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Nelms v. Astrue

January 28, 2009


Appeal from the United States District Court for the Eastern District of Wisconsin. No. 2:06-cv-00273-CNC-Charles N. Clevert, Jr., Judge.

The opinion of the court was delivered by: Tinder, Circuit Judge.


Before RIPPLE, EVANS, and TINDER, Circuit Judges.

Theodis Nelms, Jr., sought Social Security disability benefits, but an administrative law judge determined that he can perform light work. On appeal Nelms, who was without counsel before the ALJ, contends that the ALJ did not adequately develop the record in violation of his duty to unrepresented claimants. Additionally, Nelms argues that the ALJ ignored certain environmental restrictions when assessing Nelms's resid ual functional capacity. We agree with Nelms that the record is inadequate and therefore remand for further proceedings before the agency.


Nelms applied for Supplemental Security Income benefits in June 2002. He listed as impairments pneumonia, recovery from open-heart surgery, and asthma. In his application Nelms wrote, "If I walk, lift or do anything too strenuous I get out of breath." After the Social Security Administration twice denied his application, Nelms requested a hearing.

A. Hearing

Nelms appeared at his hearing in June 2005 without counsel. After a few questions about Nelms's work history, the ALJ addressed the possibility of representation, explaining that "I don't give somebody credit just because they have an attorney"; still, the ALJ continued, the Social Security Administration believes "that having an attorney is a good idea." The ALJ explained the role of an attorney but also noted the ALJ's independent duty to create a record:

I think the thinking must be that an attorney can talk to you, keep you company at the hearing, ask additional questions when I'm done, look over your file, see if it looks reasonably complete and so on. It looks pretty complete. You've brought in additional information here and so on. We do much of that anyway.

After the ALJ described the costs typically associated with an attorney in the Social Security setting, Nelms replied, "I'd rather talk to you."

Proceeding with the hearing, the ALJ asked Nelms to rank his medical problems. Nelms stated that his heart was the worst, followed by his back, his legs, and his asthma, in that order. Regarding his heart Nelms explained, "I have shortness of the breath and, you know, that also happen[s] with asthma and plus they cut me open. I got a stent in my heart, you know." Nelms described an inability to sleep at night because of severe pain, which he believes to be the onset of arthritis. Nelms also reported that his doctor had prescribed Methadone to alleviate the pain in his back and in his legs, although the medication was "not helping that much." Nelms testified, moreover, that he experiences soreness in his lower back "[a]ll day every day," with a brief respite only immediately after taking the medication. As for his respiratory problems, Nelms mentioned that his asthma strikes when he is near dust or pollen outside and when he is hot or cold. Nevertheless, Nelms exercises and walks every day per his doctor's instructions, albeit with limitations. "I can walk probably about a good two blocks before I really get messed up," Nelms testified, "but here lately, you know, since I've been hurting, you know, I can't walk half a block." Furthermore, Nelms stated that since surgery he has done "little odd jobs," including raking leaves and shoveling snow. Nelms described his daily activities in detail-how each morning he cooks himself breakfast, cleans up, goes for a walk, does laundry, and, later, perhaps goes to the grocery store with his step-mother before cooking himself dinner. Although Nelms "used to party a lot," he testified that his drinking is down to two or three beers each day and he is generally home by 9:00 p.m.

After approximately twenty minutes of questioning, the ALJ remarked, "I can't think of anything else to ask. Anything else I should know?" Nelms clarified a few points about his education and work history, and with that the hearing ended.

B. Medical Evidence

In May 2002 Nelms was admitted to a hospital in Milwaukee, Wisconsin, after he was found unresponsive in his home. He was diagnosed with pneumonia, respira-tory failure, overheating (hyperthermia), inflammation of the heart (endocarditis), delirium likely caused by alcohol withdrawal (delirium tremens), an abnormally low concentration of sodium in the blood (hyponatremia), and low blood pressure (hypotension). During his hospital stay, Nelms's doctors replaced his mitral valve (a ...

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