YAKELY v. ASTRUE et al

Filing 13

MEMORANDUM OPINION filed. Signed by Judge Mary L. Cooper on 3/13/2013. (eaj)

NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY

DANETTE YAKELY,

CIVIL ACTION NO. 12-857 (MLC)
MEMORANDUM OPINION

Plaintiff,
v.
MICHAEL J. ASTRUE, COMMISSIONER,
SOCIAL SECURITY ADMINISTRATION,
Defendant.

COOPER, District Judge
I.

INTRODUCTION

The plaintiff, Danette Yakely, seeks review of the final
decision of the defendant, Michael J. Astrue, Commissioner of the
Social Security Administration (“the Commissioner”), denying her
claim for Disability Insurance Benefits (“DIB”).
no. 1, Compl.)

See also 42 U.S.C. § 405(g).

(See dkt. entry

The Court, having

carefully reviewed both the administrative record and the parties’
arguments, will remand the matter for further proceedings.
II.

BACKGROUND

Yakely filed a written claim for DIB on April 24, 2008.

The

Social Security Administration denied the written claim upon her
initial filing, and again upon a request for reconsideration.
Yakely thereafter filed a timely request for a hearing (“the First
Hearing”), which was granted.

The First Hearing convened on September 30, 2009, before an
administrative law judge (“ALJ”).

Yakely appeared without counsel.

The First Hearing began with the following colloquy:
ALJ: Did you receive a Hearing Acknowledgment
letter to appear today?
CLMT: Yes.
ALJ: Do you understand the information contained
in that letter concerning representation?
CLMT: Yes.
ALJ: It is my understanding that you wish to
proceed without a representative. Is that correct?
CLMT: Yes.
ALJ: Very well. . . .
(Administrative Record (“Admin. R.”) at 29.)

The letter referenced

by the ALJ states:
You May Choose to Have a Person Represent You
If you want to have a representative, please find
one right away. If you get a representative, you
should show this notice to that person. You or
that person should also call or write this office
to give us his or her name, address, and telephone
number.
(Id. at 97 (bold typeface in original).)1
The ALJ issued a decision on October 19, 2009 (“the First ALJ
Decision”), concluding that Yakely (1) was not disabled during the

1

This letter may have included an enclosure entitled “Your
Right to Representation”. (See Admin. R. at 100, 102-03.)
However, because the First Hearing colloquy did not reference that
document, the Court cannot determine whether Yakely received,
reviewed, or understood the information contained therein.

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relevant time period and, accordingly, (2) was not entitled to DIB.
Yakely timely requested review of the First ALJ Decision by the
Social Security Administration Appeals Council (“Appeals Council”).
On August 19, 2010, the Appeals Council vacated the First ALJ
Decision and remanded the case for a new hearing and decision.2
The ALJ presided over the new hearing, which convened on
October 25, 2010 (“the Second Hearing”).
without counsel.

Yakely again appeared

The Second Hearing began with a fresh colloquy

regarding Yakely’s status as a pro se claimant:
ALJ: Did you receive the hearing acknowledgment
letter to appear here today. [sic]
CLMT: Yes, I did.
ALJ: Do you understand the information contained
in that letter concerning representation?
CLMT: Yes, I do.
ALJ: It’s my understanding that you wish to
proceed without a representative, is that correct?
CLMT: Yes, it is.
ALJ: Very well . . .
(Id. at 41.)

Insofar as the letter referenced by the ALJ at the

Second Hearing concerns representation, it is identical to the
letter referenced by the ALJ at the First Hearing.3

2

The basis for the Appeals Council’s actions are not relevant
to the resolution of this matter.
3

This letter, like the earlier letter, may have included an
enclosure entitled “Your Right to Representation”. (See Admin. R.
at 121, 123-24.) However, for the reasons expressed in n.1, supra,
the Court cannot determine whether Yakely received, reviewed, or
understood the information contained therein.
3

The letter referenced by the ALJ at the Second Hearing
differs, however, in at least one material respect from the letter
referenced by the ALJ at the First Hearing: it states that “[a]
vocational expert will testify at your hearing.”

(Id. at 119.)

But the transcript of the Second Hearing reveals that the ALJ did
not call or question a vocational expert.
The ALJ issued a new decision on November 5, 2010 (“the Second
ALJ Decision”), concluding that Yakely (1) was not disabled during
the relevant time period and, accordingly, (2) was not entitled to
DIB.

Yakely timely requested review of the Second ALJ Decision by

the Appeals Council.

On September 21, 2011, the Appeals Council

denied Yakely’s request and affirmed the Second ALJ Decision.
Yakely timely filed the Complaint with the assistance of
counsel, seeking judicial review of the Second ALJ Decision.
Compl.)

(See

See also 42 U.S.C. § 405(g); Poulos v. Comm’r of Soc.

Sec., 474 F.3d 88, 91 (3d Cir. 2007) (“Because the Appeals Council
denied review of the ALJ’s decision, we review that decision as the
final decision of the Commissioner.”).

It appears that Yakely’s

attorney is experienced in social security matters.4

4

Yakely is represented by Jason Lanell Thompson of the law
firm of Leventhal, Sutton & Gornstein. It appears from the Court’s
independent research that Attorney Thompson is counsel of record in
twenty-three social security appeals filed in this district and
sixty-six social security appeals filed in the Eastern District of
Pennsylvania.
4

In a letter brief electronically filed on September 12, 2012
pursuant to Local Civil Rule 9.1(d)(1), Yakely sets forth her
primary contentions and arguments for relief.

She states, in

pertinent part, that the ALJ colloquies regarding representation
“[did] not show that [her] waiver of representation was knowing and
voluntary, as the ALJ failed to mention, e.g., the availability of
representation on a pro bono or contingent fee basis, the
importance of an attorney in obtaining evidence to support the
claim, etc.”

(Dkt. entry no. 8, 9-13-12 Letter Br. at 1.)

She

also argues that the ALJ failed to properly discharge the
“heightened duty” to assist her pro se presentation of a DIB claim.
(Id. at 1-2.)

The United States Attorney’s Office for the District

of New Jersey, Civil Division, responded on behalf of the
Commissioner, noting that it disagreed with those arguments.

(See

dkt. entry no. 9, Response to 9-13-12 Letter Br.)
Yakely filed a formal brief on November 16, 2012, pursuant to
Local Civil Rule 9.1(e)(1).

(See dkt. entry no. 10, Br. in Supp.)

In that brief, Yakely re-states her contention that the ALJ failed
to assist her pro se presentation.

(See id. at 7-11.)

She also

argues, that the ALJ: (1) erroneously determined that her insured
status lapsed on December 30, 2007; (2) improperly discredited or
otherwise disregarded the opinion of her treating physician; and
(3) improperly issued the Second ALJ Decision without securing the

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testimony of a vocational expert.

(See id. at 6, 11-23; see also

dkt. entry no. 12, Reply Br. at 2-5.)

On these grounds, Yakely

asks the Court to either reverse the Second ALJ Decision and award
her DIB, or vacate the Second ALJ Decision and remand the matter
for further administrative proceedings.

(See Compl. at 1; Br. in

Supp. at 23.)
The Commissioner has submitted an opposition brief, but that
brief is sparse.

(See dkt. entry no. 11, Opp’n Br.)

The statement

of the case contained therein merely incorporates Yakely’s summary
of the procedural history of the action, and the summary of facts
set forth in both the First ALJ Decision and the Second ALJ
Decision.

Neither that statement of the case nor the other

portions of the brief review the remainder of the administrative
record.
The Commissioner’s brief also provides little by way of
meaningful argument.

The brief does not explain the Commissioner’s

earlier opposition to Yakely’s contention that the ALJ failed to
procure a knowing and intelligent waiver of counsel.

It also

provides little argument in opposition to Yakely’s concerns
regarding the ALJ’s: (1) determination that Yakely’s insured status
lapsed on December 30, 2007; and (2) failure to solicit or consider
testimony from a vocational expert.

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(See generally id.)

III. DISCUSSION
A.

The Record Does Not Demonstrate that Yakely Knowingly and
Intelligently Waived Her Right to Counsel
“Though a claimant does not have a constitutional right to

counsel at a social security hearing, she does have a statutory and
regulatory right to counsel at such a hearing.”

Vivaritas v.

Comm’r of Soc. Sec., 264 Fed.Appx. 155, 157 (3d Cir. 2008) (citing
42 U.S.C. § 406 and 20 C.F.R. § 404.1705).

Accordingly, pro se

social security claimants “must be given notice of the right to
counsel and can waive this right only by a knowing and intelligent
waiver.”

Id. (citing Smith v. Schweiker, 677 F.2d 826, 828 (11th

Cir. 1982)).

“A claimant may express a desire at the hearing not

to be represented by an attorney, but [her] waiver must establish
that [she] was ‘properly apprised of [her] options concerning
representation’ to be effective.”

Curry v. Barnhart, No. 05-2350,

2006 WL 1192920, at *2 (E.D. Pa. Jan. 25, 2006) (Magistrate Judge
Report & Recommendation) (quoting Smith, 677 F.2d at 828), adopted
by Dist. Ct., 2006 WL 964103 (Apr. 13, 2006).
In Vivaritas, the Third Circuit Court of Appeals (“the Third
Circuit”) examined a pro se claimant’s waiver of the right to
representation to determine whether such waiver was knowing and
intelligent.

In that case, the ALJ began the administrative

hearing by acknowledging the claimant’s pro se status and
explicitly informing her that she had “the right to have a
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representative”, though she was “not required to have one.”
158 (citation to record omitted).

Id. at

The ALJ then attempted to

confirm that the claimant fully understood her rights by engaging
in the following exchange:
ALJ: Let me first explain to you what a
representative could do for you. A representative could
help you to gather medical records and other documents
in support of your case. A representative could help
you to organize your case and could help you to present
your case before an Administrative Law Judge. There may
be representatives that do not charge any money. Have
you given any thought to getting a representative?
CLMT: I was—I went to check into legal aide [sic]
because I can’t afford [sic] and they say—I think
they’re on Summit or something. I was looking for it,
but I couldn't find it.
ALJ: Okay. Well, let me explain to you what your
options are today. First, let me tell you that it’s
perfectly possible to have a fair hearing either with a
representative or without a representative. It’s purely
a personal choice of yours. It—so you have two choices
today. You can either choose to proceed today with the
hearing without a representative or I could give you an
adjournment of 30 days to give you a chance to get a
representative. If you choose to proceed today and if I
notice during the hearing that there are any documents
that are missing from your record that I need, I can
take steps through my office to get those and add them
to your file. Also, if you proceed today and for some
reason you are not happy with the [d]ecision that I
make, you would be free to appeal that [d]ecision and
you could get a representative at that time if you so
chose [sic]. So what is your [d]ecision? Do you want
to proceed or do you want to have a chance to get a
representative?
CLMT: Well, I’m going to proceed.
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ALJ: You want to proceed today?
CLMT: Yeah.
Id. at 158-59 (citations to record omitted).

The Third Circuit

explained that the quoted ALJ colloquy would ordinarily “be
sufficient to establish that a claimant waiving her right to
counsel during an ALJ hearing acted knowingly and intelligently.”
Id. at 159.5
The United States District Court for the Eastern District of
Pennsylvania similarly found that an ALJ failed to elicit a knowing
and intelligent waiver of counsel in Curry.

That court held that a

claimant’s waiver of counsel was not knowing and intelligent where
the ALJ did not, among other things, “explain the importance of
having an attorney present” or “offer to re-convene the hearing
when [the claimant] had secured the services of an attorney”.
WL 1192920, at *3.

2006

That court noted that “[t]he ALJ’s apparent

quest for expediency can never override a claimant’s right to
counsel.”

Id.

The decisions in Vivaritas and Curry accord with the
interpretation of “knowing and intelligent waiver” propounded by
the Seventh Circuit Court of Appeals (“the Seventh Circuit”), which

5

The Third Circuit ultimately concluded that the claimant in
that action did not knowingly and intelligently waive her right to
counsel because she suffered from a mental disorder. See
Vivaritas, 264 Fed.Appx. at 159-61.
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has stated that “[t]o ensure valid waivers, ALJs must explain to
pro se claimants (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.”
Skinner v. Astrue, 478 F.3d 836, 841 (7th Cir. 2007) (citation
omitted) (internal quotation marks omitted).

The Third Circuit has

acknowledged the Seventh Circuit’s interpretation of “knowing and
intelligent waiver” without explicitly adopting it.

See Vivaritas,

264 Fed.Appx. at 157 n.1; see also Curry, 2006 WL 1192920, at *2
(“Adequate notice of the right to counsel must include the
possibility of free counsel and limitations on attorney fees to 25
percent of any eventual award.”).
The Court, upon consideration of the foregoing standards and
the administrative record developed below, concludes that the ALJ
failed to ensure that Yakely knowingly and intelligently waived her
right to counsel.

Although the ALJ confirmed that Yakely knew that

she could “have a representative” at those hearings, the ALJ failed
to confirm that Yakely understand that her “representative” could
be an attorney who (1) could meaningfully assist her presentation
to the ALJ, and (2) might work on either a pro bono or a contingency
fee basis.

(See Admin. R. at 29, 41, 97, 118.)

But cf. Vivaritas,

264 Fed.Appx. at 158-59; Curry, 2006 WL 1192920, at *3.

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B.

It Appears that Yakely Suffered Prejudice Because the
ALJ Failed to Solicit Testimony from a Vocational Expert
“A lack of counsel, itself, is not sufficient cause for

remand.”

Bentley v. Comm’r of Soc. Sec., No. 10-2714, 2011 WL

4594290, at *9 (D.N.J. Sept. 30, 2011); see also Phifer v. Comm’r
of Soc. Sec., 84 Fed.Appx. 189, 190 (3d Cir. 2003).

However, the

Court may remand a social security matter for further proceedings
if it appears either that lack of counsel prejudiced the claimant
or that the administrative proceedings were marked by unfairness.
See Vivaritas, 264 Fed.Appx. at 158 (citing Livingston v. Califano,
614 F.2d 342, 345 (3d Cir. 1980)).

The Court has thus examined the

administrative record for evidence of prejudice or unfairness.
Allocation of the burden of proof informs that examination.
“While a claimant represented by counsel is presumed to have made
[her] best case before the ALJ, no such presumption attaches to an
unrepresented claimant.”

Id. (quoting Skinner, 478 F.3d at 842).

“Without the shifting of this burden, no sanction would exist for
an ALJ’s inadequate explanation of a claimant’s rights.”

Id.

(quoting Binion v. Shahala, 13 F.3d 243, 245 (7th Cir. 1994)).
Here, because the ALJ did “not obtain a valid waiver of counsel,
the burden is on the Commissioner to show [that] the ALJ adequately
developed the record.”

Id. (quoting Skinner, 478 F.3d at 842).

Yakely argues that the ALJ: (1) erroneously determined that
her insured status lapsed on December 30, 2007; (2) improperly
11

discredited or otherwise disregarded the opinion of her treating
physician; and (3) improperly issued the Second ALJ Decision
without securing the testimony of a vocational expert.

(See id. at

6, 11-23; see also dkt. entry no. 12, Reply Br. at 2-5.)

Insofar

as Yakely argues that the ALJ should have solicited testimony from
a vocational expert, the Commissioner has failed to carry its
burden of proving that the ALJ adequately developed the record.
The ALJ concluded without the benefit of a vocational expert’s
testimony that “there were jobs that existed in significant numbers
in the national economy that [Yakely] could have performed on a
sustained and competitive basis at all times relevant to this
decision”.

(Admin. R. at 22.)

It appears that the ALJ reached

this conclusion after consulting the Social Security “Grids”, i.e.,
20 C.F.R. Pt. 404, Subpart P, Appendix 2.

(See id.)

But an ALJ

may not rely solely on the Grids when a claimant suffers from both
severe exertional and non-exertional impairments.

See Cartagena v.

Comm’r of Soc. Sec., 29 Fed.Appx. 883, 885 (3d Cir. 2002); Sykes v.
Apfel, 228 F.3d 259, 267 (3d Cir. 2000).

Here, the ALJ concluded

that Yakely suffered from both a severe exertional limitations
(i.e., degenerative disc disease) a severe non-exertional
limitation (i.e., bilateral carpal tunnel syndrome).
R. at 20.)

(See Admin.

See Cartagena, 29 Fed.Appx. at 885 (carpal tunnel

syndrome is a non-exertional limitation).

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IV.

CONCLUSION

The Court, for the reasons stated above, has concluded that
(1) the ALJ failed to ensure that Yakely knowingly and
intelligently waived her right to representation, and (2) Yakely
was prejudiced in the administrative proceedings because she lacked
such representation.

For good cause appearing, the Court will

issue a separate order, remanding the matter to the Commissioner.
The Court anticipates that Yakely, who has appealed her case
with the assistance of counsel, will be represented by an attorney
on remand.

If she decides, however, to proceed on remand without

counsel, “the ALJ should explain her right to have counsel and
counsel’s availability in full detail”.
at 161.

Vivaritas, 264 Fed.Appx.

“[A]nd if [she] insists on proceeding pro se, the ALJ

should develop the record with respect to” all of the issues that
Yakely has raised to this Court on appeal.

Id.

s/ Mary L. Cooper
.
MARY L. COOPER
United States District Judge

Date:

March 13, 2013

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