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McCarty v. Astrue

United States District Court, Third Circuit

September 24, 2013

JULIE A. McCARTY, Plaintiff,
MICHAEL J. ASTRUE, Commissioner of Social Security, Defendant.


CATHY BISSOON, District Judge.


For the reasons that follow, Plaintiff's Motion for Summary Judgment (Doc. 8) will be granted, and Defendant's Motion for Summary Judgment (Doc. 11) will be denied.

Julie A. McCarty ("Plaintiff") has filed this social security appeal pursuant to 42 U.S.C. § 405(g) for judicial review of the final decision of the Commissioner of Social Security ("Defendant") denying her application for disability insurance benefits ("DIB") under Title II of the Social Security Act, 42 U.S.C. §§ 401-433. Plaintiff argues that the administrative decision is not supported by substantial evidence in the record and, therefore, must be remanded. More specifically, Plaintiff argues that the Administrative Law Judge ("ALJ") did not hold a full and fair hearing and failed to properly evaluate Plaintiff's fibromyalgia, fatigue and insomnia at step-two of his five-step analysis. Defendant argues that the ALJ held a full and fair hearing and properly evaluated all of Plaintiff's ailments, including her fibromyalgia, fatigue and insomnia.

Having carefully reviewed the entire record, the undersigned concludes that the ALJ did not hold a full and fair hearing. Accordingly, this case will be remanded for further administrative proceedings consistent with the Court's Memorandum and Order.


Plaintiff applied for DIB on January 7, 2008. (R. at 24). In her application, Plaintiff claimed an initial onset date of December 31, 2006, and disability due to arthritis and chronic pain. (R. at 133). Plaintiff was found not disabled and her application initially denied on May 16, 2008, and upon reconsideration on February 6, 2009. (R. at 57, 59). Thereafter, Plaintiff filed a written request for hearing before an ALJ, which took place in Sanford, North Carolina on May 6, 2010. (R. at 37).

By decision dated August 26, 2010, the ALJ denied Plaintiff's claim for DIB, finding that she was not disabled from December 31, 2006, through August 26, 2010 (the date of the decision), as defined in the Social Security Act. (R. at 30). At the time of her hearing, Plaintiff, who appeared pro se , was a fifty-one year old woman who completed high school and three years of college. (ECF No. 8 at 3). Her past work experience included employment as a secretary and bookkeeper. (R. at 30). In 2006, Plaintiff began to see a series of doctors regarding complaints of severe joint pain due to arthritis, insomnia, dizziness and fibromyalgia. (ECF No. 8 at 3-6).

In his decision, the ALJ observed that Plaintiff had not engaged in substantial gainful activity since her alleged onset date, and under 20 C.F.R. §§ 404.1520(a)(4)(ii) and 404.1520(c) was suffering from severe impairments of morbid obesity, osteoarthritis, allied disorders and disorders of the back. (R. at 26, 27). The ALJ determined that Plaintiff's impairments did not meet or medically equal an impairment listed in 20 C.F.R. Pt. 404, Subpart P, Appendix 1 (the "Listing of Impairments"). Id . In accordance with 20 C.F.R. § 404.1545, the ALJ assessed Plaintiff's residual functional capacity as follows:

Claimant is able to lift, carry, push, or pull 20 pounds occasionally and 10 pounds frequently; stand or walk at least 2 hours in an 8-hour workday; and sit 6 hours in an 8-hour workday. The claimant can perform the following routine postural activities occasionally: climbing ramps/stairs, balancing, stooping, kneeling, crouching or crawling; however she should avoid climbing ropes/ladders/scaffolds. In addition, she can perform bilateral manual dexterity for both gross and fine manipulation, with reaching and handling. The claimant has no additional manipulative, visual, commutative or environmental limitations.


The ALJ went on to determine that Plaintiff is capable of performing her past relevant work as a secretary and bookkeeper.[1] (R. at 30).


Under the Social Security Act, a claimant has the right to a full and fair hearing. Richardson v. Perales , 402 U.S. 389, 401-402 (1971); 42 U.S.C § 405(b)(1). At an administrative hearing, the ALJ has a duty to develop a full and fair record, and must secure relevant information regarding the claimant's entitlement to social security benefits. Sims v. Apfel , 530 U.S. 103, 110-111 (2000). This duty is of particular importance, and requires the ALJ to proceed with "a heightened level of care", when the claimant appears pro se .[2] Reefer v. Barnhart , 326 F.3d 376, 380 (3d Cir.2003) (internal quotations omitted). Implicit within this "heightened level of care" is an affirmative obligation to assist the claimant in developing a complete administrative record through scrupulous and conscientious probing into, and inquiry of, all the relevant facts. Id.

While the Third Circuit does not prescribe any particular set of procedures that an ALJ must follow when a claimant appears pro se , a review of the record in this case makes clear that the procedures the ALJ did follow were insufficient. The ALJ failed to fulfill his obligation to Plaintiff when he did not question Plaintiff about her array of ailments and their impact on her daily life activities and ability to work. As a result, the ALJ failed to explore all relevant evidence in assessing Plaintiff's functional capacity, and Plaintiff did not receive a full and fair hearing.

Plaintiff's medical records indicate a history of treatment for, among other ailments, severe joint pain attributable to arthritis, insomnia, vertigo and fibromyalgia. In addition, during the hearing, Plaintiff testified that she has difficulty getting in and out of chairs, has severe swelling in her feet, knees, toes, ankles, hips, hands and neck. (R. at 45). Plaintiff also indicated that she has difficulty walking and has a history of severe joint pain, and suffers from hallucinations, vertigo and dizziness due to insomnia. (R. at 52). Despite this medical evidence and testimony, the ALJ did not pose a single question to explore Plaintiff's ailments and their impact on her daily life or ability to work. The Court notes that the ALJ did ask the general question: "[o]kay, in your opinion, what is the primary reason that you believe you're not capable of working?" (R. at 44). But with no follow-up questions to Plaintiff's general answers, this questioning cannot be described as a scrupulous and conscientious exploration for all the relevant facts.[3] While the ALJ must not serve as an advocate for a pro se claimant, the ALJ must "assume a more active role when the claimant is unrepresented." See Dobrowolsky v. Califano , 606 F.2d 403, 407 (3d Cir.1979); see also Lashley v. Sec'y of Health & Human Servs. , 708 F.2d 1048, 1052 (6th Cir.1983) (remanding case and criticizing ALJ when hearing was only 25 minutes long and claimant was "only superficially questioned concerning his daily activities and his physical limitations.")

Instead of developing the record, the ALJ spent nearly half of the hearing (which lasted only 30 minutes) berating and lecturing Plaintiff about her weight and offering commentary on her "lifestyle choices." The following are revealing excerpts from the transcript. The ALJ initially interrupts Plaintiff's description of her difficulty walking to question her about her height and weight, which was established to be approximately five feet five inches and 286 pounds. The following ensued:

ALJ: Well, I mean, you're an educated woman, you're coming in here telling me that you can't work because you got all these problems with your knees and your feet and your back and your fibromyalgia and everything else, and you know and I know, that your normal, your normal body weight - 65 inches tall, under ideal conditions, you should weigh 162 pounds.

CLMT: I know, I'm...

ALJ: And it's also an assumption that if you were 100 percent above your normal body weight, guess what, you're going to have problems with your back, you're going to have problems with your knees, you're going to have problems with your ankles, with your feet. You know what I mean?

(R. at 49).

ALJ: 286? So you can see that's like almost double your normal body weight. And with your education, you know how, how devastating that is. 286, getting damn near the end of the chart here. That gives you a BMI of 48. That's like I said, that's your choice. That's your choice. At one point, I would simply say that's a lifestyle choice. You got exactly what you wanted, God bless you.

(R. at 52).[4]

In this case, it is clear that the ALJ failed to fulfill his obligation to provide a full and fair hearing. The ALJ failed to assist pro se Plaintiff in developing a full record and failed to explore all relevant facts. Undoubtedly, an inquiry into all relevant factors to determine Plaintiff's entitlement to disability benefits would include more than superficial questioning of Plaintiff's ailments and functional capacities. The Court finds particularly troubling the ALJ's comments concerning Plaintiff's weight, which were coercive and intimidating, and resulted in nothing more than a lecture on lifestyle choices.


For all of the reasons stated above, Plaintiff's Motion for Summary Judgment is GRANTED insofar as it seeks a remand for further administrative proceedings, and Defendant's Motion for Summary Judgment is DENIED. This case is REMANDED for further proceedings before the Commissioner as outlined in the following Order.[5]


For the reasons stated above, the Court hereby ORDERS that Plaintiff's Motion for Summary Judgment (Doc. 8) is GRANTED; and Defendant's Motion for Summary Judgment (Doc. 11) is DENIED; and this case is REMANDED FORTHWITH for further administrative proceedings consistent with the Court's Memorandum and Order.


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