United States District Court, Northern District of Illinois, E.D
August 30, 1982
RUBY M. FLOYD, PLAINTIFF,
RICHARD S. SCHWEIKER, SECRETARY OF HEALTH & HUMAN SERVICES, DEFENDANT.
The opinion of the court was delivered by: Moran, District Judge.
MEMORANDUM AND ORDER
Ruby M. Floyd brings this suit under 42 U.S.C. § 405(g)
to review the final decision of the Secretary of Health & Human
Services denying her application for Social Security disability
benefits and for Supplemental Securing Income (hereinafter
collectively referred to as "disability benefits"). Cross
motions for summary judgment have been filed asking this court
to determine whether the Secretary's decision is supported by
substantial evidence or, alternatively, whether the claim
should be remanded to the Secretary and another hearing held
with counsel present. For the reasons set forth below, the
motion to remand is granted.
42 U.S.C. § 423(d)(1)(A) defines disability as "inability
to engage in any substantial gainful activity by reason of any
medical impairment that can be expected to last for over twelve
months." More specifically, disability means not only inability
to do the previous type of work but also the incapacity to do
any other kind of work which exists in the national economy,
"considering opportunities that exist either in the claimant's
region or in the several regions of the country."
42 U.S.C. § 423(d)(2)(A). See Spencer v. Schweiker,
678 F.2d 42 (5th Cir. 1982), Hogan v. Schweiker, 532 F. Supp. 639
To be eligible for disability benefits a claimant must make
a prima facie showing of an impairment sufficiently severe to
preclude a return to his or her previous employment. Decker
v. Harris, 647 F.2d 291
, 293 (2d Cir. 1981). Once this is
established the burden shifts to the Secretary to present
evidence showing that there exists in the national economy
substantial gainful work which claimant, considering his or her
age, education, experience and training, is able to perform.
Spencer v. Schweiker, supra; Stark v. Weinberger,
497 F.2d 1092
(7th Cir. 1974).
In response to criticism over disparate treatment of
seemingly similar claims, the Social Security Administration
recently promulgated new and detailed regulations which
establish an orderly sequence of adjudication for Social
Security disability claims. Kirk, et al. v. Secretary of
Health & Human Services, 667 F.2d 524 (6th Cir. 1981). The
Seventh Circuit described the "sequential evaluation for
adjudication of disability claims as follows:
The first inquiry under the sequence concerns
whether a claimant is currently engaged in
substantial gainful employment. If it is found
that he is, the claim is denied without reference
to the other steps in the sequence. If he is not,
the second inquiry is whether the claimant has a
"severe" impairment. If he does not, the claim is
denied. If a severe impairment is present, the
third inquiry is whether such impairment meets or
equals one of the impairments listed under
Appendix I to Subpart P of the Administrative
Regulations No. 4. If it does, the claim is
approved. If it does not, the fourth inquiry is
whether the claimant's impairments prevent him
from performing his past relevant work. If he is
found to be capable of returning to his past
relevant work, the claim is denied. If he is not
found to be so capable, the fifth and final
inquiry is whether claimant is able to perform
other forms of substantial gainful activity,
considering his age, education and prior work
experience. If he is not, the claim is approved.
The medical-vocational guidelines, which are
contained in Appendices 2, Subparts P and I, Parts
404 and 416, 20 C.F.R., are used in determining
whether the claimant is disabled when and if the
fifth step in the evaluation process is reached.
To apply the guidelines, the ALJ must make
findings of fact as to the claimant's vocational
factors, i.e., age, education, and work
experience, as those terms are defined by the
regulations . . . and his residual functional
capacity. . . . When the findings of fact made as
to all factors coincide with the criteria of a
rule [contained in the guidelines], that rule
directs a factual conclusion of disabled or not
Cannon v. Harris, 651 F.2d 513
(7th Cir. 1981).
See also Cummins v. Schweiker, 670 F.2d 81
1982), Hogan v. Schweiker, supra, at 643. These
regulations necessarily require a detailed factual analysis of
plaintiff's background and medical condition.
Ms. Floyd was born on April 12, 1924, has an eleventh grade
education and has minimal additional training as a nurse's aid.
With the exception of a two-year stint as a cook's helper,
plaintiff's primary work experience between 1962 and 1979 was
as a nurse's aid, a job that requires a significant amount of
standing, bending and lifting. Plaintiff maintains that she is
incapable of performing her prior work or pursuing any other
type of employment because she suffers from high blood
pressure, depression, and arthritis in various joints. Such
ailments, of undeterminate dates of origin, evidently worsened
over time and ultimately caused her to quit her work as a
nurse's aid in May of 1979. One year later Ms. Floyd filed a
claim for disability benefits with the Social Security
Administration. That claim was denied initially and upon
reconsideration. Exercising her right to an independent de
novo review of the matter, plaintiff appeared without
counsel at a hearing before an Administrative Law Judge ("ALJ")
on April 8, 1981.
Ms. Floyd was the only witness to testify at the hearing.
Under questioning by the ALJ she stated the following: In
addition to arthritis in her side, hands and knees, plaintiff
experiences shortness of breath, she can walk only two blocks
before tiring, she cannot climb steps without resting every
third or fourth step, and she is unable to stoop or run. As for
lifting, Ms. Floyd said, "I can't lift anything too well that
is over ten pounds. Maybe around seven or eight pounds,
roughly. It makes me so tired." Other physical complaints
include high blood pressure, which occasionally causes
dizziness, a tumor in the womb, with unspecified effect on her
ability to work, cancer, which was not elaborated upon, and
pain around her heart, stomach and chest. Finally, plaintiff
testified that she suffers from emotional disorders and at some
point in the past had a nervous breakdown. When asked how her
nervous condition affected her now, plaintiff responded
Well, noises and depression. I can't stand worry
and noises. I have to have something for insomnia.
I have to take these nerve pills there. I got two
of the same nervous pills there, but one of them
is a higher milligram.
Because of these ailments Ms. Floyd visits a doctor once a
month. Dr. J. Niazir has been her treating physician at least
since 1978. Her prescribed medications include Clinoril, 20
milligrams twice a day, presumably for arthritis; Valium, 5
milligrams twice a day, and Tylenol #3 which plaintiff says she
takes twice a day to alleviate pain.
With regard to her daily activities Ms. Floyd testified that
she cooks, washes dishes and cares for her personal needs,
although experiencing some difficulties. In exchange for free
rent plaintiff cleans the kitchen and halls, collects the rent
and moves empty garbage cans. Finally, while she used to visit
friends and relatives frequently, she rarely does so now except
for attending church on Sunday.
In addition to plaintiff's testimony, information secured
from Dr. Niazir was admitted into evidence. Submitted evidence
included both the records kept by the doctor of Ms. Floyd's
visits, and reports filled out at the behest of the Social
Security Administration. Unfortunately, the monthly notations
of plaintiff's condition are virtually illegible. What can be
discerned is a significant weight gain of thirty pounds over
the course of a year and, conversely, a steadily decreasing
blood pressure. In a report dated July 12, 1980, Dr. Niazir
described his patient's conditions as hypertension, depression
and osteoarthritis of the lower back. He indicated that there
was no end organ damage as a result of the high blood pressure,
no symptoms of heart disease, nor any evidence of chest pain.
Dr. Dilts, of the Social Security Administration, reviewed the
medical evidence and concurred with Dr. Niazir's conclusions:
"There is no anatomical deformity, bony destruction or bony
hypertrophy in the spine, with no atrophy or local inflammatory
or systemic signs. There is no weakness, and no loss of range
of motion. Ambulation is normal.
After considering such evidence, the ALJ found Ms. Floyd
ineligible for disability benefits. In so doing, the ALJ made
the following findings of fact:
2. The claimant has the following impairments:
hypertension, osteoarthritis of the lower back,
3. Allegations of severe and disabling pain are
not credible in view of claimant's activities, and
the medical evidence submitted.
4. The claimant does not have any impairment or
impairments which significantly limits the ability
to perform basic work-related functions;
therefore, the claimant does not have a severe
5. Since the claimant does not have a severe
impairment, she was not under a disability as
defined in the SSA, as amended, at any time
through the date of this decision.
Plaintiff lodges two arguments against the findings and
conclusion of the ALJ: first, plaintiff was denied a full and
fair hearing because she was not represented by counsel and
therefore the cause should be remanded so that an adequate
hearing can be conducted; second, the ALJ's decision was not
supported by substantial evidence, and thus his findings should
be reversed and disability benefits awarded.
While Ms. Floyd had a statutory right to counsel at her
Social Security hearing, see Hankerson v. Harris,
636 F.2d 893, 895 (2d Cir. 1980), it is clear that she may waive
that right and elect to proceed without counsel. See Ware
v. Schweiker, 651 F.2d 408, 413 (5th Cir. 1981), cert.
denied 455 U.S. 912, 102 S.Ct. 1263, 71 L.Ed.2d 452
(1982). "But it is equally clear that such a waiver must
establish, at some point, that the claimant is `properly
apprised of his options concerning representation' to be
effective. Peppers v. Schweiker, 654 F.2d 369, 371
(5th Cir. 1981). A claimant cannot knowingly and intelligently
waive his statutory right to counsel when he is not adequately
informed of it either in a prehearing notice or at his
hearing." Smith v. Schweiker, 677 F.2d 826, 828 (11th
The Secretary contends that the following colloquy indicates
Ms. Floyd's voluntary waiver of representation.
ALJ: — Now, Mrs. Floyd, you were advised
in the Notice of Hearing of your right to be
represented at this hearing. Since you are
appearing without a representative, I assume that
you do not wish to be so represented. Is that
CLAIMANT: No. I did want to get a lawyer, but I
tried to see one, and the price that he charged, I
couldn't afford it, and I said, "Well, I just hope
by the grace of God I'll just try to go along and
do what I could.
ALJ: All right.
CLAIMANT: So —
ALJ: Then you'd like to proceed without an
attorney at this time?
CLAIMANT: I have made notes about — well,
this is my (inaudible).
ALJ: No. No. Just — we'll get to your
testimony in a few minutes.
ALJ: But right now let me finish my opening
CLAIMANT: All right.
ALJ: You do wish to proceed without an attorney
at this time? Is that correct?
Plaintiff's statements, taken as a whole, in no way evince a
desire to proceed without counsel. To the contrary, it is
obvious that Ms. Floyd wished to acquire legal representation
but had been unable to do so. See Cowart v. Schweiker,
662 F.2d 731, 734 (11th Cir. 1981).
Even if such a discussion could somehow be construed as a
voluntary relinquishment of the right to counsel, the
information given the claimant was inadequate to ensure a
knowing waiver. The ALJ provided no explanation of the
valuable role an attorney could play in the proceedings and
"where as here, the record discloses possible mental illness
coupled with a misconception of the role of a lawyer, the ALJ
should have, at the very least, explained [the right to counsel
and the role of an attorney at the hearing] in greater detail
and with greater care." Smith v. Secretary of Health,
Education & Welfare, 587 F.2d 857, 860 (7th Cir. 1978).
Specifically, the claimant should be informed as to the
possibility of free counsel and limitations on attorney fees to
25% of any eventual award. Smith v. Schweiker,
677 F.2d 826, 828 (11th Cir. 1982); Clark v. Schweiker,
652 F.2d 399, 403 (5th Cir. 1981). But see Garcia v.
Califano, 625 F.2d 354 (10th Cir. 1980). Since there is no
indication that Ms. Floyd was ever informed fully of her rights
and options, we cannot presume that her statements were the
expression of her desire to waive her right to counsel and to
represent herself at the hearing. Smith v. Schweiker,
supra, at 829.
The mere fact that Ms. Floyd ineffectively waived her right
to counsel is not, by itself, cause for remand. Vidal v.
Harris, 637 F.2d 710, 713 (9th Cir. 1981). "Lack of
counsel does not affect the validity of the hearing and hence
warrant remand, unless the claimant can demonstrate prejudice
or unfairness in the administrative proceedings." Id. see
Sykes v. Finch, 443 F.2d 192, 194 (7th Cir. 1971). In all
proceedings, whether the right to counsel has been exercised or
waived, the ALJ has an inherent obligation to develop a full
and fair hearing. "Where the right to representation has not
been waived, as in this case, the ALJ's basic obligation to
develop a full and fair record rises to a special duty when an
unrepresented claimant unfamiliar with hearing procedures
appears before him." Cowart v. Schweiker, supra, at
735. In particular, the ALJ has a duty to "scrupulously and
conscientiously probe into, inquire of, and explore for all the
relevant facts." Gold v. Secretary of Health, Education &
Welfare, 463 F.2d 38, 43 (2d Cir. 1972). See
Echevarria v. Secretary of Health & Human Services,
685 F.2d 751 (2d Cir. 1982); Smith v. Secretary of Health,
Education & Welfare, supra. Moreover, the ALJ must be
"especially diligent in ensuring that favorable as well as
unfavorable facts and circumstances are elicited." Thompson
v. Schweiker, 665 F.2d 936, 941 (9th Cir. 1982),
quoting Rosa v. Weinberger, 381 F. Supp. 377, 381
In the case at bar the record amptly demonstrates that for
numerous reasons the ALJ failed to discharge his special duty
in the course of the thirty-five-minute hearing.*fn1 First,
there was insufficient medical evidence procured: "Given the
illegibility of the medical records . . . and the limited
educational background of the claimant, it was incumbent upon
the administrative law judge to emphasize the desirability of
producing, and to afford an opportunity to produce expert
testimony as to her medical disabilities and their effect on
her capacity to engage in any substantial, gainful work within
the meaning of the Act." Smith v. Secretary of Health,
Education & Welfare, supra, at 860, quoting Cutler v.
Weinberger, 516 F.2d 1282, 1286 (2d Cir. 1975). More
specifically, the ALJ failed to question the effect of the
numerous medications the plaintiff takes, and neglected to
ascertain the prescribing physician for each drug. Particularly
when some of the prescribed
medication can cause drowsiness or other adverse reactions,
probing into the precise effect on plaintiff is an essential
line of inquiry for determining a person's ability to work.
See Hogan v. Schweiker, supra.
Moreover, numerous aspects of plaintiff's tumor, cancer and
thyroid condition were inadequately explored. Similarly, the
nature and extent of the pain plaintiff experiences requires
greater inquiry since severe pain by itself can mandate a
finding of disability. See Wilson v. Schweiker,
681 F.2d 526 (8th Cir. 1982), (pain can be disabling; ALJ must
seriously consider complaints and make explicit credibility
findings rather than reject testimony because medical evidence
did not corroborate it). Nor were specific questions addressed
to Dr. Niazir regarding his assessment concerning her capacity
for various types of employment.
The ALJ was also deficient in his limited probing of the
physical effort required in the everyday tasks that Ms. Floyd
performed. For example, the weight of the garbage cans which
Ms. Floyd moves, the distance they are carried, and the time
and effort involved in such a task were never questioned.
Finally, the precise nature of Ms. Floyd's prior employment as
a nurse's aid and the physical demands of such a job require
Since this court finds that a remand for a full and fair
hearing is necessary,*fn2 discussion of whether the
Secretary's decision is supported by substantial evidence is
not required. Several points relevant both to the substantial
evidence issue and to the question of a full and fair hearing,
however, must be made. First, the ALJ's cryptic findings of
fact must be questioned, particularly considering the hearing
examiner's duty when the claimant appears pro se. For
example, the ALJ makes the blanket statement that Ms. Floyd's
complaints of pain are not credible in light of other evidence,
without detailing the precise contradictions between the
medical evidence and the claimant's testimony. Second, the
ALJ's finding that the claimant was not severely disabled
without any explanation is inadequate. We find persuasive the
reasoning of Judge Knapp, where in an analogous situation a
remand was ordered.
On the record before us, and in light of the
inconclusive nature of the medical evidence, any
appropriate finding the ALJ may have made that
plaintiff was not disabled could not be disturbed
for want of substantial evidence. However, the
Court of Appeals for this Circuit has explicitly
adopted the rule that once an applicant has met
the initial burden by establishing his inability
to continue in his former type of employment, [the
burden shifts to the Secretary.]
"This rule necessarily requires the Secretary to
make a finding as to whether or not the applicant
is capable of returning to his former employment;
otherwise reviewing courts would be unable to
determine whether or not the burden of going
forward has shifted to the Secretary." Rivera
v. Secretary of HHS (S.D.N.Y. October 7,
1980) No. 809 Civ. 1024, slip op. at 4.
The ALJ's findings are completely silent on this
matter; no finding was made about plaintiff's
ability to return to his old job. The finding that
plaintiff does not have any impairment or
impairments which significantly limit the ability
to perform basic work-related functions" (Tr. 14)
certainly does not establish that he can perform
the functions of a pipe worker, which apparently,
involve lifting heavy loads and working under
extreme physical strain.
Santiago v. Secretary of Health & Human Services,
529 F. Supp. 469, 472-73 (S.D.N.Y. 1982).
For all these reasons, the motion to remand to the Secretary,
so that plaintiff be
accorded a full and fair hearing, is granted. Additionally,
plaintiff requests that on remand specific instructions be
given the ALJ concerning the evidence to be considered. We
concur that the records from Cook County Hospital be obtained,
and that further testimony and records be elicited from the
claimant (or her physician) regarding her weight gain, cancer
treatment, thyroid condition and so forth. Whether further
physical and mental evaluations (including an EKG) need be
performed, we leave to the discretion of the ALJ. The necessity
for such tests in order to ensure Ms. Floyd her right to a full
and fair hearing on her claim can best be ascertained only
after the other medical evidence ordered above is produced.
Accordingly, we hold that Ms. Floyd was denied a full and
fair hearing, and the case is remanded to the Secretary for
further proceedings consistent with this opinion.