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(Rev. 8/82)
2001).
These well established principles preclude a reversal or
remand of the ALJ' s decision here because the record contains
substantial
evidence
to
support
the
ALJ' s
findings
and
conclusions.
Plaintiff protectively filed an application for supplemental
security income on June 20, 2008, alleging a disability onset date
of June
I,
2006,
due
to back pain and anxiety.
Plaintiff's
application was denied initially and plaintiff filed a request for
a hearing.
Subsequently, however, on February 13, 2009, plaintiff
knowingly and voluntarily signed a waiver of right to personal
appearance before an ALJ.
consideration
of
all
of
(R. 36-37).
the
On October 20, 2009, upon
evidence,
including
plaint
f' s
medical records and a vocational expert's responses to written
interrogatories, the ALJ issued a dec
is not disabled.
review
making
ion finding that plaintiff
On February 5, 2011, the Appeals Council denied
the
ALJ's
decision
the
final
decision
of
the
Commissioner.
Plaintiff was 39 years old at the time of the ALJ's decision
and is classified as a younger person under the regulations.
C.F.R. §416.963(c).
20
She has an eighth grade education which is
classified as limited. 20 C.F.R. §416.964(b) (3).
Plaintiff has
past relevant work experience as a cook, but she has not engaged
in any substantial gainful activity since her alleged onset date.
After reviewing plaintiff's medical records and considering
the vocational expert's hypothetical responses, the ALJ concluded
that plaintiff is not disabled within the meaning of the Act.
The
ALJ found that although the medical evidence establishes that
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(Rev, 8/82)
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plaintiff suffers from the severe impairments of degenerative disc
disease, including disc extrusion and moderate spinal compression
at T7 8, and anxiety, those impairments, alone or in combination,
do not meet or equal the criteria of any of the impairments listed
at Appendix 1 of 20 C.F.R., Part 404, Subpart P.
The
ALJ
also
found
that
plaintiff
retains
the
residual
functional capacity to perform a limited range of sedentary work
with certain restrictions recognizing the limiting effects of her
impairments.
ef
(R.
11-12).
Taking
into
account
these
limiting
s, the vocational expert identified numerous categories of
jobs which plaintiff could perform based upon her age, education,
work experience and residual functional capacity,
sorter,
including nut
food and beverage order clerk and addresser. Relying on
the vocational expert's responses, the ALJ found that plaintiff is
capable
of
making
an
adjustment
to
work
significant numbers in the national economy.
which
exists
in
Accordingly, the ALJ
concluded that plaintiff is not disabled.
The Act defines "disability" as the inability to engage in
substantial gainful activity by reason of a physical or mental
impairment which can be expected to last for a continuous period
of at least twelve months.
42 U.S.C.
§1382c(a) (3) (A).
The
impairment or impairments must be so severe that the claimant "is
not only unable to do his previous work but cannot, considering
his age, education and work experience, engage in any other kind
of substantial gainful work which
" 42 U.S.C. §1382c(a) (3) (B)
~A072
(Rev 8182)
3
sts in the national economy
The Commissioner has promulgated regulations incorporating a
five step sequential evaluation process 1 for determining whether
a claimant is under a disability.
20 C.F.R. §416.920; Newell v.
Commissioner of Social Security, 347 F. 3d 541, 545 (3d Cir. 2003).
If the claimant is found disabled or not disabled at any step, the
claim need not be reviewed further.
Id.; see Barnhart v. Thomas,
124 S.Ct. 376 (2003).
Here,
plaintiff's
pro
se
filing
does
not
set
forth
any
specific challenges to the ALJ's decision other than to indicate
that the "whole reason" she is appealing is "because of my neck
surgery" and that she "couldn't even think of working for someone
with all the pain I'm in and the
support of her motion,
[medications]
I'm on.".
In
plaintiff has attached a treatment note
from a Dr. Nassr dated March 2, 2011, nearly 18 months after the
ALJ's decision.
Upon review, the court is satisfied that the ALJ
properly evaluated the evidence and that all of the ALJ's findings
are supported by substantial evidence.
The ALJ mus t determine in sequence: (1) whether the
claimant currently is engaged in substantial gainful activity; (2)
if not, whether she has a severe impairment; (3) if so, whether
her impairment meets or equals the criteria listed in 20 C.F.R.
Part 404 , Subpart P, Appendix 1;
(4) if not, whether the
claimant I s impairment prevents her from performing her past
relevant work; and, (5) if so, whether the claimant can perform
any other work which exists in the national economy, in light of
her age, education, work experience, and residual functional
capacity.
20 C.F.R. §416.920.
In addition, when there is
evidence of a mental impairment that allegedly prevents a claimant
from working, the Commissioner must follow the procedure for
evaluating mental impairments set forth in the regulations.
~~~~, 186 F.2d at 432; 20 C.F.R. §416.920a.
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(Rev. 8/82)
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4
-
In
reviewing
the
ALJ's
decision,
the
court
begins
by
recognizing that plaintiff was unrepresented by counsel during the
administrative proceedings.
are
inquisitorial,
investigate the
not adversarial,
facts
"it
is
the ALJ's duty to
and develop the arguments both for and
against granting benefits."
Moreover,
Because Social Security proceedings
Sims v. Apfel, 530 U.S. 103 (2000).
it long has been established in this circuit that the
ALJ has a heightened duty to develop the record and to hold full
and fair hearings when a claimant is unrepresented.
Livingston
v. Califano, 614 F.2d 342 (3d Cir. 1980); Dobrowolsky v. Califano,
606 F.2d 403 (3d Cir. 1979).
that
a
claimant
is
Importantly, however, the mere fact
unrepresented
sufficient for remand, rather,
"the
lack
of
counsel
by
counsel
is
not
alone
remand is appropriate only where
prejudiced
the
claimant
or
the
administrative proceeding was marked by unfairness due to lack of
counsel."
Livingston, 614 F.2d at 345.
In this case, the court is satisfied that plaintiff's lack
of counsel resulted in neither an unfair administrative proceeding
nor
prej udice .
adequately was
First,
the
informed of
record
her
right
is
to
clear
that
counsel,
plaintiff
Saldana v.
Weinberger, 421 F.Supp. 1127 (E.D.Pa. 1976), and to free counsel
if she could not afford it.
Singleton v. Schweiker, 551 F.Supp.
715 (E.D.Pa. 1982).
In the initial notice of disapproved claim,
plaintiff was
advised in writing of her right to representation at a hearing
before an ALJ, that there are groups that can provide free legal
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(Rev. 8/82)
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5
services if she qualifies and that there are attorneys who would
not charge a fee unless she would win her appeal.
(R. 22).
These
rights also were set forth in the form by which plaintiff first
(R. 25).
requested a hearing before the ALJ.
to
plaintiff
dated
February
procedures were explained,
11,
2009,
Then, in a letter
in
which
the
hearing
plaintiff again was advised of her
right to representation, of her right to free representation if
she cannot afford it, and of the availability of attorneys who
work on a contingent fee basis.
(R.
30-31).
This letter was
accompanied by a leaflet entitled "Your Right to Representation,"
(R. 32-33), as well as a list of organizations that
legal
representation
Finally,
plaintiff
for
qualified
signed
appearance at a hearing,
the
claimants.
waiver
of
provide free
(R.
right
34-35).
to
personal
which also expressly states that she
understands that she has a right to representation.
(R. 36).
After having been advised in writing on multiple occasions
of her right to legal representation, and free representation if
she could not afford it,
plaintiff knowingly and voluntarily
waived that right and elected to proceed without representation.
(R. 243).
The court thus finds no unfairness in the proceeding
due to a lack of counsel, as "a claimant ... has as much right to
proceed pro se as
[she]
does to engage a
lawyer.
If
See,
Evangelista v. Secretary of Health & Human Services, 826 F.2d 136,
142 (1st Cir. 1987).
Likewise, the record establishes that plaintiff was aware of
her right to personally appear before the ALJ, of the importance
!ii>.AOn
(Rev. 8182)
- 6
of that right, and that her waiver of that right also was knowing
and voluntary.
In the October 21,
2008, notice of disapproved
claim, plaintiff explicitly was informed of her right to a hearing
and was informed of how the hearing process works.
(R.
21-22).
In particular, the notice advised plaintiff that a hearing would
be her opportunity to tell the ALJ why she disagrees with the
decision in her case and that she would have the opportunity to
provide the ALJ with new evidence and to have people testify on
her behalf.
(R.
22) .
In addition,
in bold
the notice
instructs plaintiff that "it is important to go to the hearing."
(R.
22).
As
noted,
plaintiff
initially did
fi
hearing upon receipt of the foregoing not
filing
her
request,
the
a
request
(R. 25).
Commissioner provided plaintiff
another letter dated February II, 2009.
(R. 30 31).
for
a
After
with
It only was
after receipt of this letter that plaintiff filed a waiver of her
right to personally appear.
In that waiver, plaintiff again was
advised of her right to appear and indicated that she understood
that a hearing would provide her with an opportunity to present
evidence, her own testimony and the testimony of others, and that
the "opportunity to be seen and heard could be helpful to the
[ALJ]
in making a decision."
(R.
36).
Having been advised of all of that, plaintiff knowingly and
voluntarily signed the waiver of right to appear.
The court is
satisfied that plaintiff's waiver of her right to appear at a
hearing was knowingly and voluntarily made.
"AD 72
(Rev. 8/82)
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7
The record in this case establishes that the ALJ complied
with
his
claimant.
heightened
duty
to
plaintiff
as
an
unrepresented
As plaintiff has failed to demonstrate prejudice or
unfairness in the administrative proceeding resulting from her
lack
of
counsel,
the
court
finds
that
a
remand
would
be
inappropriate in this case, as the court also is satisfied that
the ALJ's decision is supported by substantial evidence.
In finding plaintiff not disabled,
the ALJ adhered to the
five-step sequential evaluation process and adequately explained
at each step the reasons for his findings.
Specifically, the ALJ
set forth in detail how he arrived at his residual functional
capacity finding that plaintiff can perform less than the full
range of sedentary work and explained how the medical evidence of
record supports that finding.
(R. 11-15).
Although plaintiff has not challenged explicitly the ALJ's
evaluation of the medical evidence,
the court has reviewed the
record and finds no error in the ALJ's conclusions.
The ALJ
adhered to the appropriate standards in evaluating the medical
evidence 2 and thoroughly discussed all of the relevant medical
evidence in his decision.
(R. 12-14).
Based upon his review of
the entire record, the ALJ concluded that plaintiff's impairments,
while severe, do not preclude her from performing any substantial
2
Under the regulations, an ALJ is to
oplnlon received, regardless of its source, and
numerous factors in deciding the weight to
entitled, taking into account numerous factors
supportability, consistency and specialization.
<:l>.AOn
(Rev. 8/82)
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evaluate every medical
is
to consider
which each opinion is
including the opinion's
20 C.F.R. §416.927(d).
gainful activi,ty.
In making that determination, the ALJ correctly
relied upon the
written responses
of
a
vocational
expert
to
interrogatories posited by the ALJ indicating that jobs exist
which
plaintiff
perform.
retains
(R. 16).
the
residual
functional
The court is satisf
findings are supported by substant
capacity
to
that all of the ALJ's
evidence as outlined in his
decision.
As to Dr. Nassr's treatment note dated March 2, 2011, that
plaintiff has submitted to this court with her summary judgment
motion, because this evidence was not before the ALJ this court
may not consider it in evaluating the ALJ's decision under the
substantial evidence standard.
Instead, when a claimant proffers
evidence in the district court that previously was not presented
to the ALJ,
the district court I s
determination of whether to
remand to the Commissioner is governed by Sentence 6 of §405(g)
of the Act.
2001).
See Matthews v. Apfel,
239 F.3d 589,
593
(3d Cir.
Sentence 6 permits remand Uonly upon a showing that there
is new evidence which is material and that there is good cause for
the failure to incorporate such evidence into the record in a
prior proceeding.
II
See also Szubak v. Secretary of Health
Services, 745 F.2d 831, 833
U[A]
(3d Cir. 1984).
&
Human
claimant must
satisfy all three requirements of Sentence 6 (new, material and
good cause)
in order to justify a
remand.
at 594 i
II
Szubak at 833.
Here,
plaintiff
cannot
establish
that
this
report
is
material, as it is dated March 2, 2011, nearly 18 months after the
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(Rev. 8/82)
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ALJ's decision and thus is outside the relevant time frame.
And
although the treatment note alludes to a failed neck surgery, and
plaintiff states in her motion that she is appealing because of
her neck
surgery,
there
is
no
indication
plaintiff's neck surgery actually occurred.
the ALJ's
decision,
it
clearly is
determination of not disabled.
not
in the
record when
If it occurred after
material
to
the ALJ's
If it occurred prior to the ALJ's
decision, plaintiff has not shown good cause for not bringing it
to the ALJ's attention.
there
is
no
As the treatment note is not material,
justification
for
consideration of this evidence.
a
sentence
6
remand
for
If plaintiff believes that she
became disabled due to a failed neck surgery after the date of the
ALJ's decision,
her recourse is to file a new application for
benefits.
After
carefully and methodically considering all
medical evidence of record and plaintiff's testimony,
of
the
the ALJ
determined that plaintiff is not disabled within the meaning of
the Act.
The ALJ's findings and conclusions are supported by
substantial
evidence
and
are
not
otherwise
erroneous.
Accordingly, the decision of the Commissioner must be affirmed.
~~
Gustave Diamond
United States District Judge
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cc: Juanita Speer (pro se)
527 Dorothy Avenue
Johnstown, PA 15906
Stephanie L. Haines
Assistant u.S. Attorney
319 Washington Street
Room 224, Penn Traffic Building
Johnstown, PA 15901
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