Opinion
Civ. No. 02-5000 (DRD).
September 20, 2004
Abraham S. Alter, Esq., Langton Alter, Rahway, NJ, Attorney for Plaintiff.
Christopher J. Christie, Esq., United States Attorney, By: Peter G. O'Malley, Esq., Assistant U.S. Attorney, Newark, NJ, Attorney for Defendant.
OPINION
Plaintiff, Ilda Pereira ("Plaintiff"), appeals from a final determination of the Commissioner of Social Security ("Commissioner") denying her application for Supplemental Security Income ("SSI") benefits. Plaintiff alleges that during her hearing before the Administrative Law Judge ("ALJ"), the ALJ never obtained an effective waiver from Plaintiff of her right to counsel. In addition, Plaintiff contends not only that the Commissioner's determination is not supported by substantial evidence, but Plaintiff also argues that substantial evidence exists to support a finding of disability pursuant to 42 U.S.C. §§ 405(g) and 1382. For the reasons set forth below, the Commissioner's determination is remanded.
I. PROCEDURAL HISTORY
On February 13, 1998, Plaintiff filed an application for SSI benefits alleging disability as of August 1, 1991. (R. at 65, 68.) Plaintiff alleged an inability to work due to hypertension, vascular disease, diabetes mellitus and blindness in the left eye. (R. at 13.)
"R." citations are to the correspondingly numbered pages in the certified administrative record filed with the Court as part of the Commissioner's answer.
Plaintiff's application was denied initially and again upon reconsideration. (R. at 44-46, 51-53.) Thereafter, Plaintiff requested a hearing before an administrative law judge to review the application (R. at 54), and such hearing was held before Administrative Law Judge Richard L. De Steno (the "ALJ") on June 1, 1999. (R. at 13.) Plaintiff, who was unrepresented by counsel, appeared and testified with the assistance of a Portuguese-English interpreter at the ALJ hearing. (R. at 13, 21.) On July 28, 1999, the ALJ denied Plaintiff's application because he found that Plaintiff was not under a disability. (R. at 10-18.) Plaintiff, through her newly retained attorney (R. at 8-9), then filed a request, on August 16, 1999, for review of the ALJ decision by the Appeals Council. (R. at 7-8.) The Appeals Council denied the request for review. (R. at 5-6.)
On September 1, 2004, Plaintiff filed a complaint seeking review of the Appeals Council's denial. Plaintiff argues that: (1) the ALJ did not obtain a knowing waiver from Plaintiff concerning her right to counsel at the ALJ hearing; (2) the decision of the Commissioner is unsupported by substantial evidence in the record; and (3) substantial evidence exists to support a finding of disability.
II. FACTUAL BACKGROUND
A. Plaintiff's Background and Testimony
Plaintiff was born in Portugal on January 16, 1948 and came to the United States in 1969. (R. at 24.) Plaintiff is both a U.S. and Portuguese citizen. (R. at 26.) In 1988, Plaintiff returned to Portugal and lived there until January 1998 when her husband left her, whereupon she returned to the United States to live with her daughter and her daughter's husband. (R. at 25-26, 38.) She has not received education beyond the fourth grade. (R. at 25.)
Plaintiff's sole work experience occurred at one factory from March 1977 until July 1988. (R. at 27.) At work, Plaintiff was a machine attendant who was responsible for guiding velvet cloth into a pressing machine and hooking the velvet for support. (R. at 28) While working at the factory, Plaintiff spent more time standing than sitting and did not have to lift anything heavy. (R. at 29.) Plaintiff has been blind in the left eye since she was seven years old but does not know why she went blind. (R. at 29-30.) Being blind "sometimes" affected her ability to perform her job because she had to turn her head when she needed to look to the left. (R. at 30.) Plaintiff quit this job in order to return to Portugal in 1988, and she did not work while in Portugal from 1988 to 1998. (R. at 30.)
Plaintiff has not sought employment since returning to the United States in 1998 because dizzy spells prevent her from working. (R. at 31.) More specifically, Plaintiff described getting "this pain in [her] sides and then . . . get[ting] dizzy and . . . fall[ing] to the ground." (R. at 31.) Plaintiff estimated the frequency of these dizzy spells to vary from two or three occurrences daily to perhaps one dizzy spell every one or two weeks. (R. at 31.) The dizzy spells began when she started taking insulin in 1998 for her diabetes, which she first learned she had in 1991. (R. at 30, 32.) Plaintiff injects herself with insulin twice daily. (R. at 32.) Plaintiff associates her insulin injections with dizzy spells and the onset of almost-daily headaches, which she treats with non-prescription aspirin. (R. at 32.) Plaintiff also has pain in her stomach, kidneys, back, legs, toenails, and arm. (R. at 33.) Plaintiff takes prescription medication for high blood pressure and hot flashes. (R. at 33, 96.)
Plaintiff performs "light" household chores like washing dishes, but not sweeping because it hurts her back. (R. at 39.) She does no housework that involves bending over. (R. at 104.) Plaintiff does neither the shopping nor the laundry. (R. at 39.) She gets shortness of breath and her leg calves hurt if she goes shopping. (R. at 103.) Plaintiff described her typical day as sitting down, getting up, and walking back and forth; she does not watch much TV and does not read. (R. at 39.) Her social activities consist of attending church and visiting family; otherwise, she stays at home. (R. at 104.) Sitting is sometimes a problem for Plaintiff because it hurts her kidneys, and she can sit for about fifteen to twenty minutes at a time. (R. at 39.) She can take baths only with her daughter's assistance due to fainting spells and dizziness. (R. at 104.) Plaintiff can walk for less than half an hour before she gets tired, and she is capable of light lifting and carrying. (R. at 40.)
B. Medical Evidence 1. Medical evaluation by Dr. Friedman, 4/14/98
Dr. Friedman, who was consulted in April 1998 and was not Plaintiff's treating physician, examined Plaintiff and reported that Plaintiff has a history of diabetes, a protuberant abdomen, angina, blindness in the left eye, decreased peripheral pulses, dorsal pedalis, posterior tibialis (or acquired flatfoot), cold toes and feet, sinus rhythm on her EKG, normal CBC with differential, normal chest x-ray, and elevated protein, globulin, glucose, blood urea, nitrogen, cholesterol, triglycerides, phosphorus and GGTP (enzyme that is very sensitive to inflammation of the liver). (R. at 97.) Dr. Friedman listed the medications that Plaintiff had been prescribed for her diabetes and heart problems. (R. at 96.)
2. Residual functional capacity assessment by Dr. Graulau, 5/19/98
Dr. Graulau, a state agency review physician, reviewed the medical evidence and prepared a physical residual functional capacity assessment. Dr. Graulau concluded that Plaintiff was able to lift ten pounds frequently and twenty pounds occasionally, stand and/or walk for about six hours in an eight-hour workday, sit for about six hours in an eight-hour workday, push and/or pull with no limitations. (R. at 80.) Dr. Graulau concluded that Plaintiff did not have postural, manipulative, visual, communicative or environmental limitations. (R. at 81-83.)
3. Hospitalization at Union Hospital, July 28-31, 1998
Plaintiff was hospitalized at Union Hospital between July 28 and July 31, 1998 with the following diagnoses: unstable angina, dehydration, diabetes mellitus, hypercholesterolemia and angina pectoris. (R. at 108.) Plaintiff reported experiencing syncope — i.e., fainting or passing out — around the evening of admission. (R. at 108.)
Dr. Francisco's impression of x-ray results was that Plaintiff had no active cardiopulmonary disease, a normal heart size, no acute infiltrates, no demonstrable intestinal obstruction or free air. (R. at 124-25.)
Dr. Eisenbud concluded in Plaintiff's Carotid Duplex Report that the examination revealed no evidence of hemodynamically significant carotid artery occlusive disease. (R. at 126.)
Dr. Stein concluded that "[t]he patient's work capacity is markedly impaired, stopping because of discomfort in her legs and general fatigue." (R. at 129.) However, Plaintiff "experienced no definite chest discomfort during exercise or recovery . . ., no ischemic changes or arrhythmia . . ., [and] the stress portion of this test does not suggest significant coronary disease." (R. at 129.)
The Discharge Summary reported that Plaintiff was admitted with uncontrolled hypertension, uncontrolled diabetes, and atypical chest pain, but during her stay both her sugars and blood pressure were brought under control. (R. at 108.) Plaintiff received diabetic teaching and was advised of the importance of taking her medications and following up as an outpatient. (R. at 109.) Results of Plaintiff's stress test were normal. (R. at 109.)
4. Ophthalmology Exam by Dr. Mang, 11/2/98
At the request of the Social Security Administration, Dr. Mang conducted an ophthalmology exam on November 2, 1998. Dr. Mang's report noted that Plaintiff has diabetes and hypertension. The eye examination revealed that the right eye had a visual acuity of 20/50, corrected to 20/40, and the left eye suffered from atrophic macular degeneration, which could not be improved. (R. at 130-31.)
III. DISCUSSION
A. Standard of Review
In reviewing a final administrative determination, the duty of the district court is not to review the case de novo, but instead to discern whether the record contains substantial evidence to support the findings and determinations of the ALJ.E.g., Bradley v. Bowen, 667 F. Supp. 161 (D.N.J. 1987). A district court must accept the ALJ's findings of fact as conclusive if they are supported by substantial evidence. 42 U.S.C. § 405(g); see also Cotter v. Harris, 642 F.2d 700, 704 (3d Cir. 1981). Substantial evidence has been defined as "[s]uch relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Id. at 704. Whether evidence is substantial has been described by the Third Circuit as a qualitative, not quantitative, exercise, see Kent v. Schweiker, 710 F.2d 110, 114 (3d Cir. 1983), requiring an elaboration of the ALJ's analysis "so that a reviewing court may know the basis for the decision . . . not only an expression of the evidence s/he considered which supports the result, but also some indication of the evidence which was rejected." Cotter, 642 F.2d at 705 (quoting Baerga v. Richardson, 500 F.2d 309, 312 (3d Cir. 1974)). When faced with conflicting evidence, an administrative decision must adequately explain in the record its reasons for rejecting or discrediting competent evidence. Ogden v. Bowen, 677 F. Supp. 273, 278 (M.D. Pa. 1987). "[A] single piece of evidence will not satisfy the substantiality test if the [ALJ] ignores, or fails to resolve, a conflict created by countervailing evidence. Nor is evidence substantial if it is overwhelmed by other evidence — particularly certain types of evidence (e.g., that offered by treating physicians) — or if it really constitutes not evidence but mere conclusion." Brewster v. Heckler, 786 F.2d 581, 584 (3d Cir. 1986) (quoting Kent v. Schweiker, 710 F.2d 110, 114 (3d Cir. 1983)).
B. Heightened Burden With Pro Se Applicant
1. Plaintiff did not effectively waive her right to counsel.
The limited scope of review afforded by the substantial evidence standard is appropriate where evidence has been elicited during the course of proceedings in which the claimant has had a full and fair opportunity to be heard. Valle v. Sec'y of Health Human Services, No. 84 Civ. 2885 (WCC), 1985 WL 1993, at *4 (S.D.N.Y. June 28, 1985). "However, where it is apparent that a claimant has been deprived of his right to a fair hearing, this Court owes the Secretary no deference." Id. Especially in circumstances where a pro se claimant is further handicapped by an inability to speak English, a reviewing court has a duty to make a "searching investigation" of the record to ensure that the claimant's rights have been adequately protected. E.g., id. at *5 (citing Gold v. Sec'y of Health, Education Welfare, 463 F.2d 38, 43 (2d Cir. 1972)).
The claimant has a right to counsel at a Social Security hearing and must be provided with notice of her right to counsel. E.g., Phifer v. Comm'r of Soc. Sec., No. 03-1002, 2003 WL 22995206, at *1 (3d Cir. Dec. 22, 2003); see also Alford v. Sec'y of Health Human Services, 934 F. Supp. 134, 138 (D.N.J. 1995). The claimant may waive this right if given sufficient information to enable her to intelligently decide whether to retain counsel or proceed pro se. Hawwat v. Heckler, 608 F. Supp. 106, 108 (N.D. Ill. 1984). The information necessary to ensure an intelligent and knowing waiver of counsel includes an explanation of the valuable role that an attorney could play in the proceedings, the possibility of free counsel, and the limitations on attorneys' fees to 25 percent of any award. Id. (citations omitted). "When there is the possibility that a claimant may be incompetent [due to poor language skills] . . . the ALJ should explain the right to counsel and the role of an attorney . . . in even greater detail and with greater attention toward ensuring that the claimant understands the issues." Id. (citing Smith v. Sec'y of Health, Education, Welfare, 587 F.2d 857, 860 (7th Cir. 1978)).
In this case, the transcript of the ALJ hearing reflects Plaintiff's apparent assertion of her right to counsel, her lack of understanding of the right to counsel, and the ALJ's failure to explain the valuable role that an attorney could play and the 25 percent cap on attorneys' fees. After the ALJ informed Plaintiff that she had the right to representation and asked Plaintiff what she would like to do, Plaintiff responded through her interpreter, "I would appreciate it if you would help me." (R. at 21.) After the ALJ explained that he could not get a representative for Plaintiff but could adjourn the hearing, Plaintiff said, "I want to do what you want me to do." (R. at 22.) Then the following exchange occurred:
ALJ: No. Doesn't work that way. I do what you want me to do in this case. You have to decide whether you want an adjournment to get a representative or not.
CLMT: Yes, that could be.
ALJ: Yes, what?
CLMT: Yes, sir.
ALJ: Yes, what?
CLMT: So they can take care of whatever I need.
ALJ: I don't know what you mean.
(R. at 22) (emphasis added). In this exchange — far from waiving her right to counsel — Plaintiff actually seems to have indicated her desire to obtain representation so "they can take care of whatever [she] need[s]." The ALJ, however, expressed confusion with respect to Plaintiff's response. Assuming the ALJ's confusion was genuine, the ALJ should have sought clarification rather than ignore Plaintiff's response. However, instead of addressing Plaintiff's apparent attempt to assert her right to counsel, the ALJ inappropriately and inexplicably disregarded Plaintiff's apparent assertion of her right.
The ALJ proceeded to repeat Plaintiff's options of either adjourning or going forward pro se. Then Plaintiff said:
CLMT: Well, I hadn't, hadn't understood very well.
ALJ: You want me to repeat it?
CLMT: Yes.
ALJ: Your first choice, you can have an adjournment of the hearing and obtain representation if you so choose. If — or you can go ahead with the hearing today without representation if that is what you want.
CLMT: I want to continue.
ALJ: You — do you want — you do not want representation?
CLMT: No.
R. 22-23.
Because Plaintiff expressed her lack of understanding, the ALJ should have explained the right to counsel and the role of an attorney "in even greater detail and with greater attention toward ensuring that she understood the issues." See Hawwat, 608 F. Supp. at 108. The record shows that the ALJ did not attempt such explanation. Instead, the ALJ simply — and inadequately — repeated her options until finally Plaintiff gave an answer which the ALJ considered to be a waiver. It is doubtful that such repetition clarified Plaintiff's understanding of her right to counsel because it did not provide any new information to Plaintiff.
Plaintiff's waiver — if she did, in fact, waive — was not effective. In light of Plaintiff's expressed desire to get help from whatever source she could, including the ALJ and counsel (see R. at 21, 22), Plaintiff's answers reveal that her supposed waiver or failure to obtain counsel was unlikely the result of her lack of interest but more likely the result of her lack of understanding. See Valoy v. Barnhart, No. 02 Civ. 8955 (HB), 2004 WL 439424, at *5 (S.D.N.Y. March 9, 2004) (remanding and holding that the ALJ failed to adequately probe claimant's understanding of her right to counsel). Without elaborating on why he did so, the ALJ decided to disregard Plaintiff's apparent assertion of her right to counsel but to recognize her later response as a waiver even though there is nothing in the record which shows that in the interim Plaintiff gained any new information which would have enabled her to make a knowing and intelligent waiver.
To summarize, Plaintiff's supposed waiver was not effective in light of the ALJ's failure to give due consideration to Plaintiff's apparent assertion of her right to counsel (or failure to ask a follow-up question as to whether Plaintiff in fact had asserted her right, if the ALJ was unsure of Plaintiff's response), the ALJ's failure to probe Plaintiff's understanding of her right to counsel or to explain the function and importance of being represented by counsel, and Plaintiff's limited education. See Hawwat, 608 F. Supp. at 109 (holding Plaintiff's waiver ineffective in light of Plaintiff's limited education and ALJ's failure to stress the function and importance of having counsel, among other factors).
2. Plaintiff was prejudiced by the ALJ's failure to develop a full and fair record.
A waiver in and of itself is not a sufficient justification for remand. Rather, remand is proper only where the lack of counsel prejudiced a claimant or rendered the proceeding unfair. Livingston v. Califano, 614 F.2d 342, 345 (3d Cir. 1980). Prejudice to the claimant may be shown if the ALJ did not fulfill his obligation to develop a full and fair record. E.g., Hawwat, 608 F. Supp. at 109. The ALJ should assume a more active role when the claimant is unrepresented and thus has a heightened duty of care and responsibility to develop a full and fair record. Livingston, 614 F.2d at 345 (internal quotations and citation omitted). In cases where the pro se plaintiff is also handicapped by poor health and limited language skills, "the ALJ is under a heightened duty `to scrupulously and conscientiously probe into, inquire of, and explore for all the relevant facts.'" Valoy, 2004 WL 439424, at *6 (citations omitted).
In this case, the ALJ failed to meet his heightened obligation to develop a full and fair record with respect to Plaintiff's alleged disabilities. The ALJ made little attempt to ask Plaintiff about her alleged hypertension and vascular disease, which allegedly rendered Plaintiff disabled and thus required further inquiry. During the hearing, the ALJ asked only one question with respect to these diseases: "Do you take pills for high blood pressure?" to which Plaintiff answered monosyllabically, "Yes." (R. at 33.) See Etayem v. Bowen, No. 88 C 8963, 1989 WL 121271, at *4 (N.D. Ill. Oct. 11, 1989) (finding that the ALJ failed to develop the record adequately in part because of failure to ask about claimant's alleged nervous problem). The ALJ did not, for example, inquire into whether Plaintiff experienced side effects or whether the drugs were effective; such inquiries, among others, would have helped to develop the record. With respect to Plaintiff's diabetes, although the ALJ made more inquiries into Plaintiff's prescription for insulin, his inquiries focused on how and from whom she obtained the prescription rather than the side effects from taking insulin, even though Plaintiff indicated that she started getting dizzy spells when she began taking insulin. (R. at 32.) Because her alleged inability to work is due largely to her dizzy spells (R. at 31), the ALJ should have more fully developed the record as to the alleged side effects suffered by Plaintiff. See Etayem, 1989 WL 121271, at *4.
Although the ALJ partially discharged his duty by subpoenaing Plaintiff's medical records (R. at 133), he failed to "scrupulously and conscientiously probe into, inquire of, and explore for all the relevant facts" during the ALJ hearing. The ALJ's failure to make a full and fair record prejudiced the pro se Plaintiff.
Plaintiff's receipt of documents which contained written notices of the right to representation — see R. 62-63, 64, 51-53, 44-46 — fails to cure her ineffective waiver at the ALJ hearing during which she may have asserted her right to counsel. Despite written notification, which need not be disseminated in a language other than English, the ALJ must still probe claimant's understanding of her right to counsel. Valoy v. Barnhart, No. 02 Civ. 8955 (HB), 2004 WL 439424, at *5 (S.D.N.Y. March 9, 2004). Cases in which written notices have been held to provide sufficient notice where plaintiffs have knowingly waived their right to counsel — e.g., Boyd v. Barnhart, No. 03-4089, 2004 WL 1088350, at *1 (3d Cir. May 13, 2004) (holding that plaintiff made an effective waiver where she had received six written notices of her right to representation and was literate in her native language of English) — are factually distinguishable from this case because among other facts, in this case Plaintiff did not understand English and apparently asserted her right to representation prior to her eventual response that the ALJ interpreted as a waiver.
V. CONCLUSION
The transcript of the ALJ hearing shows that the pro se Plaintiff did not effectively waive her right to counsel and that she was thereby prejudiced by the ALJ's failure to meet his heightened duty to develop a full and fair record. For the reasons stated herein, this case is remanded to the Commissioner for further proceedings consistent with this opinion. This Court does not decide the issue of whether the ALJ's decision was based on substantial evidence. Defendant's motion for judgment on the pleadings is denied.
There was some, although limited, medical evidence in the record. The ALJ's opinion was markedly deficient in dealing with this medical evidence as it related to his findings that (i) "[a]lthough the assertions of pain are reasonable to a degree, the overall record does not support them to the debilitating extent asserted" (R. at 16); (ii) "the claimant retains the residual functional capacity to perform the exertional demands of light work not requiring binocular vision" (R. at 17); and (iii) "[b]ecause Ms. Pereira's past work did not require the performance of work activities precluded by her medically determinable impairments, she has been able to perform that job at all material times herein." (R. at 17.) There was evidence that might support these findings, but there was also evidence that might negate them. The ALJ failed to address separately as to each finding the medical and other evidence that supported his findings and the medical and other evidence that negated his findings. Inasmuch as the case will be remanded for ineffective waiver of plaintiff's right to counsel, these deficiencies need not be addressed further.