Binion v. Shalala

• Citation: 13 F.3d 243
• Decision Date: 03 January 1994
• Docket Number: No. 93-1733,93-1733
• Parties: , Unempl.Ins.Rep. CCH (P) 17672A Sharon P. BINION, Plaintiff-Appellant, v. Donna E. SHALALA, Secretary of the Department of Health and Human Services of the United States of America, Defendant-Appellee.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 243

13 F.3d 243

43 Soc.Sec.Rep.Ser. 289, Unempl.Ins.Rep. CCH (P) 17672A

Sharon P. BINION, Plaintiff-Appellant, v. Donna E. SHALALA, Secretary of the Department of Health and Human Services of the United States of America Defendant-Appellee.

No. 93-1733.

United States Court of Appeals Seventh Circuit.

Argued Oct. 29, 1993.

Decided Jan. 3, 1994.

Thomas M. Henry (argued), Peoria, IL, for plaintiff-appellant.

Suzanne E. Duman (argued), Dept. of Health and Human Services, Region V, Office of the General Counsel, Chicago, IL, K. Tate Chambers, Office of U.S. Atty., Peoria, IL, for defendant-appellee.

Before CUMMINGS and CUDAHY, Circuit Judges, and LEINENWEBER, District Judge. ^*

LEINENWEBER, District Judge.

Claiming she became disabled on October 9, 1989 due to rheumatoid arthritis, acute back strain, and bursitis in the left hip, Sharon Binion ("Binion" or "plaintiff") applied for Social Security Income ("SSI") and Disability Insurance Benefits ("SSDI") under the Social Security Act. The Social Security Administration ("SSA") denied plaintiff's disability claim and Binion requested a de novo review by an administrative law judge ("ALJ"). The ALJ conducted a hearing at which Binion and a friend testified; however, Binion was not represented by counsel at this hearing. The ALJ found that Binion was not disabled because she could perform sedentary work. The Appeals Council denied Binion's request for review. Binion appealed the decision to a district court judge.

The district court affirmed the decision of the Secretary of Health and Human Services ("Secretary") denying Binion SSI and SSDI, finding substantial evidence supported the ALJ's decision. Plaintiff has appealed this decision. This court has jurisdiction over the appeal pursuant to 42 U.S.C. Secs. 405(g) and 1383(c)(3) and 28 U.S.C. Sec. 1291.

In her appeal, Binion argues that she did not make a valid waiver of her right to counsel in the proceedings in front of the ALJ. She contends that, accordingly, there should be a remand for a new hearing. Binion also argues that there was not substantial evidence to support the ALJ's finding that she was not disabled because she could perform sedentary work.

I. Waiver of Right to Counsel

A claimant has a statutory right to counsel at a disability hearing. 42 U.S.C. Sec. 406, 20 C.F.R. 404.1700. If properly informed of the right, the claimant may waive it. Thompson v. Sullivan, 933 F.2d 581, 584 (7th Cir.1991). To ensure a valid waiver of counsel, we require the ALJ to 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. Id. Defendant concedes that the ALJ did not adequately explain the 25 percent cap on fees as articulated in Thompson, but contends that the ALJ was not required to do so because it is an inaccurate description of the applicable law. The court is unpersuaded by this argument and finds it unnecessary to rearticulate the standard it set out in Thompson for informing claimants of their right to representation. Because the ALJ did not comply with the clear dictates of Thompson, Binion's waiver was invalid.

II. Remand

Binion contends that when the waiver of right to counsel in the administrative proceeding is found to be invalid, the case should automatically be remanded for a new hearing. The Secretary argues that the case should be remanded only if Binion was prejudiced by the absence of counsel. The Secretary contends a remand is unnecessary here because the record was adequately developed and, therefore, Binion was not prejudiced by lack of counsel.

In Smith v. Sec'y of Health, Education, & Welfare, 587 F.2d 857, 860 (7th Cir.1978), we held that 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. The ALJ's duty to develop the record fully and fairly where the claimant proceeds without counsel is met if the ALJ probes the claimant for possible disabilities and uncovers all of the relevant evidence. Id.; see also Thompson v. Sullivan, 933 F.2d at 585-86. However, the ALJ has the same duty to develop the record when a plaintiff is without counsel regardless of whether the plaintiff's waiver of counsel was valid: "Where the disability benefits claimant is unassisted by counsel, the ALJ has a duty 'scrupulously and conscientiously [to] probe into, inquire of and explore for all of the relevant facts....' " Smith, 587 F.2d at 860, citing Gold v. Secretary of HEW, 463 F.2d 38, 43 (2d Cir.1972). So as to give teeth to the requirement which we established in Thompson that the ALJ adequately explain the right to counsel, we now hold that if the ALJ does not obtain a valid waiver, the burden is on the Secretary to show the ALJ adequately developed the record. Without the shifting of this burden, no sanction would exist for an ALJ's inadequate explanation of a claimant's rights.

We find, however, in this case that the Secretary has established that the ALJ fully and fairly developed the record. The ALJ obtained all of the medical and treatment records from plaintiff's treating physicians. The ALJ asked Binion to provide statements particularizing her claim prior to the hearing and he elicited detailed testimony from Binion at the hearing. The ALJ probed into all of the relevant areas, questioning plaintiff about the medical evidence in the file, her medication, pain, daily activities, and physical ability to perform a number of activities. A friend also testified in her favor. In addition, the ALJ left the record open to obtain a medical report which was not in the record. The hearing was comprehensive, lasting an hour and twenty minutes.

Once the Secretary establishes that the record was developed fully and fairly, the plaintiff has the opportunity to rebut this showing by demonstrating prejudice or an evidentiary gap. Prejudice may be demonstrated by showing that the ALJ failed to elicit all of the relevant information from the claimant. Smith, 587 F.2d at 860; Hawwat v. Heckler, 608 F.Supp. 106, 109 (N.D.Ill.1984) (following Smith ); Vance v. Heckler, 579 F.Supp. 318, 322 (N.D.Ill.1984) (following Smith ); accord Edwards v. Sullivan, 937 F.2d 580, 586 (11th Cir.1991) (ineffective notice of right to counsel insufficient to warrant remand; to determine whether case should be remanded, the court must look at whether the "record reveals evidentiary gaps which result in unfairness or 'clear prejudice' ") (citations omitted).

Binion has advanced several arguments as to how the presence of counsel might have helped her. She argues counsel might have written to her doctors to obtain residual functional capacity assessments which would have mandated a finding of disability in this case. However, on three occasions, the SSA requested information regarding Binion's ability to perform work-related functions from Binion's treating physician. Each time, the doctor did not note any limitations. Another treating physician opined that Binion could perform a job that did not require her to bend, stoop, push, or lift, and that she could perform a job washing dishes. Moreover, plaintiff has presented no statements from her doctors that they are of the opinion that she is, in fact, disabled. Plaintiff presented no new medical evidence to the Appeals Council, the district court, or this court. In each of these proceedings she had the benefit of counsel. Although the court cannot reverse the Secretary's decision on the basis of any new evidence introduced here, such evidence would weigh heavily in determining whether a remand is necessary. Eads v. Secretary of DHHS, 983 F.2d 815 (7th Cir.1993); 42 U.S.C. Sec. 405(g) (sentence six) (court may remand a case if the claimant submits new and material evidence and shows good cause for failing to submit the evidence to the agency).

Binion also argues that counsel could have requested the presence of a vocational expert. However, this court has already explained that "a vocational expert is not a required or even essential part of a disability benefits hearing. The decision whether to employ the services of a vocational expert is entirely within the discretion of the ALJ." Ehrhart v. Secretary of HHS, 969 F.2d 534, 540 (7th Cir.1992) (citation omitted). In addition, where appropriate, the ALJ may use the Medical/Vocational Guidelines or "grid" to determine whether the claimant may perform a significant number of jobs. 20 C.F.R. Pt. 404, Subpt. P, App. 2; Walker v. Bowen, 834 F.2d 635, 640 (7th Cir.1987) ("The grid is a chart which classifies a claimant as disabled or not disabled, based on the claimant's physical capacity, age, education, and work experience."). Binion has not provided any concrete evidence or information on how the presence of a vocational expert would have changed the finding of no disability.

Binion also argues that counsel could have helped elicit more specific documentation from her, as well as from other witnesses, as to the degree and nature of her pain, its duration, and resulting limitations on her ability to perform work-related activities. However, Binion filled out several forms regarding her medical condition, why she believed it prevented her from working, the limitations doctors placed on her, her medications and treatment, and what activities she was able to do. Prior to the hearing, the ALJ sent Binion a questionnaire asking her to comment on how her illness affected her daily activities, the reason she thought she was disabled, and her ability to do specific activities. Binion wrote a page describing her pain and how it affected her life. At the hearing, the ALJ asked Binion to comment on why she stopped working, her treatment and medication, and the location, duration, and intensity of her pain and other...