United States District Court, D. New Jersey
Whetstone, on behalf of her minor son, U.W., brings this
action pursuant to 42 U.S.C. § 1383(c)(3) to review a
final decision of the Administrative Law Judge and
affirmation by the Appeal Council denying Childs Supplemental
Security Insurance to U.W. For the reasons set fortii below,
the matter will be remanded for further development of the
January 16, 2013, Ms. Whetstone filed an application for
Social Security Insurance benefits on behalf of her son,
(R. 123.) U.W. was a five-year-old preschooler at the time
and has attention deficit hyperactivity disorder
("ADHD"). (R. 17.) The alleged disability had an
onset date of June 17, 2011. (Id.) On February 25,
2013, U.W.'s claim was denied (R. 81-73), and on
September 25, 2013 and after a second review by a different
person, his claim was denied again. (R. 87-90.) Disagreeing
with these determinations, Ms. Whetstone then requested a
hearing before an Administrative Law Judge ("ALJ").
(R. 91.) The hearing occurred on February 4, 2015 (R. 35),
which Ms. Whetstone attended unrepresented (see R. 38), and
the ALJ, after considering the record, determined that U.W.
was not under a disability within the meaning of the Social
Security Act from the time of the filing of the application.
(R. 14.) She then sought review with the Appeals Council on
June 9, 2016. (R. 8-9.) The Council denied her request for
review, finding no reason under the rules to review the
decision of the ALJ. (R. 1.) She now appeals to this Court.
Whetstone has two main arguments as to why the decision of
the ALJ should be reversed or remanded for further
consideration. (PL Br. 1.) First, she argues that she
ineffectively waived her right to have counsel present at her
proceedings and that her hearing with the ALJ was prejudiced
by her lack of counsel. (See Id. at 5-12.) Second,
she argues that the medical and functional analyses by which
the ALJ rendered her decision were not supported by
substantial evidence. [See Id. at 12-14.) The
Government contests both of these arguments, saying both that
substantial evidence supports the final decision and that Ms.
Whetstone and U.W. knowingly and intelligently waived the
right to representation at the hearing and were not
prejudiced by that lack of representation. (Def. Br. 2, 4.)
Waiver of counsel
a claimant does not have a constitutional right to counsel at
a Social Security disability hearing, the Social Security Act
and its accompanying regulations afford a claimant that
right. Vivaritas v. Comm'r of Soc. Sec, 264
Fed.App'x 155, 157 (3d Cir. 2008) (citing 42 U.S.C.
§ 406; 20 C.F.R. § 406.1705); but see Bentley
v. Comm'r of Soc. Sec, No. 10-2714, 2011 WL 4594290,
at *9 (D.N.J. Sept. 30, 2011) ("A lack of counsel,
itself, is not sufficient cause for remand."). The
claimant must be given notice of that right, and, in order to
move forward with the proceeding without counsel, must waive
that right knowingly and intelligently. Id. (citing
Smith v. Schweiker. 677 F.2d 826, 828 (11th Cir.
1982)); see Yakley v. Astrue, No. 12-857, 2013 WL
1010671, at *4 (D.N.J. Mar. 13, 2013) (noting that the Third
Circuit has acknowledged the Seventh Circuit's
"knowingly and intelligently" test without
explicitly adopting it). However, there is no rigid protocol
an ALJ must follow when obtaining this waiver. McGrew v.
Colvin, No. 12-0144, 2013 WL 2948448, at * 5 (D.N.J.
Jun. 14, 2013) (citing Vivaritas, 264 Fed.App'x
at 158 n.l). Should the claimant proceed without counsel, the
ALJ has a heightened duty to assist the claimant in
developing the administrative record and "must
scrupulously and conscientiously probe into, inquire of, and
explore for all the relevant facts, " because a claimant
unrepresented by counsel is not "presumed to have made
his/her best case before the ALJ." Id. at
157-58 (quoting Reefer v. Bamhart, 326 F.3d 376, 380
(3d Cir. 2003)).
district court reviewing the denial of benefits where a
claimant proceeded pro se may remand the case if
there is "a showing of clear prejudice or unfairness at
the administrative hearing." Id. at 158 (citing
Dobrowolsky v. Califano, 606 F.2d 403, 407 (3d Cir.
1979)). If the ALJ fails to obtain a valid waiver of counsel
before proceeding, the burden shifts to the Government to
show that the ALJ nevertheless adequately developed the
record in the absence of counsel. Id. (quoting
Skinner v. Astrue, 478 F.3d 836, 842 (7th Cir.
reviewing the transcript of the hearing with the ALJ, I
conclude that Ms. Whetstone knowingly and intelligently
waived the right to have counsel at that
proceeding. On top of receiving two letters reminding
her of the right to counsel and a detailed form concerning
that right (R. 91, 95-96, 103-07), Ms. Whetstone was reminded
by the ALJ several times throughout the hearing that she
could have counsel present with her. (R. 36-39.) The ALJ told
her of the availability of programs which could provide her
free or low-cost representation (R. 36-37), the nature of the
fees should she attempt to retain counsel for this proceeding
(R. 37), and the obligation of the ALJ to develop the record
should she proceed pro se, (R. 37-38.) At the end of
this exchange, the ALJ asked Ms. Whetstone in no uncertain
terms if she wished to continue with the hearing and Ms.
Whetstone replied in the affirmative. (R. 38 (ALJ: So at this
point you have to make a decision. Would you like to go
forward today? [Ms. Whetstone]: I would like to go forward
facts of this case differ from those of both Yakely v,
Asture, No. No. 12-857, 2013 WL 1010671 (D.N.J. Mar. 13,
2013) and Vivaritas v. Comm'r of Soc. Sec, 264
Fed.App'x 155 (3d Cir. 2008). In Yakely, the
only notification to the claimant of his right to have
counsel was a letter sent to him and a barebones
four-question colloquy between the claimant and the ALJ,
where the ALJ simply asked the claimant if he understood the
letter that he received.
1010671, at *1 (remanding to the ALJ upon finding a lack of
knowing and intelligent waiver of the right to representation
and prejudice in the proceeding that resulted from the lack
of representation). In Vivaritas, the Third Circuit
focused on the open question of claimant's mental
limitations and impairment (which were at issue in deciding
her qualification for disability benefits) and chastised the
ALJ for not delving further into the issue of knowing and
intelligent waiver upon encountering evidence and testimony
of the claimant's mental limitations. 264 Fed.App'x
at 160. No such mental impairment has been alleged in this
case, nor does the record suggest that Ms. Whetstone had any
impairment that raised a potential issue as to her ability to
knowingly and intelligently consent to the
waiver. For the same reasons, Curry v.
Bamhart, No. No. 05-2350, 2006 WL 1192920, at *1 (E.D.
Pa. Jan. 25, 2006) (Report and Recommendation) is inapt here,
as the sixty-year-old claimant there had, at best, a seventh
grade education and could not read or write, allegations not
made in this case nor evidenced in the record.
Development of the record
Ms. Whetstone knowingly and intelligently waived her right to
representation, the burden lies with her to show that the ALJ
did not adequately develop the record under her heightened
duty to "scrupulously and conscientiously probe into,
inquire of, and explore all the relevant facts."
Vivaritas, 264 Fed.App'x at 157-58 (citing
Reefer, 326 F.3d at 380); cf. Shinseki v.
Sanders, 556 U.S. 396, 409 (2009) ("Consequently,
the burden of showing that an error is harmful normally falls
upon the party attacking agency's determination.");
Parker v. Berryhill, No. 16-271, 2017 WL 1022579
(W.D. Pa. Mar. 16, 2017) ("Thus, if [the claimant] did
not knowingly and voluntarily waive her right to
representation, then the ALJ bears the burden of
demonstrating that the record was adequately developed. [Her]
duty in this instance is heightened."); Sudlerv.
Berryhill, No. 15-729, 2017 WL 1197676, at *10 (D. Del.
Mar. 30, 2017) ("ALJs have a duty to develop a full and
fair record in social security cases. Accordingly, an ALJ
must secure relevant information regarding a claimant's
entitlement to social security benefits. This is so even
though the claimant bears the burden to prove his
disability." (citations omitted)).
Whetstone, in her brief, points to several places in the
record of the hearing where the ALJ failed to probe into
issues raised by Ms. Whetstone regarding the state of
U.W.'s condition. (PI. Br. 10-12.) For example, she
states that she raised U.W.'s semi-monthly behavioral
therapy sessions but that the ALJ did not request any updated
records. (R. at 11.) She also claims that the ALJ failed to
explain any of the six domains that would be used to
establish disability or what Ms. Whetstone had to prove under
each. (Id.) She argues that these actions fail to
live up to the "special duty owed to pro se
claimants." (Id.) The Government counters that
the ALJ adequately asked Ms. Whetstone about what evidence
should be admitted into the record (R. 6-7); that, in line
with the Commissioner's regulations, the ALJ considered a
fully developed record that included questioning about
U.W.'s medical diagnosis, his medical providers, his
treatment, his behavior and academic performance in school,
and his behavior at home (among other things) (R. 8); and
that, assuming there was any new evidence that was missing
from the proceeding, Ms. Whetstone had the opportunity to
present that evidence to the Appeals Council or to this
Court, as she has been represented by counsel since the
determination by the ALJ. (R. 7.)
this is a close case, it does involve the welfare of a child
who cannot speak for himself. I will find that Ms. Whetstone
has met her burden of establishing tiiat die ALJ failed to
fully develop the record and that this failure caused
prejudice to U.W. Shinseki, 556 U.S. at 409. The
hearing lasted less than twenty minutes (and a significant
amount of that time was occupied by the ALJ's careful
colloquy regarding waiver of an attorney). (R. 35, 60). At
several points, Ms. Whetstone provided new information or
evidence of U.W.'s disability, information that suggested
avenues of inquiry or the need for more evidence. First, Ms.
Whetstone pointed out that U.W. had been suspended for a day
and was threatened with other potential suspensions. (R. 45.)
The ALJ did not get into the specifics of the particular
incident that led to the suspension, only asking if it was
"behavioral" or "academic."
(Id.) The ALJ then mentioned that the records
regarding his academic performance were "a little bit
old, " but did not seek an update. (Id.) In
following up on U.W.'s academic development, The ALJ
simply asked "Is [his grade level] the same? He's
functioning, performing on the grade level?" and
"Like reading and writing and math?" and received
the responses "Yeah" and "Yes, mm-hmm."
(Id.) Similarly, while discussing U.W.'s
behavioral therapy treatment, the ALJ asked Ms. Whetstone
about the behaviors she witnessed from U.W. while on
medication. (R. 48.) Rather than get a specific description
of these behaviors, the ALJ accepted Ms. Whetstone's
minimal affirmative response that there was a difference, and
moved on. (Id.)
went further into U.W.'s behavior while at school, it was
mentioned that U.W. received his support in-classroom with an
accompanying teacher (as opposed to being pulled out and
placed in a separate classroom). (R. 52.) Ms. Whetstone
explained that this teacher "come[s] in and sit[s] with
[U.W.] during a certain period of time of the class."
[Id.) The ALJ did not seek a questionnaire or any
other form of evidence from this teacher, nor did she ask Ms.
Whetstone about any of this teacher's other observations.
In the accompanying decision, the ALJ relied on statements
made by Ms. Whetstone to doctors in their evaluations and
later assigned little weight to the main teacher's
testimony, reasoning that it was not supported by other
evidence, including Ms. Whetstone's testimony. (R. 20,
27.) While the statements of a special education teacher may
not be conclusive on the subject of whether U.W. has a
disability, the ALJ did conclude from the record that
"his teachers have noted improvement as well" and
"the claimant's mother's testimony and
allegations [to be] not fully credible, " despite Ms.
Whetstone suggesting that he was still having issues at
school and in the classroom (e.g., throwing things when
frustrated). (R. 27, 53.) Similarly, there was some confusion
over whether the school did not think it was necessary for
U.W. to have an Individualized Education Plan (IEP) or
whether that service was simply unavailable at the ...