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
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 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
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.
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 ...