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Bates v. Astrue

December 11, 2009

PEGGY S. BATES, PLAINTIFF,
v.
MICHAEL J. ASTRUE, COMMISSIONER OF SOCIAL SECURITY, DEFENDANT.



DECISION AND ORDER

I. INTRODUCTION

Plaintiff Peggy S. Bates challenges an Administrative Law Judge's ("ALJ") determination that she is not entitled to disability insurance benefits ("DIB") under the Social Security Act ("the Act"). Plaintiff alleges she has been disabled since January 25, 2002, because of degenerative disc disease, arthritis, and urinary incontinence. Plaintiff met the disability insured status requirements of the Act at all times pertinent to this claim.

II. BACKGROUND

Plaintiff filed an application for DIB on January 31, 2003. Her application was denied initially and, under the prototype model of handling claims without requiring a reconsideration step, Plaintiff was permitted to appeal directly to the ALJ. See 65 Fed. Reg. 81553 (Dec. 26, 2000). Plaintiff requested review of her case by an ALJ, but indicated she did not wish to appear personally at an administrative hearing (R. at 33).*fn1 Plaintiff then executed a Waiver of Right to Oral Hearing (R. at 36). The ALJ considered the case de novo, and on December 22, 2003, issued a decision finding that Plaintiff was not disabled. On July 28, 2004, the Appeals Council denied Plaintiff's request for review.

On September 24, 2004, Plaintiff filed a Civil Complaint challenging Defendant's final decision and requesting the Court review the decision of the ALJ pursuant to Section 205(g) and 1631(c) (3) of the Act, modify the decision of Defendant, and grant DIB benefits to Plaintiff.*fn2 The Defendant filed an answer to Plaintiff's complaint on January 6, 2005, requesting the Court dismiss Plaintiff's complaint. Plaintiff submitted a Memorandum of Law in support of Plaintiff's request for review of the ALJ's unfavorable determination of employment disability on March 24, 2005. On May 4, 2005, Defendant filed a Memorandum of Law in Support of the Defendant's Motion for Judgment on the Pleadings*fn3 pursuant to Rule 12(c) of the Federal Rules of Civil Procedure. After full briefing, the Court deemed oral argument unnecessary and took the motions under advisement. For the following reasons, this Court recommends that the Defendant's motion be granted.

III. DISCUSSION

A. Legal Standard and Scope of Review

A court reviewing a denial of disability benefits may not determine de novo whether an individual is disabled. See 42 U.S.C. § 405(g), 1383 (c)(3); Wagner v. Sec'y of Health and Human Servs., 906 F.2d 856, 860 (2d Cir. 1990). Rather, the Commissioner's determination will only be reversed if it is not supported by substantial evidence or there has been a legal error. See Grey v. Heckler, 721 F.2d 41, 46 (2d Cir. 1983); Marcus v. Califano, 615 F.2d 23, 27 (2d Cir. 1979). "Substantial evidence" is evidence that amounts to "more than a mere scintilla," and it has been defined as "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Richardson v. Perales, 402 U.S. 389, 401, 91 S.Ct. 1420, 1427, 28 L.Ed. 2d 842 (1971). Where evidence is deemed susceptible to more than one rational interpretation, the Commissioner's conclusion must be upheld. See Rutherford v. Schweiker, 685 F.2d 60, 62 (2d Cir. 1982).

"To determine on appeal whether the ALJ's findings are supported by substantial evidence, a reviewing court considers the whole record, examining evidence from both sides, because an analysis of the substantiality of the evidence must also include that which detracts from its weight." Williams on Behalf of Williams v. Bowen, 859 F.2d 255, 258 (2d Cir. 1988). If supported by substantial evidence, the Commissioner's finding must be sustained "even where substantial evidence may support the plaintiff and despite that the court's independent analysis of the evidence may differ from the [Commissioner's]." Rosado v. Sullivan, 805 F. Supp. 147, 153 (S.D.N.Y. 1992). In other words, the Court must afford the Commissioner's determination considerable deference, and may not substitute "its own judgment for that of the [Commissioner], even if it might justifiably have reached a different result upon a de novo review." Valente v. Sec'y of Health and Human Servs., 733 F.2d 1037, 1041 (2d Cir. 1984).

The Commissioner has established a five-step sequential evaluation process to determine whether an individual is disabled as defined under the Social Security Act. See 20 C.F.R. § 404.1520, 416.920. The United States Supreme Court recognized the validity of this analysis in Bowen v. Yuckert, 482 U.S. 137, 140-142, 107 S.Ct. 2287, 2291, 96 L.Ed. 2d 119 (1987), and it remains the proper approach for analyzing whether a claimant is disabled.*fn4

While the claimant has the burden of proof as to the first four steps, the Commissioner has the burden of proof on the fifth and final step. See Bowen, 482 U.S. at 146 n.5; Ferraris v. Heckler, 728 F.2d 582 (2d Cir. 1984). The final step of this inquiry is, in turn, divided into two parts. First, the Commissioner must assess the claimant's job qualifications by considering his physical ability, age, education, and work experience. Second, the Commissioner must determine whether jobs exist in the national economy that a person having the claimant's qualifications could perform. See 42 U.S.C. § 423(d)(2)(A); 20 C.F.R. § 404.1520(f); Heckler v. Campbell, 461 U.S. 458, 460, 103 S.Ct. 1952, 1954, 76 L.Ed. 2d 66 (1983).

B. Analysis

1. The Commissioner's Decision

In this case, the ALJ made the following findings with regard to factual information as well as the five-step process set forth above: (1) Plaintiff met the non-disability requirements for a period of Disability Insurance Benefits set forth in Section 216(i) of the Social Security Act and is insured for benefits through the date of this decision (R. at 20); (2) Plaintiff had not engaged in substantial gainful activity since the alleged onset of disability (R. at 20); (3) Plaintiff had an impairment or a combination of impairments considered "severe" based on the requirements in the Regulations 20 C.F.R. § 404.1520(b) (R. at 20); (4) These medically determinable impairments did not meet or medically equal one of the listed impairments in Appendix 1, Subpart P, Regulation No. 4 (R. at 20); (5) Plaintiff's allegations regarding her limitations were not totally credible (R. at 20); (6) Plaintiff was unable to perform any of her past relevant work (20 C.F.R. § 404.1565 (R. at 21); (7) Plaintiff has the residual functional capacity to perform the full range of light work (20 C.F.R. § 404.1567) (R. at 21); (8) Based on an exertional capacity for light work, and the Plaintiff's age, education, and work experience, a finding of "not disabled" was directed by the Medical-Vocational Rule 202.22 (R. at 21); and (9) Plaintiff was not under a "disability" as defined in the Social Security Act, at any time through the date of the decision (20 C.F.R. § 404.1520(f) (R. at 21). Accordingly, the ALJ determined Plaintiff was not entitled to a period of disability, or disability insurance benefits, under Sections 216(i) and 223, respectively, of the Social Security Act (R. at 21).

2. Plaintiff's Claims

Plaintiff challenges the ALJ's determination that she is not disabled and asserts the ALJ's decision is not supported by the substantial evidence of record. Specifically Plaintiff alleges that: a) she did not knowingly and voluntarily waive her right to representation when she elected to waive her right to an oral hearing and have a disability determination made on the evidence in the record, and thus was prejudiced by a lack of representation at the time the ALJ made his decision, b) the ALJ disregarded the opinions of Plaintiff's treating sources, and adopted the opinion of a non-examining, non-treating source, when making his disability determination, c) the ALJ disregarded Plaintiff's testimony concerning her pain, limitations, and the side effects of her medications, and failed to provide sufficiently specific reasons for rejecting her testimony in his decision, d) the ALJ erred in assessing Plaintiff as capable of performing the demands of light work, and e) the decision is not sufficiently detailed and specific as to the weight the ALJ assigned to the opinions Plaintiff's treating physicians, the consultative examiners, the State agency physician, and Plaintiff's self-reported symptoms. Each of Plaintiff's allegations will be addressed in sequence by the Court.

a) Waiver of Right to Counsel

Plaintiff's first challenge to the ALJ's decision is that he erred in finding that she waived her right to legal representation.

A claimant in a social security matter has a statutory right to representation. See 20 C.F.R. 404.1705. However, this right falls well below the standard of right to counsel established by the Sixth Amendment for criminal cases. See Evangelista v. Secretary of Health and Human Servs., 826 F.2d 136, 142 (1st Cir. 1987).

While a social security claimant should be given appropriate notification of his or her right to representation, a claimant may, after receiving notification, waive the right by intelligently deciding to proceed pro se. Id. at 142. See also Wingert v. Bowen, 894 F.2d 296, 298 (8th Cir. 1990). ("Mr. Wingert first claims that he was not properly advised of his right to employ counsel and therefore could not intelligently waive this right. We do not agree. The record shows that on November 7, 1986, he received a notice of his hearing from the Social Security administration which clearly explains a claimant's right to counsel. In addition, the record contains Mr. Wingert's reply to this notice in which he indicates his desire to proceed without counsel and his reasonable grasp of the regulations and procedure involved.") Id.

In this case, the ALJ concluded that "[t]he claimant elected to have a decision made on the evidence without an oral hearing. Although the claimant was fully apprised of the right to representation, she chose to proceed with the hearing without representation" (R. at 16). Plaintiff alleges she did not knowingly and voluntarily waive her right to representation, and thus was prejudiced by lack of counsel (R. at 8). See also Plaintiff's Brief, p. 10.

This Court finds that substantial evidence supports the ALJ's determination in this regard. Plaintiff was advised of her right to a hearing before an ALJ, and her right to representation, in her Notice of Disapproved Claim dated July 11, 2003 (R. at 29-32). Plaintiff completed the form Request For Hearing By Administrative Law Judge (HA-501-US) on September 18, 2003 (R. at 33). She checked the box that states, "I do not wish to appear at a hearing and I request that a decision be made based on the evidence in my case." Id. Plaintiff signed and dated the form on the Claimant's Signature line, just below the paragraph that states, "You have a right to be represented at the hearing. If you are not represented but would like to be, your Social Security Office will give you a list of legal referral and service organizations. (If you are represented and have not done so previously, complete and submit form SSA-1696 (Appointment of Representative)." Id.

On September 25, 2003, Plaintiff completed the form Waiver of Right to Oral Hearing (HA 4508), explaining her reasons for not proceeding with a hearing before an ALJ (R. at 36). The form contains the following acknowledgment: "I have been advised that I have the right to have an oral hearing and that this oral hearing will provide me with an opportunity to present witnesses and to explain in detail to the administrative law judge, who will make the decision in my case, the reasons why my case should be allowed. I understand that this opportunity to be seen and heard could be effective in explaining the facts in my case. (It could be especially useful in disability cases, since the administrative law judge would have an opportunity to hear an explanation as to how my impairments prevent me from working and restrict my activities.) I have been given an explanation of my right to representation, including representation at a hearing by an attorney or other person of my choice." Id.

On this same form, Plaintiff was given the following notice just above her signature, "I have been advised that, if I change my mind, I can request an oral hearing prior to mailing of the decision in my case. In this event, I can make the request with the Social Security office or with the hearing office." Id.

On October 7, 2003, the ALJ sent Plaintiff a letter acknowledging her request to have a decision made on her record without a hearing (R. at 38). Included with the letter was a warning to Plaintiff in large, capitalized type, advising her that Social Security records indicated she was not represented, and if she wished to obtain representation, she should do so immediately (R. at 39). The notice requested that Plaintiff complete and sign a Waiver of Right to Representation form if she did not intend to seek representation. Id. Also included with information sent by the ALJ was an explanation of Plaintiff's right to representation and a list of legal services providers offering low or no cost representation to claimants in social security matters (R. at 40-43).

A review of the record indicates that Plaintiff did not complete and sign a Waiver of Right to Representation form as requested by the ALJ. She did, however, return the form Claimant Questionnaire (R. at 105-106). In answer to question 5, Plaintiff indicated she was not represented by an attorney or other qualified representative (R. at 106). At question 6, Plaintiff indicated she intended to obtain an attorney. Id. Just below question 6, is the following disclosure: "You have the right to be represented by an attorney or other qualified representative. If you can't afford an attorney or other qualified representative but would like one, you might try one of the organizations listed on the enclosed Attorney/Representative Referral List." Id. However, Plaintiff did not notify the Social Security Office or the Office of Hearings that she had obtained representation, or that she had changed her mind and wished to appear personally at a hearing. More than two (2) months after advising Plaintiff that, at her request, a decision would be made on the record, the ALJ issued his decision finding Plaintiff was not entitled to a period of disability under the Act (R. at 16-21).

It is apparent Plaintiff knew of her right to representation at the time of her request for a hearing before an ALJ, but opted to forego seeking counsel at that time. After the ALJ's decision finding Plaintiff was not disabled during the time frame relevant to her claim, Plaintiff sent a letter dated December 30, 2002, to the Social Security Office (R. at 8-12). In her letter, she stated, "I did not realize that if ...


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