Olson v. Social Security Administration

Filing 19

MEMORANDUM Opinion and Order; For the foregoing reasons, plaintiff's motion for summary judgment is granted, the government's motion is denied, and this case is remanded for further consideration. (See attachment for full detail.) Signed by the Honorable Iain D. Johnston on 3/19/2018: (yxp, ) (Main Document 19 replaced on 3/19/2018) (yxp, ).

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ILLINOIS
WESTERN DIVISION
Bryan Olson
Plaintiff,
v.
Nancy A. Berryhill, Acting
Commissioner of Social Security, 1
Defendant.

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No. 16 CV 50391
Magistrate Judge Iain D. Johnston

MEMORANDUM OPINION AND ORDER
This is a Social Security disability appeal. Plaintiff Bryan Olson, who is 33 years old,
claims that he is disabled because of back pain. He had back surgery in 2008, and tried to return
to work, and then had surgery again in 2009, but the pain persisted. He then stopped working
altogether. Although he is now represented by counsel in this appeal, he proceeded pro se at the
two administrative hearings. This was not his preferred approach as he told the administrative
law judge (“ALJ”) at each hearing that he was in the process of getting an attorney. One of his
arguments here is that the ALJ unreasonably refused to grant him a continuance at the second
hearing, so that he could get an attorney, and then compounded that error by failing to develop
the record.
BACKGROUND
The first hearing was held on February 10, 2015. The ALJ began by telling plaintiff that
he had the right to an attorney who would only be paid out of any back benefits recovered and
that those fees would be capped. The ALJ asked if plaintiff wanted to go forward without an
attorney, and plaintiff responded “[n]ot really,” stating that he was having a “hard time” finding
1

Nancy A. Berryhill has been substituted for Carolyn W. Colvin. Fed. R. Civ. P. 25(d).

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an attorney. R. 53. The ALJ then began discussing some of the evidence. Eventually, the ALJ
expressed her opinion that plaintiff was unlikely to prevail even if the case were continued and he
got a lawyer. 2 To support this claim, the ALJ noted, among other things, that there was a three to
four year gap in treatment and that two consultative examiners “both said you’re not disabled.”
R. 56. Plaintiff stated several times that he did not get treatment because he had no insurance. 3
Despite the ALJ’s doubts about plaintiff’s claim and her belief that it was essentially futile for
plaintiff to seek a lawyer, the ALJ granted plaintiff a continuance to find a lawyer. However, the
ALJ made it clear, abundantly so, that there would be only one continuance granted. 4 The ALJ
also stated that she was “going to have [plaintiff] sign the form that says [he was] going to get
one continuance and one continuance only.” R. 63. This form was presumably a waiver of
counsel form, likely similar to the one plaintiff signed at the next hearing. 5
The second hearing was held three months later. Plaintiff again appeared without an
attorney. He stated that he had contacted a lawyer, but that the lawyer wanted to first see certain
records before deciding whether to take the case. The ALJ basically cut plaintiff off and
reminded him that she had told him that the previous continuance was a “one-time deal.” R. 26.
The ALJ then instructed plaintiff to sign a form stating that “you’ve been advised of your rights,

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R 58 (telling plaintiff that any attorney he hires is “going to see exactly what I see, which is—there’s no evidence
here that says you’re disabled”). The ALJ reiterated her opinion several more times throughout this hearing. See R.
60 (“And basically, any lawyer you talk to is going to tell you what [] I’m telling you, which is, there’s no
evidence.”); R. 61-62 (“Well, I’ve got to tell you, based on this record, there’s not a lot I can do; but I will give you
one opportunity to go talk to a lawyer, [] who, when they look at your file, are going to tell you the exact same thing.
So no lawyer’s going to take your case.”). Toward the end of the hearing the ALJ stated the following, which is
perhaps less dogmatic about the futility of getting a lawyer: “You know, maybe some lawyer will have an
opportunity to [] be able to figure out how to help you with this. But based on what I’m seeing, I don’t have . . . .”
R. 63. The ALJ did not finish the latter sentence as plaintiff began talking. So it is not even clear that the ALJ was
softening her stance.
3
See R. 55 (stating that he “can’t afford” medications and that his doctor “charges [him] about $1,000 to $2,000”
every single visit); R. 59 (stating that he “lost [his] insurance”).
4
See R. 57 (“I am going to give you one continuance. I’m going to give you exactly one continuance.”); id. (“But
the next time that we have a hearing, I won’t give you another continuance.”); id. (“We will have a hearing. It’s a
one-time deal.”).
5
The Court could not find a copy of this form in the record.

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and you are going forward today without representation.” Id. Plaintiff appeared to object, asking
whether he could get another continuance and stating that he “had a hard time” trying to get an
attorney, but the ALJ did not ask further questions. Instead, the ALJ instructed her assistant to
give plaintiff the form to sign. When the assistant read the form to plaintiff, telling him that he
was agreeing “to proceed today without a lawyer,” the ALJ interrupted to say that plaintiff
“doesn’t get a choice” because he “was given that choice once before.” R. 27.
The hearing then proceeded with the ALJ describing the exhibits in the record and noting
that plaintiff brought in updated records from Mercy. The ALJ also noted that plaintiff received
Medicaid insurance in February and that he had then “immediately” gone to the doctor. Plaintiff
stated that he had an x-ray taken of his back, but the ALJ stated that she “can’t read a disk” and
asked whether there was any analysis of the x-ray. R. 32. Plaintiff also noted that he had been
referred to a urologist for incontinence problems he had over the last three years, and also noted
that his doctor recently diagnosed him with hypertension and diabetes.
After this discussion, the ALJ then began what seems to be, to this Court at least, a
somewhat unusual analysis of the problems presented by the way plaintiff chose to litigate his
disability claim. The ALJ noted that plaintiff had filed several earlier disability applications, but
had not chosen to appeal them. The ALJ further explained that, because plaintiff was only
proceeding under Title II, he would have to establish that he was disabled by the end of 2013
(the last onset date). The ALJ observed that plaintiff in his current disability application did not
apply for SSI benefits under Title XVI “for some reason,” even though he “might be eligible” for
such benefits, and then stated that “this is not fair, because you did file for SSI benefits the last
time you filed.” R. 35. The ALJ questioned why Administration personnel “didn’t take an [] SSI
claim” when plaintiff appeared before them. R. 36. There was then a brief discussion about the

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fact that plaintiff originally had a worker’s compensation case pending case, which led to some
treatment for his back problems. But after that treatment, plaintiff received no treatment for three
to four years. The ALJ told plaintiff that he “did the wrong thing” in the way he filed prior
applications, and noted that he had been trying to qualify as disabled since January 2009. R. 38.
The ALJ eventually announced that there were two avenues to address these problems.
One was that the ALJ could “issue a decision denying [plaintiff] benefits,” and then he could
“get a lawyer and appeal it.” R. 42. The other option was that plaintiff could choose to “walk
away and refile the SSI and try and get that.” Id. But then the ALJ made the choice for plaintiff,
stating, “I think, you’re better served, at this point, for me to deny it, and you get a lawyer, who
can help you[.]” R. 42-43. She stated that she could “hold out for the current x-ray and
everything” but it would not help “because of those four years of nothing” (meaning the period
without treatment). R. 44. The ALJ then told plaintiff that, after he received her decision denying
his claim, that he should “immediately” take the following steps: “I recommend you talk to an
attorney about it. I also recommend that you file an SSI application immediately. And when you
talk to the attorney, tell them that you did that.” R. 44-45.
On July 24, 2015, the ALJ issued her decision finding plaintiff not disabled. The ALJ
found that plaintiff had the severe impairments of degenerative disc disease and obesity.
However, the ALJ found that plaintiff had the residual functional capacity to perform light work.
The ALJ’s two main rationales were that plaintiff had a large treatment gap and that the
consultative examiner made several normal findings during the exam.
DISCUSSION
Plaintiff raises a series of arguments attacking the merits of the ALJ’s decision. But his
last argument is the procedural argument described above. This argument logically should be

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addressed first because it potentially infects the others. The overarching question is whether
plaintiff validly waived his right to counsel, but the parties discuss this question in terms of
several specific issues. The first is whether the ALJ unreasonably refused to grant a second
continuance. The second is whether the ALJ fully explained all the ways an attorney could help
plaintiff present his case. The third is whether the ALJ fully developed the record at the second
administrative hearing. Although the first two arguments raise several valid concerns, the Court
finds that the third argument presents the clearest case for remand.
On the question of whether the ALJ should have granted a second continuance, each side
formulates the issue in slightly different terms, and neither side has cited to any clear-cut
authority to answer the question. The Court agrees with plaintiff that he did not voluntarily
agree, at the second hearing, to proceed without counsel. It is true that he did not explicitly ask
for a continuance, but the context strongly suggests he wanted one. However, the ALJ made
clear he could not get one. For this reason, the ALJ’s decision to force plaintiff to sign a form
stating that he was voluntarily going forward without counsel is an odd and potentially confusing
exercise, especially for a pro se litigant.
However, this fact does not mean that the ALJ’s decision to deny a continuance was
unsupported. The better justification is that the ALJ gave plaintiff a reasonable chance to obtain
counsel by giving him the continuance at the first hearing. Plaintiff then had over three months
before the second hearing to obtain counsel, and then he returned with the same general
explanation—namely, that he was talking to attorneys who wanted more records. Plaintiff
appears to agree that the ALJ had the discretion to deny a second continuance if she had a “good
reason” to do so, but argues that she did not. But plaintiff overlooks the general concern that any
ALJ might have in managing a busy docket and the corresponding need to set reasonable (and

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final) rules, even for pro se litigants. Plaintiff has not cited to any authority requiring an ALJ to
grant a continuance under these circumstances. The Court is concerned that, if accepted,
plaintiff’s argument would be tantamount to imposing a strict, two-continuance minimum. 6
Turning next to plaintiff’s second argument—that the ALJ failed to fully explain the
benefits of counsel—the Court again finds that there are competing arguments. The Government
notes that plaintiff was given written notices, before both hearings, explaining his right to
counsel, and that the ALJ also discussed some of these rights at both hearings. Although true, the
Government’s argument overlooks the real problem, which is that the ALJ made a number of
statements that could be construed as undermining these rights. Most notably, as described
above, the ALJ repeatedly told plaintiff point-blank at the first hearing that getting a lawyer
would not change the result. 7 Then at the second hearing, the ALJ gave plaintiff legal advice
about filing claims and, ironically, told him to “immediately” get a lawyer after she denied his
claim. This exchange was confusing to this Court, and this Court suspects it was even more
confusing to plaintiff who is not a lawyer. 8 Still, despite all these issues, one could argue that
plaintiff was, in fact, not discouraged in his efforts to get a counsel after the first hearing because
he appeared at the second hearing and told the ALJ that he had been actively, albeit
unsuccessfully, working on obtaining counsel.

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And then the ALJ could face the next question—if you’ve had two, why not three or four? Cf. Cada v. Baxter
Healthcare Corp., 920 F.3d 446, 452-53 (7th Cir. 1991) (“Statutes of limitations are not arbitrary obstacles to the
vindication of just claims, and therefore they should not be given a grudging application. They protect important
social interests in certainty, accuracy, and repose.”). Of course, a particular judge might draw the line at a different
point, but there still likely would be some line-drawing moment in the number of continuances given.
7
In Johnson v. Astrue, 326 Fed. Appx. 737 (5th Cir. 2009), the Fifth Circuit faced a similar argument and remanded
because the ALJ’s comments “effectively discourag[ed]” the plaintiff from pursuing legal representation by telling
him, among other things, that “the best lawyer in Louisiana can’t take a bad case and make a good one” and “the
worst lawyer in Louisiana can’t take a good case and make a bad one.” Id. at 739. The Fifth Circuit held that these
oral statements effectively trumped the written pre-hearing disclosures.
8
The ALJ may well have been sincerely trying to help plaintiff with this advice, but the net result, in this Court’s
opinion, was confusing.

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This leads to the third part of the argument. Even if the ALJ’s actions were proper with
respect to the first two arguments, and those conclusions could be debated, the Court finds that
the ALJ’s failure to adequately develop the record at the second hearing is a firm basis upon
which to remand this case. In every case, an ALJ has a duty to develop a full and fair record.
However, this duty is more exacting where the claimant is proceeding pro se. Nelms v. Astrue,
553 F.3d 1093, 1098 (7th Cir. 2009). This “enhanced” duty requires the ALJ to “scrupulously
and conscientiously” explore the relevant facts, and “to supplement the record, as necessary, by
asking detailed questions, ordering additional examinations, and contacting treating physicians
and medical sources to request additional records and information.” Id. An ALJ’s failure to fulfill
this “special duty” is a good reason to remand to allow additional evidence to be developed.
Thompson v. Sullivan, 933 F.2d 581, 586 (7th Cir. 1991). In Thompson, the Seventh Circuit
noted that it was important for the ALJ to elicit both favorable and unfavorable facts. Id. at 587.
After reviewing the transcript of the second hearing, the Court finds that the ALJ did not
“scrupulously and conscientiously” explore the relevant issues. As described above, the bulk of
the hearing was devoted to the ALJ’s analysis of why it would be better for plaintiff to have his
claim denied so that he could then promptly file an appeal. 9 In other words, it appears to the
Court that the ALJ did not even attempt to engage in the type of questioning that the Court
typically sees in these cases. It is true that the ALJ touched upon a few medical issues during the
hearings, but these exchanges were brief and were entangled in the larger debates about whether
plaintiff had obtained a lawyer and whether he had litigated his claim in the best manner.
Critically, it is undisputed, even by the Government, that the ALJ failed to inquire at all about
several customary topics. For example, the ALJ did not ask plaintiff about his daily activities

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Strangely, plaintiff took the precise actions the ALJ suggested, but the government is now arguing in support of
affirmance that this action was erroneous.

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nor ask him to describe a typical day. The ALJ did not probe into plaintiff’s lack of treatment,
even though plaintiff repeatedly explained that his lack of insurance prevented him from getting
treatment. The ALJ did not attempt to elicit favorable information. The ALJ likewise asked no
open-ended questions. To the contrary, the ALJ made clear, from the beginning of the first
hearing, that she had already concluded that plaintiff had no chance of prevailing.
At the end of the Government’s brief, after acknowledging that the ALJ failed to inquire
into several relevant topics, the Government asserts that plaintiff has failed to show how the
ALJ’s failures prejudiced him. The Government is essentially arguing that any errors in failing to
further develop the record were harmless. Although the Court acknowledges that there are
legitimate questions about whether plaintiff ultimately will qualify as disabled, the Court is not
convinced at this point that there was no prejudice, in part because plaintiff has not had the
benefit of counsel who might bring out stronger arguments or call additional witnesses.
Moreover, the Court finds that the ALJ’s decision can be criticized in several respects. Plaintiff
raises several arguments in his briefs, but the Court here will only discuss two.
First, as noted above, one of the ALJ’s central rationales was the lack of treatment for
three to four years after plaintiff’s second back surgery. However, the ALJ did not seriously
consider that plaintiff claimed that he lacked insurance and could not otherwise get treatment.
Pierce v. Colvin, 739 F.3d 1046, 1050 (7th Cir. 2014) (an ALJ cannot “rely on an uninsured
claimant’s sparse treatment history to show that a condition was not serious without exploring
why the treatment history was thin”). Although the ALJ acknowledged this explanation several
times, the ALJ then mostly disregarded it. The only specific counter-argument raised by the
ALJ—that plaintiff could have paid for some of his medical treatment if he gave up smoking—is
questionable as a factual matter because the ALJ did not inquire into the issue. See Eskew v.

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Astrue, 462 F3d. Appx. 613, 616 (7th Cir. 2011) (“[The ALJ] summarily dismissed Eskew’s
explanation for not taking prescribed medication simply by noting her ability to buy cigarettes
during that time—even though the record contains no information about either the price of her
medication or the cost of her cigarette habit.”).
Second, as another key rationale, the ALJ concluded that certain medical findings taken
from a 25-minute consultative examination (e.g. that plaintiff “retains full strength, muscle tone
and muscle mass”) justified the conclusion that plaintiff’s alleged back pain would not prevent
him from being able to “stand or walk for prolonged periods.” R. 15 (emphasis added).
However, because the ALJ did not call any medical expert at either hearing and because no other
doctor offered a similar analysis, the ALJ was, therefore, engaging in a layperson analysis of the
medical findings. This is another reason for a remand. See Lewis v. Colvin, No. 14 CV 50195,
2016 U.S. Dist. LEXIS 115969, *11 n. 3 (N.D. Ill. Aug. 30, 2016) (courts, counsel, and ALJs
must resist the temptation to play doctor).
For the foregoing reasons, plaintiff’s motion for summary judgment is granted, the
government’s motion is denied, and this case is remanded for further consideration.

Date: March 19, 2018

By:

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___________________________
Iain D. Johnston
United States Magistrate Judge