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SCOTT v. CALLAHAN

September 10, 1997

ALBERT E. SCOTT, Plaintiff,
v.
JOHN J. CALLAHAN, Commissioner of Social Security, 1 Defendant.



The opinion of the court was delivered by: CASTILLO

 On January 9, 1995, an Administrative Law Judge (ALJ) denied Albert Scott's application for Disability Insurance Benefits (DIB) and Supplemental Security Income (SSI) under the Social Security Act, 42 U.S.C. §§ 416(i), 423(d), 1381a, 1382c(a)(3)(A). He now appeals that decision in federal district court as permitted by 42 U.S.C. § 405(g), which grants federal courts the power to review the Social Security Commissioner's final decisions *fn2" via a federal civil action. The accepted procedural vehicle for obtaining judicial review of a social security benefits determination is a motion for summary judgment under Rule 56 of the Federal Rules of Civil Procedure, which both Scott and the Commissioner have submitted here. *fn3" For the reasons that follow, we affirm the ALJ's decision.

 RELEVANT FACTS

 We begin with a brief overview of the facts, then move on to a more detailed discussion of the record. At the time of the hearing in November 1994, Scott was forty-eight years old, living with his wife in a first floor apartment. He has a ninth grade education and can read and write. For ten years, he worked steadily as a truck driver delivering produce until he was fired in March 1991 for allegedly padding his hours. Before that, Scott spent eight years in prison. He has not been arrested since.

 Scott has been plagued with hypertension for years. He takes medication that lowers, but does not alleviate, his high blood pressure. At five foot seven and 239 pounds, he also suffers from obesity. Scott's heart is enlarged, and doctors have observed a "spot" on Scott's chest X-rays. These conditions are monitored by Scott's treating physician, Dr. Dizon, whom Scott sees at least once per month. Scott was hospitalized for uncontrollable hypertension and related complications in February 1990, September 1990, and May 1992; the most recent hospitalization was precipitated by an attack of congestive heart failure. *fn4" Each time Scott was admitted, doctors noted that Scott had stopped taking his medication. Administering medication consistently improved Scott's condition, and he was always discharged with medication and instructions to follow a low-salt diet.

 Scott protectively filed for DIB and SSI benefits on October 8, 1991. He alleged a disability onset date of July 30, 1991, claiming that uncontrollable high blood pressure and an enlarged heart precluded employment. The onset date's significance is unclear, however, since it does not coincide with any documented health problem and Scott had stopped working four months earlier for reasons unrelated to his health. The Social Security Administration ("SSA") denied both claims on December 19, 1991, and Scott declined to pursue them further.

 Scott then filed a second application for both SSI and DIB on June 24, 1992, alleging the same disability onset date and impairments, as well as a "spot on [his] chest." The SSA denied these applications on October 23, 1992. Scott's request for reconsideration was denied on July 19, 1993, and on August 2 he requested a hearing before an ALJ. The hearing was held on November 2, 1994; Scott was unrepresented. Upon considering both Scott's October 1991 and June 1992 applications for benefits, the ALJ denied them in a written opinion issued January 19, 1995. He found that although Scott suffered from a severe impairment -- hypertension with status-post congestive heart failure -- which prevented him from returning to his previous occupation, it left him with the residual functional capacity ("RFC") to perform sedentary work available in the national economy. Consequently, the ALJ ruled that Scott was not disabled. Scott next hired an attorney and petitioned the Appeals Council to review the ALJ's decision. His petition was denied on November 15, 1996.

 On January 2, 1997, Scott filed a complaint for judicial review in this Court. His contentions are twofold: 1) Scott did not validly waive his right to representation before the ALJ, who subsequently failed his duty to develop the record in light of Scott's unrepresented status; and 2) the ALJ's decision is not supported by substantial evidence and contains legal error. We now consider the record to determine the validity of Scott's assessment.

 I. Scott's Testimony

 Scott was the sole witness at the hearing. Before taking Scott's testimony, the ALJ began with a few preliminary matters. First, he mentioned Scott's right to representation:

 Q: You also have the right to have an attorney or other representative represent you if you wish. An attorney or representative will assist you in preparing your case and will help you in developing the case, and assist you in answering any questions or asking additional questions other than the ones I may ask. Some of them don't charge a fee at all. Some of them work on a contingency fee; they don't charge you unless they collect anything. So it's up to you whether or not you want them or not. You have that right if you desire. What do you wish to do, sir?

 A: Well, I can continue on myself.

 Q: All right, sir. That's up to you.

 (R.41). Second, the ALJ turned to new allegations in Scott's August 1993 hearing request. In addition to the physical impairments listed in Scott's 1991 and 1992 applications, the hearing request claimed for the first time that Scott was suffering memory loss, nervousness, and an unwillingness to be around people and attend to his hygiene. In response to the ALJ's question about the status of these problems, Scott answered, "Well, I'm a little better now . . . ." Id. Asked whether his doctor had recommended psychiatric treatment or prescribed "mental medication of any kind," Scott replied in the negative. The ALJ did not probe further. Finally, the ALJ noted the exhibits he had on file and questioned whether Scott had any additional evidence to offer. Scott responded that he did not.

 Scott testified that he was 48 years old, 5 feet 7 inches tall, and 239 pounds -- up 14 pounds in the previous six months. He lives with his wife in a first-floor apartment. His education ended in the ninth grade, and he is capable of reading and writing. On the day of the hearing, Scott arrived by way of public transportation, and walked three or four blocks to the hearing from the bus stop. He had to slow his pace, but did not stop for any reason other than to obey traffic lights.

 Scott attributes his inability to work partly to uncontrollable high blood pressure. The ALJ asked what about Scott's condition started to preclude work on the disability onset date:

 Q: Why, since March of '91, *fn6" sir, when you say you've been unable to work, does your blood pressure prevent you from working?

 A: Because my blood pressure elevates and it goes up, you know, and the medicine they take -- that they gives me --

 Q: Uh-huh.

 A: -- and I have to just, you know -- it makes me (INAUDIBLE) and everything. I can't, you know -- I have --

 Q: I see you're taking Lopressor and Procardia for your blood pressure. . . . Does that control your blood pressure?

 . . .

 A: It helps, yeah.

 Q: Yes, it does help. Does it help or does it control the pressure?

 A: It helps it. It doesn't control it . . . .

 (R.50). Scott clarified that his medication lowers his blood pressure, but not to the point that it becomes normal. The ALJ asked again:

 Q: How does that prevent you from working though?

 A: Because it don't -- it elevates on me. Sometimes my blood pressure --

 Q: Well, how does your high blood pressure prevent you from working? The fact that your pressure's high . . . why does that prevent you from working?

 A: Because the doctor said I might pass out, anything. . . .

 (R.50-51). Since 1990, Scott has passed out a total of four times: twice over the last two years he was ...


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