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WILDER v. BARNHART

February 26, 2004.

FLOYD WILDER, Plaintiff,
v.
JO ANNE B. BARNHART, COMMISSIONER OF THE SOCIAL SECURITY ADMINISTRATION, Defendant



The opinion of the court was delivered by: GEORGE MAROVICH, Senior District Judge

MEMORANDUM OPINION AND ORDER

Plaintiff Floyd Wilder ("Wilder") filed a complaint against Jo Anne B. Barnhart, Commissioner of the Social Security Administration (the "SSA"). Wilder seeks judicial review after his application for Social Security benefits was denied by the SSA. Wilder now moves for summary judgment and remand to the Administrative Law Judge with respect to his application for disability insurance benefits. For the reasons set forth below, the motion for remand is granted and the motion for summary judgment is denied.

BACKGROUND

  In 1991, Wilder retired from the Chicago Transit Authority ("CTA") after 25 years of service as a bus driver. From 1991 until he suffered a heart attack in February 1998, Wilder worked for his brother as a Medi-Car driver. Following triple bypass Page 2 surgery in March of 1998, Wilder returned to work as a Medi-Car driver in October 1998. Subsequent medical examinations following the surgery all indicated that Wilder's blood pressure and heart rate were returning to normal and that his chest was clear. By the end of January 1999, Wilder was no longer able to perform his duties as a Medi-Car driver due to swelling in his legs and soreness in his chest. Wilder has not worked since January 1999.

  On September 9, 1999, Wilder applied for Disability Insurance Benefits from the SSA. On October 28, 1999, Dr. Kassir performed a 33-minute examination of Wilder for the SSA. Dr. Kassir concluded that Wilder's medical condition was normal, that Wilder had a history of hypertension and generally described the history of Wilder's cardiac problems. Wilder also informed Dr. Kassir he was taking several medications for his conditions with possible side effects including dizziness, drowsiness, lethargy, fatigue and confusion.

  On November 9, 1999, Dr. England, a state agency physician, reviewed Wilder's medical records and concluded that Wilder could perform medium work as long as it excluded climbing ladders, ropes or scaffolds. On January 6, 2000, Dr. Boyer, also a state agency physician, reviewed Wilder's medical records and concluded that Wilder could perform medium work. However, Dr. Boyer found Page 3 that Wilder was limited in his ability to perform heavy lifting due to decreased cardiac functioning.

  On July 12, 2000, Wilder appeared before an Administrative Law Judge ("ALJ") for the SSA without representation. The ALJ asked Wilder if he wanted to proceed or have a continuance to obtain a representative. Wilder chose to proceed, noting that he had previously made some unsuccessful attempts to obtain counsel. Wilder testified that his last job was as a Medi-Car driver and that he was unable to continue working there. Wilder resigned because he could not perform his job any longer, which consisted of carrying wheelchair-bound individuals up and down stairs. Wilder also testified that he had resigned his job as a CTA bus driver because the CTA had offered him a retirement package. Wilder also stated he no longer had chest pain and that he was able to drive a little bit, but his medication made him dizzy at times.

  Wilder was denied disability insurance benefits from the SSA by the ALJ. The ALJ concluded that Wilder was unable to return to work as a Medi-Car driver but that Wilder was capable of returning to medium work, including his past work as a CTA bus driver. The ALJ concluded that the cautionary instructions against driving on some of Wilder's medication was pro forma and standard these days. The Appeals Council denied Wilder's pro se request for review. Page 4

  Wilder now seeks judicial review alleging that there was not a valid waiver of his right to counsel and that the ALJ failed to fully develop the record and as a result the ALJ did not base his conclusions on proper evidence.

  Discussion

 I. Standard for Motion for Summary: Judgment

  Summary judgment should be granted when the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c). When making such a determination, the court must construe the evidence and make all reasonable inferences in favor of the non-moving party. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247 (1986). Summary judgment is appropriate, however, when the non-moving party fails to make a showing sufficient to establish the existence of an element essential to the party's case, and on which that party will bear the burden of proof at trial. Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); See also Courtney v. Biosound, 42 F.3d 414, 418 (7th Cir. 1994).

 II. Standard of Review for SSA's Decision

  42 U.S.C. § 405(g) (" § 405(g)") empowers a district court to remand cases to the agency for further proceedings in two ways. Under § 405(g), a district court may affirm, modify or reverse an Page 5 ALJ's decision, with or without remanding the case for a rehearing. 42 U.S.C. § 405(g) Section 405(g) also allows a court to remand a case without reaching the merits for further consideration of "new evidence" if the evidence "is ...


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