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JOZEFICK v. SHALALA

April 20, 1994

PHYLLIS J. JOZEFICK, Plaintiffs,
v.
DONNA L. SHALALA, SECRETARY OF THE UNITED STATES DEPARTMENT OF HEALTH AND HUMAN SERVICES, Defendant.



The opinion of the court was delivered by: THOMAS I. VANASKIE

 "To arrive at a consensus on the priority to be afforded the matters entrusted to the jurisdiction of the federal courts might be difficult indeed, but few would dispute the premise that claims of those entitled to disability benefits from the Social Security Administration must rank high on the scale of human concern." Hess v. Secretary of Health, Education & Welfare, 497 F.2d 837, 838 (3rd Cir. 1974). Judicial review in such cases, although necessarily deferential to the agency's determination, must nonetheless be undertaken with a recognition that the "beneficent purposes" underlying the Social Security Act, id. at 840, are best served by insuring that the agency has developed a complete evidentiary record. See Dobrowolsky v. Califano, 606 F.2d 403, 406-07 (3rd Cir. 1979).

 When, as in this case, a claimant proceeds to a hearing before an Administrative Law Judge ("ALJ") without assistance of counsel, the ALJ has an obligation "'scrupulously and conscientiously [to] probe into, inquire of, and explore all relevant facts . . . .'" Smith v. Secretary of Health, Education and Welfare, 587 F.2d 857, 860 (7th Cir. 1978). Accord, Smith v. Harris, 644 F.2d 985, 989 (3rd Cir. 1981). Absence of counsel at the administrative hearing not only increases the responsibility of the ALJ, but also requires the court to undertake a searching review of the record to determine that the claimant has received a full and fair hearing. See Brittingham v. Weinberger, 408 F. Supp. 606, 611 (E.D.Pa. 1976).

 A careful review of the record in this case suggests significant evidentiary gaps that the ALJ failed to explore. Accordingly, since it cannot be said that plaintiff Phyllis J. Jozefick ("Jozefick") received a "full and fair" hearing, this matter will be remanded to the Secretary of the Department of Health and Human Services (the "Secretary") for further proceedings consistent with this opinion.

 I. BACKGROUND

 A.

 Jozefick filed her application for disability insurance benefits on April 9, 1991. (Record of Proceedings of the Social Security Administration ("R.") at 82-84.) Her claim presented the difficult challenge of determining whether her rheumatoid arthritis rendered her unable to engaged in gainful employment prior to the expiration of her insured status on January 1, 1982, almost ten years before she filed her first application for benefits. (R. 95-98.) *fn1" Jozefick's application was denied on May 21, 1991. (R. 85-87.)

 She sought reconsideration on the ground that "Dr. W. H. Dreibelbis was not contacted. He was my doctor when [I] was last insured for disability." (R. 88.) The request for reconsideration was denied on June 24, 1991. (R. 90-91.)

 Jozefick timely requested an administrative hearing before an ALJ, once again explaining that "the physician who treated me before the date I was last insured (12/31/81) was not contacted." (R. 92.) She once again provided the name of the physician who had attend to her arthritic condition prior to 1982, as well as the physician's address, and telephone number. (R. 92.)

 A hearing was conducted by the ALJ on November 20, 1991. Jozefick appeared pro se. Only she and her husband testified. Her testimony was marked by repeated interruptions by her husband. The ALJ permitted these interruptions apparently to develop a more complete record.

 B.

 The record indicates that plaintiff was born on February 10, 1952. (R. 82.) During the 1970's she had worked on a production line taping wires. (R. 47-48.) Her job required her to sit for extended periods of time and to handle small parts and tools. (R. 72.) She quit working in the spring of 1979 because of pain in her hands, back, neck and knees. (R. 48-49, 59, 61.) She explained that when she quit her job she was unable to lift pots or pans from a stove without dislocating the joints in her fingers. (R. 67, 71-72.) Whenever she worked her legs and feet became swollen. (R. 69.)

 Jozefick testified that her treating physician at that time was Dr. Dreibelbis. (R. 54.) *fn2" Initially, Dr. Dreibelbis prescribed "large amounts of aspirin, then . . . Motrin, and then . . . larger doses of Motrin . . . ." (R. 55.) She explained that she did not obtain relief from these medications but that Dr. Dreibelbis "wouldn't give me anything stronger because he said it would just keep getting worse." (R. 55.)

 C.

 When the ALJ undertook a colloquy to ascertain whether Mrs. Jozefick knowingly waived her right to counsel at the hearing, Mr. and Mrs. Jozefick discussed their inability to obtain medical records from Dr. Dreibelbis. (R. 32-35.) In continuing his colloquy on the waiver of counsel issue, the ALJ observed:

 
Now, I would say those records [of Dr. Dreibelbis] are quite important in your case. But all I can tell you is that I can have a request, after our hearing today I can send a request back to the disability office and I can have them ask, try again. Go after Mr., Dr. Dreibelbis and try to get records.
 
Of course if he has destroyed the records, I don't know, if he refuses then I can send a subpoena to him. We can do those things if necessary. [R. 38.]

 When the ALJ asked whether an attorney was believed to be necessary, Mr. Jozefick responded by inquiring, "if I . . . can't get [Dr. Dreibelbis' records] and she can't get them how would a lawyer get" them. (R. 40.) Mr. Jozefick later noted that "the only evidence I can get [from Dr. Dreibelbis] is that piece of paper there," apparently referring to a handwritten note, purportedly signed by Dr. Dreibelbis, which read:

 
To Whom It May Concern: This is to certify that [Phyliss Jozefick] was treated for rheumatoid arthritis in 1980. Also hypertension. Haven't seen her for about 10 years. [R. 189.]

 The ALJ again indicated that additional efforts to obtain Dr. Dreibelbis' records would be undertaken after the hearing. (R. 42, 43.) The ...


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