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Erin L. Butzen v. Michael J. Astrue

September 6, 2011


The opinion of the court was delivered by: Judge Sheila Finnegan


Plaintiff Erin L. Butzen seeks to overturn the final decision of the Commissioner of Social Security ("Commissioner" or "Defendant") denying her application for Disability Insurance Benefits ("DIB") under Title II of the Social Security Act. 42 U.S.C. §§ 416, 423(d). The parties consented to the jurisdiction of the United States Magistrate Judge pursuant to 28 U.S.C. § 636(c), and Plaintiff filed a motion for summary judgment asking for a remand. In support of that request, Plaintiff argues that the ALJ failed to obtain a valid waiver of counsel from her before proceeding with a hearing, and erred in adopting her stated disability onset date. Plaintiff also claims that the case should be remanded pursuant to Section 6 of 42 U.S.C. § 405(g) because she has new evidence demonstrating that she was disabled as far back as 2002. For the reasons set forth below, the Court now grants Plaintiff's motion and remands the case for further proceedings.


Plaintiff was born on September 11, 1957. (R. 20). She is married with no children, and her husband earns approximately $60,000 to $65,000 per year from his employment.

(R. 480, 482). Plaintiff applied for DIB on March 28, 2006, alleging a disability onset date of November 1, 2005. (R. 20-24). Her stated medical conditions included possible heart attack, emphysema, low back pain, back fusion surgery, lumbar radiculopathy, depression and a blood disorder. (R. 52). After confirming that Plaintiff's date last insured was March 31, 2003, the Social Security Administration ("SSA") determined that she did not qualify for disability benefits because she "ha[d] not worked long enough under Social Security." (R. 27-29, 31-33). Plaintiff requested an administrative hearing, and on September 10, 2008, she appeared before Administrative Law Judge ("ALJ") David W. Thompson. She did not have counsel at that time so the ALJ explained the costs and benefits of representation and provided her with a list of attorney names. (R. 465-71). He then continued the hearing because Plaintiff did not feel well. (R. 470).

At a subsequent hearing on January 20, 2009, the ALJ heard testimony from Plaintiff, who again appeared without counsel, and from a vocational expert. Shortly thereafter, on March 13, 2009, the ALJ found that Plaintiff did not have sufficient quarters of coverage to qualify for disability benefits and, thus, was not disabled under the Act. (R. 12-18). The ALJ noted that Plaintiff alleged disability beginning November 1, 2005, and that she had "only 16 of the 20 quarters of coverage required for disability insured status during a period of 40 calendar quarters beginning no more than 10 years before the alleged onset date of her disability." (R. 17). He also confirmed that her "earnings record cannot be credited with additional wage, self-employment income, or quarters of coverage." (Id.). Though Plaintiff did not apply for Supplemental Security Income ("SSI") under Title XVI of the Social Security Act, 42 U.S.C. § 1381a, the ALJ confirmed that she was not eligible for such benefits given her husband's income. (R. 18).

The Appeals Council denied Plaintiff's request for review on November 24, 2010, and Plaintiff now seeks judicial review of the ALJ's decision, which stands as the final decision of the Commissioner. (R. 3-7, 10-11).


A. Standard of Review

Judicial review of the Commissioner's final decision is authorized by § 405(g) of the Social Security Act. See 42 U.S.C. § 405(g). In reviewing this decision, the court may not engage in its own analysis of whether Plaintiff is severely impaired as defined by the Social Security Regulations. Young v. Barnhart, 362 F.3d 995, 1001 (7th Cir. 2004) (citation omitted). Nor may it "displace the ALJ's judgment by reconsidering facts or evidence or making credibility determinations." Skinner v. Astrue, 478 F.3d 836, 841 (7th Cir. 2007). The court's task is to determine whether the ALJ's decision is supported by substantial evidence, which is "'such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.'" Schmidt v. Astrue, 496 F.3d 833, 841 (7th Cir. 2007) (quoting Barnett v. Barnhart, 381 F.3d 664, 668 (7th Cir. 2004)). In making this determination, the court must "look to whether the ALJ built an 'accurate and logical bridge' from the evidence to [his] conclusion that the claimant is not disabled." Simila v. Astrue, 573 F.3d 503, 513 (7th Cir. 2009) (quoting Craft v. Astrue, 539 F.3d 668, 673 (7th Cir. 2008)). Where the Commissioner's decision "'lacks evidentiary support or is so poorly articulated as to prevent meaningful review,' a remand is required." Hopgood ex rel. L.G. v. Astrue, 578 F.3d 696, 698 (7th Cir. 2009) (quoting Steele v. Barnhart, 290 F.3d 936, 940 (7th Cir. 2002)).

B. Analysis

Plaintiff argues that the ALJ's decision is not supported by substantial evidence because he did not ensure that she made a valid waiver of her right to counsel, and he failed to fully develop the record in establishing her disability onset date. Plaintiff also claims to have new evidence of disability dating back to 2002, and seeks a Section 6 remand for consideration of that evidence.

1. Waiver of Counsel

Claimants have a statutory right to be represented by counsel at a disability hearing, but that right may be waived. Skinner, 478 F.3d at 841. Plaintiff first objects that the ALJ did not obtain a valid waiver of counsel because his explanation of her rights was "rambling" and overly "complicated," and did not provide all of the relevant information. (Doc. 16, at 5, 6). To ensure that a waiver of counsel is valid, an ALJ "must explain to pro se claimants '(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 ...

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