Clark, Roberta v. Berryhill, Nancy

Filing 15

ORDER reversing and remanding action to Commissioner for further proceedings under sentence four of 42 U.S.C. § 405(g). Signed by District Judge William M. Conley on 8/29/2019. (arw)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF WISCONSIN
ROBERTA CLARK,
Plaintiff,

OPINION AND ORDER

v.
17-cv-867-wmc
NANCY A. BERRYHILL,
Acting Commissioner of Social Security Administration,
Defendant.
Pursuant to 42 U.S.C. § 405(g), claimant Roberta Clark seeks judicial review of the
Commissioner of Social Security’s determination that she is ineligible for Supplemental
Security Income under Title XVI of the Social Security Act. Clark, who filed her claim pro
se but is now represented by counsel on appeal, argues that remand is necessary because
the ALJ failed to develop the administrative record adequately in support of his findings.
Because the ALJ had a “heightened duty” to develop a record fully on behalf of a pro se
claimant, the court agrees and will remand for further proceedings. See, e.g., Thompson v.
Sullivan, 933 F.2d 581, 585-86 (7th Cir. 1991).

BACKGROUND
A. Procedural History
Clark filed an application for supplemental security income (SSI) on January 28,
2013, alleging a disability onset date of November 30, 2008. (AR 17.) Her application
was denied on May 14, 2013, and was denied again on reconsideration on October 2,
2013. (Id.) On March 4, 2015, she appeared pro se at a hearing before Administrative Law
Judge Brent C. Bedwell (“ALJ Bedwell” or “ALJ”). (See AR 163-80.) The hearing itself

lasted only twenty-four minutes. (See AR 165, 180.) On March 20, 2015, ALJ Bedwell
issued an unfavorable decision. (AR 14.)
After claimant appealed (AR 45), the Appeals Council initially remanded in April,
2016, for a new hearing because it could not find the administrative record. (AR 9-10.)
Once the record was located in August 2017, however, the Appeals Council vacated its
prior order, then upheld ALJ Bedwell’s decision on September 20, 2017. (AR 3.) Claimant
sought judicial review from this court. (See Compl. (dkt. #3).)

B. Claimant’s Medical Records
The medical records considered by ALJ Bedwell are fairly sparse. For example, while
claimant’s alleged onset date is November 30, 2008, her medical records do not begin until
2012. Likewise, numerous medical records that claimant informed the ALJ existed are
missing from the administrative record. Indeed, claimant specifically informed the ALJ
that she received a CT scan of her head at Aspirus Grandview Hospital on September 9,
2013 (see AR 112-13), but the accompanying medical records are nowhere to be found in
the record. Claimant also informed the ALJ that she visited Dr. Wes Frisbie1 at Iron Wood
Hospital on August 4, 2014, and that he diagnosed her with depression, high blood
pressure, stress, migraines, and a concussion, as well acute visual impairments (AR 123).
Any record of this visit is also missing.
The few medical records reviewed by the ALJ reveal that claimant was treated for

The doctor’s name appears simply as “Frisbey” in plaintiff’s supporting brief. (See Pl.’s Br. (dkt.
#9) 3.)
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anxiety, stress, sleep deprivation, colds, bronchitis, hypertension, dyslipidemia, Carpal
Tunnel Syndrome (“CTS”) and rail styloid tenosynovitis in her left hand. (AR 127-131,
140, 147.) Clark apparently received a brace for her CTS, although her medical records
do not indicate who prescribed it for her. (AR 21.) In her written request for appeal, Clark
wrote that she wore a brace on her right and left hands, and she could not lift more than
five pounds. (AR 12.) Clark also claimed that she had difficulty performing basic tasks,
like writing. (Id.) At her hearing, Clark stated that an orthopedist named “Zergaball”2 had
ordered the braces, but there is again no documentation of this order in the administrative
record. (AR 172-73.) Clark said that the brace was “helping” and that she did not
frequently have to take medication for the pain. (AR 173-74.)3
Clark was prescribed amoxicillin, Atenol, Bonzepril and Ventolin for her sinus
issues, hypertension, anxiety and lung problems respectively.

(AR 88, 129.)

At her

hearing, Clark testified that the medication for her hypertension had been “very helpful.”
(AR 176.) Clark’s doctor also prescribed her Citalopram for her depression in October
2012, and followed up with her in January and February 2013. (AR 156-62.) However,
Clark’s notice of appeal indicates that she still suffers from depressive symptoms. (AR 13.)
Clark further believed that she had received the wrong medication for her depression. (See
id.). At the hearing, she referenced “bad side effects” of the medication (although she did

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The orthopedist’s name appears as “Zirgibel” in claimant’s request for appeal. (AR 12.)

Clark’s request for appeal also indicated that she was unable to use a broom or clean with a sponge,
and that she had to take frequent naps in order to have the energy necessary to clean. (Id.) In her
SSA Function Report, Clark wrote that she had difficulty breathing and that “[she hadn’t] slept all
night for at least a year.” (AR 93, 101.)
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not elaborate), and she said that the medication gave her “bad dreams.” (AR 171.) Clark
reported seeing a doctor for her depression about “every three months.” (AR 174.) Finally,
Clark wrote on her disability report form that she was taking baby aspirin for “strokes,”
but there is no other mention of this condition in the record. (AR 113.)4

C. ALJ’s Decision
On March 20, 2015, ALJ Bedwell issued a decision concluding that claimant was
not disabled because she “did not have an impairment or combination of impairments that
has significantly limited (or is expected to significantly limit) the ability to perform basic
work-related activities for 12 consecutive months.” (ALJ Decision (dkt. #10-1) 5.) First,
the ALJ considered her physical impairments, noting that claimant continued to perform
daily activities despite her bronchitis. (AR 21.) The ALJ also found no indication of a
diagnosis or report of CTS before February 25, 2015, and insufficient evidence to support
a finding of severe impairment.

(Id.)

He also found no evidence that claimant’s

hypertension caused any significant limitations or end organ damage. (Id.)
Second, ALJ Bedwell determined that claimant’s depression constituted a
“medically determinable mental impairment,” but found that this impairment was only
“mild.” (AR 22-23.) The ALJ further found that the claimant’s statements concerning the
limiting effects of her depression on her intensity, persistence and pace were neither
entirely credible, nor supported by medical evidence in the record, plus that this

In a note to the Appeals Council, dated April 10, 2015, Clark stated that she had an EKG taken,
and the results indicated that she had had a mild heart attack, but Clark’s note does not specify the
date on which the EKG took place. (AR 126.)
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impairment created only a “mild” limitation in activities of daily living, social functioning,
and concentration, persistence or pace, and there were no episodes of decompensation.
(AR 22.)
Ultimately, the ALJ concluded that the claimant’s physical and mental impairments,
whether considered independently and in combination, did not significantly limit her
ability to perform basic work activities. (Id.) On this basis, the ALJ found that claimant
was not disabled under the Social Security Act.

OPINION
Courts review an ALJ's decision in a social security disability proceeding to see if it
is supported by “substantial evidence,” meaning “such relevant evidence as a reasonable
mind might accept as adequate to support a conclusion.” Elder v. Astrue, 529 F.3d 408,
413 (7th Cir. 2008). In reviewing an ALJ's decision, the court is “not allowed to displace
the ALJ's judgment by reconsidering facts or evidence, or by making independent
credibility determinations.” Id. When a full and fair record is lacking, however, the ALJ
will not have sufficient facts on which to make an informed decision, and thus his decision
will not be supported by substantial evidence. Hardman v. Colvin, 820 F.3d 142, 147 (5th
Cir. 2016); see also Nelms v. Astrue, 553 F.3d 1093, 1097 (7th Cir. 2009) (analyzing ALJ’s
development of the record as part of substantial evidence review).
As noted above, Clark is seeking remand because the ALJ did not develop a
substantive record to support his findings. In opposition, the government makes three
arguments: (1) there was no heightened duty because claimant validly waived her right to
representation; (2) claimant bore the burden to submit evidence sufficient to prove her

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disability; and (3) the speculation that additional evidence might be obtained is not enough
to warrant remand. The court addresses each below.

I. Waiver of ALJ’s Heightened Duty

The government first argues that the ALJ did not have a heightened duty to develop
the record because the claimant knowingly and validly waived her right to representation.
(Def’s Opp’n. (dkt. #10) 2-7.) In general, the government contends that “the agency’s
publications and the ALJ’s statements gave Plaintiff a clear and accurate picture of the
benefits and costs of representation.” (Id. at 6.) More specifically, the government notes
that: (1) Clark received SAA Publication No. 05-10075 (attached to the Notice of
Hearing), which informed her about the benefits of representation; (2) Clark certified that
she understood her right to representation at the reconsideration level; (3) the
Administration emailed her an acknowledgement letter with an attached Social Security
Publication entitled “Your Right to Representation” that informed her about the potential
benefits of having a representative, as well as the rules and options governing fees; and (4)
at her hearing, the claimant signed a waiver of representation and the ALJ provided her
with similar information on the record. (Def’s Opp’n (dkt #10) 4-5 (citing AR 63-64
(Notice of Hearing); AR 45 (Certification of Right to Representation); AR 64-65 (“Your
Right to Representation”); AR 63-64 (Waiver of Representation Form)).)
Although the agency appropriately took steps to notify Clark of her right to counsel,
notice also is not dispositive of waiver. See Thompson v. Sullivan, 933 F.2d 581, 581-82
(7th Cir. 1991). To ensure a valid waiver of a claimant's statutory right to counsel, an ALJ
must also explain to pro se claimants the following: (1) how an attorney can aid in the

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proceedings; (2) the possibility of free counsel or a contingency fee arrangement; and (3)
the limitation on attorney fees to 25 percent of past-due benefits and required court
approval of the fees. Id. at 584; Skinner v. Astrue, 478 F.3d 836, 841 (7th Cir. 2007). The
government contends that a 1989 amendment to the Social Security Act requiring the
Commissioner to notify disability claimants in writing of their options for representation
abrogates Thompson’s three-part explanatory requirement for waiver. (Def’s Opp’n. (dkt.
#10) 3-6 (citing 42 U.S.C. §§ 406(c), 1383(d)(2)(D)).) However, as the government
recognizes (id. at 5), the Seventh Circuit has not adopted this interpretation and has
continued to rely on Thompson’s three-part standard. See Skinner, 478 F.3d at 836.
Here, the ALJ explained to claimant during the hearing how an attorney could help
in the proceedings, but he failed to inform her about the possibility of free counsel or a
contingency arrangement, as well as neglected to mention the 25 percent of past-due
benefits limitation on attorney’s fees.

(See AR 165-66.) The fact that claimant was

provided with this information in writing does not excuse the ALJ’s failure to explicitly
state it during the claimant’s hearing.

See Skinner, 478 F.3d at 841 (written notices

provided to claimant insufficient to establish valid waiver of right to counsel if ALJ failed
to provide that information at claimant’s hearing).
Even if claimant’s waiver of counsel were valid, the ALJ still had an “enhanced duty”
to develop the record of a pro se claimant. Nelms, 553 F.3d at 1093-98. While a social
security claimant bears the burden of proving disability, an ALJ always has a duty to
develop a full and fair record. 42 U.S.C. § 405(g); Nelms, 553 F.3d at 1098. This duty is
enhanced when a claimant appears without counsel, willingly or not; in which case, the

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ALJ must “scrupulously and conscientiously probe into, inquire of, and explore for all the
relevant facts.”

Nelms, 553 F.3d at 1098.

This heightened burden reflects courts’

recognition that absence of counsel can be prejudicial to claimants in disability
proceedings. Smith v. Sec'y of Health, Ed. & Welfare, 587 F.2d 857, 860 (7th Cir. 1978)
(cited in Nelms); see also William D. Popkin, The Effect of Representation in Nonadversary
Proceedings—A Study of Three Disability Programs, 62 Cornell L. Rev. 991, 992-93 (1977)
(“The data in this study show that represented clients usually have an advantage over
unrepresented clients even in informal, nonadversary proceedings.”).
Indeed, ALJ Bedwell made representations to the claimant at her March 4, 2017,
hearing acknowledging his heightened duty to develop the record. Specifically, the ALJ
advised claimant that if she chose to proceed without representation, he would fill any
missing gaps in the record:
Okay, the alternative is that you have the right to proceed
today on your own without a representative and if you choose
to do that, then it’s up to me and my staff to talk to you and make
sure that we have everything in your file that you want in your file and
if we don’t, then I go get it for you, make it part of the file and
then send you copies of everything that I have received . . . .
(AR 169 (emphasis added).) Moreover, at the hearing, claimant signed a written waiver
of representation that states:
I also understand that the judge has a duty to ensure that his or her
decision is based upon a complete record, and if I decide not to
obtain representation, the judge will make a reasonable effort
to insure that all pertinent and relevant evidence is obtained
and made part of the record.
(AR 78 (emphasis added).) These oral and written representations assured claimant that
ALJ Bedwell would take additional steps to locate evidence and develop a full record.

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Considering these representations, as well as the case law discussed above, defendant is
wrong both legally and factually in arguing that ALJ Bedwell owed no heightened duty to
Clark to develop the record in this case.

II.

Burden on Claimant to Produce Evidence of Disability
The government next argues that a 2015 revision to social security regulations still

places the burden on a claimant to submit “all evidence known to [her] that relates to [her]
disability claim.”

(Def’s Opp’n (dkt. #10) 7-8) (quoting Submission of Evidence in

Disability Claims, 80 Fed. Reg. 14828, 14829 (Mar. 20, 2015).) However, this amended
regulation does not support the government’s claim that the ALJ is relieved of his duty to
develop the record, especially where a pro se claimant is concerned. First, there is no case
law supporting the government’s proposed interpretation. Only one district court has cited
the regulation, and it only did so in a footnote to observe that the Act had been amended.
See Shives v. Colvin, No. 2:14-CV-29 NAB, 2015 WL 1313316, at *4 n.3 (E.D. Mo. Mar.
24, 2015) (“The Court notes that the regulations at 20 C.F.R. §§ 404.1512, 416.912 were
amended on March 20, 2015 with an effective date of April 20, 2015.”). Second, the
obligation of the claimant to submit evidence of her disability was there before and after
the regulation’s adoption; it neither expressly nor implicitly relieved the ALJ from the
obligation to develop the record. Indeed, while the amendment in question itself expressly
rejected an expansion of the agency’s obligation, it said nothing about narrowing the agency’s
existing obligations. See Submission of Evidence in Disability Claims, 80 Fed. Reg. at
14831-32. Third, even if it did, the claimant here did submit evidence supporting her claim
by filling out the necessary forms and providing details about her medical history. (See AR

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106-16.) Accordingly, this regulation did not reduce the ALJ’s burden to develop the
record.

III.

“Speculation” About Existence of Other Evidence
The government’s last argument is that “mere conjecture or speculation that

additional evidence might have been obtained in the case is insufficient to warrant a
remand.” (Def’s Opp’n. (dkt. #10) 9 (citing Schoenfeld v. Apfel, 237 F.3d 788, 798 (7th
Cir. 2001).) This, too, is a misapplication of the law: only after the Administration has
satisfied its burden to develop the record fully can a claimant’s argument regarding the
absence of evidence be scrutinized by the court. See Binion v. Shalala, 13 F.3d 243, 245
(7th Cir. 1994) (“Once the Secretary establishes that the record was developed fully and
fairly, the plaintiff [then] has the opportunity to rebut this showing by demonstrating
prejudice or an evidentiary gap.”). In the instant case, the government has failed to meet
its initial burden of developing a complete record.
Unlike in Schoenfeld, the claimant in this case has identified several gaps in the record.
(See Pl.’s Brief (dkt. #9) 3.) For instance, claimant reported that she had received a head
CT from Dr. Eric Maki at Aspirus Grandview Hospital on September 9, 2013. (AR 114.)
Although the results of this scan would be highly probative to Clark’s claims of concussions
and migraines, there is no indication that the ALJ attempted to obtain these records. Such
failures are especially glaring in light of the ALJ’s rejection of her disability claim based in
part on a lack of evidence of physical impairment. (See AR 21.)
Importantly, claimant reported migraines and vision trouble to the ALJ. (AR 10616.) In identifying her “Recent Medical Treatment,” Clark wrote that she had seen Dr.

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Wes Frisbie in Ironwood, Michigan, in August 2014, and Dr. Frisbie had diagnosed her
with depression, migraines and the “start of cataracts.” (AR 123.) Although claimant
provided Dr. Frisbie’s phone number, the record again reveals no attempt by the ALJ to
obtain medical evidence regarding that diagnosis, and the fact that the ALJ was aware
medical records existed and failed to obtain them strongly supports claimant’s case for
remand. See Harris v. Barnhart, 219 F. Supp. 2d 966, 974-75 (E.D. Wis. 2002) (remanding
an ALJ’s unfavorable decision for failure to develop the record in consideration of plaintiff’s
reports that he was “depressed” and other evidence in the administrative record).5
In addition to failing to obtain evidence from obvious, identified sources, the ALJ
failed to develop the record at claimant’s hearing. The hearing lasted only twenty-four
minutes, indicating that “the ALJ did not take sufficient care” in producing the record.
(Pl.’s Reply (dkt. #12) 3; Pl.’s Opening Br. (dkt. #9) 6 (citing Thompson, 933 F.2d at 586
(remanding case after only a thirty-two minute hearing); Lashley v Sec. of Health & Human
Serv., 708 F.2d 1048, 1052 (6th Cir. 1983); Harris v. Barnhart, 219 F. Supp. 2d 966, 974
(E.D. Wis. 2002) (“The Commissioner did not come close to meeting her burden in this
case. The hearing was perfunctory, lasting just twenty-three minutes, and the ALJ made
no meaningful inquiry into several key areas.”)).)

Not only was the hearing here

extraordinarily short, the ALJ failed to question claimant about the extent of her migraines
or visual impairments. (See AR 165-80; Pl.’s Opening Br. (dkt. #9) 6.)
Finally, claimant contends that an “overall lack of communication, organization and

As further evidence of the ALJ’s failure to investigate, claimant also listed her step-sister, Dawn
Wilson, as a person with information about her conditions (AR 106), yet it seems the ALJ never
contacted her as well.
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candor” on the part of ALJ Bedwell and others at the Social Security Administration
warrant remand. (Pl.’s Opening Br. (dkt. #9) 6.) She is right. The administrative record
itself reflects a lack of care, as well as a lack of development. First, claimant’s case was
remanded by the Appeals Council on April 15, 2016, because the administrative record
was missing, only to reappear, prompting the Appeals Council to vacate that order on
August 7, 2017.

(AR 3, 9-10.)

Second, and continuing with the trend of missing

documents, the third page of the ALJ’s decision was missing from the record when it was
filed with this court. (See AR 18-20 (missing AR 19).) Third, as noted previously, the
paper record itself is small. All of these facts indicate a lack of care, in addition to the lack
of development discussed above

ORDER
IT IS ORDERED that the decision of defendant Nancy A. Berryhill, Acting
Commissioner of Social Security, denying plaintiff Roberta Clark’s application for
disability insurance benefits is REVERSED AND REMANDED under sentence four of 42
U.S.C. § 405(g) for further proceedings consistent with this opinion. The clerk of court is
directed to enter judgment for plaintiff and close this case.
Entered this 29th day of August, 2019.
BY THE COURT:
/s/
__________________________________
WILLIAM M. CONLEY
District Judge

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