Opinion
No. C-00-2096 MMC
November 6, 2002
Plaintiff Jose Afanador ("Afanador") brings this action pursuant to 42 U.S.C. § 405 (g) to obtain judicial review of a final decision of the Commissioner of the Social Security Administration (the "Commissioner"), determining that he was not disabled and, thus, ineligible for benefits under the Social Security Act. The matter is before the Court on Afanador's motion for summary judgment and the Commissioner's cross-motion for summary judgment. Pursuant to Civil Local Rule 16-5, the motions have been submitted on the papers without oral argument. Having considered the papers in support of and in opposition to the motions, the Court rules as follows.
BACKGROUND
Afanador was born October 15, 1947. (Transcript of Record ("Tr.") at 29.) He served in the Army from 1967 to 1970 and his subsequent work history includes work as a material handler, fork lift operator, taxi driver, computer bench technician, shipping and receiving worker, and press operator. (See Tr. at 29-33, 45.) On March 19, 1997, Afanador filed an application for benefits under Title II of the Social Security Act, alleging that he has-been unable to work as of July 3, 1996 because of post traumatic stress disorder resulting from his experiences in the Army while in Vietnam. (See Tr. at 11, 68.) The Department of Veterans Affairs has found that Afanador became 100% disabled as a result of post traumatic stress syndrome as of October 9, 1996. (See Tr. at 76-78.)
After Afanador's application was denied initially and on reconsideration by the Social Security Administration ("SSA"), an administrative law judge ("ALJ") held a hearing to consider Afanador's application. (See Tr. at 28-29.) On September 3, 1998, the ALJ conducted a hearing, analyzing Afanador's application under the five-step sequential evaluation process set forth in the Code of Federal Regulations. The ALJ heard testimony from Afanador, who appeared without counsel, and from a vocational expert. (See Tr. at 26.) Following the hearing, the ALJ issued a written decision, concluding that Afanador was not disabled. The ALJ found Afanador has severe post traumatic stress disorder. (See Tr. at 15.) The ALJ also found that Afanador is "precluded from performing jobs which require high production goals or any more than brief and superficial contact with the general public, co-workers and supervisors," but that his past relevant work did not require the performance of activities beyond his limitations. (See id.)
The Commissioner follows a five-step sequential evaluation process in assessing whether a claimant is disabled.
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." McCartey v. Massanari, 298 F.3d 1072, 1074 n. 6 (9th Cir. 2002).
In assessing Afanador's residual functional capacity, the ALJ relied on the opinion of examining psychiatrist Richard Patel, M.D. ("Dr. Patel"), and on the "absence of any specific medical opinion by Dr. Lavelle regarding his ability to adapt to work or work-like situations." (See Tr. at 13.) In assessing whether Afanador could perform his past relevant work in spite of any limitations, the ALJ relied on the testimony of a vocational expert, who testified that, with the exception of taxi driver and press operator, Afanador could perform his past relevant work. (See Tr. at 14, 47-49.)
This reference is to plaintiff's treating psychiatrist, Peter L. Lavelle, M.D.
On April 12, 2000, the Appeals Council denied Afanador's request for review of the ALJ's decision. (See Tr. at 4-5.) Thereafter, Afanador commenced this action for judicial review.
LEGAL STANDARD
The Commissioner's determination to deny disability benefits will not be disturbed if it is supported by substantial evidence and based on the application of correct legal standards. See Reddick v. Charter, 157 F.3d 715, 720 (9th Cir. 1998). "Substantial evidence means 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." Andrews v. Shalala, 53 F.3d 1035, 1039 (9th Cir. 1995). The reviewing court must consider the administrative record as a whole, and weigh both the evidence supporting and detracting from the ALJ's decision. See id. If the evidence is susceptible to more than one rational interpretation, the reviewing court will uphold the decision of the ALJ. See id.
DISCUSSION
In Afanador's motion for summary judgment, he seeks an order remanding the action to the Commissioner for further administrative proceedings. Afanador argues that the decision must be remanded because the ALJ (1) failed to accurately evaluate the record with respect to Afanador's mental impairment, (2) posed incomplete hypothetical questions to the vocational expert, and (3) failed to obtain a knowing and well-informed waiver of counsel from Afanador. With respect to the last of these three issues, Afanador argues that he was prejudiced because counsel would likely have been able to address the fact that the-record did not include a crucial opinion from Afanador's treating physician, and would likely have been able to effectively cross-examine the vocational expert."Lack of counsel does not affect the validity of the hearing and hence warrant remand, unless the claimant can demonstrate prejudice or unfairness in the administrative proceedings." Vidal v. Harris, 637 F.2d 710, 714 (9th Cir. 1981). Thus, "the issue is not whether the right to representation was knowingly waived, rather, it is whether, in the absence of representation, the administrative law judge met the heavy burden imposed by Cox." See id.
In Cox, the Ninth Circuit held that where a claimant is not represented by counsel, "it is incumbent upon the ALJ to scrupulously and conscientiously probe into, inquire of, and explore for all the relevant facts." See Cox v. Califano, 587 F.2d 988, 991 (9th Cir. 1978) (internal quotation omitted). In such a situation, the ALJ "must be especially diligent in ensuring that favorable as well as unfavorable facts and circumstances are elicited." See id. (internal quotation omitted).
In Cox, the Ninth Circuit remanded the action for further proceedings after concluding that the plaintiff had been prejudiced by his lack of representation during the hearing before the ALJ. See id. There, the ALJ interpreted a letter written by the plaintiffs treating physician, which letter indicated that the plaintiff was unlikely to return to his past relevant work and advised the plaintiff to begin vocational rehabilitation, as a medical opinion that the plaintiff could in fact return to work. See id. at 990-91. Relying on a vocational expert's testimony that if the plaintiff was able to "engage in a sustained daily work routine," there existed certain jobs that plaintiff could perform, the ALJ found the plaintiff was not disabled. See id. at 990. The Ninth Circuit held that the ALJ appeared to have misunderstood the treating physician's letter, and that "[h]ad plaintiff been represented by counsel at the administrative hearing, it is likely that the ALJ's misunderstanding of both the physician's letter and the testimony of the vocational expert would have been clarified." See id. at 991. The Ninth Circuit observed that the ALJ "made no effort, and gave plaintiff little opportunity to, elaborate further on [the] crucial question" of the meaning of the treating physician's letter. See id.
Similarly, in Vidal, the Ninth Circuit held that where an unrepresented plaintiff establishes prejudice from lack of representation, he is entitled to remand for further proceedings. See Vidal, 637 F.2d at 713-15. There, the ALJ found that the plaintiff had a learning disability and that he could not perform his past relevant work, but, in reliance on the testimony of a vocational expert, found that the plaintiff could perform certain other jobs. The Ninth Circuit held that the testimony of the vocational expert was insufficient to support the ALJ's finding because the vocational expert did not "provide convincing evidence that [the plaintiff] was qualified for the [other] positions." See id. at 713. In particular, the Ninth Circuit concluded that the ALJ "did not adequately probe whether an individual with Vidal's learning disability would be considered eligible to apply for those jobs." See id. at 714. "[The plaintiff's] case was clearly prejudiced by the inadequate examination of the vocational expert" as it was clear from the record that the plaintiff "was totally incapable of challenging the vocational expert's conclusions." See id. The court concluded that "[h]ad the claimant been represented by counsel at the hearing, it is likely that cross-examination of the vocational expert would have revealed" whether plaintiff was in fact qualified to perform the other jobs. See id.
Here, after the ALJ found that Afanador has severe post traumatic stress disorder, the primary issue before the ALJ was to determine what limitations that disorder placed on Afanador's ability to work. The ALJ relied on the opinion of examining physician Dr. Patel, who saw Afanador on one occasion in May 1997. (See Tr. at 142.) Dr. Patel was of the opinion Afanador was greatly hindered in his ability to deal with supervisors, co-workers, and the public, and was slightly hindered in his ability to withstand the stresses and pressures of day-to-day work activity. (See Tr. at 144.) Dr. Patel, however, also was of the opinion that Afanador retained the ability to (1) "remember, understand, and carry out an extensive variety of technical and/or complex job instructions"; (2) "remember, understand, and carry out detailed, but uncomplicated job instructions"; (3) "understand, remember, and carry out simple one or two-step job instructions;" and (4) "maintain concentration and attention." (See id.)
The ALJ relied on the opinion of plaintiff's treating physician, Dr. Lavelle, who diagnosed plaintiff with post traumatic stress disorder. (See Tr. at 163.) In a report submitted to a state agency, Dr, Lavelle opined that plaintiff suffered from a post traumatic stress disorder that was "very resilient, almost permanent." (See Tr. at 152.)
The ALJ accepted Dr. Patel's opinions "in the absence of any specific medical opinion by Dr. Lavelle regarding [Afanador's] ability to adapt to work or work-like situations." (See Tr. at 13.) The ALJ observed that Dr. Lavelle, on May 8, 1997, had completed a form in which, in response to a question concerning Afanador's ability to adapt to work or work-like situations, Dr. Lavelle repeated what Afanador had reported to him, namely, that Afanador had said he "lacks energy and decisiveness and is too angry to interact well with supervisors." (See Tr. at 13, 151.)
"In Social Security cases the ALJ has a special duty to fully and fairly develop the record and to assure that the claimant's interests are considered." Smolen v. Chater, 80 F.3d 1273, 1288 (9thCir. 1996). Afanador argues that the ALJ, having determined that the form completed by Dr. Lavelle was insufficient to provide the ALJ with a medical opinion as to the effect Afanador's post traumatic stress disorder had on his ability to work, was required to take additional steps to further develop the record.
Afanador relies on the Code of Federal Regulations, which provides that the SSA "will seek additional evidence or clarification from [a claimant's] medical source when the report from [the] medical source . . . does not contain all the necessary information." See 20 C.F.R. § 404.1512 (e)(1). The Commissioner points out that the SSA, on August 5, 1997, prior to the hearing conducted by the ALJ, contacted Dr. Lavelle and requested that Dr. Lavelle provide a report that included, inter alia "an assessment of functional ability based on your medical findings." (See Tr. at 146.) The SSA's letter, however, did not indicate that Dr. Lavelle's prior report had been deemed by the SSA to be missing any necessary information. Indeed, Dr. Lavelle appears to have understood the SSA's letter as a request for information he had already provided, rather than a request for further substantive information. Other than noting that he continued to have appointments with Afanador, Dr. Lavelle simply stated: "The rest of the questionnaire is identical to the one sent in April. Copy enclosed." (See Tr. at 147.) Upon receipt of Dr. Lavelle's response to the SSA's letter, neither the SSA nor the ALJ advised Dr. Lavelle that his original report, of which it now had two copies, did not contain the information the SSA believed was necessary to make a decision on Afanador's application.
As noted, the ALJ's duty to develop the record is particularly heightened where, as here, a claimant is not represented. See Vidal, 637 F.2d at 711 (referring to ALJ's "very heavy burden" to "scrupulously and conscientiously probe into, inquire of and explore for all relevant facts"). Here, under the circumstances presented, neither the SSA nor the ALJ took sufficient steps to discharge the "very heavy burden" to obtain all relevant facts. Had Afanador been represented by counsel, it is highly likely counsel would, at a minimum, have contacted Dr. Lavelle directly to request the information the ALJ believed to be necessary to make a fully-informed decision. Cf. id. (holding where ALJ did not adequately "probe" for necessary information during examination of vocational expert, it was likely that such information would have been revealed had claimant been represented by counsel).
The failure to adequately develop the record by obtaining a crucial opinion from Afanador's treating physician casts doubt on the ALJ's findings as to Afanador's residual functional capacity. The ALJ concluded that Afanador had "severe" post traumatic stress syndrome, yet relied, essentially by default, on Dr. Patel's opinion as to what functional limitations would be appropriate for a person with "possible," rather than "severe" post traumatic stress disorder. (See Tr. at 145.) Thus, in determining Afanador's residual functional capacity, the ALJ actually had before her no medical opinion as to what functional limitations would be appropriate for a person with "severe" post traumatic stress disorder.
With respect to the vocational expert, upon whom the ALJ relied to conclude that Afanador could perform his past relevant work, the ALJ asked the expert to consider a hypothetical person who could only do work that "allowed for brief and superficial contact" with supervisors, peers, and the general public, (see Tr. at 47-48), and that did not involve "high production goals" so as to eliminate "any huge stress factor." (See Tr. at 48.) "To qualify as substantial evidence, the testimony of a vocational expert must be reliable in light of the medical evidence." Maounis v. Heckler, 738 F.2d 1032, 1033 (9th Cir. 1984). Afanador argues that the limitations included in the hypothetical did not match the limitations suggested by Dr. Patel. In particular, Afanador points to the ALJ's use of the term "high production goals," which according to Afanador, is vague, ambiguous, and not found in any source normally used by ALJ's, such as the Dictionary of Occupational Titles. It is apparent from the record that, just as in Vidal, Afanador "was totally incapable of challenging the vocational expert's conclusions." See Vidal, 637 F.2d at 714. After hearing the vocational expert testify that Afanador could perform most of his past relevant work, Afanador declined to ask the vocational expert even one question. (See Tr. at 49.) Had counsel been present, any ambiguity presented by the ALJ's hypothetical would likely have been clarified on cross-examination. See Earp v. Commissioner of Social Security Admin., 168 F. Supp.2d 628, 634 (E.D. Tex. 2001) (holding claimant prejudiced by lack of representation where counsel could have cross-examined vocational expert)
In sum, because Afanador was not represented and the ALJ "did not scrupulously and conscientiously probe into, inquire of and explore for all relevant facts," see Vidal, 637 F.2d at 715, remand for further proceedings is necessary. See id.
CONCLUSION
For the reasons stated above:1. Plaintiff's motion for summary judgment is hereby GRANTED.
2. Defendant's cross-motion for summary judgment is hereby DENIED.
3. This matter is hereby REMANDED for further administrative proceedings consistent with this decision.
The Clerk shall close the file.