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HOLNDONER v. SCHWEIKER

June 28, 1982

NORENE HOLNDONER, PLAINTIFF,
v.
RICHARD SCHWEIKER, SECRETARY OF HEALTH AND HUMAN SERVICES, DEFENDANT.



The opinion of the court was delivered by: Shadur, District Judge.

MEMORANDUM OPINION AND ORDER

Norene Holndoner ("Holndoner") seeks review of a decision by the Secretary of Health and Human Services (the "Secretary") denying disability insurance benefits under the Social Security Act (the "Act"), 42 U.S.C. § 416(i) and 423. As is customary in these cases, the parties have filed cross-motions for summary judgment. For the reasons stated in this memorandum opinion and order both motions are denied and the case is remanded to the Secretary for further proceedings.

This Court must review the Secretary's finding to determine if it is supported by substantial evidence. 42 U.S.C. § 405(g). 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). Holndoner claims error in the Secretary's finding because (1) she was unrepresented by counsel at the administrative hearing and thereby deprived of a full and fair hearing and (2) the Secretary's finding is not supported by substantial evidence.

Lack of Counsel

Holndoner was not represented by counsel before or during her administrative hearing. Our Court of Appeals held in Sykes v. Finch, 443 F.2d 192, 194 (7th Cir. 1971):

  Absent a showing of clear prejudice or unfairness in
  the proceeding, lack of representation by counsel is
  not a sufficient cause for remand.

At the outset this Court has reservations as to the sufficiency of Holndoner's waiver of her right to counsel.*fn1 As a recent Eleventh Circuit opinion pointed out, Smith v. Schweiker, 677 F.2d 826, 829 (11th Cir. 1982):

  Mr. Smith understood only what the inadequate notice
  stated: that he did have a right to counsel. The flaw
  in these notices is their failure to inform the
  claimant fully as to the possibility of free counsel
  and limitations on attorney fees to 25% of any
  eventual award. Clark v. Schweiker, 652 F.2d 399, 403
  (5th Cir. 1981).

Holndoner's waiver was very similar to that in Smith. But Smith, like Sykes, held the applicant must still show prejudice resulting from the lack of counsel. This Court need not determine whether Holndoner's waiver was adequate unless it first finds "clear prejudice or unfairness."

Holndoner advances only one fact to that end. Administrative Law Judge ("ALJ") Irving Stillerman had as part of the evidence before him the letter of consulting physician Dr. John F. Mullan ("Dr. Mullan"). Dr. Mullan said Holndoner was permanently disabled, but gave little explanation for that conclusion. ALJ Stillerman rejected Dr. Mullan's conclusion as unsupported by the medical evidence (Tr. 13).

Holndoner contends if she had been represented by counsel she would have introduced evidence on the basis for Dr. Mullan's conclusion. But Holndoner has submitted to this Court a February 9, 1982 letter from Dr. Mullan to Holndoner's counsel that undercuts her argument. In that letter Dr. Mullan stated there was nothing more he could explain in support of his conclusion. It was simply his opinion — based on evidence fully available to ALJ Stillerman — that Holndoner's condition was disabling. By definition no lack of such further "evidence" from Dr. Mullan prejudiced Holndoner.

In all other respects this Court finds ALJ Stillerman took all necessary precautions in dealing with a pro se claimant. When a claimant waives his or her right to counsel an ALJ has "a special duty . . . [to] . . . scrupulously and conscientiously probe into, inquire of, and explore for all relevant facts." Smith, 677 F.2d at 829. ALJ Stillerman discharged that duty most ably, and this Court therefore finds no prejudice resulted from Holndoner's lack of representation.

Substantial Evidence

Any quick review of the advance sheets demonstrates the proliferation of disability litigation at both the District Court and Court of Appeals levels. Holndoner's action presents one of the most frequently encountered problems, and one that poses a difficult problem for ...


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