Thompson v. Sullivan
| Decision Date | 17 June 1991 |
| Docket Number | No. 90-1497,90-1497 |
| Citation | 933 F.2d 581 |
| Parties | , Unempl.Ins.Rep. CCH 16106A Samuel R. THOMPSON, Plaintiff-Appellant, v. Louis W. SULLIVAN, Secretary of Health and Human Services of the United States, Defendant-Appellee. |
| Court | U.S. Court of Appeals — Seventh Circuit |
Jan L. Kodner, Chicago, Ill., for plaintiff-appellant.
Mark A. Flessner, Asst. U.S. Atty., Gary A. Sultz, Edward P. Studzinski, John L. Martin, Dept. of Health and Human Services, Region V, Office of the Gen. Counsel, Nancy K. Needles, Asst. U.S. Atty., Civ. Div., Appellate Section, Chicago, Ill., for defendant-appellee.
Before BAUER, Chief Judge, WOOD, Jr., and CUDAHY, Circuit Judges.
Plaintiff-appellant Samuel Thompson appeals the district court's summary judgment affirmation of the denial by the Secretary of Health and Human Services ("Secretary") of his claim for Social Security benefits. Thompson argues that his alleged waiver of the statutory right to counsel was invalid, and that the Administrative Law Judge ("ALJ") failed to fully and fairly develop the record in accord with the heightened duty owed to unrepresented claimants.
Thompson is a fifty-nine year old man with an eleventh-grade education. From 1964 until December 1978, he worked as a machine operator in a bakery. His duties included heavy lifting, bending, stooping and walking. On December 12, 1978, Thompson left work because he experienced chest pain, headaches, sweats, and loss of strength. He visited Dr. James Elmes, an orthopedic physician. 1 Thompson testified that Dr. Elmes told him that his muscles had been overstrained and, in Thompson's words, had "left me." Thompson was hospitalized for approximately two to three weeks.
In February 1978, Dr. Elmes permitted Thompson to return to light duty--no lifting over fifty pounds; yet by July 1978, Thompson reported increased neck pain, lower backache, and hand cramping. Dr Elmes found Thompson unable to work as of January 10, 1979, and noted that less demanding work might be advisable if Thompson's problems continued.
Thompson also received medical care from Dr. Allen Wright. Both doctors treated Thompson for pain in his head, neck, and ankles, and his loss of grip. Dr. Wright last saw Thompson in 1980, at which time he noted that Thompson suffered from osteoarthritis of the cervical and lumbar spine. Based upon that condition and Thompson's complaints, he concluded that Thompson was totally disabled from performing work duties.
On February 27, 1980, Thompson was admitted to Ingalls Memorial Hospital because of upper abdominal pain and vomiting. The treating physician's diagnosis was chronic alcoholism and gastritis. Also noted by the physician were gastrointestinal bleeding and pancreatitis. 2 The treatment records include remarks that Thompson "is a drinker" and "drinks quite often."
In September 1986, Thompson overdosed on Equanil and Ativan, medications used for his back pain and to help him sleep. Again he returned to the hospital. While hospitalized, Thompson admitted to consumption of a pint of alcohol every other day. After various physical tests and a mental status exam, Thompson was diagnosed as having a chronic back problem and an adjustment disorder with depressed mood. The overdose was described as accidental.
The medical record contains several reports from x-rays of the cervical and lumbar spine. The report of April 10, 1977, describes "minimal degenerative changes in the lower dorsal spine and questionably in the lumbar spine." An April 15, 1977 report mentions a finding of "moderate degenerative arthrosis" of the cervical spine. On December 27, 1978, an x-ray report noted arthritic changes in the cervical spine.
A state agency physician, Dr. Albert Kwedar, reviewed Thompson's medical records for residual functional capacity assessments in May and July of 1987. Dr. Kwedar never examined Thompson; but based on the records he concluded that Thompson retained the ability to lift fifty pounds occasionally and twenty-five pounds frequently, and that he could stand, walk or sit approximately six hours in an eight hour day. At the hearing, Thompson mentioned these findings and stated that he was unable to lift "20 to 50 pounds" or do other things listed by Dr. Kwedar.
Thompson was insured for Social Security disability benefits until June 30, 1984. On October 16, 1986, Thompson applied for a period of disability and disability insurance benefits. Thompson alleged an inability to work since December 10, 1978; pain in his left hand, arm and shoulder; numbness in both hands; and an arthritic condition. The Secretary denied the application initially and on reconsideration. Thompson filed a timely request for hearing. The hearing was held on November 12, 1987, and Thompson appeared without counsel. The ALJ noted that the evidence indicated that Thompson suffers from chronic neck and back pain, and found Thompson's complaints to be "generally credible." Despite such evidence and the credible complaints, the ALJ relied on the residual functional capacity assessment of Dr. Kwedar and found that Thompson was capable of performing medium work. Based on this capacity for medium work and other factors, the ALJ found that Thompson was not disabled and denied his claim.
Thompson obtained counsel and filed a request for review with the appeals council. The appeals council denied the request on June 7, 1988. Thompson sought judicial review of the decision in district court, and the district court granted the Secretary's motion for summary judgment.
According to the Social Security Act, a disability is the "inability to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continual period of not less than 12 months." 42 U.S.C. Sec. 423(d)(1)(A). The Secretary promulgated a five-step analysis to determine whether an individual is disabled. 20 C.F.R. Secs. 404.1520, 416.920. 3 Using that process, the ALJ denied Thompson's disability claim.
A claimant has a statutory right to counsel at disability hearings. 42 U.S.C. Sec. 406; 20 C.F.R. Sec. 404.1700. Clark v. Schweiker, 652 F.2d 399, 403 (5th Cir.1981). The claimant must be properly informed of this right, but may waive it "if given sufficient information to enable him to intelligently decide whether to retain counsel or proceed pro se." Hawwat v. Heckler, 608 F.Supp. 106, 108 (N.D.Ill.1984). Information that will ensure a valid waiver of counsel includes an explanation of the manner in which an attorney can aid in the proceedings, the possibility of free counsel or a contingency arrangement, and the limitation on attorneys' fees to twenty-five percent of past-due benefits plus required court approval of the fees. Id. See also Smith v. Schweiker, 677 F.2d 826, 828-29 (11th Cir.1982) (). The Secretary claims that Thompson waived his right to counsel, but Thompson argues that this purported waiver was invalid. We agree with Thompson.
Thompson received written notice of the right to counsel in a letter from the Office of Hearings and Appeals, dated September 14, 1987, and in the Notice of Hearing, dated October 23, 1987. The letter to Thompson explained,
YOU HAVE THE RIGHT TO BE REPRESENTED BY AN ATTORNEY OR OTHER REPRESENTATIVE OF YOUR CHOICE. A representative can help you obtain evidence, and can help you and your witnesses prepare for the hearing. Also, a representative can question witnesses and present statements in support of your claim....
... If you are unable to find a representative, we have enclosed a list of organizations which may be able to help you in locating one. As indicated on the enclosed list, some private attorneys may be willing to represent you and not charge a fee unless your claim is allowed. Your representative must obtain approval from the Social Security Administration for any fee charged. Also, if you are not able to pay for representation and you believe you might qualify for free legal representation, the list contains names of organizations which may be able to help you.
Clark v. Schweiker, 652 F.2d 399, 403 (5th Cir.1981), and Smith v. Schweiker, 677 F.2d 826, 829 (11th Cir.1982), note the importance of informing the claimant of the twenty-five percent limitation on fees. 4 Thompson argues that the Social Security Administration failed to advise him of this limitation on fees. The Notice of Hearing received by Thompson indicated that there is such a limitation, although it is not easily decipherable. The Notice of Hearing contained a provision regarding attorneys fees that informed Thompson that if he were found to be entitled to past-due benefits, the Social Security Administration would withhold twenty-five percent of those benefits "pending receipt of a petition from the attorney and approval of a fee by the Office of Hearings and Appeals." If the attorney's fee were less than the withheld twenty-five percent, the claimant would be entitled to the difference. A fee greater than the twenty-five percent would result in payment to the attorney of the twenty-five percent, and subject to court approval, the difference could be settled by claimant and counsel.
At the hearing the ALJ engaged in the following discussion with Thompson regarding his right to counsel:
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