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Marin v. Berryhill

United States District Court, W.D. Texas, El Paso Division

March 26, 2018

JAQUELINE MARIN, Plaintiff
v.
NANCY A. BERRYHILL, [1] ACTING COMMISSIONER OF THE SOCIAL SECURITY ADMINISTRATION Defendant

          OPINION

          MIGUEL A. TORRES, UNITED STATES MAGISTRATE JUDGE

         This is a civil action seeking judicial review of an administrative decision pursuant to 42 U.S.C. § 405(g). Plaintiff Jaqueline Marin ("Marin") appeals from the decision of the Commissioner of the Social Security Administration ("Commissioner") denying her claims for Supplemental Security Income ("SSI") under Title XVI of the Social Security Act ("the Act"). The parties consented to the transfer of the case to this Court for determination and entry of judgment. See 28 U.S.C. § 636(c); Local Court Rule CV-72. For the reasons set forth below, the Commissioner's decision will be AFFIRMED.

         I. PROCEDURAL HISTORY

         Marin was twenty-nine years old at the time of her hearing before the Administrative Law Judge ("ALT'). (R- 32, 124).[2] She had never had a full-time job, but she briefly worked for Little Caesar's, in the kitchen at Providence Memorial Hospital, and as a florist at Sam's Club. (R. 36). Marin filed an application for SSI on June 13, 2013, in which she alleged disability beginning on January 1, 2007, due to bipolar disorder, depression, and anxiety. (R. 124-29, 164). After her application was denied initially and upon reconsideration, Marin requested a hearing. (R. 71-74, 79-84). On August 12, 2014, she appeared without an attorney for a video conference hearing before the ALJ. (R. 30-46). On October 10, 2014, the ALJ issued a written decision denying benefits on the ground that Marin is able to perform jobs that exist in significant numbers in the national economy. (R. 14-25). On January 14, 2015, the Appeals Council denied Marin's request for review, thereby making the ALJ's decision the Commissioner's final administrative decision. (R. 1-5).

         The ALJ found that Marin had the following severe impairments: affective disorder; alcohol abuse with possible substantive induced psychosis. (R. 16). The ALJ concluded that Marin had the residual functional capacity ("RFC") to perform "a full range of work at all exertional levels but with the following nonexertional limitations: The claimant is limited to simple, routine tasks with a reasoning level 1. She should not be required to perform production pace work." (R. 18). Marin, who is now represented by counsel, argues that: (1) she did not knowingly and intelligently waive her right to counsel; and (2) the ALJ failed to properly develop the record.

         II. DISCUSSION

         A. Standard of Review

         This Court's review is limited to a determination of whether the Commissioner's final decision is supported by substantial evidence on the record as a whole and whether the Commissioner applied the proper legal standards in evaluating the evidence. Myers v. Apfel, 238 F.3d 617, 619 (5th Cir. 2001) (quoting Greenspan v. Shalala, 38 F.3d 232, 236 (5th Cir. 1994)). Substantial evidence is more than a scintilla, but less than a preponderance, and is such relevant evidence as a reasonable mind might accept to support a conclusion. Ripley v. Chater, 67 F.3d 552, 555 (5th Cir. 1995). A finding of "no substantial evidence" will be made only where there is a "conspicuous absence of credible choices" or "no contrary medical evidence." Abshire v. Bowen, 848 F.2d 638, 640 (5th Cir. 1988) (citation omitted).

         In determining whether there is substantial evidence to support the findings of the Commissioner, the Court must carefully examine the entire record, but may not reweigh the evidence or try the issues de novo. Newton v. Apfel, 209 F.3d 448, 452 (5th Cir. 2000). The Court may not substitute its own judgment "even if the evidence preponderates against the [Commissioner's] decision" because substantial evidence is less than a preponderance. Harrell v. Bowen, 862 F.2d 471, 475 (5th Cir. 1988). Conflicts in the evidence are for the Commissioner and not the courts to resolve. Spellman v. Shalala, 1 F.3d 357, 360 (5th Cir. 1993) (citation omitted). If the Commissioner applied the proper legal standards and the findings are supported by substantial evidence, they are conclusive and must be affirmed. Id.

          B. Analysis of Marin's Claims

          1. Marin Validly Waived Her Right to Counsel

         i. Limitations on Fee

         Although there is no constitutional right to counsel at a social security hearing, a claimant does have a statutory right to counsel at such a hearing. Clark v. Schweiker, 652 F.2d 399, 403 (5th Cir. 1981) (citing 42 U.S.C. § 406). A claimant may waive this right to counsel only when sufficient information has been provided for the claimant to intelligently and knowingly decide whether to retain counsel or proceed pro se. Id.; Brock v. Chater, 84 F.3d 726, 729 n.l (5th Cir. 1996). '"Sufficient information' includes explanations of the possibility of free counsel, a contingency agreement, and the limitation on attorney's fees to 25% of past due benefits awarded." Norden v. Barnhart, 77 Fed.Appx. 221, 223 (5th Cir. 2003) (citing Clark, 652 F.2d at 403-04). Generally, notice should be provided in writing prior to the hearing, and the ALJ should also provide oral notification at the hearing. Gullett v. Chater, 973 F.Supp. 614, 621 (E.D. Tex. 1997). Courts have found, however, that a claimant may intelligently and knowingly waive the right to counsel even when a component of the sufficient information was not discussed by the ALJ at the hearing if that component was adequately addressed in a prior written notice. See, e.g., Castillo v. Barnhart, 325 F.3d 550, 552 (5th Cir. 2003).

         The written notices sent prior to the hearing and the ALJ's oral notification during the hearing provided Marin with sufficient information to knowingly and intelligently waive her right to counsel. The agency sent Marin two written notices regarding her right to an attorney. An April 15, 2014, notice to Marin included a two-page document titled "Your Right To Representation" that articulates in plain language, among other rights, the possibility of free counsel and the limitation on attorney's fees to 25% of past due benefits awarded. (R. 88-89). Additionally, a July 10, 2014, notice of hearing contains a section that explains the possibility of a contingency agreement or free counsel and states that generally a representative may not charge a fee unless it is approved by the Social Security Administration. (R. 95).

         Moreover, the ALJ verbally summarized Marin's rights.[3] At the onset of the August 12, 2014, ...


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