Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Smith v. Secretary of Health

*fn*: March 31, 1978.

JESSIE LEE SMITH, PLAINTIFF-APPELLANT,
v.
SECRETARY OF HEALTH, EDUCATION AND WELFARE, DEFENDANT-APPELLEE.



Appeal from the United States District Court for the Southern District of Indiana, Indianapolis Division. No. IP 74-66-C - S. Hugh Dillin, Judge.

Before Fairchild, Chief Judge, Tone, Circuit Judge, and Sharp, District Judge.*fn**

Author: Per Curiam

By a final administrative decision the Secretary of Health, Education and Welfare denied social security disability benefits to the plaintiff-appellant, Jessie Lee Smith, which administrative decision was affirmed by the District Court and from which this appeal is made.

We examine the total record here in light of the standard of review announced in Jeralds v. Richardson, 445 F.2d 36 (7th Cir. 1971), and Richardson v. Perales, 402 U.S. 389, 91 S. Ct. 1420, 28 L. Ed. 2d 842 (1971).

With all deference to the District Court we have concluded that the total record here fails to demonstrate a full and fair hearing before the Secretary and that this case should be remanded to the Secretary with the mandate to conduct a full administrative hearing and to afford plaintiff-appellant and her counsel opportunity to fully develop the issues discussed here. We are also mindful that any one of the several issues raised and discussed here, standing alone, might not be grounds to remand. However, taken together, we have determined that fairness and justice do require such a remand.

We turn now to the specific reasons for our decision.

I

The plaintiff-appellant is a 61 year old former laundry worker who has not been gainfully employed since September 9, 1968. On that date she was hospitalized after passing out from a severe asthma attack. At the time of her administrative hearing on July 5, 1973 she was receiving $80.00 per month welfare disability benefits, some food stamps and township poor relief.

It is undisputed that this plaintiff-appellant is of very limited education and has spent her entire worklife doing menial physical labor. In her youth she worked as a tobacco stripper in Kentucky. She later cooked in a boarding house in Kentucky and in a restaurant in Indianapolis. For about 20 years she did manual labor in two laundries.

At her hearing the Administrative Law Judge (ALJ) made a minimal explanation of her right to counsel. It is also apparent from the record that she did not understand the role that a lawyer would play in that proceeding.

We are mindful that there is no constitutional right to counsel and the Secretary has no duty to urge counsel upon a claimant. Where, as here, the record discloses possible mental illness coupled with a misconception as to the role of a lawyer, the ALJ should have, at the very least, explained these interrelated subjects in greater detail and with greater care. This failure provides the backdrop for further deficiencies in the record. The mere failure of a disability claimant to be represented by a lawyer at a hearing is not in itself sufficient to warrant reversal on remand. See Truss v. Richardson, 338 F. Supp. 741 (D.C.Mich.1971). However, the importance of counsel in administrative procedures has been emphasized. See Goldberg v. Kelly, 397 U.S. 254, 90 S. Ct. 1011, 25 L. Ed. 2d 287 (1970). Courts have also reversed and remanded cases involving absence of counsel where other factors were present. See Gold v. HEW, 463 F.2d 38 (2d Cir. 1972); Webb v. Finch, 431 F.2d 1179 (6th Cir. 1970); Alamo v. Richardson, 355 F. Supp. 314 (D.C.P.R.1972); and Roman v. Secretary, HEW, 355 F. Supp. 646 (D.C.P.R.1972). The quality of representation may also be the basis for remand. Arms v. Gardner, 353 F.2d 197 (6th Cir. 1965), and Kelley v. Weinberger, 391 F. Supp. 1337 (N.D.Ind.1974). Recent legal literature analyze the various elements of the concern for the unrepresented claimant. See Popkin, The Effect of Representation in Nonadversary Proceedings A Study of Three Disability Programs, 62 Corn.L.Rev. 989 (1977).

It is a basic obligation of the ALJ to develop a full and fair record. See Daniels v. Mathews, 567 F.2d 845 (8th Cir. 1977). Failure to do so will authorize remand for further hearing. In Cutler v. Weinberger, 516 F.2d 1282, 1286 (2d Cir. 1975), it is stated:

"Moreover, it is significant that Mrs. Cutler was not represented by counsel at the hearing before the administrative law judge. While hearings on disability claims are not adversary proceedings, Richardson v. Perales, 402 U.S. 389, 91 S. Ct. 1420, 28 L. Ed. 2d 842 (1971), where the disability benefits claimant is unassisted by counsel, the administrative law judge has a duty " "scrupulously and conscientiously (to) probe into, inquire of, and explore for all the relevant facts. . . ." " Gold v. Secretary of Health, Education and Welfare, supra, 463 F.2d at 43, quoting from Hennig v. Gardner, 276 F. Supp. 622, 624-625 (N.D.Tex.1967). See also Rosado v. Richardson, 372 F. Supp. 469 (D. Puerto Rico 1973); Erwin v. Secretary of Health, Education and Welfare, 312 F. Supp. 179 (D. New Jersey 1970); Coyle v. Gardner, 298 F. Supp. 609 (D. Hawaii 1969). That duty was not met here. Given the illegibility of the medical records; the corroboration of Mrs. Cutler's subjective complaints of pain, weakness, dizziness and unsteadiness in a written report by a former employer; and the limited educational background of the claimant, it was incumbent upon the administrative law judge to emphasize the desirability of producing, and to afford an opportunity to produce expert testimony, as to her medical disabilities and their effect on her capacity to engage in any substantial, gainful work within the meaning of the Act. See, e. g. Carrero v. United States Secretary of Health, Education and Welfare, 372 F. Supp. 474 (D. Puerto Rico 1973); Machen v. Gardner, D.C., 319 F. Supp. 1243, supra; Staskel v. Gardner, 274 F. Supp. 861 (E.D.Pa.1967); Roberts v. Celebrezze, 239 F. Supp. 262 (E.D.N.Y.1965). Cf. Gold v. Secretary of Health, Education and Welfare, supra, at 42, n. 7."

In this case, Mrs. Smith was not represented by counsel at the hearing before the ALJ. While hearings on disability claims are not adversary proceedings, Richardson, supra, where the disability benefits claimant is unassisted by counsel, the ALJ has a duty " "scrupulously and conscientiously (to) probe into, inquire of, and explore for all the relevant facts . . .' " Gold v. Secretary of Health, Education and Welfare, supra, at 43, quoting from Hennig v. Gardner, 276 F. Supp. 622, 624-625 (N.D.Tex.1967). See also Rosado v. Richardson, 372 F. Supp. 469 (D. Puerto Rico 1973); Erwin v. Secretary of Health, Education and Welfare, 312 F. Supp. 179 (D. New Jersey 1970); Coyle v. Gardner, 298 F. Supp. 609 (D. Hawaii 1969). The duty of counsel, set out under Gold was not met here. Given the claimant's lack of counsel, the absence of any psychiatric or psychological examination, her physical condition, lack of vocational expert at the hearing, and the claimant's limited educational background, it was incumbent upon the ALJ to emphasize the desirability of producing, and to afford an opportunity to produce expert testimony, as to her medical disabilities and their effect on her capacity ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.