Hakchareum v. Barnhart

Full title: PLAO HAKCHAREUM Plaintiff, v. JO ANNE B. BARNHART, Commissioner of Social…

Court: United States District Court, N.D. California

Date published: Sep 11, 2003

No. CV03-00557 SC (N.D. Cal. Sep. 11, 2003)

Opinion

No. CV03-00557 SC

September 11, 2003

FINAL JUDGMENT

SAMUEL CONTI, J.

In accordance with this Court's order Granting Plaintiff's Motion for Summary Judgment and Denying Defendant's Cross-Motion for Summary Judgment, it is hereby ORDERED, ADJUDGED, and DECREED that:

Judgment shall be entered in favor of PLAINTIFF and against DEFENDANT.

IT IS SO ORDERED.

ORDER GRANTING PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT AND DENYING DEFENDANT'S CROSS-MOTION FOR SUMMARY JUDGMENT

I. INTRODUCTION

Plaintiff Plao Hakchareum moves for summary judgment to reverse and remand the final decision of Defendant Jo Anne Barnhart, Commissioner of the Social Security Administration, ("Commissioner" or "Defendant") finding that he is no longer entitled to disability benefits under Title XVI of the Social Security Act. Defendant cross-motions for summary judgment to affirm the decisions of the Social Security Administration ("SSA" or "Administration") and the Administrative Law Judge ("ALJ") that Plaintiff is no longer entitled to Supplemental Security Income ("SSI") disability benefits under Title XVI of the Social Security Act. For the reasons set forth below, this Court grants Plaintiff's motion for summary judgment and denies Defendant's cross-motion for summary judgment.

II. BACKGROUND

On "December 31, 1990, following a period of chronic renal failure that ultimately necessitated a kidney transplant, Plaintiff applied for and was awarded Social Security Income disability benefits. In August of 1999 however, the Administration reviewed Plaintiff's disability and determined that his disability had ceased. Tr. at 67, 69-71. Plaintiff was notified that he would no longer receive SSI benefits beginning in November of 1999. Tr. at 69. This decision was affirmed by the Administration after Plaintiff requested reconsideration. Tr. at 72-74. Plaintiff then requested an administrative hearing before an ALJ. Tr. at 77.

The ALJ conducted a hearing on April 2, 2002. Tr. at 9. Plaintiff appeared at the hearing without an attorney.¹ A Laotian interpreter was present to translate the proceedings for Plaintiff. At the request of the ALJ, Dr. David A. West testified as a medical expert, and Dr. Gerald Beltrist testified as a vocational expert.

1 The ALJ asked Plaintiff at the hearing whether he understood that he had a right to have an attorney assist him at his hearing. He said that he did not, and further, that he did not understand what an attorney does.

The ALJ issued a decision dated September 5, 2002, which found that Plaintiff's disability had ceased as of August 1, 1999 and that Plaintiff had the residual functional capacity to perform the full range of medium work. Tr. at 6-16. The Appeals Council denied Plaintiff's request for a review of that decision, which thereby became the final decision of the Commissioner. Tr. at 3.

Consequently, Plaintiff brings this action pursuant to 42 U.S.C. § 1383(c)(3) to obtain judicial review of the Commissioner's final decision. Plaintiff moves for summary judgment to reverse the Commissioner's decision and to remand the case to the Social Security Administration for further factual development. Plaintiff's primary argument is that his lack of counsel at the ALJ hearing materially prejudiced his case because, inter alia, the ALJ failed to "fully and fairly develop the record", as the law requires. Defendant contends that Plaintiff suffered no prejudice because the ALJ satisfied his duty to fully and fairly develop the record.

III. LEGAL STANDARD

A. Standard of Review

A court may "set aside a denial of benefits only if it is not supported by substantial evidence or if it is based on legal error." Jamerson v. Chater, 112 F.3d 1064, 1066 (9th Cir. 1997). "Substantial evidence means more than a scintilla but less than a preponderance."Id. "Substantial evidence is relevant evidence which, considering the record as a whole, a reasonable person might accept as adequate to support a conclusion." Flaten v. Sec'y of Health Human Servs., 44 F.3d 1453, 1457 (9th Cir. 1995). Where the evidence is susceptible to more than one rational interpretation, one of which supports the ALJ's decision, the ALJ's conclusion must be upheld. See Morgan v. Comm'r of Soc. Sec. Admin., 169 F.3d 595, 599 (9th Cir. 1999).

B. Duty to "fully and fairly develop the record"

The ALJ in a social security case has an independent "duty to fully and fairly develop the record and to assure that the claimant's interests are considered." Brown v. Heckler, 713 F.2d 441, 443 (9th Cir. 1983). When the claimant is not represented by counsel, the ALJ must be "especially diligent in exploring for all the relevant facts."Cox v. Califano, 587 F.2d 988, 991 (9th Cir. 1978). When dealing with a pro se claimant, the ALJ has an important duty to "scrupulously and conscientiously probe into, inquire of, and explore for all relevant facts", and he must be "especially diligent in ensuring that favorable as well as unfavorable facts and circumstances are elicited." Vidal v. Harris, 637 F.2d 710, 713 (9th Cir. 1981).

Where the evidence is ambiguous or the ALJ finds that the record is inadequate to allow for a proper evaluation, the ALJ has a duty to "conduct an appropriate inquiry". Smolen v. Chater, 80 F.3d 1273, 1288 (9th Cir. 1996). The ALJ may discharge this duty in several ways, including: subpoenaing the claimant's physicians, submitting questions to the claimant's physicians, continuing the hearing, or keeping the record open after the hearing to allow supplementation of the record. Tidwell v. Apfel, 161 F.3d 599, 602 (9th Cir. 1998);Smolen, 80 F.3d at 128.

When the ALJ fails to meet his or her heavier burden for a claimant without counsel, remand is appropriate. Vidal, 637 F.2d at 715.

IV. DISCUSSION

While this court does not prescribe any particular procedures that an ALJ must follow, it believes that the hearing conducted by the ALJ in this case was insufficient to develop the record.

A. ALJ did not have Plaintiff's complete medical records.

In this case it is unclear whether the ALJ had the full medical records before him. The last doctor's visit documented in the file occurred on March 16, 2000, more than two years prior to the hearing. Tr. at 9, 172 et seq. Plaintiff, however, brought several current medications to the hearing, which indicates that he was receiving ongoing medical care. There is no indication in the record that the ALJ requested, inquired about, or sought up-to-date medical records, despite it being relatively clear that Plaintiff was still receiving substantial medical care. This suggests that the ALJ's inquiry in this case was too narrow in scope.See Reefer v. Barnhart, 326 F.3d 376, 381 (3rd Cir. 2003) (finding that the ALJ's failure to obtain medical records covering the time period between the Social Security Administration's determination and the ALJ hearing was error); Brown v. Shalala, 44 F.3d 931. 935 (11th Cir. 1995) (finding that the ALJ's failure to request up-to-date medical records was error).

That this record is incomplete can further be seen by the Social Security Administration's own regulations and the ALJ's own statements in this case. In his Notice of Hearing letter to Plaintiff on March 8, 2002, the ALJ stated that the issue to be determined at the hearing was whether Plaintiff continued to be disabled (Tr. 18, italics added). Moreover, the ALJ's letters to the medical examiner and vocational expert, also dated March 8, 2002, both state that the witnesses were requested to give testimony to cover the period from "December 31, 1990 through the present". Tr. at 23, 27, italics added. Therefore, it appears that the ALJ was making a determination as to whether Plaintiff was currently suffering from a disability and doing so with slightly out-dated medical evidence.

Social Security Regulations do not directly address an ALJ's duty to develop the record for the time period between the Administration's decision and the ALJ hearing. Most likely, this is because these two events are supposed to occur more closely in time than they did here. However, in looking at the regulations, it would appear that where there is a substantial time delay between the administrative ruling discontinuing benefits and the hearing before an ALJ, the ALJ has a continuing duty to develop the record.

Social Security Regulation 20 C.F.R. § 404.929 states that a claimant appealing the Commissioner's decision is permitted to submit new evidence at the ALJ hearing. The regulations therefore contemplate that events occurring between the Administration's decision and the ALJ hearing will have relevance at the hearing.

Further, 20 C.F.R. § 404.1512(d) states that before the Administration makes a determination that an applicant is not disabled, it is the Administration's responsibility to "develop [the applicant's] complete medical history for at least the twelve months preceding the month in which [the applicant] files [his] application. . . ." 20 C.F.R. § 416.305 (b)(5) provides that applicants need not file a new application if "notified that [his] benefits will be stopped because [he] is no longer eligibile and [he] again meets the requirements for eligibility before [his] appeal rights are exhausted." Read together, these last two provisions suggest that when a claimant challenges a determination that his benefits will stop because he is no longer disabled, the twelve month period preceding that determination is highly relevant. By making no inquiry about the existence of any medical reports or evidence for this period, despite evidence that Plaintiff was still receiving treatment for multiple ailments, the ALJ failed to fully and fairly develop the record in this case.

B. Remand is appropriate.

In evaluating the necessity for a remand, we are guided by "whether the record reveals evidentiary gaps which result in unfairness or `clear prejudice'." Brown, 44 F.3d at 935, (quoting Ware v. Schweiker, 651 F.2d 408, 413 (5th Cir. 1981)). The lack of medical documentation supporting Plaintiff's allegations of continuing disability is undoubtedly prejudicial to a claim for benefits. We cannot determine whether the missing records would support Plaintiff's claim that he still is unable to work because of pain and other ailments related to his poor health. Remand is therefore appropriate so that the record can be completed.

Remand is not necessarily appropriate any time that a claimant alleges that an ALJ has neglected to complete the record. However, the likelihood of unfair prejudice to a claimant may arise where, in this case, the evidentiary gap is significant and involves recent medical treatment which the claimant contends supports his allegations of disability. Also, given this claimant's limited proficiency in English and inability to comprehend or participate meaningfully in this proceeding, the ALJ should have taken a more active role in developing facts favorable to Plaintiff's case.

V. CONCLUSION

The ALJ failed to develop the record adequately in this pro se case. Accordingly, this Court HEREBY REVERSES and REMANDS to the ALJ with directions to address these issues. Plaintiff's request for attorney's fees is HEREBY DENIED, as the Court feels that it would be premature to award such at this time.

IT IS SO ORDERED.