Graham v. Apfel, 96-3449

• Citation: 129 F.3d 1420
• Decision Date: 16 September 1997
• Docket Number: No. 96-3449,96-3449
• Parties: , 11 Fla. L. Weekly Fed. C 878 Tammy GRAHAM, Plaintiff-Appellant, v. Kenneth APFEL, Commissioner of Social Security Administration, Defendant-Appellee. Non-Argument Calendar. Eleventh Circuit
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 1420

129 F.3d 1420

54 Soc.Sec.Rep.Ser. 567, 11 Fla. L. Weekly Fed. C 878

Tammy GRAHAM, Plaintiff-Appellant, v. Kenneth APFEL, Commissioner of Social Security Administration, Defendant-Appellee.

No. 96-3449

Non-Argument Calendar.

United States Court of Appeals,Eleventh Circuit.

Sept. 16, 1997.

N. Albert Bacharach, Jr., Gainesville, FL, for Plaintiff-Appellant.

Roy F. Blondeau, Asst. U.S. Atty., Tallahassee, FL, Mary C. Rice, Mack A. Davis, Elyse Sharfman, Mary Ann Sloan, Malinda Hamann, Haila N. Kleinman, Office of Chief Counsel, SSA, Atlanta, GA, for Defendant-Appellee.

Appeal from the United States District Court for the Northern District of Florida.

Before HATCHETT, Chief Judge, and EDMONDSON and CARNES, Circuit Judges.

PER CURIAM:

Tammy Graham appeals the district court's order affirming the Social Security Commissioner's denial of her application for supplemental security income, 42 U.S.C. § 1383(c)(3).

I.

Graham applied for disability benefits alleging disability beginning September 13, 1990, due to symptoms associated with insertion of a pacemaker. She alleged chest pain and fatigue associated with microcytic hypochromic anemia and congenital heart block. ^* Her applications were denied both initially and on reconsideration. On August 7, 1992, Graham requested a hearing before an Administrative Law Judge ("ALJ").

Graham's attorney filed his notice of appearance as representative for her on September 25, 1992. The hearing was scheduled for June 15, 1993, and a notice of that hearing was mailed to Graham at her residence; however, no evidence indicates that any notice was ever mailed to her attorney. Graham appeared at the administrative hearing without her attorney, and the ALJ found that she waived her right to be represented by counsel. It is unclear whether the ALJ was aware that Graham had retained counsel. The ALJ did not note that she had retained an attorney, that he had entered an appearance, or whether he had been notified of the date of the hearing.

At the time of the hearing, Graham was a 19 year-old high-school student with one year remaining before graduation. She had no "past relevant work" within the meaning of the regulations. At the time of the hearing, she received $241/month in AFDC benefits and $202/month in food stamps, resided in subsidized housing, and paid $17/month for rent and $22/month for electricity.

On September 13, 1990, Graham received a pacemaker for correction of a "heart block" and microcytic hyperchromic anemia. She was stable on discharge, with a diagnosis of symptomatic heart block including Mobitz type I and third-degree AV block, and microcytic hyperchromic anemia. She was instructed to abstain from heavy lifting and upper body exercise for one month. In December 1990, Graham developed chest pain while marching in ROTC, and was briefly readmitted to the hospital. Her doctors determined that her symptoms were not cardiac but were chest-wall pain. By December 4, 1990, her treating physician had lifted the restrictions noting that she could "resume normal activity."

The medical records demonstrate that Graham has experienced chest pains, but her doctors determined on October 8, 1991, that the cause was costochondritis, inflammation of the ribs and cartilage, which is not a cardiac impairment. In December 1991, Graham underwent surgery to remove impacted teeth with no residual effects. In addition, a preoperative medical evaluation showed that she was an excellent candidate for the surgery, and no complications were anticipated as a result of the pacemaker. She was prescribed Naprosyn and Ibuprofen. In January 1992, Graham was seen by a plastic surgeon due to development of a keloid scar, which was causing some pain, at the incision site of her pacemaker. She decided against an invasive treatment for the scar. Graham sought treatment for chest pains in February 1992. Her discharge summary advised that the pain probably emanated from her rib cage, not from her lungs or heart. The causes could have been viral infection of the rib cage, bruising, or a pulled muscle.

Graham testified at the hearing that she could sit for about seven hours a day and stand for twenty minutes. She attended high school full-time, participating in a special program where she worked at her own pace. She also had an eight-month-old child who weighed about 20 pounds at the time of the hearing, and whom she left with her mother during the time she attended school. She testified that she cooked meals for herself and her child, and assumed full responsibility for the child's care. She further stated that she would lift the child about three times a day, but would not perform any other lifting. In addition, she testified that she shopped for herself at a store two miles away, although her brother drove her. Graham further testified she has been unable to work because of chest pain, dizziness, and fatigue experienced since the insertion of the pacemaker.

The ALJ determined based on the medical evidence that Graham had a severe history of pacemaker insertion, costochondritis, microcytic hyperchromic anemia, development of keloid tissue over her surgery incision, and history of impacted teeth, but that she did not have an impairment or combination of impairments listed in, or medically equal to one listed in Appendix 1, Subpart P, Regulations No. 4. In addition, the ALJ found that Graham's subjective symptoms of pain, dizziness, shortness of breath, and severe fatigue were not credible, because the alleged severity of the symptoms were inconsistent with the medical evidence, with her usual activities, and with reports of relief from these symptoms (with medications) from treating sources. Based on these findings, the ALJ concluded that although Graham did have severe impairments, she retained the maximum residual functional capacity to perform a full range of light work. He concluded that based on an exertional capacity for light work, and Graham's age, education, and work experience, Graham was not disabled, as defined by § 416.969 of Regulations No. 16 and Rule 202.17, Table No. 2, Appendix 2, Subpart P, Regulations No. 4. The Appeals Council denied review and the district court affirmed the Secretary's denial of benefits.

II.

Graham argues on appeal that failure to notify her counsel of the hearing violates her constitutional due process and statutory rights. She further argues that she did not knowingly and intelligently waive her right to counsel, and that due to the violation of her constitutional rights she need not prove that she was prejudiced by the ALJ's failure to fully and fairly develop the record.

The government acknowledges, as it should, that the SSA erred by failing to give notice of the ALJ hearing to Graham's attorney and that the ALJ perpetuated the Administration's error by failing to discover that Graham had counsel. However, the government argues that the deprivation of the right to counsel was a statutory wrong, not a constitutional wrong. The government contends that the claimant must demonstrate prejudice to establish a remandable violation of due process, and that the ALJ conducted a full and fair hearing so that the lack of attorney representation did not prejudice Graham. We agree.

III.

The Social Security Act mandates that "findings of the Secretary as to any act, if supported by substantial evidence, shall be conclusive." 42 U.S.C. § 405(g). Substantial evidence is described as more than a scintilla, and means such relevant evidence as a reasonable mind might accept as adequate to...