Lashley v. Secretary of Health and Human Services, 82-5163

• Decision Date: 01 June 1983
• Docket Number: No. 82-5163,82-5163
• Citation: 708 F.2d 1048
• Parties: Jack D. LASHLEY, Plaintiff-Appellant, v. SECRETARY OF HEALTH AND HUMAN SERVICES, Defendant-Appellee.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 1048

708 F.2d 1048

2 Soc.Sec.Rep.Ser. 145

Jack D. LASHLEY, Plaintiff-Appellant, v. SECRETARY OF HEALTH AND HUMAN SERVICES, Defendant-Appellee.

No. 82-5163.

United States Court of Appeals Sixth Circuit.

Argued March 29, 1983.

Decided June 1, 1983.

D.C. Daniel, Jr. (argued), Murfreesboro, Tenn., for plaintiff-appellant.

Joe B. Brown, U.S. Atty., Margaret M. Huff, Asst. U.S. Atty. [lead counsel], John Williams, Asst. U.S. Atty. (argued), Nashville, Tenn., for defendant-appellee.

Before KEITH and MARTIN, Circuit Judges, and PORTER. ^*

KEITH, Circuit Judge.

On February 9, 1977, plaintiff-appellant, Jack D. Lashley, filed an application for disability benefits. 42 U.S.C. Sec. 401 et seq. The application was denied initially and upon reconsideration. On March 22, 1978, an administrative law judge determined that Lashley had been disabled for the closed period from August 24, 1976 through September 13, 1977. This decision became the final decision of the Secretary. Lashley did not appeal.

Subsequently, on December 8, 1978, Lashley filed the present application for disability benefits. This second application also was denied initially and upon reconsideration. On December 9, 1980 a brief hearing was held before an administrative law judge. Lashley appeared and testified without the assistance of an attorney. All questioning was done by the administrative law judge (ALJ). The entire proceeding lasted only 25 minutes, and was transcribed on approximately 11 pages.

At the hearing Lashley testified that he was born on September 25, 1921, and has a fifth-grade education. He worked as a farmer from 1945-1956. From 1956-1960 he worked as a policeman, a fireman, and a deputy sheriff in Davidson County, Tennessee. He worked as a bus driver for the Metro Transit Authority in Nashville from 1960 to 1976. While working as a bus driver in 1976 he suffered his first stroke. His second stroke occurred in 1977.

Lashley maintained that the residuals from his strokes severely limited his activities. The following responses to several questions describe the continuing effect of the strokes: "I can't use my right hand and I can't--my right leg I can't use it like I could. I can grip something like this chair or something like that for a second, it's all right. Then I just gradually lose my grip. My speech is not like it was. I know what I'm trying to say and I can't say it sometimes. Can't operate like I could as far as my speech is concerned." Allegedly, his mental health and nervous system had also been adversely affected: "Well, I can't read and I can't--half the time I can't think. I get nervous. That's about all I know of that I could add". He further complained that working around noisy vibrating equipment caused intolerable head pain.

The ALJ considered the following medical evidence. In May of 1977 Dr. David Strayhorn examined Lashley. He found that plaintiff had a mild speech impediment, was slightly weak in the right hand, and was noticeably unsteady when standing on one foot. Dr. Strayhorn stated: "His symptoms at the present time in addition to his speech trouble consist of generalized weakness and some difficulty with his memory." Dr. Strayhorn opined that plaintiff could have a neoplasm or mass occupying lesion in his brain. He ultimately concluded that Lashley was unable to engage in sedentary work. That same month, Dr. Fuqua stated that Lashley had been totally disabled since his first stroke, and that he would never be able to work again.

Dr. Arthur Cushman and Dr. Thomas B. Miller, Lashley's treating physicians, also maintained that he was totally disabled. Dr. Miller, an internist, issued a report dated February 13, 1979, which indicated that Lashley was totally disabled unless he could be vocationally rehabilitated. Dr. Miller found that the strokes had adversely affected the right side of Lashley's body. In particular, his right leg was weak. It caused him to limp, and occasionally experience numbness. Periodically the leg collapsed beneath him. Lashley's right arm was similarly affected. It was clumsy and very unreliable.

Dr. Cushman, a neurosurgeon, noted many of the same physical limitations that Dr. Miller had observed. In 1977 he found that Lashley could speak "alright", but he experienced periodic weakness on his right side. He characterized Lashley's condition as stable, and concluded that he was totally and permanently disabled. In a letter dated September 5, 1978, Dr. Cushman indicated that he had seen Lashley on "numerous occasions" and "believed that he [was] totally disabled." He summarized his findings as follows: "The patient has an expressive aphasia which alternates quite a bit. This patient's symptoms have fluctuated quit a bit with severe cerebral vascular disease and difficulty talking. I do not believe that there is any type of work that he can do. He has had a bad stroke in the past, but has recovered well from that."

On October 31, 1979, Dr. Clark, a neurologist, examined Lashley at the request of the Secretary. He found no objective evidence of impairment. Muscle tone was good and there were no sensory abnormalities. Dr. Clark questioned whether Lashley's limp was an organic finding. He also noted that casual use of the right hand was almost normal. Dr. Clark, however, did have reservations about Lashley's mental condition. He stated: "His mental status was difficult to figure out. He seemed quite vague a lot of the time, and he told me the day was Saturday when it was actually Wednesday. The date was July 31, and then he said he couldn't tell me what year it was, later saying 'seventy something, ain't it?' When asked about Presidents he said Johnson was President, and Kennedy preceded him, and that he couldn't think of who preceded Kennedy. When asked to do the 100 minus 7 test he said, 'I don't know, 90 something'." In fact, Dr. Clark recommended that plaintiff undergo psychological testing. Nevertheless, he suggested that plaintiff was able to perform moderate work activities on a sustained basis.

On February 26, 1980, Lashley was given a psychological evaluation by Mr. Pettigrew, a licensed psychological examiner. This examination was performed at the request of the Secretary. Lashley's single appearance before Mr. Pettigrew suggested that his grooming habits had not deteriorated. Plaintiff reported that his activities included associating regularly with his friends, watching television, and assisting his wife. His speech was spontaneous, coherent and relevant. Mr. Pettigrew found no evidence of hallucinations, delusions, or other symptoms associated with psychotic level disorganization. He concluded that Lashley had the mental ability to perform competitive unskilled work.

Dr. Meirowsky, a neurosurgeon, also examined Lashley at the request of the Secretary. He found plaintiff to be slow, but reasonably accurate in his responses. He noted some hesitancy in his speech, but did not find any manifestations of an expressive or receptive dysphasia. He reported that there was no muscle atrophy or residual motor weakness in the upper and lower extremities. He also found the claimant's cranial nerves to be intact. An examination of the cartoid arteries revealed equal pulses without bruits or thrills. Dr. Meirowsky concluded that Lashley did not suffer from a neurological deficit. He did, however, state that plaintiff's mental status required further study and evaluation.

I.

Lashley contends that the hearing before the ALJ was so superficial as to deny him due process. Allegedly, the ALJ failed to adequately develop the record. We agree that Lashley was denied a full and fair hearing.

In Richardson v. Perales, 402 U.S. 389, 91 S.Ct. 1420, 28 L.Ed.2d 842 (1971), the Supreme Court explained that the ultimate responsibility for ensuring that every claimant receives a full and fair hearing lies with the administrative law judge. The court cautioned, however, that the administrative law judge must not become a partisan and assume the role of counsel: "The social security hearing examiner furthermore does not act as counsel. He acts as an examiner charged with developing the facts." Id. at 411, 91 S.Ct. at 1432.

Subsequent appellate court development of the Perales doctrine has emphasized the remedial purpose of the authorizing legislation and the duty of the administrative law judge to fully develop the record. These two factors impose a special duty on the administrative law judge where the claimant appears without counsel. In Smith v. Harris, 644 F.2d 985 (3d Cir.1981), Judge A. Leon Higginbotham, speaking for the Third Circuit, held that "where the claimant is unrepresented by counsel, the ALJ has a duty to exercise a heightened level of care and assume a more active role" in the proceedings. Id. at 989. In McConnell v. Schweiker, 655 F.2d 604 (5th Cir.1981) the Fifth Circuit adopted a similar standard. There the court held that "an administrative law judge's basic obligation to develop a full and fair record rises to a special duty when an unrepresented claimant unfamiliar with hearing procedures appeals before him." Id. at 606, quoting Clark v. Schweiker, 652 F.2d 399, 404 (5th Cir.1981). See also Driggins v. Harris, 657 F.2d 187 (8th Cir.1981); Thompson v. Schweiker, 665 F.2d 936, 941 (9th Cir.1982); Cox v. Califano, 587 F.2d 988, 991 (9th Cir.1978); Diabo v. Secretary of Health Education & Welfare, 627 F.2d 278, 282 (D.C.Cir.1980). To satisfy this special duty the administrative law judge must "scrupulously and conscientiously probe into, inquire of, and explore for all the relevant facts." Gold v. Secretary of Health, Education and Welfare, 463 F.2d 38, 43 (2d Cir.1972) quoted in Cox, 587 F.2d at 991. He must be "especially diligent in ensuring that favorable as well as unfavorable facts and circumstances are elicited." Id.

There is no bright line test for determining when the administrative law judge has assumed the role of counsel or failed to fully develop the...