United States District Court, W.D. Pennsylvania
Donetta W. Ambrose United States Senior District Judge
Jennifer Lynn Parker (“Parker”) brings this
action pursuant to 42 U.S.C. § 405(g) for review of the
ALJ's decision denying a claim for disability insurance
benefits (“DIB”) under Title II of the Social
Security Act, 42 U.S.C. § 1318-1383.Parker alleges a
disability beginning on September 13, 2012. (R. 30) She
contends that she suffers from both physical and mental
impairments which preclude her from engaging in substantial
gainful activity. Following a hearing, the ALJ denied
Parker's claim. Specifically, the ALJ concluded that
Parker retained the residual functional capacity to perform
certain types of medium range work. Parker then appealed,
raising multiple arguments. Pending are Cross Motions for
Summary Judgment. ECF docket no. 11 and ECF docket no. 13.
For the reasons set forth below, the case is remanded for
Standard of Review
standard of review in social security cases is whether
substantial evidence exists in the record to support the
Commissioner's decision. Allen v. Bowen, 881
F.2d 37, 39 (3d Cir. 1989). Substantial evidence has been
defined as “more than a mere scintilla. It means such
relevant evidence as a reasonable mind might accept as
adequate.” Ventura v. Shalala, 55 F.3d 900,
901 (3d Cir. 1995), quoting Richardson v.
Perales, 402 U.S. 389, 401 (1971). Additionally, the
Commissioner's findings of fact, if supported by
substantial evidence, are conclusive. 42 U.S.C. §
405(g); Dobrowolsky v. Califano, 606 F.2d 403, 406
(3d Cir. 1979). A district court cannot conduct a de
novo review of the Commissioner's decision or
re-weigh the evidence of record. Palmer v. Apfel,
995 F.Supp. 549, 552 (E.D. Pa. 1998). Where the ALJ's
findings of fact are supported by substantial evidence, a
court is bound by those findings, even if the court would
have decided the factual inquiry differently. Hartranft
v. Apfel, 181 F.3d 358, 360 (3d Cir. 1999). To determine
whether a finding is supported by substantial evidence,
however, the district court must review the record as a
whole. See, 5 U.S.C. § 706.
eligible for social security benefits, the plaintiff must
demonstrate that he cannot engage in substantial gainful
activity because of a medically determinable physical or
mental impairment which can be expected to result in death or
which has lasted or can be expected to last for a continuous
period of at least 12 months. 42 U.S.C. Â§423(d)(1)(A);
Brewster v. Heckler, 786 F.2d 581, 583 (3d Cir.
Commissioner has provided the ALJ with a five-step sequential
analysis to use when evaluating the disabled status of each
claimant. 20 C.F.R. '404.1520(a). The ALJ must determine:
(1) whether the claimant is currently engaged in substantial
gainful activity; (2) if not, whether the claimant has a
severe impairment; (3) if the claimant has a severe
impairment, whether it meets or equals the criteria listed in
20 C.F.R., pt. 404, subpt. P., appx. 1; (4) if the impairment
does not satisfy one of the impairment listings, whether the
claimant's impairments prevent him from performing his
past relevant work; and (5) if the claimant is incapable of
performing his past relevant work, whether he can perform any
other work which exists in the national economy, in light of
his age, education, work experience and residual functional
capacity. 20 C.F.R. '404.1520. The claimant carries the
initial burden of demonstrating by medical evidence that he
is unable to return to his previous employment (steps 1-4).
Dobrowolsky, 606 F.2d at 406. Once the claimant
meets this burden, the burden of proof shifts to the
Commissioner to show that the claimant can engage in
alternative substantial gainful activity (step 5).
district court, after reviewing the entire record may affirm,
modify, or reverse the decision with or without remand to the
Commissioner for rehearing. Podedworny v. Harris,
745 F.2d 210, 221 (3d Cir. 1984).
Waiver of Representation and Duty to Develop the
(who is now represented by counsel) argues that the ALJ
failed to properly advise her regarding her right to
representation at the administrative hearing. She also
contends that he failed to adequately develop the record. ECF
docket no. 12, pp. 6-11. As a result, Parker submits that
remand is required. After a review of the record, I agree.
is no constitutional right to counsel at a social security
hearing. Phifer v. Comm. Of Soc. Sec., 84 Fed.Appx.
189, 190 (3d Cir. 2003). During such a hearing, however, a
plaintiff does have a statutory right to representation,
which may be waived. Id., at p. 190; 42 U.S.C.
§406; 20 C.F.R. §§404.1700-07. According to
the Third Circuit:
The claimant must be given notice of the right to counsel and
can waive this right only by a knowing and intelligent
waiver. (footnote omitted) See, e.g., Smith v.
Schweiker, 677 F.2d 826, 828 (11th Cir.
1982). Moreover, where a claimant is pro se, the ALJ has a
duty to help the claimant develop the administrative record
and “must scrupulously and conscientiously probe into,
inquire of, and explore for all the relevant facts.”
Reefer v. Barnhart, 326 F.3d 376, 380 (3d Cir. 2003)
(internal quotations omitted). Although an ALJ may deny a pro
se claimant benefits, it is appropriate for a reviewing court
to remand a case if there is “a showing of clear
prejudice or unfairness at the administrative hearing.”
Dobrowolsky v. Califano, 606 F.2d 403, 407 (3d Cir.
1979); see also Livingston v. Califano, 614 F.2d
342, 345 (3d Cir. 1980) (“[I]f it is clear that the
lack of counsel prejudiced the claimant or that the
administrative proceeding was marked by unfairness due to the
lack of counsel, this is sufficient for remand, or
reversal.”). A determination of whether the claimant
waived the right to counsel knowingly and intelligently
determines who has the burden of demonstrating whether remand
is appropriate. As the Court of Appeals for the Seventh
Circuit has explained, “[i]f the ALJ does not obtain a
valid waiver of counsel, the burden is on the Commissioner to
show the ALJ adequately developed the record.”
Skinner v. Astrue, 478 F.3d 836, 842 (7th
Cir. 2007). “While a claimant represented by counsel is
presumed to have made his best case before the ALJ, no such
presumption attaches to an unrepresented claimant.”
Id. “Without the shifting of this burden, no
sanction would exist for an ALJ's inadequate explanation
of a claimant's rights.” Binion v.
Shalala, 13 F.3d 243, 245 (7th Cir. 1994).
Vivaritas v. Commissioner of Social Security, 264
Fed.Appx. 155, 157-58 (3d Cir. 2008). Thus, if Parker did not
knowingly and voluntarily waive her right to representation,
then the ALJ bears the burden of demonstrating that the
record was adequately developed. His duty in this instance is
[p]rejudice to pro se claimants can arise in circumstances
outside of those found in cases in which claimants are
represented by counsel. When a pro se claimant waives his or
her right to counsel, the ALJ presiding over the
claimant's hearing has a heightened duty to help develop
the record that goes beyond the base ‘duty to
investigate the facts and develop the arguments both for and
against granting benefits. Sims v. Apfel, 530 U.S.
103, 120, 120 S.Ct. 2080, 147 L.Ed.2d 80 (2000). The ALJ must
‘scrupulously and conscientiously probe into, inquire
of, and explore for all the relevant facts.' Reefer
v. Barnhart, 326 F.3d 376, 380 (3d Cir. 2003) (quoting
Key v. Heckler, 754 F.2d 1545, 1551) (9th
Cir. 1985)). The pro se claimant may be prejudiced by the
ALJ's failure to observe this heightened duty.
Dobrowolsky, 606 F.2d at 407. Thus, “if it is
clear that the lack of counsel prejudiced the claimant or
that the administrative proceeding was marked by unfairness
due to the lack of counsel, this is sufficient for remand, or
reversal.” Livingston, 614 F.3d at 345;
see also Kummer, 2013 WL 5467067 at * 3
(“The court may find a proceeding unfair where the ALJ
does not develop a complete record and the essential inquiry
is whether ‘the incomplete record reveals evidentiary
gaps which result in prejudice to the claimant.'”
(quoting Gauthnney v. Shalala, 890 F.Supp. 401, 410
(E.D. Pa. 1995))).
George v. Commissioner of Soc. Sec., Civ No.
13-5179, 2014 WL 3955071 at * 4 (D. N.Y. Aug. ...