The opinion of the court was delivered by: GEORGE LINDBERG, Senior District Judge
Pursuant to 42 U.S.C. § 405(g), Marshalynn Chatmon, on behalf
of Tatiana Chatmon,*fn1 (collectively, "Plaintiff") seeks
judicial review of the Commissioner's final decision to terminate
Tatiana Chatmon's Supplemental Security Income benefits.
Plaintiff's complaint, inter alia, asks the Court to find that
Tatiana Chatmon is entitled to the terminated benefits or,
alternatively, reverse the Commissioner's final decision with
respect to Tatiana Chatmon's benefits and remand the case for
additional administrative hearings.
Plaintiff has filed a motion to reverse the Commissioner's
final decision*fn2 and Defendant has filed a motion for
summary judgment.*fn3 Plaintiff's motion is hereby granted
in part and Defendant's motion is hereby denied. Analysis
It is well-established that "[c]ross-motions for summary
judgment are the standard method for presenting a case to a
district court for decision on the record compiled by the
administrative tribunal that the court is reviewing." Dale M. v.
Bd. of Educ. of Bradley-Bourbonnais High Sch. Dist. No. 307,
237 F.3d 813, 816 (7th Cir. 2001) (citations omitted); see also
Scheck v. Barnhart, 357 F.3d 697, 699, 703 (7th Cir. 2004)
(affirming district court decision denying plaintiff's
cross-motion for summary judgment and granting Commissioner's
cross-motion for summary judgment). In reviewing the
Commissioner's final decision, the Court must consider the entire
administrative record but may not "reweigh evidence, resolve
conflicts in the record, decide questions of credibility, or, in
general, substitute [its] own judgment for that of the
Commissioner." Young v. Barnhart, 362 F.3d 995, 1001 (7th
Cir. 2004) (citation omitted); see also Jens v. Barnhart,
347 F.3d 209, 212 (7th Cir. 2003) (same). Review of the
administrative law judge's ("ALJ") factual findings is "limited
to determining whether the . . . findings are supported by
substantial evidence."*fn4 Young, 362 F.3d at 1001
(citations omitted); see also Scheck, 357 F.3d at 699 (same).
Of course, the Commissioner's final decision must also be "free
of legal error."*fn5 Golembiewski v. Barnhart, 322 F.3d 912, 915 (7th Cir. 2003) (citation omitted); see
also Lopez v. Barnhart, 336 F.3d 535, 539 (7th Cir. 2003)
Plaintiff advances several arguments in support of her motion.
Initially, she proposes that "[t]he ALJ failed to obtain a valid
waiver of claimant's right of representation" and that the
participation of an attorney "may have afforded a different
outcome to this case." The Court agrees.
It is settled that "[a] claimant has a statutory right to
counsel at a disability hearing." Binion v. Shalala,
13 F.3d 243, 245 (7th Cir. 1994) (citations omitted); see also
Thompson v. Sullivan, 933 F.2d 581, 584 (7th Cir. 1991)
(same). However, this right may be waived. See id. To ensure
that any such waiver is valid, an ALJ must "explain to the 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." Binion, 13 F.3d at 245 (citation omitted).
Here, a valid waiver of Plaintiff's statutory right to counsel
was not obtained. The transcript of Plaintiff's June 11, 2003
hearing before the ALJ revealed the following discussion
concerning Plaintiff's right to counsel:
ALJ: Okay. A couple of things I want to go over
before we proceed and the first thing is I notice the
Notice of Hearing and other information we sent to
you indicate that you could have an attorney or other
representative here to assist you if you so choose or
if you wish to proceed today without out that's fine
also. I just want to make sure you understand
WTN: [Marshalynn Chatmon] Yes.
ALJ: you have the right.
ALJ: And under the Social Security it's our policy
that if you wish to testify then when we examine your
daughter we would ask you to leave the room and then
come back in once it's your turn to testify. If
that's what you wanted to do. WTN: Okay.
ALJ: Or if you wanted to be here as her
representative you could stay in the room, but then
we wouldn't be able to take your testimony so
WTN: Well, if I have to leave
ALJ: It's pretty much your choice.
WTN: the room to get this done.
ALJ: You wish to testify then today too?
(Soc. Sec. Admin. Office of Hr'gs & Appeals R. at 298-99 (June
11, 2003).) After reviewing the transcript, the Court concludes
that the ALJ did not secure a valid waiver of Plaintiff's
statutory right to counsel. In fact, the ALJ failed to discuss
with Plaintiff any of the three issues set forth in
See 13 F.3d at 245.
This finding, by itself, is an insufficient ground from which
to remand the case for additional proceedings. See id. ("[A]
claimant is not entitled to a remand based on inadequate notice
of the right to representation unless the ALJ did not develop a
full and fair record.") (citation omitted). Instead, it serves to
shift the burden of showing that the ALJ fully and fairly
developed the administrative record to the Commissioner.*fn7
See Nelson v. Apfel, 131 F.3d 1228, 1235 n. 3 (7th Cir.
1997); Binion, 13 F.3d at 245. In order to satisfy this burden,
the Commissioner must show that the ALJ fulfilled his "duty to
`scrupulously and conscientiously probe into, inquire of, and
explore for all relevant facts.'" Nelson, 131 F.3d at 1235
(citation omitted); see also Thompson, 933 F.2d at 585-86
(same). This duty is fulfilled when "the ALJ probes the claimant
for possible disabilities and uncovers all of the relevant evidence." Binion,
13 F.3d at 245 (citations omitted); see also Thompson, 933 F.2d at 586
("[W]e note that to develop the record fully and fairly, the ALJ
must be especially diligent in ensuring that favorable as well as
unfavorable facts and circumstances are elicited.") (citation and
internal quotation marks omitted). If the Commissioner fails to
make the requisite showing, the case must be remanded. See
Thompson, 933 F.2d at 586.
Generally, "`a significant omission is . . . required before
th[e C]ourt will find that the [Commissioner] failed to assist
[a] pro se claimant in developing the record fully and
fairly.'" Nelson, 131 F.3d at 1235 (citation omitted); see
also Luna v. Shalala, 22 F.3d 687, 692 (7th Cir. 1994)
(same). Moreover, any such omission must be prejudicial.*fn8
See Nelson, 131 F.3d at 1235. If the Commissioner successfully
establishes that the ALJ fully and fairly developed the record,
Plaintiff "may rebut this showing by demonstrating prejudice. The
plaintiff can meet this burden by showing that the ALJ failed to
elicit all of the relevant information from the
claimant."*fn9 Nelson, 131 F.3d at 1235 n. 3 (citation
omitted); see also Binion, 13 F.3d at 245-46 ("evidentiary gap"
also sufficient to rebut Commissioner's case) (citations
Here, Plaintiff has identified two inconsistencies in the
administrative record. Initially, Plaintiff argues that "records
from the claimant's school teachers [that] appear to paint a
rather euphoric picture of the claimant's academic and social
progress in school . . . do not comport with the evidence provided by the claimant's mother . . .
concerning specific instances of the claimant's fighting at
school." Plaintiff also alleges that "there is an inconsistency
between the teacher's report concerning the claimant and the
testimony by the mother that the claimant had been required to be
disciplined by the school principal from time to time." Both of
the inconsistencies identified by Plaintiff essentially address
the same issue alleged conflicts between Marshalynn Chatmon's
testimony and written reports from Tatiana Chatmon's teachers
concerning Tatiana Chatmon's ability to interact and relate with
others while at school.
A review of the administrative record confirms the existence of
these inconsistencies. Although the written reports never mention
that Tatiana Chatmon fought with her peers or was subjected to
formal discipline, Marshalynn Chatmon testified before the ALJ
that her daughter was repeatedly disciplined by her school
principal for fighting and other incidents of misbehavior. For
example, Marshalynn Chatmon described occasions when Tatiana
Chatmon (1) physically assaulted other students, (2) stole from
other students, and (3) was disciplined by her school principal.
See, e.g., (Soc. Sec. Admin. Office of Hr'gs & Appeals R. at
322, 326-29 (June 11, 2003).) In fact, Marshalynn Chatmon
testified that the school principal had actually considered
suspending or expelling her daughter. (Id. at 328-29.)
"There is a statutory requirement that, if you are eligible for
disability benefits as a disabled child, your continued
eligibility for such benefits must be reviewed periodically."
20 C.F.R. § 416.994a(a). When reviewing a claimant's eligibility,
the ALJ must determine, inter alia, whether the claimant's
impairment(s) functionally equal any listed impairment(s). See
id. at § 416.994a(b)(3)(ii) & (b)(3)(iii). In order to
functionally equal a listed impairment, a claimant's impairment
"must be of listing-level severity; i.e., it must result in
`marked' limitations in two domains of functioning or an `extreme' limitation in one
domain. . . ." 20 C.F.R. § 416.926a(a). An ALJ will find an
extreme limitation in a domain when the claimant's impairment
"interferes very seriously with [his or her] ability to
independently initiate, sustain, or complete activities." Id.
at § 416.926a(e)(3)(i). Among the six domains to be considered by
the ALJ is the domain "[i]nteracting and relating with others."
Id. at § 416.926a(b)(1)(iii). That particular domain
encompasses "how well [the claimant] initiate[s] and sustain[s]
emotional connections with others, develop[s] and use[s] the
language of [his or her] community, cooperate[s] with others,
compl[ies] with rules, respond[s] to criticism, and respect[s]
and take[s] care of the possessions of others." Id. at §
416.926a(i). Employing that definition, the Court finds that
evidence concerning Tatiana Chatmon's ability to interact and
relate with her peers is crucial to any evaluation of her
continued eligibility for Supplemental Security Income benefits.
See, e.g., id. at § 416.926a(a) & (b)(1)(iii). And it flows
from this finding that any failure to fully and fairly develop
the record or any evidentiary gaps with respect to the
previously-described inconsistencies could prejudice Plaintiff.
Here, the Commissioner has failed to show that the record was
fully and fairly developed as to Tatiana Chatmon's ability to
interact and relate with others while at school. More
specifically, the transcript of the June 11, 2003 hearing
establishes that the ALJ failed to "`scrupulously and
conscientiously probe into, inquire of, and explore for all [of
the] relevant facts'" related to the incidents of fighting and
misbehavior identified by Marshalynn Chatmon. Nelson,
131 F.3d at 1235 (citation omitted); see also Thompson,
933 F.2d at 585-86 (same). For example, neither the ALJ nor the medical
expert scrupulously probed into or explored the specific
occasions of fighting and formal discipline mentioned by
Marshalynn Chatmon. See, e.g., (Soc. Sec. Admin. Office of
Hr'gs & Appeals R. at 322, 326-29 (June 11, 2003).) As a result,
the record is void of the type of detailed information (e.g., who, what, when, where,
why, and how), written records/documents, or testimony that would
permit the Court to conclude that a full and fair record was
While it is within the ALJ's discretion to decide how much
evidence to collect with respect to the issues before him or her
(see Luna, 22 F.3d at 692), the ALJ's efforts in this case were
insufficient. In fact, Marshalynn Chatmon actually voiced her
concern during the hearing that she may not have provided all of
the facts relevant to Tatiana Chatmon's claim of continued
disability.*fn10 If nothing else, these revealing statements
should have alerted the ALJ to the possibility that Marshalynn
Chatmon's testimony may not have been complete. Regrettably, they
did not. And since Marshalynn Chatmon's testimony was relevant to
the determination of whether an extreme limitation exists in one
of the six domains interacting and relating with others the
failure to adequately develop the record with respect to that
issue prejudiced ...