Summary
finding a valid waiver where the plaintiff received three notices about her right to counsel and expressly declined to act on this information; explaining that the Court inWingert did not hold that a grasp of the regulations and procedures represented the minimal requirements for a knowing waiver of counsel
Summary of this case from Radica v. AstrueOpinion
Civil No. 04-35 (PAM/JGL).
March 22, 2005
MEMORANDUM AND ORDER
This matter is before the Court on Plaintiff's objections to the Report and Recommendation ("RR") of United States Magistrate Judge Jonathon Lebedoff dated February 7, 2005.
The Court must conduct a de novo review of any portion of the Magistrate Judge's opinion to which specific objections are made. See 28 U.S.C. § 636(b)(1); Local Rule 72.1(c)(2). Based on that review of the record and the submissions of the parties, the Court adopts the RR.
The RR recommended denying Plaintiff's Motion for Summary Judgment and granting Defendant's Motion for Summary Judgment. Plaintiff objects to the Magistrate Judge's conclusions, arguing that the Magistrate Judge incorrectly concluded that substantial evidence in the record supported the Administrative Law Judge's ("ALJ") finding that Plaintiff's medical improvement restored her ability to work. Plaintiff alternatively argues that remand is appropriate, because Plaintiff did not effectively waive her right to counsel and because the record is incomplete.
BACKGROUND
In March 1989, Plaintiff first received social security disability benefits for renal function impairment, which required dialysis. In 1999, Plaintiff underwent a successful kidney and pancreas transplant, eliminating her need for dialysis or insulin. In February 2001, the Social Security Administration ("Administration") conducted a continuing disability interview and concluded that Plaintiff's health had improved such that she was no longer disabled. Plaintiff's disability benefits ceased in March 2001.
The Administration informed Plaintiff of this decision and advised her that she could appeal this decision and receive assistance from an attorney. Plaintiff requested reconsideration, declined attorney assistance, and appeared pro se at the hearing. Plaintiff informed the Administration that although she no longer needed insulin or dialysis, she nonetheless suffered from carpal tunnel syndrome, multiple hernias, and other medical ailments. The Administration affirmed the decision to terminate her benefits, and concluded that Plaintiff no longer suffered from the listed impairment that formed the basis for her initial receipt of benefits.
On December 17, 2002, Plaintiff testified, without counsel, before ALJ Peter C. Ericksen. At the hearing, the Medical Expert ("ME") testified that although Plaintiff no longer required dialysis, she nonetheless suffered from bilateral carpal tunnel syndrome, multiple hernias, anemia, and diabetic retinopathy, among other ailments. (Tr. at 649.) The ME further testified that because of her impairments, Plaintiff was limited to sedentary lifting, two hours a day on her feet, two or four hours sitting, and limited repetitive motion with her hands. (Id. at 651.) The Vocational Expert ("VE") then testified that Plaintiff could work as an information clerk or as a surveillance system monitor. (Id. at 658-59.) Based on the testimony at the hearing and the evidence in the record, the ALJ concluded that Plaintiff's medical improvement had restored her ability to work.
Plaintiff requested review of this decision, obtained counsel, and submitted additional evidence for review. The Appeals Council nonetheless denied her appeal. Plaintiff filed this action in January 2004, and in February 2005, Magistrate Judge Lebedoff determined that the ALJ's conclusions were supported by substantial evidence in the record.
DISCUSSION
A. Waiver of Attorney
Plaintiff contends that the Magistrate Judge erred by concluding that Plaintiff was adequately informed and knowingly waived her right to counsel. Plaintiff argues that because the ALJ failed to determine if Plaintiff understood the rules and regulations that pertained to her right to counsel, her waiver was ineffective. However, the record belies this argument, as the Administration consistently provided Plaintiff with information about retaining counsel and of her right to be represented by counsel. (See e.g., Tr. at 62, 104-05, 115-20.) At her hearing before the ALJ, Plaintiff expressly acknowledged receipt of the information regarding her right to counsel, and likewise acknowledged that she wanted to proceed pro se.
Plaintiff submits that the ALJ had a duty to determine if Plaintiff "had a reasonable grasp of the regulations and procedures involved," and that the ALJ's brief inquiry of Plaintiff was insufficient. See Wingert v. Bowen, 894 F.2d 296, 298 (8th Cir. 1990). Although the Wingert court noted that the claimant's response to his notice of hearing evidenced a "reasonable grasp of the regulations and procedures involved," the Court did not hold that this likewise represented the minimal requirements for a knowing waiver of counsel. Rather, the court found a waiver based on the facts of that case. Here, Plaintiff received at least three notices about her right to counsel, and expressly declined to act on this information. Thus, the Court finds that the Magistrate Judge correctly concluded that Plaintiff was adequately informed of and knowingly waived her right to counsel.
B. Substantial Evidence
Plaintiff contends that the ALJ's determination is not supported by substantial evidence in the record. Although Plaintiff acknowledges that her transplant has resulted in significant improvement in her medical condition, she nonetheless argues that her condition has not improved so as to restore her ability to work. However, Plaintiff's objections on this point are essentially the same arguments as previously presented to the Magistrate Judge. Thus, although the Court is sympathetic to Plaintiff's condition and the impairments from which she suffers, the Court cannot say that the ALJ's decision is not supported by substantial evidence in the record.
C. Development of the Record
Plaintiff also argues that the ALJ failed to fully develop the record. She also contends that remand is appropriate because exhibit 34 is missing from the record. The Eighth Circuit instructs that, "absent unfairness or prejudice" in the development of the record, the case should not be remanded. See Onstad v. Shalala, 999 F.2d 1232, 1234 (8th Cir. 1993). Although Plaintiff claims that the ALJ failed to sufficiently inquire of Plaintiff, the record demonstrates otherwise. Furthermore, Plaintiff fails to demonstrate any prejudice or unfairness as a result of the missing exhibit. Indeed, the ME reviewed this exhibit prior to testifying and the exhibit was part of the record reviewed by the ALJ. Thus, the Magistrate Judge correctly concluded that remand on these grounds was inappropriate.
CONCLUSION
As the statute requires, the Court has reviewed the record regarding Magistrate Judge Lebedoff's RR. Based on that review and all the submissions of the parties, the Court ADOPTS the RR.
Accordingly, IT IS HEREBY ORDERED that:
1. Plaintiff's Motion for Summary Judgment (Clerk Doc. No. 15) is DENIED; and
2. Defendant's Motion for Summary Judgment (Clerk Doc. No. 19) is GRANTED.LET JUDGMENT BE ENTERED ACCORDINGLY.