Whatley v. Commissioner of Social Security
Filing
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OPINION AND ORDER: The Court GRANTS the relief requested in Plaintiff's Opening Social Security Brief 15 and REMANDS this matter for further proceedings consistent with this opinion. Signed by Magistrate Judge John E Martin on 8/20/2018. (lhc)
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
HAMMOND DIVISION
ELAINE WHATLEY for
her minor child M.W.,
Plaintiff,
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v.
NANCY A. BERRYHILL,
Deputy Commissioner for the
Social Security Administration,
Defendant.
CAUSE NO.: 2:17-CV-196-JEM
OPINION AND ORDER
This matter is before the Court on a Complaint [DE 1], filed by Plaintiff Elaine Whatley for
her minor child M.W. on April 27, 2017, and Plaintiff’s Opening Social Security Brief [DE 15], filed
October 2, 2017. Plaintiff requests that the decision of the Administrative Law Judge be reversed
and remanded for further proceedings. On October 30, 2017, the Commissioner filed a response, and
on November 27, 2017, Plaintiff filed a reply. For the following reasons, the Court grants Plaintiff’s
request for remand.
I.
Background
In an earlier decision dated August 29, 2005, Plaintiff was found to be disabled as of May
1, 2005, and on May 10, 2012, it was found that the now-eleven-year-old was no longer disabled
as of May 1, 2012. Plaintiff requested a hearing, and on March 26, 2015, Administrative Law Judge
(“ALJ”) John K. Kraybill held a video hearing at which Plaintiff, Plaintiff’s mother, a medical
expert (“ME”), and a vocational expert (“VE”) testified. On June 8, 2015, the ALJ issued a decision
finding that Plaintiff was not disabled.
The ALJ made the following findings:
1.
The most recent favorable medical decision finding that the claimant was
disabled is the decision dated August 29, 2005. This is known as the
“comparison point decision” or CPD.
2.
At the time of the CPD, the claimant had the following medically
determinable impairments: speech and language delays, ADHD, learning
difficulties, mild mental retardation, and conduct disorder. These
impairments were found to functionally equal the listings. (20 CFR
416.954(d) and 416.926(a)).
3.
Medical improvement occurred as of May 1, 2012.
4.
The claimant is currently a school-age child.
5.
Since May 1, 2012, the impairments that the claimant had at the time of the
CPD have not functionally equaled the Listings of Impairments.
6.
The medical and other evidence establish that the claimant did not have an
impairment at the CPD that was cot considered at that time and has not
developed any additional impairments subsequent to the CPD.
7.
Since May 1, 2012, the claimant has not had an impairment or combination
of impairments that meets or medically equals one of the listed impariments
in 20 CFR Part 404, Subpart P, Appendix 1.
8.
Since May 1, 2012, the claimant has not had an impairment or combination
of impairments that functionally equals the Listings.
9.
The claimant’s disability ended as of May 1, 2012, and the claimant has not
become disabled again since that date.
On September 26, 2016, the Appeals Council denied Plaintiff’s request for review, leaving the ALJ’s
decision the final decision of the Commissioner.
The parties filed forms of consent to have this case assigned to a United States Magistrate
Judge to conduct all further proceedings and to order the entry of a final judgment in this case.
Therefore, this Court has jurisdiction to decide this case pursuant to 28 U.S.C. § 636(c) and 42
U.S.C. § 405(g).
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II.
Standard of Review
After the Agency has determined that a child is eligible for disability benefits, it periodically
reviews eligibility for benefits in a three step process. 20 C.F.R. § 416.994a(b). The ALJ first
considers the impairments that were present at the most recent favorable determination, known as
the comparison point decision or CPD, to determine if there has been improvement in those
impairments; if so, the ALJ considers whether the impairments still meet or medically functionally
equal the severity of the listing that was considered at the CPD; if not, then the ALJ considers
whether the child is suffering from severe impairments that meet or medically equal a listing. 20
C.F.R. § 416.994a(b); SSR 05-03P, 2008 WL 1017037 (Apr. 27, 2005).
A court reviews the entire administrative record but does not reconsider facts, re-weigh the
evidence, resolve conflicts in evidence, decide questions of credibility, or substitute its judgment
for that of the ALJ. See Boiles v. Barnhart, 395 F.3d 421, 425 (7th Cir. 2005); Clifford v. Apfel, 227
F.3d 863, 869 (7th Cir. 2000); Butera v. Apfel, 173 F.3d 1049, 1055 (7th Cir. 1999). Thus, the
question upon judicial review of an ALJ’s finding that a claimant is not disabled within the meaning
of the Social Security Act is not whether the claimant is, in fact, disabled, but whether the ALJ “uses
the correct legal standards and the decision is supported by substantial evidence.” Roddy v. Astrue,
705 F.3d 631, 636 (7th Cir. 2013) (citing O’Connor-Spinner v. Astrue, 627 F.3d 614, 618 (7th Cir.
2010); Prochaska v. Barnhart, 454 F.3d 731, 734-35 (7th Cir. 2006); Barnett v. Barnhart, 381 F.3d
664, 668 (7th Cir. 2004)). “[I]f the Commissioner commits an error of law,” the Court may reverse
the decision “without regard to the volume of evidence in support of the factual findings.” White v.
Apfel, 167 F.3d 369, 373 (7th Cir. 1999) (citing Binion v. Chater, 108 F.3d 780, 782 (7th Cir.
1997)).
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At a minimum, an ALJ must articulate his or her analysis of the evidence in order to allow
the reviewing court to trace the path of her reasoning and to be assured that the ALJ considered the
important evidence. See Scott v. Barnhart, 297 F.3d 589, 595 (7th Cir. 2002); Diaz v. Chater, 55
F.3d 300, 307 (7th Cir. 1995); Green v. Shalala, 51 F.3d 96, 101 (7th Cir. 1995). An ALJ must
“‘build an accurate and logical bridge from the evidence to [the] conclusion’ so that, as a reviewing
court, we may assess the validity of the agency’s final decision and afford [a claimant] meaningful
review.” Giles v. Astrue, 483 F.3d 483, 487 (7th Cir. 2007) (quoting Scott, 297 F.3d at 595)); see
also O’Connor-Spinner, 627 F.3d at 618 (“An ALJ need not specifically address every piece of
evidence, but must provide a ‘logical bridge’ between the evidence and his conclusions.”); Zurawski
v. Halter, 245 F.3d 881, 889 (7th Cir. 2001) (“[T]he ALJ’s analysis must provide some glimpse into
the reasoning behind [the] decision to deny benefits.”).
III.
Analysis
First, Plaintiff argues that the ALJ failed to fulfill the heightened duty to develop a full and
fair record for an unrepresented claimant. The Commissioner argues that the ALJ developed a full
and fair record.
“A claimant has a statutory right to counsel at a disability hearing,” but that right is waivable.
Binion v. Shalala, 13 F.3d 243, 245 (7th Cir. 1994) (citing 42 U.S.C. § 406, 20 C.F.R. 404.1700;
Thompson v. Sullivan , 933 F.2d 581, 584 (7th Cir.1991)). The Seventh Circuit Court of Appeals has
required the ALJ to explain three things to a pro se claimant “[t]o ensure a valid waiver of counsel[:]
. . . (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.” Binion v. Shalala, 13 F.3d at 245. “While a
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claimant represented by counsel is presumed to have made his best case before the ALJ, no such
presumption attaches to an unrepresented claimant.” Skinner v. Astrue, 478 F.3d 836, 84142 (7th
Cir. 2007) (citing Sears v. Bowen, 840 F.2d 394, 402 (7th Cir.1988)). Accordingly, when someone
“proceeds without counsel, an ALJ has a duty to ‘probe[ ] the claimant for possible disabilities and
uncover[ ] all the relevant evidence.’” Mallett v. Barnhart, 81 F. App’x 580, 582 (7th Cir. 2003)
(quoting Binion v. Shalala, 13 F.3d at 245); see also Nelson v. Apfel, 131 F.3d 1228, 1235 (7th Cir.
1997) (“when the claimant is unrepresented by counsel, the ALJ has a duty to ‘scrupulously and
conscientiously probe into, inquire of, and explore for all relevant facts’”) (quoting Thompson, 933
F.2d at 585). Some of the factors a court will consider when determining whether an ALJ has
developed the record include:
(1) whether the ALJ obtained all of the claimant’s medical and
treatment records; (2) whether the ALJ elicited detailed testimony
from the claimant at the hearing (probing into relevant areas,
including medical evidence on the record, medications, pain, daily
activities, the nature of all physical and mental limitations, etc.), and
(3) whether the ALJ heard testimony from examining or treating
physicians.
Ferguson v. Barnhart, 67 F. App’x 360, 367 (7th Cir. 2003). “ If the Commissioner fails to make
the requisite showing, the case must be remanded.” Chatmon v. Barnhart, No. 04C344, 2004 WL
3246111, at *2 (N.D. Ill. Aug. 13, 2004) (citing Thompson, 933 F.2d at 586).
In this case, Plaintiff argues that the ALJ did not have the CPD, and could not properly
analyze the issue of medical improvement without knowing the precise reasons for the initial finding
of disability. The Commissioner argues that the ALJ solicited information and additional
documentation from Plaintiff, and told Plaintiff that he would help if Plaintiff was unable to obtain
the documentation, but that Plaintiff did not request that the CPD be included in the record.
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However, the ALJ’s duty to a non-represented party is not to ask them for documents, but for the
ALJ to develop the record and obtain relevant evidence. Merely stating a willingness to help a pro
se party obtain relevant documents, when that party may not even know what documents exist, are
needed, or may be relevant, does not fulfill that duty.
The failure is particularly notable in this case, where the ALJ was responsible for
determining
“whether there has been medical improvement in the impairment(s) that was present at the time of
the most recent favorable determination or decision,” known as the CPD. SSR 05-03P (citing 20
CFR 416.994a(b)(1)). Without knowing what impairments were present in the CPD, there is no way
for ALJ to determine whether there has been medical improvement in those impairments, and there
can be no meaningful judicial review of that determination.
Plaintiff also argues that even if there was medical improvement, the ALJ improperly
assessed Plaintiff’s functional limitations. For example, the ALJ concluded that Plaintiff has “less
than marked limitation” in the domain of interacting and relating to others, based in part on the
opinion of the testifying ME. The ALJ characterized her testimony as “opin[ing] that he had less
than marked limitations.” However, at the hearing the ME stated that “[f]rom the conduct
perspective, it’s probably marked” limitation. AR 62. Particularly given the other evidence in the
record that Plaintiff continues to have difficulties interacting with others, and the evidence that his
communication skills were limited compared to other children of the same age, it appears that the
ALJ did not address contradictory evidence. Indoranto v. Barnhart, 374 F.3d 470, 474 (7th Cir.
2004) (“Although the ALJ need not discuss every piece of evidence in the record, he must confront
the evidence that does not support his conclusion and explain why it was rejected.”); Golembiewski
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v. Barnhart, 322 F.3d 912, 917 (7th Cir. 2003) (“[T]he ALJ may not ignore an entire line of
evidence that is contrary to the ruling.”); see also Thomas v. Colvin, 534 F. App’x 546, 550 (7th Cir.
2013) (citing cases). Likewise, Plaintiff argues that the ALJ erred in rejecting the opinions of state
agency reviewers who opined that Plaintiff had marked limitations in the domain of acquiring and
using information and ignored or misunderstood evidence relevant to the limitations in the domain.
On remand, the ALJ is directed to fully develop the record, including obtaining the CPD, and
to adequately address the evidence in the record to make his determination, particularly the opinions
of medical experts addressing areas in which they believe Plaintiff has marked impairments. The
ALJ is reminded of his responsibility to create a logical bridge between the evidence and his
conclusions to allow for meaningful review. O’Connor-Spinner, 627 F.3d at 618.
IV.
Conclusion
For the foregoing reasons, the Court hereby GRANTS the relief requested in Plaintiff’s
Opening Social Security Brief [DE 15] and REMANDS this matter for further proceedings
consistent with this opinion.
SO ORDERED this 20th day of August, 2018.
s/ John E. Martin
MAGISTRATE JUDGE JOHN E. MARTIN
UNITED STATES DISTRICT COURT
cc:
All counsel of record
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