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John S. Miller v. Michael J. Astrue

July 26, 2012

JOHN S. MILLER, PLAINTIFF,
v.
MICHAEL J. ASTRUE, COMMISSIONER OF SOCIAL SECURITY, DEFENDANT.



The opinion of the court was delivered by: Gary L. Sharpe Chief Judge

MEMORANDUM-DECISION AND ORDER

I. Introduction

Plaintiff John S. Miller challenges the Commissioner of Social Security's denial of Supplemental Security Income (SSI) and seeks judicial review under 42 U.S.C. § 1383(c)(3). (See Compl., Dkt. No. 1.) After reviewing the administrative record and carefully considering Miller's arguments, the court affirms the Commissioner's decision and dismisses the Complaint.

II. Background

On September 5, 2006, Miller filed an application for SSI under the Social Security Act ("the Act"), alleging disability since December 16, 2005. (See Tr.*fn1 at 13.) After his application was denied, Miller requested a hearing before an Administrative Law Judge (ALJ), which was held on February 10, 2009. (See id. at 13, 22-56.) On June 3, 2009, the ALJ issued a decision denying the requested benefits, which became the Commissioner's final determination upon the Social Security Administration Appeals Council's denial of review. (See id. at 1-5, 10-21.) Miller commenced the present action by filing a complaint on June 7, 2011, seeking review of the Commissioner's determination. (See Compl. ¶¶ 1-7.) The Commissioner filed an answer and a certified copy of the administrative transcript. (See Dkt. Nos. 7, 8.) Each party, seeking judgment on the pleadings, filed a brief. (See Dkt. Nos. 11, 14.)

III. Contentions

Miller contends that the Commissioner's decision was the product of the application of improper legal standards and is unsupported by substantial evidence. (See generally Dkt. No. 11.) Specifically, Miller claims the ALJ: (1) erred in finding that he knowingly and voluntarily waived his right to legal representation; (2) erred by failing to develop the record with regard to his limited intellectual capacity; (3) erred in determining his Residual Functional Capacity (RFC); (4) did not apply the appropriate legal standards in evaluating his credibility; and (5) erred at step five. (See Dkt. No. 11 at 1, 13-15, 17-21.) Additionally, Miller claims that the Appeals Council erred by failing to remand due to his severe depressive disorder. (See id. at 15-17.) The Commissioner counters that the appropriate legal standards were applied and substantial evidence supports the ALJ's decision. (See generally Dkt. No. 14.)

IV. Facts

The evidence in this case is undisputed and the court adopts the parties' factual recitations. (See Dkt. No. 11 at 2-11; Dkt. No. 14 at 1-7.)

V. Standard of Review

The standard for reviewing the Commissioner's final decision under

42 U.S.C. § 1383(c)(3) is well established and will not be repeated here. For a full discussion of the standard and the five-step process used by the Commissioner in evaluating whether a claimant is disabled under the Act, the court refers the parties to its previous opinion in Christiana v. Comm'r of Soc. Sec. Admin., No. 1:05-CV-932, 2008 WL 759076, at *1-2 (N.D.N.Y. Mar. 19, 2008).

VI. Discussion

A. Waiver of Right to Legal Representation

Miller first avers that the ALJ erred in finding that he knowingly and voluntarily waived his right to legal representation, (see Dkt. No. 11 at 13-14), because he had "limited intellectual capacity," which prevented him from doing so, (id. at 13). The court disagrees.

Although a claimant does not have a constitutional right to counsel at a social security disability hearing, "[the claimant] does have a statutory and regulatory right to be represented should [he] choose to obtain counsel." Lamay v. Comm'r of Soc. Sec., 562 F.3d 503, 507 (2d Cir. 2009); 42 U.S.C. §1383(d)(2)(D); accord 20 C.F.R. § 416.1506. If properly informed of this right, a claimant may waive it. See Lamay, 562 F.3d at 507.

Relevantly, the regulations state that, when notifying a claimant of an adverse determination, the Commissioner must "notify [the] claimant in writing" of (1) his "options for obtaining attorneys to represent [him]" at his hearing, and (2) "the availability to qualifying claimants of legal services organizations which provide legal services free of charge." 42 U.S.C. § 1383(d)(2)(D); accord 20 C.F.R. § 416.1506; see Lamay, 562 F.3d at 507. Additionally, at the hearing itself, "the ALJ must ensure that the claimant is aware of [his] right [to counsel]." Lamay, 562 F.3d at 507 (internal quotation marks and citation omitted).

Here, Miller was informed of his right, in writing, on three separate occasions. (See Tr. at 60, 70-76, 79.) And, though Miller stated that he had difficulty with reading and math in school, and had dyslexia, (see id. at 48), Miller also testified that he could "read really well," (id. at 30). Moreover, the transcript evidences several occasions in which Miller stated he could: read and understand English, (seeid. at 109); follow spoken and written instructions, (see id. at 125); attend to and appropriately respond to all questions and requests, (see id. at 228); and read daily, (see id. at 231).

Indeed, Miller acknowledged at the hearing that he understood he had a right to representation, and that the ALJ would adjourn the hearing if he sought to obtain representation. (See id. at 24-25.) There is no indication in the record that Miller was confused, or did not understand what the right to counsel entailed. Rather, the ALJ noted that Miller previously had an attorney, who withdrew his representation. (See id. at 24, 63, 69.) As such, the court concludes that Miller was ...


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