Fox, Rebecca v. Colvin, Carolyn

Filing 35

ORDER Entering Judgment for plaintiff. Signed by District Judge James D. Peterson on 3/10/15. (jat)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF WISCONSIN

REBECCA FOX,
Plaintiff,

ORDER

v.
13-cv-774-jdp
CAROLYN W. COLVIN,
Commissioner of the Social Security Administration,
Defendant.

Plaintiff Rebecca Fox seeks judicial review of a final decision of defendant Carolyn W.
Colvin, the Commissioner of Social Security, finding her not disabled within the meaning of the
Social Security Act. The court held a hearing on Fox’s motion for summary judgment on March
10, 2015. For reasons stated more fully at the hearing, the court will grant Fox’s motion and
remand the case to the Commissioner for further proceedings.
Fox was not represented at her hearing before the ALJ, nor did she give a valid waiver of
her right to counsel because the ALJ never discussed the ways in which a representative could
assist her. See Skinner v. Astrue, 478 F.3d 836, 841 (7th Cir. 2007). Without a valid waiver, the
ALJ had a heightened duty to develop the record. Id. Remand is necessary because the ALJ failed
to fulfil this obligation, and because the court cannot conclude that the error was harmless. Fox
produced mental health records that the ALJ did not, but should have, obtained to fill the
almost two-year gap between the last treatment notes and the hearing. See Nelms v. Astrue, 553
F.3d 1093, 1099 (7th Cir. 2009). Although these records are generally unremarkable, it will be
up to a medical expert to opine on their significance. The “snapshot” that was available to the
ALJ provided too short a window from which to conclude that Fox was able to work, particularly
in light of the waxing and waning nature of Fox’s mental impairments. Moreover, Fox informed
the ALJ that she had received treatment from two different therapists, but the ALJ had records

from only one of them. Without notes from the new therapist, the ALJ lacked a complete record
on which to base a decision to deny benefits.
On remand, the ALJ must ensure that if Fox waives her right to counsel, she does so
validly. The ALJ should also develop the record with regard to Fox’s mental impairments and
treatment history by:


Obtaining records from each of her providers and ensuring that there are no
obvious gaps in the medical evidence;



Inquiring into Fox’s other relevant mental health conditions, including the head
injury that she suffered in a car accident in 1976; and



Ensuring that any medical expert who testifies at a new hearing has access to a
complete medical record.

On remand, the ALJ should also reanalyze Dr. King’s opinion. The ALJ may not discount
Dr. King’s limitations by citing daily activities that do not correspond to Fox’s ability to perform
workplace activities. Fox’s activities of daily living, including her travel and her caring for rescue
animals, are done on her own schedule, and they do not necessarily demonstrate that she could
handle the demands of full-time employment. This order does not mandate that the ALJ assign
any particular weight to Dr. King’s opinions, but he must provide an adequate explanation for
the weight that he does assign. If the ALJ finds the opinion to be credible with regard to certain
limitations, he must include those limitations in hypothetical questions to a vocational expert.
IT IS ORDERED that the decision of defendant Carolyn W. Colvin, Commissioner of
Social Security, denying plaintiff Rebecca Fox’s application for disability benefits is REVERSED

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AND REMANDED. The clerk of court is directed to enter judgment for plaintiff and close this
case.
Entered March 10, 2015.
BY THE COURT:

/s/
JAMES D. PETERSON
District Judge

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