psychiatrist, dated November 30, 1978. Dr. Kagen diagnosed the
plaintiff as suffering from severe agoraphobia. This summary
states that the plaintiff had complained of total incapacitation
throughout the six month period preceding this examination. Dr.
Kagen recommended psychotherapy.
In addition, a letter from the plaintiff traces the development
of her illness from childhood, noting absences from school, a
remission of these symptoms with alcohol consumption, and
increased difficulty when she stopped drinking.
On the basis of the foregoing evidence, the ALJ found that the
plaintiff did not suffer from a disability as defined in the Act
prior to December 31, 1974. In support of this conclusion, the
ALJ noted that in April, 1979, the plaintiff filed her claim in
person with the agency. He added that "she may have been
accompanied by her husband but she was still able to get out of
the house at that time. I believe it would be pure conjecture to
conclude from the totality of the evidence in this case that Mrs.
Gallimore's impairments were so severe and unamenable to
treatment prior to December 31, 1974 as to prevent her from
engaging in her customary occupation as a switchboard operator
for any continuous period of twelve months."
In support of her motion to remand, the plaintiff argues that
her lack of representation by counsel, coupled with her
psychiatric impairments, prevented her from presenting relevant
evidence that she was afflicted with agoraphobia during her
period of eligibility. In addition, the plaintiff contends that
the ALJ did not develop a full and fair record and that his
erroneous finding of fact that she filed her claim in person was
material to his determination. The Secretary concedes that the
ALJ's finding concerning the filing of the claim was erroneous.
The Secretary argues, however, that the plaintiff has failed to
demonstrate on the basis of the objective evidence presented that
she was disabled during her period of disability.
The court has carefully examined the record in this case and
finds that the plaintiff's lack of representation by counsel,
coupled with the undisputed existence of her mental impairment,
prevented the plaintiff from fully presenting evidence of her
disability. It is true that the lack of counsel, standing alone,
is insufficient to warrant reversal or remand. Lack of counsel,
coupled with other circumstances, especially the existence of a
psychiatric impairment, may require a more complete development
of the record. Smith v. Secretary of Health, Education and
Welfare, 587 F.2d 857 (1978). See also Alamo v. Richardson,
355 F. Supp. 314 (D.C.P.R. 1972); Roman v. Secretary, HEW,
355 F. Supp. 646 (D.C.P.R. 1972).
This court also finds that the Secretary's determination that
the plaintiff had filed her claims in person is not supported by
substantial evidence. It is apparent from the ALJ's evaluation of
the evidence that this erroneous finding was a significant factor
in the final determination. As stated previously, it is not the
function of this court to weigh the evidence or to review the
record de novo. The court therefore finds that an assessment of
the totality of the evidence, in light of this factor, is more
properly made by the Secretary.
In addition, medical evidence of a subsequent condition of
health, reasonably proximate to a preceding time, may be used to
establish the existence of this condition at a preceding time.
Wigmore, Evidence, §§ 225, 233 (3d ed. 1940). See also Federal
Rules of Evidence, 702, 704. It is not this court's function to
speculate whether on remand, with a full and fair presentation of
the evidence, an evaluation of this evidence will affect the
ultimate outcome of this case. Begley v. Matthews,
544 F.2d 1345 (6th Cir. 1976).
For the reasons stated, the cause is remanded to the Secretary
for the parties to develop evidence related to the plaintiff's
total physical and mental problems as these may bear on the
question of disability. The court cautions the plaintiff,
however, that a full and fair development of the evidence will
require her participation in the proceedings as directed by the
Accordingly, the parties' cross motions for summary judgment
are denied. The case is remanded for further proceedings.
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