The opinion of the court was delivered by: TROUTMAN
This action is brought under Section 205(g) of the Social Security Act, 42 U.S.C. § 405(g), to review a final decision of the Secretary of Health, Education and Welfare. The final decision in this case is that of the Administrative Law Judge dated October 24, 1972. After considering the entire record, the Appeals Council denied plaintiff's request for review thereof on January 16, 1972. The final decision holds that the plaintiff is not entitled to benefits under Section 216(i) and Section 223, respectively, of the Social Security Act, as amended, 42 U.S.C. §§ 416(i) and 423.
Plaintiff's complaint was filed in this Court on March 13, 1973. On June 29, 1973, defendant gave plaintiff notice of his intention to file a motion for summary judgment on July 13, 1973. In response to such notice, the plaintiff, on July 13, 1973, filed a motion to remand the case to the Social Security Administration for further hearing.
Plaintiff's Motion to Remand
Plaintiff was not represented by counsel in connection with the various proceedings before the Social Security Administration, the Administrative Law Judge and the Appeals Council. He has been represented by counsel since the filing of the complaint on March 13, 1973. Lack of such representation was voluntary on plaintiff's part. On at least three occasions prior to hearing, he was advised of his right to such representation. On the "Request for Hearing" form signed by the plaintiff on August 30, 1972, space was provided for the "Signature or name of claimant's representative" (p. 13). In the notification of hearing form he was specifically advised "* * * you may be represented at the hearing by an attorney or other qualified person of your choice, if you desire assistance in presenting your case" (p. 12). At the hearing held on October 10, 1972, the Administrative Law Judge advised the plaintiff and the latter responded as follows (p. 16):
"Now, Mr. Hess, the notice of hearing which I sent to you contained information that you could be represented at this proceeding by an attorney or other representative. Since you're here without such representation, am I correct in understanding that you wish to proceed with the hearing without a lawyer or other representative?
The issues involved and the procedures to be followed were then explained in detail to the plaintiff (pp. 16, 17, 18 and 19). All exhibits were submitted to the plaintiff and full opportunity afforded to study the same (p. 17). The plaintiff testified at length (pp. 20-45). He was given additional opportunity to present anything not already in the record (pp. 44 and 45):
"Q. I told you that I'd let you tell me anything that you wanted to that I didn't cover by questions. Is there anything else that you'd like to tell me about?
A. Not that I can think of right off hand.
Q. Well, I'll let you sit back and relax, maybe you'll think of something later on. I'll give you another opportunity after I finish talking with Dr. Angell.
Following the testimony of the vocational expert and at the conclusion of the hearing, further opportunity was again afforded the plaintiff to supplement the record (p. 36). At no time, although repeatedly given an opportunity, did he indicate any interest in legal representation. Nor does the record show that he was the least inhibited in presenting all facts and information supportive of his claim.
Following the hearing and the decision of the Administrative Law Judge, he was advised of his right to request review by the Appeals Council and was again specifically advised, "You, or your representative, may file the request for review * * *" (p. 4). He retained no counsel or other representation. Only after denial of review by the Appeals Council on January 16, 1972, did he obtain counsel and file with this Court motion to remand.
Reference to plaintiff's motion to remand establishes that it contains no specifics but only the most general allegations or averments. It suggests:
(1) That "now that he (plaintiff) has counsel", remand is desired "to present such testimony as he has available" (p. 1 of motion),
(3) That had he been represented by counsel, plaintiff "would have offered testimony in ...