Hinrickson v. Callahan, 1997 DSD 38

Mark F. Marshall, Magistrate Judge

[¶1]  This matter is before the court on the defendant’s motion for summary judgment pursuant to Rule 56, Federal Rules of Civil Procedure. This cause was referred to the undersigned United States Magistrate Judge for review and a recommended disposition pursuant to 28 USC §636(b). At the court’s request a hearing on defendant’s motion was held on November 24, 1997. Jessie Hinrickson appeared by her counsel of record, Timothy Langley, while the defendant appeared by Assistant United States Attorney Bonnie P. Ulrich. The court has considered defendant’s motion and brief in support thereof, the plaintiff’s response, the arguments of counsel, the transcript of the entire record of the proceedings relating to this case, as well as the complete district court file. Based upon that review, the court makes the following report and recommendation.

I.

[¶2]  Brenda Reeves initially filed an application for SSI benefits on behalf of her minor daughter, Jessie Hinrickson, on October 31, 1986, alleging disability since Jessie’s birth . (TR. at 51). That application was denied, but the Social Security Administration reopened the case to examine its decision in light of Sullivan v. Zebley, 493 US 521 (1990). Thereafter the application was denied again (TR. at 87-94), and denied again upon reconsideration. (TR. at 96-104). After a hearing at which Ms. Reeves appeared as Jessie’s representative, (TR. at 49-78), the Administrative Law Judge concluded that Jessie did not meet the requirements of Social Security childhood disability. (TR. at 9-24). The Appeals Council declined to review the ALJ’s decision (TR. at 3-5), which made it the Commissioner’s final decision under the applicable rules and regulations. See 42 USC § 405(g); 20 CFR § 416.1481 (1996). Jessie, now the first time represented by a lawyer, appealed the Commissioner’s decision to this court. On appeal, Jessie challenges the adequacy of her notification to the right to be represented at the initial hearing, as well as the ultimate denial of benefits.

II.

[¶3]  At the time of the hearing before the ALJ, Jessie Hinrickson was twelve years old (TR . at 53), and enrolled in special education classes working at a third-grade level (TR. at 56). At that hearing, it was clear, according to the testimony of medical expert Dr. Timothy McManus, that Jessie suffered from a learning disability; that she had limitations in reading, writing, and spelling; that it takes Jessie three chronological years to attain what is one-year’s worth of educational progress for an average child; and that she may achieve functional literacy only by the end of her high school years (TR. at 74).

[¶4]  Following the San Diego hearing, Jessie and her mother moved to Sioux Falls, South Dakota. In Sioux Falls, Jessie was evaluated by various educational and medical professionals. The results of those evaluations are within the record before this court.

[¶5]  Karla Miller, education program specialist at the Children’s Care Hospital and School Outreach, prepared an evaluation dated March 22, 1996 (TR. at 13-18). Ms. Miller concluded that Jessie suffered from a “severe learning disability in the areas of reading and math computation” (TR. at 13).

[¶6]  Dr. Bruce S. Fogas, Ph.D., also evaluated Jessie. Dr. Fogas observed that Jessie’s functional limitations “places her academic achievement in the well below average range and at the second percentile when compared to others her age” (TR. at 373). Additionally, Dr. Fogas noted that Jessie “suffers from a reading disorder and possible attention deficit hyperactivity disorder and exhibits impulsivity in her behavior” (TR. at 374).

[¶7]  Other health care professionals, including audiologist Julie Raysby, M.A., speech pathologist Brittney Schmidt, M.A., and Dr. Raymond Turvo, a professor of developmental pediatrics, noted substantial concerns about Jessie’s developmental progress (TR. at 361-70; 355-60).

[¶8]  The full extent of Jessie’s disability was not developed before the ALJ. From my review of the record, it appears that the inability to develop the full extent of Jessie’s disability was the direct result of a failure to provide Jessie with adequate notification of her right to counsel.

III.

A. Standard of Review

[¶9]  The standard of review in Social Security cases is well known:

We will uphold the Secretary’s final decision if it is supported by substantial evidence on the record as a whole. Substantial evidence is that which a reasonable mind might accept as adequate to support the Secretary’s conclusion. In assessing the substantiality of the evidence, we must consider evidence that detracts from the Secretary’s decision as well as evidence that supports it. We may not, however, reverse the Secretary’s decision merely because substantial evidence would also have supported an opposite decision.

Frankl v. Shalala, 47 F3d 935, 937 (8th Cir. 1995) quoting Smith v. Shalala, 987 F2d 1371, 1373-74 (8th Cir. 1993) (internal quotations and citations omitted).

[¶10]  However, as the Eighth Circuit Court of Appeals has noted:

It is not sufficient for the district court to simply say there exists substantial evidence supporting the Secretary and therefore the Secretary must be sustained. The substantial evidence test employed in reviewing administrative findings is more than a mere search of the record for evidence supporting the Secretary’s findings. Parsons v. Heckler, 739 F2d 1334, 1339 (8th Cir.1984). While such a broad-based search is appropriate where a reviewing court considers the sufficiency of evidence to support a jury’s verdict, see, e.g., DeWitt v. Brown, 669 F2d 516, 523 (8th Cir.1982) (“a jury verdict will be sustained so long as there is ’substantial evidence’ or ‘a reasonable basis in fact’ for the jury’s conclusion”) quoting Gisriel v. Uniroyal, Inc., 517 F2d 699, 701 n. 6 (8th Cir.1975), it is not to be employed on review of an administrative decision.

There is a notable difference between “substantial evidence” and “substantial evidence on the record as a whole.” See Jackson v. Hartford Accident and Indemnity Co., 422 F2d 1272, 1277 (8th Cir.) (Lay, J., concurring), cert. denied, 400 US 855, 91 SCt 86, 27 LEd 2d 92 (1970). “Substantial evidence” is merely such “relevant evidence that a reasonable mind might accept as adequate to support a conclusion.” Consolidated Edison Co. v. National Labor Relations Bd., 305 US 197, 229, 59 SCt 206, 217, 83 LEd 126 (1938); Smith v. Schweiker, 728 F2d 1158, 1162 (8th Cir.1984). “Substantial evidence on the record as a whole,” however, requires a more scrutinizing analysis. Smith v. Heckler, 735 F2d 312, 315 (8th Cir.1984). In the review of an administrative decision, “[t]he substantiality of evidence must take into account whatever in the record fairly detracts from its weight.” Universal Camera Corp. v. National Labor Relations Bd., 340 US 474, 488, 71 SCt 456, 464, 95 LEd 456 (1951). Thus, the court must also take into consideration the weight of the evidence in the record and apply a balancing test to evidence which is contradictory. See Steadman v. Securities and Exchange Commission, 450 US 91, 99, 101 SCt 999, 1006, 67 LEd 2d 69 (1981). It follows that the only way a reviewing court can determine if the entire record was taken into consideration is for the district court to evaluate in detail the evidence it used in making its decision and how any contradictory evidence balances out.

Gavin v. Heckler, 811 F2d 1195, 1199 (8th Cir. 1987). Nonetheless, a reviewing court should not re-weigh the evidence presented to the administrative law judge. Loving v. Department of Health and Human Services, 16 F3d 967, 969 (8th Cir. 1994). After all, “it is the statutory duty of the ALJ, in the first instance, to assess the credibility of the claimant and other witnesses.” Bates v. Chater, 54 F3d 529, 532 (8th Cir. 1995).

B. Notification of Right to be Represented by a Lawyer.

[¶11]  At no time has a guardian ad litem been appointed to represent Jessie’s interests in this matter. South Dakota law provides that “(a) minor may enforce his rights by civil action ... in the same manner as a person of full age, except that a guardian must be appointed to conduct the same.” SDCL 26-1-3. Another section of South Dakota law provides that when an infant does not have a guardian to sue on his behalf, “he may sue by a guardian ad litem. The court shall appoint a guardian ad litem for an infant ... not otherwise represented in an action or shall make such other order as it deems proper for the protection of the infant ... and may make such appointment notwithstanding an appearance by a general guardian.” (Emphasis supplied.) SDCL 15-6-17(c) (1967). The provisions of this section are substantially identical to the provisions of Rule 17(c), Federal Rules of Civil Procedure.

[¶12]  Appointment of a guardian ad litem is considered to be discretionary under the Federal Rules, provided the District Court enters a finding that the interests of the minor are adequately protected in the event it does not make such appointment. See Noe v. True, 507 F2d 9, 11-12 (6th Cir. 1974); Jacobs v. Board of School Comm'rs, 490 F2d 601, 603-04 (7th Cir. 1973), vacated as moot, 420 US 128, 95 SCt 848, 43 LEd 2d 74 (1975); Roberts v. Ohio Casualty Ins. Co., 256 F2d 35, 39 (5th Cir. 1958). Regardless of whether state or federal law should be applied,1. To the extent that the first quoted section of South Dakota law, SDCL 26-1-3 (1976), is nondiscretionary, and therefore more demanding than Fed.R.Civ.P. 17(c), a problem could develop in terms of which rule should be applied. It has been held that such state rules are procedural rather than substantive and hence need not be applied in federal courts. See Travelers Indemnity Co. v. Bengtson, 231 F2d 263, 265-66 (5th Cir. 1956). See also Slade v. Louisiana Power & Light Co., 418 F2d 125, 126 (5th Cir. 1969), cert. denied, 397 US 1007, 90 SCt 1233, 25 LEd 2d 419 (1970); Roberts v. Ohio Casualty Ins. Co., 256 F2d 35, 38-39 (5th Cir. 1958); Smith v. Langford, 255 So. 294, 296 (Fla.App.1971); 3A J. Moore, Federal Practice ¶ 17.26 (2d ed. 1974); 6 C. Wright & A. Miller, Federal Practice and Procedure § 1571, at 782-83 (1971). {fn1} a district court may consider the appointment of a guardian ad litem for the minor plaintiff and clearly has the power to appoint one on her behalf. While it appears that it would have been prudent to appoint a guardian ad litem earlier in this action, that need is no longer present as Jessie now appears with the benefit of legal counsel, and it appears that her interests are now adequately protected..

[¶13]  Jessie first challenges the Secretary’s denial of benefits on the ground that her pro se status resulted in an unfair hearing. Jessie contends that her mother did not knowingly and intelligently waive counsel at the administrative hearing and that the erroneous waiver actually prejudiced her claim for benefits. The government responds that the waiver was legally sufficient, the hearing was fair, and that the ALJ fully developed the record on Jessie’s behalf prior to rendering her decision.

[¶14]  Claimants have a right to counsel at disability hearings. This right is based upon the Social Security Act, as well as the regulations implementing that action and settled law in the Eighth Circuit. See 42 USC § 406; 20 CFR S 404.1706, 416.1506; Wingert v. Bowen, 894 F2d 296, 298 (8th Cir. 1990). The right to counsel in disability cases “falls well below the Sixth Amendment threshold” found in criminal cases. Evangelista v. Secretary of Health & Human Serv., 826 F2d 136, 142 (1St Cir.1987). Claimants nonetheless must be properly notified of this right, but may waive it if provided with sufficient information to decide intelligently whether to retain counsel or proceed pro se. Evangelista, 826 F2d at 142; see also Edwards v. Secretary of Health & Human Serv., 937 F2d 580, 585-86 (11th Cir.1991); Wingert v. Bowen, 894 F2d 296, 298 (8th Cir.1990); Holland v. Secretary of Health & Human Serv., 764 F2d 1560, 1562-63 (11th Cir.1985).

[¶15]  Although an administrative law judge is always under a duty to develop the record so that all of a claimant’s impairments and her resulting functional limitations fully appear, the ALJ is under a heightened duty and carries an “added burden” to do so when a claimant appears without counsel. Payton v. Shalala, 25 F3d 684, 686 (8th Cir. 1994); Nesselrotte v. Sullivan, 939 F2d 596, 598 (8th Cir. 1991); Wingert, 894 F2d at 298. The test for determining whether the notification of right to counsel is whether it contained sufficient information “to facilitate [a] knowing and intelligent waiver of representation at the ... hearing.” Frank v. Chater, 924 FSupp 416, 427 (E.D.N.Y. 1996).

[¶16]  The information necessary to facilitate a knowing and intelligent waiver of presentation includes:

(1)  a description of the benefits to be derived from representation by competent counsel;

(2)  the identity of legal service organizations that will represent qualifying claimants without charge;

(3)  the fact that attorneys will sometimes agree to represent claimants on a contingency fee basis; and

(4)  the existence of a statutory ceiling of twenty-five percent on attorney’s fee payments that may be paid from an award of past benefits and a requirement that such fees be subject to court approval.

See, e.g., Edwards, 937 F2d at 585-86; Thompson v. Secretary of Health & Human Serv., 933 F2d 581, 584-85 (7th Cir. 1991); Smith v. Secretary of Health & Human Serv., 677 F2d 826, 829 (11th Cir. 1982).

[¶17]  The notification in this case falls far short of providing sufficient information on which to base a knowing and intelligent waiver of the right to be represented by a lawyer. The written notification of a right to representation merely provides:

You May Choose to Have a Person Represent You

If you want to have a representative, please get one right away. You should show this notice to anyone you may appoint. You or that person should also call this office to give us his or her name, address, and telephone number.

(TR. at 45).

[¶18]  Moreover, the oral notification of Jessie’s right to a representative at the hearing itself was equally unenlightening:

ALJ: And, I think you know that you have a right to have a representative. It’s not necessary, but you have a right to a representative. So, my first question is do you understand you have a the right to a representative?

WIT: [Ms. Reeves] Yes.

ALJ: Okay. My second question is do you want to go forward with the hearing today without a representative or are you going to act as [Plaintiff’s] representative?

WIT: [Ms. Reeves] I'll act as her representative.

ALJ: Okay.

(TR. at 51).

[¶19]  Not only does the notification fall far short of that required by the case law, but it was also directed towards Jessie’s mother, not towards Jessie herself. Thus, there is simply no showing whatsoever that the claimant, Jessie Hinrickson, ever knew of her right to be represented by law trained counsel. Moreover, even if Jessie knew of her right to be represented by counsel, there is absolutely no showing that Jessie knowingly and intelligently waived that right. Finally, assuming only for the sake of argument that Ms. Reeves was empowered to do decide whether Jessie should waive her right to counsel, there is also no showing whatsoever that she made a knowing and intelligent wavier of Jessie’s right to be represented by counsel at the hearing either.

[¶20]  However, a finding that the plaintiff was denied her right to counsel because of an insufficient waiver or other deficiencies related to the knowing and intelligent nature of the waiver does not automatically require that the case be remanded to the Secretary. Rather, claimants must show that they were prejudiced by their lack of representation. See Evangelista, 826 F2d at 142; see also Edwards, 937 F2d at 586; Kane v. Secretary of Health & Human Serv., 731 F2d 1216, 1220 (5th Cir.1984). When determining whether a claimant has been prejudiced by her pro se status, the court recognizes that social security proceedings are not adversarial in nature, Heggerty v. Secretary of Health & Human Servs., 947 F2d 990, 997 (1st Cir.1991) citing Currier v. Secretary of Health, Education & Welfare, 612 F2d 594, 598 (1st Cir.1980), and it is the Secretary’s duty to “develop an adequate record from which a reasonable conclusion can be drawn.” Id. quoting Carrillo Marin v. Secretary of Health & Human Servs., 758 F2d 14, 17 (1st Cir.1985) (per curiam ). This “basic obligation to develop a full and fair record rises to a special duty when an unrepresented claimant unfamiliar with hearing procedures appeals before him.” Lashley v. Secretary of Health & Human Servs., 708 F2d 1048, 1051 (6th Cir.1983) (quotation marks and citations omitted). In light of the heightened obligation owed to pro se claimants, the failure to fully develop the record with respect to impairments or other considerations apparent from the evidence supports a finding of prejudice.

[¶21]  It is manifest from the record that Jessie was prejudiced by not being represented by a lawyer at the hearing before the ALJ. However devoted a mother she may be, Ms. Reeves is not trained in the art of cross-examination and did not effectively cross-examine the medical expert witness called by the ALJ. Moreover, although Ms. Reeves requested that the ALJ subpoena witnesses Sue Glaser, Dr. Kelly, and Mrs. Mendibles to attend the hearing (TR. at 129), no such witness were present at the hearing. (TR. at 49-78). Finally, although the ALJ advised that he would try to obtain school records (TR. at 70-1), for the claimant, the record reflects that he was unable to do so. While a lawyer may not have been any more successful in obtaining information for Jessie, I have no doubt that a lawyer’s effort would have proven more zealous, and based on the information marshaled after counsel was retained on Jessie’s behalf, I have little doubt that the result of the hearing would have been different had Jessie enjoyed the benefit of law trained counsel.

IV.

[¶22]  Based upon the foregoing discussion, it is my report and recommendation that this matter be remanded to the Secretary so that Jessie, with the benefit of law trained counsel, may develop a full complete record showing the nature and extent of the disability from which she suffers. Because the need for such a remand was the product of the ALJ’s failure to provide sufficient information to the claimant concerning the benefits of employing a law trained representative, it is my report and recommendation that upon a proper showing Jessie be awarded her reasonable attorney fees and costs pursuant to the Equal Access to Justice Act.

NOTICE TO PARTIES

[¶23]  Any objections to this Report and Recommendation must be filed and served within ten days of service of this notice on you. 28 USC 636(b)(1)(C); Fed.R.Civ.P. 72(b). Failure to timely file objections may constitute a waiver of any further right of appeal.