United States District Court, N.D. Illinois
February 26, 2004.
FLOYD WILDER, Plaintiff,
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.
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
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
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.
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
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
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 material and there is good cause for the
[plaintiff's] failure to incorporate such evidence into the record".
This Court shall not disturb the finding of the SSA that Wilder did not
qualify for disability, if that decision was supported by substantial
evidence. Diaz v. Chater, 55 F.3d 300, 305 (7th Cir. 1995). Substantial
evidence is such evidence as a reasonable mind would accept as adequate
to support a conclusion. Richardson v. Perales, 402 U.S. 389, 401
(1971). However, in reviewing the decision of the SSA, the court must
provide more than an "uncritical rubber stamp". Garfield v. 5chweiker,
732 F.2d 605, 610 (7th Cir. 1984).
III. Valid Waiver of Counsel
A claimant is entitled to be represented by counsel at a disability
hearing. 42 U.S.C. § 406. If the claimant is properly informed of this
right, they may waive it. Thompson v. Sullivan, 933 F.2d 581, 584 (7th
Cir. 1991). When the claimant is appearing pro se, the ALJ must explain
to the claimant: (1) the way in which an attorney can aid in the
proceedings; (2) the possibility of free counsel or a contingency
arrangement; and (3)
the limitation on attorneys fees to twenty-five percent of past due
benefits plus required court approval of the fees. Id.
The SSA does not address whether a valid waiver of counsel was given
but concedes that Wilder appeared pro se. Wilder asserts that valid
waiver of counsel was not given. This claim is not refuted by the SSA.
Since lack of valid waiver of counsel is not grounds alone to remand to
the SSA, this Court will only weigh this evidence against the burden the
SSA had to fairly and fully develop the record. See Binion v. Shalala,
13 F.3d 243 (7th Cir. 1994).
IV. Development of the Record
Wilder next contends that the decision made by the ALJ was improper
because there was information essential to the ALJ's decision that was
not present, so that the record was not fully developed. Wilder argues
that the ALJ should have ordered a residual functional capacity
assessment and should have obtained detailed information as to the impact
of Wilder's medication on his ability to drive.
Whether the ALJ gathered enough information to make his decision is an
issue about which this Court defers to the judgment of the SSA absent a
significant omission which was prejudicial. Kendrick v. Shalala,
998 F.2d 455, 458 (7th Cir. 1993). However, the decision of the ALJ shall
not stand when an ALJ independently evaluates the medical evidence and
substitutes their own medical conclusions for that of a doctor. Rohan v.
Chater, 98 F.3d 966, 970 (7th Cir. 1996).
The ALJ correctly indicates that he properly gathered the treating
physician's notes and documents regarding Wilder's recovery from his
bypass surgery. The ALJ also requested a consultative examination of
Wilder, referred Wilder to state agency physicians for review and
conducted an evidentiary hearing. The state agency physicians noted that
Wilder was able to perform medium work noting a limitation on his ability
to perform heavy lifting and stating that he should not climb ladders,
ropes or scaffolds. This information was used by the ALJ in determining
that Wilder was not disabled and had fully recovered from his bypass
surgery. Also, the ALJ was able to determine from this information that
Wilder did not need a residual functional capacity assessment, a decision
which is entitled to deference from this Court.
However, the determination of the ALJ that Wilder should go back to
work as a CTA bus driver is a bit puzzling. The ALJ is required to
"scrupulously and conscientiously . . . explore for all relevant facts."
Nelson v. Apfel, 131 F.3d 1228, 1235 (7th Cir. 1997). When Wilder
explained to the ALJ that he experienced dizziness as a result of his
medication and had difficulty driving, the ALJ dismissed this and the
medications' warnings against Wilder driving as pro forma and standard
these days. The
reasoning of the ALJ must build an accurate and logical bridge between
the evidence and the result. Sarchet v. Chater, 78 F.3d 305, 307 (7th
Cir. 1996). Dismissing medical warnings as standard and pro forma does
not succeed in building this logical bridge. Further/ the ALJ had a duty
to explore all possible side effects of the medications and their effect
on Wilder, which he did not. See Harris v. Barnhart, 219 F. Supp.2d 966,
976 (E.D.'Wis. 2002); Moore v. Apfel, No. 98-C-5448. 1999 WL 261927, at *
1-2 (N.D. Ill. Apr. 26, 1999).
The SSA argues that the decison of whether Wilder was truthful and
actually experiences dizziness is a credibility determination, so this
Court should defer to the decision of the ALJ. This Court disagrees.
Rather, this is a medical determination of whether Wilder is able to
drive a CTA bus on this type of medication a determination for which no
doctor, neither the treating physician nor any of the state agency
physicians, has evaluated Wilder. ALJ's must not succumb to the temptation
to play doctor and make their own independent medical findings. Rohan v.
Chater, 98 F.3d 966, 970 (7th Cir. 1996). The state agency physicians'
opinion was that Wilder could return to medium work with no heavy
lifting. Therefore, the ALJ should have thoroughly investigated the side
effects of the medication on Wilder's ability to drive in conjunction
with the physician's opinion regarding the cautionary instructions on the
Moreover, as stated by another court, "while ALJs may conscientiously
attempt to fulfill their duties to develop the record, even the most
thorough ALJ is no substitute for an advocate. An attorney will likely
know beforehand the areas crucial to the claimant's case and can ensure
that questioning in those areas is detailed, and that the record (both
testimonial and medical) is complete. Therefore, federal courts must
carefully scrutinize records developed without counsel." Henderson
v. Barnhart, 205 F. Supp.2d 999, 1010 (E.D. Wis. 2002). Weighing
this prejudicial omission against the waiver of right to counsel that was
not fully articulated, the decision of the ALJ is reversed and Wilder' s
case is remanded for a medical determination of whether his medication
interferes with the ability to drive.
For the foregoing reasons, the Court grants Wilder's motion for remand
and denies the motion for summary judgment.
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