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Parker v. Berryhill

United States District Court, W.D. Pennsylvania

March 16, 2017

JENNIFER LYNN PARKER, Plaintiff,
v.
NANCY A. BERRYHILL, [1]ACTING COMMISSIONER OF SOCIAL SECURITY Defendant.

          OPINION

          Donetta W. Ambrose United States Senior District Judge

         Plaintiff 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 further consideration.

         A. Standard of Review

          The 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.

         To be 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. §423(d)(1)(A); Brewster v. Heckler, 786 F.2d 581, 583 (3d Cir. 1986).

         The 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). Id.

         A 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).

         B. Waiver of Representation and Duty to Develop the Record

         Parker (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.

         There 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).[2] 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 heightened:

[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. ...


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