at most. (R. 207). In addition, she has difficulty walking four blocks at one time. (R. 208)
B. Vaile's Medical Records
Family Medical Clinic
On March 4, 1991, Vaile was seen at the Family Medical Clinic. The report states she complained of intermittent back pain that she has had for several years. (R. 96). She was diagnosed as suffering from lumbar strain and was prescribed Naprosyn. Id.
Vaile was examined by Dr. Victor Seghers, M.D. ("Seghers") on March 31, 1992, at the Heart of Texas Cardiovascular Center in conjunction with her SSI application. (R. 98). Seghers' records result from his disability evaluation of Vaile. Id. Vaile reported "some pain in her low back with some pain radiating down the legs with some numbness in her legs and chronic low back pain." Id. Seghers' physical examination revealed a normal range of motion in her back with no significant abnormalities. (R. 99). Examination of the lumbosacral spine showed "very early osteoarthritis with early osteophytes mostly at T10-11, otherwise normal and negative x-rays." Id. His impression was "very early degenerative arthritis of the LS spine." Id.
Upon examination of Vaile's left knee, Seghers noted "the left knee is at normal with significant narrowing of the joint space and obliteration of the joint space between the tibia and the femur." Id. His impression was that there was an abnormal knee x-ray with some post-traumatic arthritis. Id. Seghers further commented that Vaile is going to school and managing quite well. Id.
During 1992, Vaile visited Dr. Rosamma Joseph, M.D. ("Joseph"), a neurologist. On April 20, 1992, Joseph evaluated Vaile. In reporting Vaile's history, Joseph noted the following: Vaile reported that she has had headaches "for a long time but they got significantly worse ever since she hurt her low back in 1988." (R. 112). She also experienced nausea and lightheadedness with the headaches which might result in some noise and light intolerance. Id. She complained of constant pain and discomfort in her lower back, but a CT scan of the lumbosacral spine was reportedly negative. Id.
Joseph's examination revealed the following: "low back shows increased lordosis, she was very irritable on palpation of the low back in the midline and paraspinally. No spasm was appreciated. [Range of motion] of the back was diminished to about 75% in all directions." (R. 114). His overall impressions were: "1) Chronic, recurrent headaches with features of muscle contraction headaches, most likely due to chronic stress and muscle tension. 2) Chronic low back pain referred into the legs with numbness and weakness of the legs, rule out herniation." (R. 115). Joseph advised that an exercise program and weight loss might be beneficial. Id.
On May 13, 1992, Joseph saw Vaile for a follow-up and re-evaluation. (R. 101). He reported that the Vaile "had an EMG nerve conduction study done including both legs and paraspinal muscles which was essentially within normal limits." (R. 101, 110-111). Joseph also reported Vaile had an MRI scan of the lumbosacral spine done at Metroplex Hospital on May 5, 1992, showing mild, diffuse spondylosis and a mild diffuse bulging disc at 3-4 level, but this did not appear to be a disc herniation. (R. 101). At the L4-5 level, "there was moderate bulging of the disc causing mild impression of the thecal sac. The nerve roots appear to be free but small amount of compression of the existing L5 root could not be ruled out." Id.
Joseph reported that Vaile "can do light duty, sedentary job but should preferably avoid heavy, strenuous activities to the back which may further deteriorate her condition." (R. 102.) At that time, Joseph noted that there was no evidence Vaile's condition was surgically correctable. Id. Since she could not take anti-inflammatory medications, he prescribed Robaxin and Pamelor for her headaches and back pain. Id. Joseph referred her for physical therapy for two weeks and scheduled a re-evaluation in four weeks. Id.
During a follow-up visit on June 11, 1992, Joseph noted that Vaile "has arthritis," and that her range of low back motion was 75 percent. (R. 125). His impressions were: 1) chronic low hack pain associated with degenerative disease of the lumbosacral spine, 2) chronic left knee pain, 3) recurrent headaches with features of muscle contraction and migraine, and 4) dizziness associated with headaches. Id.
On April 13, 1993, Joseph completed a work prescription report. (R. 124) Joseph opined that Vaile could walk between 1/2 and 1 mile, sit and stand 25-50% of the time, and lift 10 to 20 pounds. Id. Vaile should not walk up stairs and should perform only limited bending. Id.
On February 3, 1993, M. David Rudd, Ph.D. ("Rudd"), a psychologist, assessed Vaile's general intellectual and emotional functioning, and obtained data to assist in vocational counseling and guidance. (R. 127). Vaile revealed that she was divorced and has two children; received AFDC food stamps, Medicaid, and housing support; and had been unemployed for approximately the past three years. Id. She was motivated for retraining or schooling and wanted to study to be a social worker. (R. 128). She operated a household, routinely sleeps approximately 8 hours a day, and "effectively engages in the full spectrum of activities required for independent living and self-sufficiency." (R. 130).
Vaile appeared to have suffered chronic depressive symptomatology of varying intensity since late adolescence. (R. 132). Intellectual and academic testing suggested limited and below average skills, indicating the need for basic skill development. Id. Based on his testing and evaluation, Rudd made the following recommendations: (1) adult education classes to address limited academic skill; (2) vocational and general occupational interest testing and counseling to assist in both identifying and clarifying her interests and ensuring that current interests match intellectual/academic skill level; (3) counseling to assist her in dealing with current stressors, chronic depressive symptomology, and self-image/efficacy issues; and (4) consultation with a psychiatrist to address any potential need for medication (either at present or if she experienced an acute exacerbation of reported symptomatology). Id.
Rudd stated that in general, Vaile appeared to be performing consistent with her assessed level of intellectual functioning. Id. She was highly motivated to pursue a degree in social work and would appear to possess the basic skills necessary. Id. However, her assessed skills are limited and below average. Id. Her full scale I.Q., which provides an assessment of general intelligence and general occupational and scholastic aptitude, was of 80, which placed her in the "low average" classification. (R. 131). However, she did not qualify for a formal diagnosis of a learning disability. (R. 132). Without additional assistance or tutoring, it is likely that college level work will prove too difficult for her, particularly given a somewhat rigid, perseverative approach to problem-solving. (R. 130).
Dr. Stephen J. Vancura, M.D., reviewed Vaile's lumbosacral MRI scan performed at Metroplex Hospital on May 5, 1992. (R. 103). Based on his evaluation, he reported indications of disc degeneration and desiccation. Id. He found mild degenerate facet disease at all levels. Id. However, he concluded that there was no disc herniation at any level. Id.
C. Vocational Expert's Testimony
Vocational expert Dr. D. Wilson Manning ("VE") was present throughout Vaile's hearing and testified that, according to Vaile's testimony, Vaile could perform light work. (R. 216-217). The VE based his determination on a hypothetical posed by the ALJ:
Assume . . . a younger individual with a limited education . . . with a good ability to read, write and use numbers, that the individual from a physical standpoint would be limited to work activity of a light nature, with restrictions limiting her to standing no more that 50 percent of the day, . . . sitting no more than 50 percent of the day and walking a half to one mile, that the individual would not be able to crouch, crawl, but could occasionally bend and stoop, that as the individual were to perform such activity they might be expected to experience a mild to occasionally moderate level of symptomatology, including pain, but not such as would interfere with the performance of the work activities as I've described them. Further, . . . [assume] that the full-scale score would be used, which would limit the individual to simple routine repetitive work activity, that the individual should be prohibited form working around the public . . . that there would be a fair ability to work with co-workers and to respond appropriately to supervisors, . . . that the work activity involved would need to be of a low-stress level, . . .. Now, assuming all of those factors, would such an individual be capable of performing any of the claimant's past relevant work activity?
The VE determined that the hypothetical person was incapable of performing Vaile's past work as a nurse's aide, but was capable of performing production-type work, such as assembling and hand packaging. (R. 217-218). The VE also testified that there were hundreds of these jobs in the Waco, Texas region, and thousands in the state and national economy. (R. 218).
A. Statutory and Regulatory Framework
Under Title XVI of the Social Security Act, a disabled person is eligible for SSI benefits if that person meets certain requirements pertaining to income. 42 U.S.C. § 1381a (1995). The Act defines "disabled" as "unable to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than twelve months . . .." Id. § 1382c(a)(3)(A). A "physical or mental impairment" is further defined as "an impairment that results from anatomical, physiological, or psychological abnormalities which are demonstrable by medically acceptable clinical and laboratory diagnostic techniques." Id. § 1382c(a)(3)(C). A claimant is under a disability "only if his physical or mental impairment or impairments are of such severity that he is not only unable to do his previous work but cannot, considering his age, education, and work experience, engage in any other kind of substantial gainful work which exists in the national economy, regardless of whether such work exists in the immediate area in which he lives, or whether a specific job vacancy exists for him, or whether he would be hired if he applied for work." Id. § 1382c(a)(3)(B).
Social Security regulations outline a five-step inquiry to be followed when determining whether a claimant is disabled: (1) Is the claimant presently unemployed? (2) Is the claimant's impairment or combination of impairments severe? (3) Does the impairment meet or exceed any of the list of specific impairments that the Secretary acknowledges to be so severe as to preclude substantial gainful activity? (4) If the impairment has not been listed by the Secretary as conclusively disabling, is the claimant unable to perform his former occupation? and (5) If the claimant cannot perform the past occupation, is the claimant unable to perform other work in the national economy in light of his age, education and work experience? See Pope v. Shalala, 998 F.2d 473, 477 (7th Cir. 1993); 20 C.F.R. § 404.1520.
"A negative conclusion at any step (except for step three) precludes a finding of disability. An affirmative answer at steps one, two or four leads to the next step. An affirmative answer at steps three or five results in a finding of disability." Shields v. Sullivan, 801 F. Supp. 151, 155 (N.D. Ill. 1992). Upon reaching the fifth step, the rules in the Medical Vocational Guidelines of Regulation Part 404, Subpart P, Appendix 2 (the "Grid") must be considered. Id. The Grid incorporates a claimant's age, education, and work experience as well as the claimant's residual functional capacity ("RFC") to determine what work the individual is able to perform. Id. "RFC is expressed in terms of a claimant's maximum sustained work capacity for either 'sedentary,' 'light,' 'medium,' heavy,' or 'very heavy' work as those terms are defined by 20 C.F.R. § 404.1567." Id. In determining if work is available for the claimant in the national economy, the ALJ may use a VE. 20 C.F.R. § 404.1566(e). If work is available, then a finding of not disabled must result. See 20 C.F.R. § 404.1566(b).
B. Standard of Review
Section 405(g) of the Social Security Act provides that a district court "shall have the power to enter, upon the pleadings and transcript of the record, a judgment affirming, modifying, or reversing the decision of the Commissioner of Social Security, with or without remanding the cause for a rehearing." 42 U.S.C. § 405(g). Also, "the findings of the Commissioner . . . as to any fact, if supported by substantial evidence, shall be conclusive." Id. Thus, the function of the reviewing court is to determine if the ALJ's decision is supported by substantial evidence. Substantial evidence means "'such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.'" Luna v. Shalala, 22 F.3d 687, 689 (7th Cir. 1994), (quoting Richardson v. Perales, 402 U.S. 389, 401, 28 L. Ed. 2d 842, 91 S. Ct. 1420 (1971)). Consequently, a reviewing court will not "re-evaluate the facts, reweigh the evidence, or substitute [its] own judgment for that of the Secretary." Id. at 689.
Vaile presents five arguments, only two of which this Court need reach on review.
First, Vaile contends that her waiver of counsel at the administrative hearing before the ALJ was invalid, and that she did not knowingly waive her right to counsel. Second, she contends that the ALJ did not develop a full and fair administrative record. Specifically, Vaile points to medical records not contained in the administrative record. The Commissioner argues that Vaile's waiver of counsel was valid, and that even if Vaile's waiver of counsel were invalid, ALJ sufficiently developed the record such that there were no significant omissions.
A. Right to Representation
Vaile contends that her waiver of counsel was invalid. This Court agrees. Vaile has a statutory right to counsel at her disability hearing. See 42 U.S.C. § 406; 20 C.F.R. § 404.1700. If properly informed of that right, however, she may waive it. Binion v. Shalala, 13 F.3d 243, 245 (7th Cir. 1994). To ensure a valid waiver of counsel, the Seventh Circuit requires the ALJ to explain to a pro se claimant: "(1) the manner in which an attorney can aid in the proceedings, (2) the possibility of free counsel or a contingency arrangement, and (3) the limitation on attorney fees to 25 percent of past due benefits and required court approval of the fees." Id.; see also Thompson v. Sullivan, 933 F.2d 581, 584 (7th Cir. 1991).
In the instant case, the record reveals that the ALJ did not make any serious effort to discuss--let alone fully discuss--any of these important matters. The extent of the ALJ's conversation with Vaile concerning her right to counsel was as follows:
ALJ: Now, I see that you're here this morning without an attorney or a representative. You were advised of your right to counsel at the time of your Notice of Hearing. Do you understand that right?