Huffman v. Commissioner of Social Security

Filing 33

OPINION AND ORDER granting relief in favor of the Plaintiff pursuant to sentence four of 42:405(g). Case REMANDED to the ALJ for further proceedings consistent with this decision. ***Civil Case Terminated. Signed by Magistrate Judge Christopher A Nuechterlein on 12/3/13. (smp)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
SOUTH BEND DIVISION
TARA L. HUFFMAN,
Plaintiff,
v.
CAROLYN W. COLVIN, Commissioner
of the Social Security Administration,
Defendant.

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CAUSE NO.: 3:12-CV-00436-CAN

OPINION AND ORDER
On August 17, 2012, Plaintiff Tara L. Huffman (“Huffman”) filed her complaint in this
Court. On April 26, 2013, Huffman filed her opening brief requesting that the decision of the
Administrative Law Judge (“ALJ”) to deny her disability benefits and supplemental security income
be reversed and remanded for further proceedings. On August 2, 2013, Defendant Commissioner
of Social Security, Carolyn W. Colvin (“Commissioner”) filed her response, asking the Court to
affirm the ALJ’s decision. No reply brief was filed. This Court may enter a ruling in this matter
based on the parties’ consent, 28 U.S.C. § 636(c), and 42 U.S.C. § 405(g).
I.

RELEVANT BACKGROUND
On January 29, 2009, Huffman filed an application for Title XVI Supplemental Security

Income (“SSI”) pursuant to 42 U.S.C. § 1382c(a)(3)(A), alleging a disability due to her Chronic
Pulmonary Insufficiency (“COPD”), late effects musculoskeletal and connective tissue, and anxiety
related disorders. Huffman alleged an onset date of September 30, 2006. Huffman’s application
was denied initially on May 5, 2009, and subsequently upon reconsideration on August 10, 2009.
Huffman filed a written request for a hearing, which was held before an ALJ on December 3, 2010.
Huffman, her friend, and a Vocational Expert (“VE”) appeared at the hearing.

On April 29, 2011, the ALJ issued a decision denying Huffman’s application. TheALJ began
the decision by stating: “Although informed of the right to representation, the claimant chose to
appear and testify without the assistance of an attorney or other representative.” (Tr. 10.) The ALJ
then proceeded with his analysis and found that Huffman was not disabled because (1) she had not
engaged in substantial gainful activity since January 29, 2009, the application date; (2) her severe
impairments included asthma, COPD, and lack of a thumb on her right hand; (3) she failed to
establish with reliable evidence that she had an impairment or combination of impairments that met
or medically equaled one of the listed impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1; (4)
she retained the residual functional capacity (“RFC”) to perform light work that does not involve
concentrated exposure to pulmonary irritants such as dust, fumes or chemicals, and does not require
fine finger manipulation or a firm grip with her non-dominant hand; and (5) she had no past relevant
work, but jobs exist in significant numbers in the national economy that she can perform. On June
21, 2012, the Appeals Council denied Huffman’s request for review, leaving the ALJ’s decision as
the final decision of the Commissioner. See Fast v. Barnhart, 397 F.3d 468, 470 (7th Cir. 2005); 20
C.F.R. § 404.981.
III.

ANALYSIS
The Social Security Act authorizes judicial review of the final decision of the agency and

indicates that the Commissioner’s factual findings must be accepted as conclusive if supported by
substantial evidence. 42 U.S.C. § 405(g). Thus, a court reviewing the findings of an ALJ will
reverse only if the findings are not supported by substantial evidence or if the ALJ has applied an
erroneous legal standard. Briscoe v. Barnhart, 425 F.3d 345, 351 (7th Cir. 2005). In this case,
Huffman, proceeding pro se, informs the Court that she has tried with all her effort to obtain

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benefits, but does not understand why she has been denied. Her handwritten brief is short and
unclear, and it will be liberally construed. See Haines v. Kerner, 404 U.S. 519 (1972).
Based on a liberal construction of Huffman’s brief and the Commissioner’s interpretation
of the issues raised therein, the Court construes the issues in this case as whether the ALJ’s failure
to obtain a valid waiver of counsel was not harmless error, and whether the ALJ’s step five
analysis was supported by substantial evidence. However, before the Court can address the
merits of the ALJ’s decision to deny Huffman’s application for disability benefits, the Court must
address the preliminary and crucial procedural issue of whether the ALJ’s failure to demonstrate
that Huffman had made a knowing waiver of her right to the assistance of counsel was harmless
error. The Commissioner contends that the ALJ’s failure to obtain a valid waiver of counsel was
harmless error because the ALJ adequately developed the record. Moreover, the Commissioner
argues the it was Huffman’s duty to show harm, which she failed to do. The Court is not
convinced and concludes that the error was not harmless. As a result, the Court cannot address
the merits of the ALJ’s disability decision.
Claimants have “a statutory right to counsel at disability hearings.” Thompson v. Sullivan,
933 F.2d 581, 584 (7th Cir. 1991) (citing 42 U.S.C. § 406; 20 C.F.R. § 404.1700). A claimant may
waive this right if she is “given sufficient information to enable [her] to intelligently decide whether
to retain counsel or proceed pro se.” Id. A claimant’s waiver is valid if she waives the right to
counsel after receiving “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. “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.” Id. However, a claimant is not
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automatically entitled to a remand for failing to give a valid waiver of the right to counsel, unless the
ALJ also failed to develop a full and fair record. Binion v. Shalala, 13 F.3d 243, 245 (7th Cir. 1994)
(citing Smith v. Sec’y of Health, Educ., & Welfare, 587 F.2d 857, 860 (7th Cir.1978)).
When an ALJ does not sufficiently explain the right to counsel and does not obtain a valid
waiver from the claimant, “the burden is on the Secretary to show the ALJ adequately developed the
record.” Binion, 13 F.3d at 245. Where a claimant proceeds pro se, the ALJ has a heightened duty
to develop the record. Id.; Smith, 587 F.2d at 860. When a claimant is both pro se and suffers from
a mental impairment, “the ALJ’s duty to carefully develop the record is even greater.” Thompson,
933 F.2d at 586. The ALJ satisfies this heightened duty to develop the record if he “probe[d] the
claimant for possible disabilities and uncover[ed] all of the relevant evidence.” Binion, 13 F.3d at
245 (“scrupulously and conscientiously probe into, inquire of and explore for all of the relevant
facts....”); see also Thompson, 933 F.2d at 585–86.
In Thompson, a pro se claimant did not have expert opinions for her physical or mental
disabilities and the ALJ did not take any steps to aid him in obtaining it. 933 F.2d at 586. The
Seventh Circuit held that this was good cause to remand. The court explained that when a pro se
claimant does not have a psychiatric or psychological examination and has a limited educational
background, “it was incumbent upon the ALJ to emphasize the desirability of producing and to afford
an opportunity to produce expert testimony, as to her medical disabilities and their effect on her
capacity to engage in any substantial, gainful work within the meaning of the Act.” Id. (citing Smith
v. Sec’y, 587 F.2d 857, 861 (7th Cir. 1978)). The court in Thompson remanded the case for the
claimant to receive a psychiatric examination and to allow for the development of the record. Id.
In the case at hand, Huffman is a pro se litigant. While the ALJ told Huffman that she had
a right to counsel, he did not explain how an attorney could have aided her in the proceedings, that
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she may have been able to obtain free counsel or a contingency arrangement, and that attorneys’ fees
would be limited to twenty-five percent of past-due benefits. As a result, the Commissioner conceded
in her response brief that the ALJ did not obtain a valid waiver of counsel from Huffman. Huffman
told the ALJ several times that she was unable to pay for past medical service and that she had
received less medical attention due to her inability to pay for service. Information regarding the
availability of free or low-cost counsel would have been particularly relevant to her when deciding
whether to retain counsel, especially when the evidence showed that she had struggled to pay doctor
bills and was seeking a low-income doctor. In addition, Huffman does not explain in her brief in this
case why she decided to proceed pro se before the ALJ. The Court assumes, however, that the cost
of an attorney was likely an issue because she discussed her shortage of funds repeatedly. Huffman’s
entitlement to a remand thus depends upon whether the ALJ developed a full and fair record.
The Commissioner argues that the ALJ adequately developed the record by asking about
Huffman’s daily activities and medical evidence. The Commissioner points out the ALJ questioned
Huffman about her medical conditions, discovered that she had been to the emergency room, and
later obtained a copy of the report. (Tr. 33–34; 45–46.) However, the hearing transcript shows that
the ALJ very minimally probed for possible disabilities. Once Huffman indicated she was not
receiving treatment for her mental health or her breathing problems, the ALJ moved on. Huffman
indicated she had been to the emergency room for her hands, and the ALJ primarily asked about
Huffman’s hands. Moreover, the ALJ constantly interrupted Huffman when she began discussing
her daily activities and her disabilities. For example, Huffman offered to explain her mental
condition, but the ALJ interjected with the unrelated question, “Didn’t you tell me you had, like, five
children?” (Tr. 40.) Huffman answered affirmatively and the ALJ moved on without obtaining her
explanation of her mental condition. Furthermore, Huffman had alleged that she had mental
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impairments, which increased the ALJ’s duty to develop the record for her as a pro se claimant. See
Thompson, 933 F.2d at 586.
Similar to the pro se claimant in Thompson, Huffman did not have expert opinions for her
disabilities and the ALJ did not take any steps to aid her in obtaining any. Huffman was a pro se
claimant with a ninth grade education who alleged physical and mental disabilities but did not have
a psychiatric or psychological examination from a treating physician. Accordingly, the ALJ should
have told her about the desirability of having this type of evidence in the record. Instead the ALJ
merely referenced Huffman’s lack of mental health treatment, the state psychological examiner’s
refusal to opine about Huffman’s mental limitations, and the lack of medical evidence in the record
before using those facts as the sole basis for his opinion that she was not disabled. (Tr. 13, 14, 18,
21.) When Huffman asked for a postponement to obtain medical opinions, the ALJ should not have
denied her request. He should have afforded her an opportunity to obtain and produce the evidence
and did not.
In light of these facts, this Court finds that the ALJ should have taken more steps to develop
the record by affording Huffman an opportunity to testify to her disabilities and to obtain and produce
evidence, particularly from her upcoming appointment with the low-income doctor.

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developments in the record would have been relevant to Huffman’s disabilities and her ability to
engage in any substantial, gainful work. Like the court in Thompson, this Court finds good cause to
remand so that Huffman can further develop the record.
Still, the Commissioner argues that the ALJ’s error was harmless because a claimant typically
carries the burden of showing that an error was not harmless. See Shinseki v. Sanders, 556 U.S. 396,
409 (2009). However, where the agency had a duty to help the claimant develop her claim, the
process is not adversarial. Id. at 412 (citing Walters v. National Assn. of Radiation Survivors, 473
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U.S. 305, 311 (1985)). “These facts might lead a reviewing court to consider harmful in a
[claimant]’s case error that it might consider harmless in other circumstances.” Id. Moreover, a pro
se complaint, “however inartfully pleaded,” must be held to “less stringent standards than formal
pleadings drafted by lawyers.” Haines, 404 U.S. 519. A reviewing court’s “harmless-error”
determination should include case-specific factors, such as
an estimation of the likelihood that the result would have been different, an
awareness of what body (jury, lower court, administrative agency) has the authority
to reach that result, a consideration of the error’s likely effects on the perceived
fairness, integrity, or public reputation of judicial proceedings, and a hesitancy to
generalize too broadly about particular kinds of errors when the specific factual
circumstances in which the error arises may well make all the difference.
Id. at 411–12. The Court must apply these factors to the case and decide whether the record suggests
the error was harmless. Id. at 414.
Here, the ALJ’s error was not harmless merely because Huffman failed to show harm. The
burden of showing harm was not Huffman’s to bear because this was not a true adversarial situation.
In fact, the ALJ had a heightened duty to help Huffman develop the record because she was a pro se
claimant. Furthermore, the Court does not hold Huffman, a pro se claimant, to the same standards
as an attorney. In addition, review of the “harmless-error” factors also favors remand in this case.
Specifically, a high likelihood exists that the result could have been different if the ALJ had allowed
Huffman to develop the record, primarily because the ALJ’s unfavorable decision was heavily based
on a lack of evidence that he should have advised her to obtain. In addition, the ALJ’s failure to
properly develop the record negatively affected the fairness of the administrative process because
developing the record is what mitigates the harm from failing to obtain a valid waiver of counsel.
Here, the ALJ erred twice and because legal advice and additional medical evidence could have made

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a difference in this case, the Court cannot say that the error was harmless. Moreover, Huffman’s
difficult financial situation only increased the risk of harm.
Therefore, after applying the “harmless-error” factors to the case at hand, the Court finds that
the record suggests the ALJ’s error was not harmless.

Huffman’s waiver of her right to

representation was invalid. The ALJ owed Huffman a heightened duty to develop the record fully and
fairly, which he failed to do. The ALJ’s error was not harmless and Huffman therefore should be
given the chance to obtain counsel and present desirable evidence to prove her claim. The Court thus
reverses ALJ’s decision and remands this case for a de novo hearing and a new decision. Huffman
should have an opportunity to obtain counsel, obtain and present additional evidence, and argue any
issues at the new hearing. Because this case is being remanded, the Court need not address any other
issues raised in regard to the ALJ’s decision.
IV.

CONCLUSION
Based on the foregoing, the Court hereby GRANTS relief in favor of the Plaintiff

pursuant to sentence four of 42 U.S.C. § 405(g). [Doc. No. 26]. The Court REMANDS this case
to the ALJ for further proceedings consistent with this decision. The clerk is instructed to term
the case.

SO ORDERED.

Dated this 3rd day of December, 2013.
S/Christopher A. Nuechterlein
Christopher A. Nuechterlein
United States Magistrate Judge

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