The opinion of the court was delivered by: Bua, District Judge.
This is an action for judicial review of a final agency
decision of the defendant, Secretary of the Department of Health
and Human Services, denying the plaintiff's application for a
period of disability and disability insurance benefits under
Title II of the Social Security Act. 42 U.S.C. § 416(i), 423.
The plaintiff has exhausted her administrative remedies and is
properly before the court under the provisions of the Act.
42 U.S.C. § 405(g). Before the court are the parties' cross motions
for summary judgment and the plaintiff's motion to remand for
further proceedings. The issue before the court is whether the
final decision of the Secretary is supported by substantial
Substantial evidence is "such relevant evidence as a reasonable
mind might accept as adequate to support a conclusion."
Richardson v. Perales, 402 U.S. 389, 401, 91 S.Ct. 1420, 1427,
28 L.Ed.2d 842 (1971); Allen v. Weinberger, 552 F.2d 781 (7th
Cir. 1977). Findings of fact made by the Secretary are conclusive
if supported by substantial evidence. 42 U.S.C. § 405(g). On
review, it is not the function of this court to weigh the
evidence or to substitute its judgment for that of the Secretary.
Judicial review is limited to the question of whether the
decision of the Secretary is supported by substantial evidence.
A review of the record discloses that the plaintiff is a 32
year old female high school graduate who was last employed as a
switchboard operator in June, 1972. The plaintiff resides with
her husband and daughter. It is unclear from the record whether
the plaintiff was discharged, or voluntarily resigned, from her
last employment. A letter from her employer indicates that this
employment terminated as a result of absenteeism which he
attributed to a nervous condition. At some point prior to the
hearing, the plaintiff attempted to supplement her family's
income by working at a bingo parlor. The plaintiff was unable to
engage in this employment due to either her nervousness, her
medication, or the combined effects of both. The parties agree
that the plaintiff was last insured for disability purposes on
December 31, 1974.
In the hearing before the Administrative Law Judge (ALJ), the
plaintiff was not present. Phyllis Flammang, her duly appointed
representative, offered a statement from the plaintiff's
physician which indicated that the plaintiff would be unable to
attend the hearing due to her psychiatric impairment. This
correspondence further indicated that the plaintiff suffered from
agoraphobia (an abnormal fear of open space), and that she was
under the care of a psychologist. Ms. Flammang stated that she
was a personal friend of the plaintiff and that she was employed
as a psychiatric nurse. The record does not indicate whether Ms.
Flammang had at any time been involved in the treatment of the
plaintiff, or whether her testimony was offered in her
Ms. Flammang stated that she had known the plaintiff for
approximately three or four years and that throughout this period
the plaintiff had been generally confined to her home. At some
time during this period the plaintiff was able to leave her home,
but only in the company of her husband. Ms. Flammang attributed
the plaintiff's difficulties to a psychiatric illness known as
agoraphobia. At the time of the hearing the plaintiff's condition
had deteriorated and she was unable to leave her home accompanied
by her husband.
Ms. Flammang also stated that the plaintiff was an alcoholic,
that she had been hospitalized at Martha Washington Hospital in
November of 1974 for detoxification, and that since that time,
with exception of an attempt to work at a bingo parlor, the
plaintiff has been unemployed. The record indicates that prior to
the hearing, all communication between the agency and the
plaintiff was conducted by telephone or written correspondence. A
letter from the plaintiff also indicates that due to her illness,
she was unable to attend a consultative examination, and she was
unable to reach the consultative physician by telephone to
arrange for an alternate appointment. In addition, Ms. Flammang
stated that the plaintiff has abstained from alcohol since her
detoxification. The hearing was terminated with leave to file
additional documentation of the plaintiff's disability.
The objective medical evidence of the plaintiff's impairments
consisted of the records of her hospitalization for
detoxification in 1974, the records of her out-patient treatment
for agoraphobia dated December 15, 1978 and May 8, 1979, and a
statement filed subsequent to the hearing by the claimant's
representative stating that in her opinion the plaintiff was
emotionally and mentally disabled and has been for a number of
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 ...