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New v. Commissioner of Ssa

United States District Court, N.D. Mississippi, Greenville Division

December 23, 2014

ROSE NEW, Plaintiff,


S. ALLAN ALEXANDER, Magistrate Judge.

Plaintiff Rose new has filed under 42 U.S.C. § 405(g) for judicial review of the decision of the Commissioner of Social Security denying her application for a period of disability (POD) and disability insurance benefits (DIB) under Title II of the of the Social Security Act. Plaintiff filed her application on August 25, 2009, alleging disability beginning June 10, 2005. Docket 20, pp. 118-121. The Commissioner denied her application initially on January 20, 2010 and upon reconsideration on May 15, 2009. Docket 20, pp. 70-72, 75-77. Plaintiff filed a request for a hearing on May 18, 2010. Docket 20, pp.78-79. An Administrative Law Judge (ALJ) held the administrative hearing in Greenville, Mississippi on April 12, 2011. Docket 20, p. 45-67. Plaintiff was not represented by an attorney at the hearing. Docket 20, p. 46.

The ALJ issued an unfavorable decision on May 20, 2011 (Docket 20, pp. 32-67) and, after reviewing the request for review and the record, the Appeals Council denied her request for review. Docket 20, p. 17-21. Plaintiff filed the instant appeal, and it is now ripe for review. Because both parties have consented to have a magistrate judge conduct all the proceedings in this case under 28 U.S.C. § 636(c), the undersigned has the authority to issue this opinion and the accompanying final judgment.


Plaintiff was born on September 5, 1963 [Docket 20, p. 63] and was forty-seven years old on the date of the hearing before the ALJ. Docket 20, p. 32-33. She has a high school education and attended one or two semesters of college classes. Id. The ALJ found that plaintiff had not engaged in substantial gainful activity from June 2005 until her last date insured of December 31, 2010. Docket 20, p. 34, finding No. 2. Her past relevant work experience was as a billing clerk. Docket 20, p.54. She claimed disability due to rheumatoid arthritis, fibromyalgia and carpal tunnel syndrome. Docket 20, p. 152.

The Social Security Administration sent plaintiff a very explicit letter on June 1, 2010, advising her that she had a right to representation, enclosing a brochure with very thorough explanation of her rights and options. Docket 20, pp. 80-85. The ALJ sent her another, similar letter on March 15, 2011, with the same information. Docket 20, pp. 86-93. Finally the ALJ once again informed plaintiff at the hearing on April 12, 2011, of her right to representation by an attorney for her hearing, that she could receive a continuance to secure representation and that she might qualify for assistance from certain legal services agencies. Docket 20, pp. 47-52. Plaintiff, who was not represented by an attorney at the April 12, 2011 hearing, responded that she had read and understood the two letters setting out her options, but she wished to proceed without counsel at the hearing, and she signed a "Waiver of Representation" at the hearing Docket 20, p. 115. The hearing began at 9:02 a.m. and concluded at 9:30 a.m. Docket 20, pp. 47, 67. Plaintiff, her husband Randy New and a Vocational Expert (VE), Deon Porter, testified at the hearing.

The ALJ determined that plaintiff's "obesity, rheumatoid arthritis, osteoarthritis, migraines, and fibromyalgia" were "severe" impairments, but that her "medically determinable mental impairment of affective disorder did not cause more than a minimal limitation in the claimant's ability to perform basic mental work activities and therefore non-severe" Docket 20, p. 34. The ALJ further found that "[n]o treating or examining physician has suggested the presence of any impairment or combination of impairments at listing severity." Docket 20, p. 36. In so finding, the ALJ held that the plaintiff did not meet or equal a listed impairment in 20 C.F.R. Part 404, Subpart P, App. 1 (20 C.F.R. §§ 404.1520(d), 404.1525 and 404.1526). Id. After considering the entire record as a whole, the ALJ concluded that plaintiff

had the residual functional capacity to perform light work as defined in 20 C.F.R. 404.1567(b) except precluded from climbing ladders, but occasionally climb stairs, balance, stoop, bend, crouch, crawl and kneel. Further, she is precluded from exposure to extreme cold temperatures and noise.

Docket 20, p. 36, Finding No. 5.

The ALJ went on to find the plaintiff's "statements concerning the intensity, persistence and limiting effects of [her] symptoms are not fully credible to the extent that they are inconsistent with the residual functional capacity assessment." Docket 20, p. 38. With respect to plaintiff's credibility, the ALJ noted, among other things, that the plaintiff testified that she has fibromyalgia, but the medical record did not reflect a diagnosis by any physician, and there is no medical evidence in the record that could support such a finding. Id. In light of testimony by the VE, the ALJ held that plaintiff's "severe" impairments did not prevent her from performing past relevant work as a billing clerk which was a sedentary job (Docket 20, p. 38, Finding No. 6), and plaintiff therefore was "not disabled" under the Act. Docket 20, p. 39, Finding No. 7.

After the ALJ's decision, the plaintiff submitted a request for review. Docket 20, pp. 110-111. After reviewing the file and plaintiff's request, the Appeals Council denied the request for review and concluded that there was no basis for changing the ALJ's decision. Docket 20, p. 15. On appeal plaintiff makes three arguments: the ALJ improperly advised her about her right to an attorney, did not develop the record adequately, and improperly relied on testimony of a VE that referenced the Dictionary of Occupational Titles (DOT), which plaintiff argues is outdated. Docket 26.


In determining disability, the Commissioner, through the ALJ, works through a five-step sequential evaluation process.[1] The burden rests upon plaintiff throughout the first four steps of this five-step process to prove disability, and if plaintiff is successful in sustaining her burden at each of the first four levels, then the burden shifts to the Commissioner at step five.[2] First, plaintiff must prove she is not currently engaged in substantial gainful activity.[3] Second, plaintiff must prove her impairment is "severe" in that it "significantly limits [her] physical or mental ability to do basic work activities...."[4] At step three, the ALJ must conclude plaintiff is disabled if she proves that her impairments meet or are medically equivalent to one of the impairments listed at 20 C.F.R. Part 404, Subpart P, App. 1, §§ 1.00-114.09 (2010).[5] If plaintiff does not meet this burden, at step four she must prove that she is incapable of meeting the physical and mental demands of her past relevant work.[6] At step five, the burden shifts to the Commissioner to prove, considering plaintiff's residual functional capacity, age, education and past work experience, that she is capable of performing other work.[7] If the Commissioner proves other work exists which plaintiff can perform, plaintiff is given the chance to prove that she cannot, in fact, perform that work.[8]

The court considers on appeal whether the Commissioner's final decision is supported by substantial evidence and whether the Commissioner used the correct legal standard. Crowley v. Apfel, 197 F.3d 194, 196 (5th Cir. 1999), citing Austin v. Shalala, 994 F.2d 1170 (5th Cir. 1993); Villa v. Sullivan, 895 F.2d 1019, 1021 (5th Cir. 1990). It is the court's responsibility to scrutinize the entire record to determine whether the ALJ's decision was supported by substantial evidence and whether the Commissioner applied the proper legal standards in reviewing the claim. Ransom v. Heckler, 715 F.2d 989, 992 (5th Cir. 1983). The court has limited power of review and may not re-weigh the evidence or substitute its judgment for that of the Commissioner, [9] even if it finds that the evidence leans against the Commissioner's decision.[10] In the Fifth Circuit substantial evidence is "more than a scintilla, less than a preponderance, and is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Crowley v. Apfel, 197 F.3d 194, 197 (5th Cir. 1999) (citation omitted). Conflicts in the evidence are for the Commissioner to decide, and if there is substantial evidence to support the decision, it must be affirmed even if there is evidence on the other side. Selders v. Sullivan, 914 F.2d 614, 617 (5th Cir. 1990). The proper inquiry is whether the record, as a whole, provides sufficient evidence that would allow a reasonable mind to accept the ALJ's conclusions. Richardson v. Perales, 402 U.S. 389, 401 (1971). "If supported by substantial evidence, the decision of the [Commissioner] is conclusive and must be affirmed." Paul v. Shalala, 29 F.3d 208, 210 (5th Cir. 1994), citing Richardson v. Perales, 402 U.S. 389, 390, 28 L.Ed.2d 842 (1971).


The plaintiff did not engage in substantial gainful activity after the date she filed her application, satisfying step one. Docket 20, p. 34. The ALJ found at step two that plaintiff's obesity, rheumatoid arthritis, osteoarthritis, migraines, and fibromyalgia are severe impairments [Docket 20, pp. 34-36] and, at step three, that the plaintiff's impairments did not meet the stringent requirements set out in the listings.[11] Docket 20, pp. 36. Next, the ALJ determined that the plaintiff had the residual functional capacity to perform light work with specific limitations. Docket 20, pp. 36-38. In addition, the ALJ found that the plaintiff's subjective statements were "not fully credible." Docket 20, p. 38. At step four, the ALJ found that the plaintiff previously worked as a "billing clerk, sedentary exertion, semi-skilled." Id. Relying on the testimony of the VE, the ALJ determined that because plaintiff could, at all times relevant to the cause, perform her past relevant work as it was actually and generally performed, she was not disabled under the Act. Id. At 39.

1. Right to Counsel

A claimant at a Social Security hearing has a statutory right to counsel. 42 U.S.C. § 406; Clark v. Schweiker, 652 F.2d 399, 403 (5th Cir. Unit B July 1981); Norden v. Barnhart, 77 Fed.Appx. 221, 223 (5th Cir.2003). The claimant must be notified of this right. Clark, 652 F.2d at 403. "[N]otice should generally be provided in writing prior to a hearing. The ALJ should then provide oral notification at the hearing to ensure that a claimant who appears pro se... has been made aware of the options for obtaining counsel so that her or his waiver is knowingly and intelligently effected." Gullett v. Chater, 973 F.Supp. 614, 621 (E.D.Tex.1997) (citation omitted); see also Norden, 77 Fed.Appx. at 223. The magistrate judge in Gullett opined that an ALJ should also inquire whether the claimant had a meaningful opportunity to secure counsel and, if not, consider adjourning the hearing to provide that opportunity. Gullett, 973 F.Supp. at 621.

A claimant may waive her statutory right to counsel if she possesses adequate information to enable her "to decide intelligently whether to retain counsel or proceed pro se." Norden, 77 Fed.Appx. at 223. However, "[i]f inadequate notice was provided concerning the scope of the claimant's right, [the] waiver will be deemed invalid." Gullett v. Chater, 973 F.Supp. 614, 620 (E.D.Tex.1997). Thus, the ALJ must notify the claimant of (1) "the manner in which an attorney can aid in the proceedings, (2) the possibility of free counsel or a contingency arrangement, and (3) the limitation of attorney fees to twenty-five percent of past due benefits and the required court approval of the fees." Id., citing Clark v. Schweiker, 652 F.2d 399, 403 (5th Cir.1981); see Norden, 77 Fed.Appx. at 223.

Nevertheless, an invalid waiver of the right to counsel, by itself, will not merit reversal of an ALJ's decision. Castillo v. Barnhart, 325 F.3d 550, 552 (5th Cir.2003). A claimant must also show she suffered prejudice or unfairness because of the lack of counsel, Clark, 652 F.2d at 399, or produce evidence that "would have been adduced... that could have changed" the ALJ's decision if the claimant had been represented by counsel. Johnson v. Astrue, 326 Fed.Appx. 737, 740. (5th Cir.2009) (if Johnson had counsel, and counsel had called witnesses to corroborate the severity of his symptoms, this could have changed the ALJ's decision); see also Castillo, 325 F.3d at 552.

In this case, it is undisputed that plaintiff was notified of her right to representation, and she does not challenge the adequacy of the pre-hearing notice. When plaintiff was notified that her claim had been denied on January 20, 2010, the denial letter also stated:

You can have a friend, lawyer or someone else help you. There are groups that can help you find a lawyer or give you free legal services if you qualify. There are also lawyers who do not charge unless you win you appeal. Your local Social Security office has a list of groups that can help you with your appeal.
If you get someone to help you, you should let us know. If you hire someone, we must approve the fee before he or she can collect it. And if you hire a lawyer, we will withhold up to 25 percent of any past due Social Security benefits to pay toward the fee.

Docket 20, p. 71. In addition, after plaintiff requested a hearing before an ALJ, the pre-hearing notice explained as follows:

Your Right to Representation
You may choose to be represented by a lawyer or other person. A representative can help you get evidence, prepare for the hearing, and present your case at the hearing. If you decide to have a representative, you should find one immediately so that he or she can start preparing your case.
Some private lawyers charge a fee only if you receive benefits. Some organizations may be able to represent you free of charge. Your representative may not charge or receive any fee unless we approve it. We are enclosing a list of groups that can help you find a representative.

Docket 20, pp. 80-81.

However, plaintiff argues that her waiver of counsel was invalid because at the hearing the ALJ failed to advise her that "attorneys work on a contingency basis of 25% of past due benefits" and further because the ALJ "provided counsel" to plaintiff, she did not provide a legal waiver of her right to representation. Docket 26, p. 13. At the beginning of the hearing the ALJ had the following exchange with the plaintiff:

ALJ:.... Ms. New, I wanted to explain to you your various options. You could ask for a postponement to get an attorney or representative. You're entitled to do that. If you cannot afford an attorney there are some agencies that you may qualify for. I don't know what their qualifications are. You don't have to have a representative, you can just simply go forward on your own. And, you know, I will ...

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