United States District Court, Northern District of Illinois, E.D
June 28, 1982
NORENE HOLNDONER, PLAINTIFF,
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
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
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 reviewing courts like this one. Invariably
the scenario unfolds this way:
Claimant presents the evidence of one or more personal
physicians who invariably conclude claimant is disabled. Then
there is a report of a Social Security Administration ("SSA")
physician who concludes, usually based solely on an examination
of claimant's medical records and without an actual physical
examination, claimant is not disabled. Thus the ALJ is presented
with a choice between (1) a physician who has personally treated
claimant and may be more inclined to find a disability*fn2 and (2)
a potentially more objective physician who has never even seen
Such conflicts between the personal physician and the SSA
advisor should be resolved by the Secretary as factfinder.
Richardson v. Perales, 402 U.S. 389, 91 S.Ct. 1420, 28 L.Ed.2d
842 (1971). In addition the regulations specifically permit an
ALJ to reject the conclusion of any doctor if unsupported by "the
medical findings and other evidence. . . ." 20 C.F.R. § 404.1527.
But a long line of post-Richardson authority finds the opinion
of a non-examining physician entitled to less weight than that of
an examining physician. In Allen v. Weinberger, 552 F.2d 781, 786
(7th Cir. 1977) our Court of Appeals said opinions of
non-examining physicians "have little force." It went on to quote
Landess v. Weinberger, 490 F.2d 1187, 1190 (8th Cir. 1974) for
the proposition that such reports:
without personal examination of the claimant, deserve
little weight in the overall evaluation of liability.
The [medical] advisors' assessment of what other
doctors find is hardly a basis for competent
evaluation. . . .
That language has been repeated in Carver v. Harris,
634 F.2d 363
, 364 (7th Cir. 1980)
and Cassiday v. Schweiker, 663 F.2d 745
, 748 (7th Cir. 1981).
Accord, Smith v. Schweiker, 671 F.2d 789
, 793 (3d Cir. 1982);
Davis v. Schweiker, 671 F.2d 1187
, 1189 (8th Cir. 1982); Oldham
v. Schweiker, 660 F.2d 1078
, 1084 (5th Cir. 1981).
It is of course dangerous to lay down a flat per se rule that
every treating physician's opinion must always be given greater
weight than a consulting physician's.*fn3 Viability of any medical
opinion should depend on the particular facts, and the Allen
principle is an important guide to that end.
This then brings the matter full circle to the Richardson
doctrine that conflicts in medical testimony are to be resolved
by the factfinder. But a reviewing court cannot abdicate its
responsibility to decide whether such factual resolutions are
grounded in substantial evidence. For that purpose it must be
provided with a full explanation of the basis for the ALJ's
In light of Allen and its progeny, the need for explanation is
heightened whenever an ALJ rejects the findings of an examining
physician in favor of a medical advisor who has looked only at
records. This Court accordingly rules that if an ALJ deems it
appropriate to rule against the examining physician, he or she
must state the reasons for that decision in a manner sufficient
to permit an informed review.
It remains to apply that principle to the facts of this case.
ALJ Stillerman had the following medical evidence before him:
(1) Dr. Salazar, the physician who operated on
Holndoner, reported on the surgery and post-operative
period but expressed no opinion as to whether
Holndoner was disabled (Tr. 77-84).
(2) Dr. Bartman, a consultant who examined
Holndoner on one occasion 10 months after surgery,
found her capable of sedentary but not light work.
(3) Dr. Mullan, another consultant (who also
examined Holndoner just once), expressed the
conclusory opinion that Holndoner was permanently
(4) SSA's medical advisor (whose signature is
illegible) reviewed the medical records and found
Holndoner capable of light work.
ALJ Stillerman held Holndoner capable of light work and
therefore not disabled. Despite his careful review of the medical
there is one major flaw in his opinion: He omitted any
reason for rejecting Dr. Bartman's finding.*fn5
This is particularly
important because (1) Dr. Bartman's report was much more
extensive than Dr. Mullan's, (2) Dr. Bartman is a consultant used
by SSA and (3) ALJ Stillerman relied in a different respect on
Dr. Bartman's report (Tr. 12).
Thus the record lacks one critical piece of underpinning: a
statement of the reason for rejecting the finding of an
apparently reliable doctor who once examined Holndoner. Given
that gap, this Court cannot responsibly discharge its duty to
determine whether ALJ Stillerman's finding is supported by
Both motions for summary judgment are denied. In accordance
with 42 U.S.C. § 405(g), the Secretary's decision is reversed and
the cause is remanded to the Secretary for further proceedings
consistent with this opinion.