he had improved, full function had not returned to his hand and Dr. Bennett felt that this injury had permanent "disability effect." The physician concluded that plaintiff would need to be re-trained in order to work. (R. 96-97).
B. Plaintiff's Testimony 1/6/93
Plaintiff, who had no representation at the administrative hearing, testified that he blew off the tips of his fingers from a firecracker accident while on vacation in Haiti in 1991. (R. 31, 34-35, 39). He was previously employed as a painter and carpenter, but the injury reduced him to performing odd jobs, such as cleaning basements and shampooing floors. (R. 33-34). He was divorced, lived with his sister, and had no steady income. (R. 32).
As a result of his injury to the right hand, plaintiff did not have the dexterity to handle the tools of his trade and hindered his ability to perform odd jobs. The hand swelled and ached. (R. 35). The plaintiff testified that the muscles and tendons in his right hand were fused and doctors felt that attempts to "loosen the tendons" would be futile. (R. 39). However, as of his last visit to a physician in August or September of 1992, he did not need medication, and the extent of his treatment was physical therapy, which could be done at home. (R. 37).
As to his physical capabilities, plaintiff could maintain his daily hygiene, visit family and friends, and solicit work. He read and watched television. Dressing was difficult because he could not fasten a button with his right hand. However, Plaintiff still used his right hand to grab and grasp objects. Finally, plaintiff maintained that he was mentally active. (R. 38-39).
C. Interrogatories of the Vocational Expert, Gerald L. Oginbene
The interrogatories of the vocational expert, who did not testify at the administrative hearing, were admitted to the record and described plaintiff's past relevant work as a painter and carpenter as skilled, medium range work. (R. 113). The plaintiff possessed the ability to read building diagrams and blueprints, erect a structure according to specifications, estimate the necessary quantity and type of building materials, communicate with the public, and use tools of the trade. (R. 113). However, the expert noted that plaintiff's right hand ailment limited his marketability as a carpenter/painter. (R. 113).
The vocational expert believed that plaintiff, despite a right hand impairment which hindered his dexterity and abilities to reach, feel, handle, push and pull, had the residual functional capacity to perform a limited range of light work, such as a salesperson, parts inspector, and building inspector. These vocations would utilize plaintiff's skills and prior work experience. (R. 115-16). Salesperson positions, such as a counter clerk in a paint, hardware, and plumbing supply store, offered 2,600,000 jobs in the national economy. There were 668,000 inspector positions which were applicable to any industry (e.g. industrial, equipment, electronics, and transportation), and entailed monitoring machine parts, verifying dimensions of materials, and comparing the products with the inventory list. Finally, there were 60,000 building inspector jobs that existed in the national economy. In his expert opinion, Gerald Oginbene believed plaintiff's ability to perform these tasks would not be affected by his hand limitations. (R. 117).
D. ALJ's Findings
The Administrative Law Judge found, from the evidence, that plaintiff had a comminuted fracture of the first phalanx of the thumb, loss of the third phalanx of the index finger, and partial loss of the third and fourth fingers. There was also evidence of marked disuse osteopenia of the hand and wrist. As a result, plaintiff had not been gainfully employed since June 5, 1991. (R. 19-20). Although he was deemed unfit to perform his past relevant work, the ALJ determined that plaintiff had the residual functional capacity to perform a limited range of light work.
(R. 22). As a result, the ALJ found that plaintiff's impairments, although considered severe, did not meet the standards for disability and, accordingly, denied plaintiff any benefits. (R. 22-23).
E. Review and Analysis
The record demonstrates, without dispute, that plaintiff suffered from a comminuted fracture of the first phalanx of the thumb, loss of the third phalanx of the index finger, and partial loss of the third and fourth fingers. The issue before this Court is whether the Secretary has met her burden of proving that plaintiff was capable of performing a limited range of light work despite his infirmities. After a careful review of the entire record, the Court concludes that the record, as compiled by the ALJ, cannot support the finding that the plaintiff retained the residual functional capacity to perform a limited range of light work. The record was inadequate for two reasons. First, the ALJ did not give plaintiff the required notice that he was entitled to a supplemental hearing to cross-examine the vocational expert on his answers to the post-hearing interrogatories. Second, the ALJ failed to adequately develop the record in light of plaintiff's lack of legal representation. Accordingly, the Court recommends that plaintiff's motion for summary judgment be granted and the matter be remanded to the Secretary.
1. Plaintiff Was Not Properly Advised Of His Right To A Supplemental Hearing To Challenge Post-Hearing Evidence
The Secretary is mandated by statute to determine disability "on the basis of evidence adduced at the hearing." 42 U.S.C. § 405(b)(1). The administrative hearing is subject to considerations of due process. Richardson v. Perales, 402 U.S. 389, 401-02, 28 L. Ed. 2d 842, 91 S. Ct. 1420 (1971). Reliance by the ALJ on a post-hearing report constitutes a violation of due process when the claimant is unable to cross-examine the author of that report. Wallace v. Bowen, 869 F.2d 187, 193 (3d Cir. 1988); Johnson v. Bowen, 699 F. Supp. 475, 480-81 (E.D.Pa. 1988) (McGlynn, J.). In Wallace, the Third Circuit held that:
when an administrative law judge chooses to go outside the testimony adduced at the hearing in making a determination on a social security claim, the ALJ must afford the claimant not only the opportunity to comment and present evidence but also an opportunity to cross-examine the authors of any post-hearing reports when such cross-examination is necessary to the full presentation of the case, and must reopen the hearing for that purpose if requested.
Wallace v. Bowen, supra at 193. As a result, the form letter from the ALJ to plaintiff, advising him of the additional evidence to be considered, must "give notice that the claimant may request a supplementary hearing at which the claimant may cross-examine the authors of any post-hearing reports submitted by the Secretary." Id.
Here, the March 4, 1993 correspondence from the ALJ failed to advise the plaintiff of his right to a supplemental hearing at which he could cross-examine the vocational expert as to his post-hearing interrogatories. (R. 103). Although the ALJ informed the plaintiff of the right to a supplemental proceeding, to be awarded at his discretion, the ALJ merely noted that the purpose was "for a full and true disclosure of the facts." (R. 103). Further, the notice stated plaintiff was only permitted to provide written comments on the post-hearing evidence, provide a brief with pertinent law and facts, or submit additional evidence not previously provided.
(R. 103). Finally, there was no language in the notice letter which advised the plaintiff that he had the right to subpoena the vocational expert to another hearing.
See Wallace v. Bowen, supra at 193. Plaintiff, who was unable to obtain legal representation for the administrative hearing, could not have known from the ALJ's letter that he possessed the right subpoena and cross-examine witnesses. Having failed to advise plaintiff of this right, it would be fundamentally unfair to accept the Secretary's contention that plaintiff waived it. "Waiver of the right to subpoena and cross-examine witnesses concerning post-hearing evidence must be 'clearly expressed or strongly implied from the circumstances.'" Id. (quoting Lonzollo v. Weinberger, 534 F.2d 712, 714 (7th Cir. 1976)). In view of the inadequate notice to the plaintiff of the option to subpoena the vocational expert and his lack of counsel, plaintiff did not have the kind of reasonable notice that could serve as the predicate for a valid waiver. In fact, the Secretary, in Wallace, acknowledged that it would be unfair to find a waiver if a claimant were unrepresented. Wallace v. Bowen, supra at 193. Therefore, without a full and complete explanation of the rights and privileges to which he was entitled, the court cannot find plaintiff's waiver of the right to cross-examination.
Finally, the vocational expert's report, which contained an evaluation of plaintiff's residual functional capacity, was essential to the ALJ's determination. Where the claimant only suffers from an exertional impairment, the Secretary's burden can be met by applying the Medical-Vocational Guidelines under 20 C.F.R. Part 404, Subpart P, Appendix 2. However, where nonexertional limitations must be considered, such as the lack of motor capacity and dexterity, or the presence of pain, the grids may not be applied mechanically by the Secretary and other supporting evidence must be admitted into the record. Green v. Schweiker, 749 F.2d 1066, 1071-72 (3d Cir. 1984). A vocational expert is necessary when plaintiff's nonexertional impairments must be evaluated, either alone or in connection with any exertional ailments. Santise v. Schweiker, 676 F.2d 925, 934-35 (3d Cir. 1982) (citing 20 C.F.R. Part 404, Subpart P, Appendix 2, Section 200.00(e)).
Here, although the ALJ concluded that plaintiff had no nonexertional limitations (R. 22-23, No. 4), plaintiff suffered from a lack of dexterity and limited ability to reach and handle objects in his right hand. Further, plaintiff had severe manipulative restrictions. (R. 96-102). These limitations are clearly categorized as nonexertional, pursuant to 20 C.F.R. § 416.969a(c)(vi).
Therefore, the ALJ could not rely on the "grids" of the Medical-Vocational Guidelines and had to supplement the record through the testimony and reports of the vocational expert. However, there was no vocational expert at the administrative hearing and plaintiff was not informed of his right to confront this expert. Yet the ALJ relied on the post-hearing interrogatories of the vocational expert to determine that plaintiff had the residual functional capacity to perform a limited range of light work and thus, deny supplemental security income benefits. Accordingly, the judgment of the Secretary must be vacated and the matter remanded to the Secretary for a supplemental hearing to allow the plaintiff his right to cross-examine the vocational expert.
2. The ALJ Failed To Adequately Develop The Record In Light of Plaintiff's Lack Of Legal Representation
"There is no constitutional right to counsel in a social security disability hearing." Jozefick v. Shalala, 854 F. Supp. 342, 347 (M.D.Pa. 1994) (citing Holland v. Heckler, 764 F.2d 1560, 1562 (11th Cir. 1985) (per curiam)). However, the claimant does have a statutory and regulatory right to have counsel at such a hearing. 42 U.S.C. § 406; 20 C.F.R. §§ 404.1700-404.1707. The claimant's lack of legal representation, when knowingly and voluntarily waived, is not, of itself, cause for remand. Livingston v. Califano, 614 F.2d 342, 345 (3d Cir. 1980); Dobrowolsky v. Califano, 606 F.2d 403, 407 (3d Cir. 1979). In either case, "the ALJ must take a 'heightened level of care' and 'assume a more active role' in the development of the record." Jozefick v. Shalala, supra at 347 (quoting Smith v. Harris, 644 F.2d 985, 989 (3d Cir. 1981)). "If it is clear that the lack of counsel prejudiced the claimant or that the administrative proceeding was marked by unfairness due to lack of counsel, this is sufficient for remand. . . ." Livingston v. Califano, supra at 345.
A court can find a proceeding unfair where the ALJ does not develop a complete record. Id. The essential inquiry is whether the incomplete record reveals evidentiary gaps which result in prejudice to the claimant. Jozefick v. Califano, supra at 348. If the ALJ failed to fill these evidentiary gaps, "good cause" for remand is established. Saldana v. Weinberger, 421 F. Supp. 1127, 1131 (E.D.Pa. 1976) (Higginbotham, J.).
Here, the ALJ provided the plaintiff with sufficient notice of his right to secure an attorney in the Notice of Hearing form and in an October 28, 1992 correspondence. (R. 27-28). In the October letter, ALJ Samuel Dantoni advised the plaintiff of the benefits of securing counsel for the administrative hearing and the need to obtain a lawyer as soon as possible. (R. 28). Further, the ALJ provided a list of organizations which could aid plaintiff in locating a lawyer and mentioned that some private attorneys may take his case without a fee unless the claim is allowed. (R. 28). Finally, at the administrative proceeding, plaintiff mentioned that he could not secure an attorney and had no choice but to represent himself. (R. 31). Therefore, given plaintiff's high school education and the absence of an intellectual or emotional ailment, the ALJ could accept the plaintiff's decision to represent himself as an effective waiver of the his right to counsel.
However, the ALJ failed to comply with his heightened duty to develop the record in the absence of legal guidance for the plaintiff. The ALJ failed to elicit testimony as to plaintiff's capabilities, such as lifting, reaching, handling, pushing and pulling. There were no questions to the amount of sitting, standing, and walking that plaintiff could perform. Plaintiff was not asked how much weight he could lift, specifically with the impaired hand. Although plaintiff testified that he had trouble grasping things, additional inquiry should have been done into the details of plaintiff's functional limitations. (R. 40). Plaintiff made references to the deformity of his fingers and stated that there was a "hole there so you can see the muscles." (R. 39). After this vague testimony, the ALJ never probed further into the condition of the hand, it's flexibility, and if there was pain and swelling after minimal movement. Finally, the ALJ gave little or no regard to the conclusion by Dr. Bennett that the plaintiff's hand deformity had "permanent disability effect." (R. 96-97).
The most telling omission from the record was that the plaintiff did not have an opportunity to subpoena and cross-examine the vocational expert. As discussed previously, the notice letter pertaining to the post-hearing interrogatories by the vocational expert failed to include any information concerning the plaintiff's right to confront the author of this post-hearing report. This fundamental denial hindered the plaintiff from questioning the vocational expert as to which of his skills were transferable and whether the hypothetical situations used by the ALJ were accurate in terms of plaintiff's exertional and nonexertional limitations. (R. 111-17).
It is not necessary for the court "to determine whether the presence of counsel would necessarily have resulted in any specific benefits in the handling of the case before the ALJ." Jozefick v. Shalala, supra at 349 (quoting Clark v. Schweiker, 652 F.2d 399, 404 (5th Cir. 1981). However, in the Livingston and Dobrowolsky cases, supra, the Third Circuit held that the ALJ must take a more heightened and active role when the claimant is unrepresented, 606 F.2d at 407; 614 F.2d at 345. In sum, the ALJ's failure to fulfill his "heightened duty" to clarify the evidentiary gaps in the record, and notify plaintiff of his right to cross-examine the expert at a supplemental hearing, warrants a remand to the Secretary for further administrative proceedings to clarify the record.
For the foregoing reasons, the Court respectfully recommends that the decision of the Secretary be reversed and this case remanded to the Secretary: (1) to provide the plaintiff with a supplemental proceeding in order to cross-examine the vocational expert as to the conclusions in his post-hearing interrogatories and (2) to have the ALJ fill in the gaps of the record in accordance with the heightened duty of care required when a claimant is not represented by counsel.
Accordingly, I make the following:
AND NOW, this 15th day of November, 1994, it is respectfully RECOMMENDED that the plaintiff's Motion for Summary Judgment be GRANTED and the Secretary's decision be REVERSED and the case REMANDED
to the Secretary of Health and Human Services. It is further recommended that defendant's Motion for Summary Judgment be DENIED.
BY THE COURT:
THOMAS J. RUETER
United States Magistrate Judge