Vance v. Heckler

• Decision Date: 16 February 1984
• Docket Number: No. 83 C 2559.,83 C 2559.
• Citation: 579 F. Supp. 318
• Parties: Charles VANCE, Plaintiff, v. Margaret HECKLER, Secretary of Health and Human Services, Defendant.
• Court: U.S. District Court — Northern District of Illinois

579 F. Supp. 318

Charles VANCE, Plaintiff, v. Margaret HECKLER, Secretary of Health and Human Services, Defendant.

No. 83 C 2559.

United States District Court, N.D. Illinois, E.D.

February 16, 1984.

COPYRIGHT MATERIAL OMITTED

Michael H. Rotman, Rotman, Medansky & Elovitz, Ltd., Chicago, Ill., for plaintiff.

Dan K. Webb, U.S. Atty. by Linda A. Wawzenski, Asst. U.S. Atty., Chicago, Ill., for defendant.

MEMORANDUM ORDER

BUA, District Judge.

This action was brought by Charles Vance pursuant to Section 205(g) of the Social Security Act, 42 U.S.C. § 405(g) to review a final decision of the Secretary of the Department of Health and Human Services ("the Secretary") denying Vance disability insurance benefits. Before the Court are the parties' cross-motions for summary judgment. The issue for the Court is whether Vance knowingly and intelligently waived his right to be represented by counsel during the administrative hearing and, if not, whether Vance was prejudiced due to the lack of representation by counsel. For the reasons stated below, the Court finds that Vance was prejudiced due to lack of counsel, and the decision of the Secretary is reversed and remanded for further consideration consistent with this opinion.

Background

Charles Vance is a 55-year-old male with a sixth grade education. In July of 1981, Vance applied for the establishment of a period of disability under § 216(j) of the Social Security Act, and for disability insurance benefits, as provided by § 223 of the Act. Vance claimed that he was unable to work since April 7, 1981, due to emphysema and mental illness. The application was denied initially and again upon reconsideration by the Office of Disability Operations of the Social Security Administration. Vance and his wife then appeared before an Administrative Law Judge ("ALJ") who considered the case de novo and found that Vance was not disabled as defined under Section 223 of the Social Security Act, 42 U.S.C. § 423.¹ The ALJ's decision became the final decision of the Secretary when the Appeals Council approved that decision on February 15, 1983.

Vance brought this appeal claiming that he did not receive a full and fair hearing because he was discouraged from seeking counsel and was prejudiced by the lack of representation. Vance argues that the ALJ failed to meet his duty of developing a full and fair record, which is heightened when a claimant is not represented by counsel.

Applicable Law

There is no constitutional right to counsel at a Social Security disability hearing. Smith v. Secretary of HEW, 587 F.2d 857, 860 (7th Cir.1978). There is a statutory right, however, to have counsel present at the hearing under Section 206 of the Social Security Act, 42 U.S.C.A. § 406. Also, the importance of counsel in administrative procedures has been emphasized by the Supreme Court. Goldberg v. Kelly, 397 U.S. 254, 90 S.Ct. 1011, 25 L.Ed.2d 287 (1970).

A claimant in a Social Security hearing must be informed of the statutory right to have an attorney present at the administrative hearing. Smith v. Schweiker, 677 F.2d 826, 828 (11th Cir.1982). The claimant, however, may waive this right if given sufficient information to enable him to intelligently decide whether to retain counsel or proceed pro se. Id. 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 eventual awards. Smith v. Schweiker, 677 F.2d at 829; Clark v. Schweiker, 652 F.2d 399, 403 (5th Cir.1981). When there is a possibility that a claimant may be incompetent or have a mental illness, the ALJ should explain the right to counsel and the role of an attorney in the hearing in even greater detail and with greater attention toward ensuring that the claimant understands these issues. Smith v. Secretary of HEW, 587 F.2d 857, 860 (7th Cir.1978).

The showing of a violation of a claimant's statutory right to counsel is not, by itself, cause for remand unless prejudice or unfairness to the claimant can also be shown. Smith v. Secretary of HEW, 587 F.2d at 860; Sykes v. Finch, 443 F.2d 192, 194 (7th Cir.1971). Prejudice to the claimant may be demonstrated by showing that the ALJ did not fulfill his or her obligation to develop a full and fair hearing. Smith v. Secretary of HEW, 587 F.2d at 860. The ALJ has a duty in all cases to develop a full and fair record but, where the right to counsel has not been effectively waived, the ALJ's obligation is heightened. Smith v. Schweiker, 677 F.2d at 829; Cowart v. Schweiker, 662 F.2d 731, 735 (11th Cir. 1981); Clark v. Schweiker, 652 F.2d 399, 404 (5th Cir.1981); Cannon v. Harris, 651 F.2d 513, 519 (7th Cir.1981); Smith v. Secretary of HEW, 587 F.2d at 860. This heightened duty requires the ALJ "to scrupulously probe into, inquire of and explore for all of the relevant facts." Cannon v. Harris, 651 F.2d at 519; Smith v. Secretary of HEW, 587 F.2d at 860; Gold v. Secretary of HEW, 463 F.2d 38, 43 (2nd Cir.1972). The ALJ must be "especially diligent in ensuring that favorable as well as unfavorable facts and circumstances are elicited." Thompson v. Schweiker, 665 F.2d 936, 941 (9th Cir.1982) (quoting Rosa v. Weinberger, 381 F.Supp. 377, 381 (E.D. N.Y.1974)). "The ALJ's failure to pursue relevant avenues of inquiry, or to assist the claimant, who appeared pro se, deprives the claimant of his right to an impartial decision based on an inadequate record." Thompson, 665 F.2d at 939. Therefore, a showing that the ALJ failed to fully develop the record by not eliciting all of the relevant information is a showing of prejudice to the claimant and a cause for remand.

Discussion

In this case, although the ALJ informed Vance that he was entitled to have a lawyer at the hearing, the ALJ virtually discouraged Vance from retaining counsel. During the hearing, the ALJ made the following statement to Vance and his wife:

"You're entitled to have a lawyer at these hearings if you want one. Okay. If you think that you and Mrs. Vance together can tell me what's going on and what your problems are, we probably can do without it. You think you can do this alright (sic)?" Record p. 18.

Vance responded, "Yeah." It is clear, from the record, that the ALJ was aware that Vance has a history of mental illness and only a sixth grade education. These circumstances require that the ALJ be especially concerned that the claimant is either represented by counsel or that he fully understands and knowingly waives his right to counsel. The ALJ did not stress the function and importance of having counsel to Vance, nor did he inform Vance that there was a possibility of obtaining free counsel or that there are limitations on attorneys' fees to 25 percent of any eventual award. The information regarding the cost of any attorney is particularly relevant in disability cases where shortage of funds is likely to be an issue for the claimants. Therefore, in light of Vance's limited education and history of mental illness and the ALJ's brief and discouraging statement regarding Vance's right to an attorney, this Court finds that Vance did not knowingly and intelligently waive his right to counsel at the hearing.

As stated previously, however, the showing of a violation of claimant's statutory right to counsel is not, by itself, sufficient to cause the ALJ's decision to be prejudicial to Vance. The next issue in this case then is whether the ALJ fulfilled his duty to develop a full and fair record and to "scrupulously probe into, inquire of and explore for all relevant facts." See Gold v. Secretary of HEW, 463 F.2d 38 (2nd Cir.1972).

In this case, the ALJ failed to explore or probe into several areas relevant to Vance's claim. The first, and perhaps most crucial, area that was not explored thoroughly was Vance's record of mental illness. Vance has a long-term history of mental illness. The facts regarding this history are rather unclear from the record mainly due to Vance's inability to communicate precisely the reasons for his previous psychiatric hospitalizations and current treatment. The most glaring omission from the evidence consists of input and medical records from Vance's current psychiatrist, Dr. Limke. Although the ALJ refers to those medical records during the hearing, and makes some attempt to arrange to receive them, they are not part of the record in this Court and were not relied upon by the ALJ in his findings of fact. Although a claimant's own personal physician's testimony or records are not...