Opinion
No. 00-0004-RV-S
February 6, 2001
RECOMMENDATION OF MAGISTRATE JUDGE
This appeal is brought by Plaintiff, Cerie M. Blanks, on behalf of her grandson, Robert J. Blanks, pursuant to 42 U.S.C. § 405(g) and 1383(c)(3), seeking judicial review of a final decision of the Commissioner of the Social Security Administration (Commissioner) denying her claim for supplemental security income. This matter has been referred to the undersigned Magistrate Judge for a recommendation pursuant to 28 U.S.C. § 636(b)(1)(B) and SDAL LR 72.2. The undersigned has determined that oral argument is unnecessary to resolve this matter. See SDAL LR 7.3. Upon careful consideration of the administrative record and the arguments raised by the parties in their memoranda, it is recommended that the decision of the Commissioner be affirmed.
Procedural History and Background
Cerie M. Blanks (Plaintiff) filed an application for supplemental security income on behalf of her grandson, Robert J. Blanks (Robert), on February 27, 1997, alleging that Robert is disabled as a result of low birth weight, asthma, and sickle cell anemia. After unfavorable initial and reconsideration determinations, Plaintiff timely filed a request for hearing which was granted. Subsequently, a hearing was held on April 10, 1998, in Mobile, Alabama, before Administrative Law Judge (ALJ) R.G. Goosens. On June 24, 1998, Judge Goosens entered a written decision finding that Robert was not disabled. On October 29, 1999, Plaintiff's request for review of the ALJ's decision was denied by the Appeals Council, thus making Judge Goosens' decision the final decision of the Commissioner. The parties agree that this case is now ripe for review and is properly before this Court pursuant to 42 U.S.C. § 405(g) and 1383(c)(3).
Statement of Facts
Robert was born on February 25, 1997, and was two days old when his application for supplemental security income was filed. At the time of the administrative hearing, Robert was fourteen months of age. Plaintiff appeared with Robert at the administrative hearing and elected to proceed without a representative. Administrative Record, page 29 (R. at 29). Plaintiff testified that Robert was her grandson, that Robert was the son of her daughter who was also a minor, and that both Robert and her daughter lived with her. R. at 30-31. Plaintiff stated that Robert had sickle cell anemia and asthma, that he had been in the hospital two or three times for his asthma but never for his sickle cell anemia, that Robert was a premature baby who was underweight, that Robert takes Penicillin and folic acid for his sickle cell anemia, and that Robert was given asthma medication only as needed. R. at 31-33. Plaintiff testified that Robert had just been to the pediatrician, that Robert had gained a few pounds, and that Robert's asthma occurred only if he caught a cold. R. at 33-34. Plaintiff stated that Robert's growth was normal for a one year old child, that she had never been told that Robert was not developing in an age-appropriate manner, that she had not observed much difference between Robert's development and other children's development, that Robert walked, crawled, and pulled up at the right age, and that the only thing that Robert was slow to do was talk, but that she could not say that this was related to his illness. R. at 34-35.
The medical evidence of record reveals that Robert was born on February 25, 1997, at thirty-six to thirty-seven weeks estimated gestational age. R. at 115-135. Robert weighed 2256 grams at birth. R. at 116. According to hospital records, Robert was admitted to the intensive care neonatal unit due to grunting, retractions, and tachypnea with hypoglycemia upon feeding at 3 hours of age. R. at 116. An x-ray of Robert's chest revealed normal findings. R. at 128. The problems were resolved and Plaintiff was discharged on March 6, 1997, with instructions to follow up with the pediatrician in one week. R. at 116.
On March 28, 1997, Robert was admitted to the hospital and underwent treatment at thirty-one days of age for right eyelid swelling and eyelids matting together. R. at 136-144. An examination showed normal activity, good oral intake, no vomiting or diarrhea, no cough or rhinorrhea, and no fever. R. at 137-38. The treating doctor noted that there was right eyelid edema and erythema but that the left eye was normal, that Robert's chest was clear with bilateral breath sounds, and that Robert had a regular heart rate and rhythm with no murmur. R. at 137. Robert was diagnosed with periorbital cellulitis and prescribed medication. R. at 138. The doctor noted the remainder of Plaintiff's hospital course as "uneventful" and that his prognosis was "good." R. at 138.
On April 12, 1997, at seven weeks of age, Robert underwent treatment for a cold and congestion and was diagnosed with an upper respiratory infection. R. at 145-47. At that time, Robert weighed 3.50 kilograms. R. at 146. At approximately three months of age, on June 17, 1997, Robert was seen with an respiratory illness and was diagnosed with bronchitis. R. at 151. The doctor noted that Robert was wheezing, and prescribed Albuterol. R. at 151, 155. An x-ray of Robert's chest showed that his lungs were clear and normal findings. R. at 153. On June 23, 1997, at four months of age, Robert weighed 5.8 kilograms. R. at 154.
Plaintiff underwent treatment at the hospital on July 16-18, 1997, for complaints of a 3-hour history of wheezing as well as a cough and a runny nose with clear secretions. R. at 167-82. Robert weighed 6.28 kilograms. R. at 168. The medical staff noted Plaintiff's known history of hemoglobin SS sickle cell disease and that he was on Penicillin VK for the sickle cell disease. R. at 168. Robert had no fever and no history of cyanosis or shortness of breath. R. at 168. Robert was diagnosed with bronchospasm and a right ear infection. R. at 168. Plaintiff's symptoms significantly improved with Albuterol, and he was discharged with arrangements for a home nebulizer. R. at 169. Another x-ray of Robert's chest on July 16, 1997, showed essentially normal findings. R. at 174. Robert was discharged in "good" condition with a "good" prognosis. R. at 169.
A Claimant's Medications form dated March 28, 1998, lists Robert's medications as Penicillin VK and folic acid, both related to his sickle cell disease. R. at 183.
Based on the evidence before him, the ALJ determined that Robert had the severe impairments of sickle sell anemia and asthma, but that Robert did not have an impairment or combination of impairments which met or equaled the criteria for any of the impairments listed in 20 C.F.R. § 404, Appendix 1, Subpart P, Regulations No. 4. R. at 16. The ALJ also determined that Robert's impairments, alone or in combination, were not functionally equal in severity to any listed impairment. R. at 16. Therefore, the ALJ found that Robert was not disabled within the meaning of the Social Security Act. R. at 16.
Issues on Appeal
Plaintiff presents the following issue on appeal: whether the ALJ committed reversible error because he failed to develop a full medical record on behalf of the unrepresented claimant in determining the severity of Robert's sickle sell anemia disease and asthma.
Standard of Review
The standard or scope of review in Social Security cases comprises two factors: (1) whether the decision of the Secretary is supported by substantial evidence, and (2) whether the correct legal standards were applied. Martin v. Sullivan, 894 F.2d 1520, 1529 (11th Cir. 1990). As set forth in 42 U.S.C. § 405(g), "The findings of the Secretary as to any fact, if supported by substantial evidence, shall be conclusive . . . ." Substantial evidence is defined as "more than a scintilla but less than a preponderance," and consists of "such relevant evidence as a reasonable person would accept as adequate to support a conclusion." Richardson v. Perales, 402 U.S. 389, 390, 401, 91 S.Ct. 1420, 28 L.Ed.2d 842 (1971);Bloodsworth v. Heckler, 703 F.2d 1233, 1239 (11th Cir. 1983). A court may neither reweigh the evidence nor substitute its judgment for that of the Secretary. Bloodsworth, 703 F.2d at 1239. Even if a court finds that the preponderance of the evidence is against the decision of the Secretary, the Secretary's decision must be affirmed if it is supported by substantial evidence. Id.
Discussion
Plaintiff, an unrepresented claimant, alleges that the ALJ failed to fully develop the medical record in determining the severity of her minor grandson's sickle sell anemia and asthma. According to Plaintiff, there is a lack of medical documentation to support any decision in this case and therefore, the ALJ should have asked Plaintiff if she needed additional time to submit any further medical records and should have ordered a consultative examination to determine the severity of Robert's sickle cell anemia disease and asthma. Plaintiff argues that, because she was not represented, the ALJ had a special duty to ensure that the medical record was developed.
"A Social Security claimant has a statutory right, which may be waived, to be represented by counsel at a hearing before an ALJ." Brown v. Shalala, 44 F.3d 931, 934 (11th Cir. 1995) (citing Smith v. Schweiker, 677 F.2d 826, 828 (11th Cir. 1982)) (citing 42 U.S.C. § 406). Whether or not the claimant is represented, the ALJ has a duty to develop a full and fair record. Brown, 44 F.3d at 934 (citing Clark v. Schweiker, 652 F.2d 399, 404 (5th Cir. Unit B 1981)). If there has been a waiver of right to counsel at the administrative hearing before the ALJ, the claimant must show clear prejudice or unfairness caused by the lack of counsel in order to prove she was denied a full and fair hearing. Kelley v. Heckler, 761 F.2d 1538, 1538 (11th Cir. 1985). If a claimant's right to counsel at the administrative hearing has not been waived,
the hearing examiner's obligation to develop a full and fair record rises to a special duty. This special duty requires, essentially, a record which shows that the claimant was not prejudiced by lack of counsel. In carrying out this duty, the ALJ must "scrupulously and conscientiously probe into, inquire of and explore for all the relevant facts."Brown, 44 F.3d at 934-35 (quoting Smith, 677 F.2d at 829). A showing of prejudice must be made before it will be determined that the claimants rights of due process were violated to such a degree that the case should be remanded to the Commissioner for reconsideration and further development of the record. Id. at 935. This requires a showing that the ALJ did not have all of the relevant evidence before him in the record or that the ALJ did not consider all of the evidence in the record in reaching his decision. Kelley, 761 F.2d at 1540 (citing Smith, 677 F.2d at 830).
In this case, the following colloquy took place during the administrative hearing before Judge Goosens:
ALJ: All right. Ms. Blanks, you're appearing today to offer testimony concerning your sons [sic] application for Disability Benefits. Is that correct?
WIT: Yes, sir. But he's my grandson . . . .
ALJ: Would you raise your right hand so that you may testify. You have filed [sic] out a piece of paper today indicating that you wanted a hearing even though there is no professional representative such as an attorney involved with the case?
WIT: Yes.
ALJ: Is that right?
WIT: I didn't ask for an attorney. It was a, a counselor from the [Sickle Cell] that was supposed to be here today. But they was closed. This is a holiday for them. You know, so they couldn't be here. So I did sign the papers saying that I, you know, go ahead with the hearing, yes.
ALJ: Is that your desire to have the hearing today?
WIT: Yes, sir.
ALJ: All right. Then we'll proceed with the hearing. And the first thing I will do is I'll admit into evidence the 19 Exhibits that have been compiled since the filing of the application. And these are mainly medical related documents. All right.
WIT: Okay . . . .
ALJ: Ordinarily in the hearings of this kind the Judge will ask questions and then if there's something that hasn't come up or you want to make a statement concerning your grandsons [sic] condition [sic]. Anything we didn't cover then you may do so.
WIT: Okay.
R. at 29-30.
Initially, the Court notes that Plaintiff has not argued that she failed to waive her right to representation or that she was prejudiced by the lack of a representative. Plaintiff merely argues that she was not represented and that the ALJ did not ask Plaintiff if she wanted to submit any additional medical records. Nonetheless, the Court will consider whether Plaintiff waived her right to representation.
It is apparent from the above colloquy and the record as a whole that Plaintiff was notified of her right to counsel and elected to proceed on her own. Plaintiff signed a waiver of counsel form indicating that she wanted to proceed with the hearing even though there was no professional representative such as an attorney involved in the case. Plaintiff acknowledged to the ALJ that she indeed signed the form. Moreover, Plaintiff stated that she "didn't ask for an attorney." While Plaintiff did state that a counselor from the sickle cell association was supposed to come to the hearing, Plaintiff does not argue and there is nothing to indicate that the sickle cell counselor was going to appear as a legal representative. The ALJ asked Plaintiff again if it was her desire to proceed with the hearing on that day and she replied that it was.
The ALJ further explained to Plaintiff that "[t]he Judge will ask questions and then if there's something that hasn't come up or you want to make a statement concerning your grandsons [sic] condition [sic]. Anything we didn't cover then you may do so." Plaintiff responded "Okay." There is no evidence that Plaintiff was confused or that she did not understand her right to be represented or the nature of the proceeding. Indeed, the record compels the opposite conclusion. The Court also notes that the notice of hearing sent to Plaintiff in the mail prior to the hearing date informed her that she had the right to be represented by counsel at the hearing. R. at 17-26. The notice also included possible fee arrangements and percentages and contained a list of lawyer referral services and legal aid services available in her area. R. at 17-26. It is apparent from the record in its entirety that Plaintiff knew of her right to counsel and elected to proceed without representation. Accordingly, the undersigned finds that Plaintiff did knowingly and voluntarily waive her right to be represented at the administrative hearing.
Since there was a waiver of right to counsel at the administrative hearing, the ALJ was under no special duty to "scrupulously and conscientiously probe into, inquire of and explore for all the relevant facts." As such, Plaintiff must show clear prejudice or unfairness caused by her lack of counsel in order to prove she was denied a full and fair hearing. Plaintiff has not argued that there was clear prejudice or unfairness caused by her lack of counsel nor has Plaintiff argued that the ALJ did not have all of the relevant evidence before him or that the ALJ did not consider all of the evidence in the record. Plaintiff argues only that the ALJ should have asked for more evidence, in that he should have asked Plaintiff if she needed time to submit additional medical records and that he should have ordered a consultative examination.
At the beginning of the hearing, the ALJ explained to Plaintiff that he was admitting the medical exhibits into evidence. He then explained to Plaintiff that he would ask some questions and then if there was something that had not come up or if she wanted to make a statement concerning her grandson's condition or discuss anything that was not covered, she could then do so. A review of the entire transcript reveals that Plaintiff was allowed and encouraged to explain herself and that Plaintiff gave lengthy narrative answers concerning Robert's condition. R. at 31-35. Plaintiff told the ALJ that Robert had been to the pediatrician that month for a routine check up and discussed the findings of the pediatrician. R. at 33-34. Near the end of the hearing, the ALJ asked Plaintiff if there was anything else that she wanted to tell him regarding Robert's condition and Plaintiff responded "no." R. at 35. Plaintiff was given ample opportunity to discuss the medical evidence of record, including the need for additional medical records. Moreover, Plaintiff has not identified any additional medical records that she would have submitted, that she would now submit, or that might be gathered by the ALJ. While the ALJ has an obligation to develop a fair and full record, the burden lies upon the claimant to prove disability,Bloodsworth, 703 F.2d at 1240. Given the foregoing, and given Plaintiff's testimony, as set forth above, which failed to establish that Robert suffered from any functional limitations, the ALJ's decision not to inquire about additional medical records was not in error.
Again, the law in this Circuit is clear that the ALJ is charged with developing a fair and full record. Todd v. Heckler, 736 F.2d 641, 642 (11th Cir. 1984). In addition, the ALJ is bound to make every reasonable effort to obtain from Plaintiff's treating physician(s) all the medical evidence necessary to make a determination. 20 C.F.R. § 416.912(d). However, as stated previously, the burden is on Plaintiff to prove that her minor grandchild is disabled. The Social Security Regulations provide in part:
In general, you have to prove to us that you are blind or disabled. Therefore, you must bring to our attention everything that shows that you are blind or disabled. This means you must furnish medical and other evidence that we can use to reach conclusions about your impairment(s) and, if material to the determination of whether you are blind or disabled, its effect on your ability to work on a sustained basis.20 C.F.R. § 416.912(a).
Although consultative examinations are not required by statute, the Regulations provide for them where warranted. See 20 C.F.R. § 416.917. With respect to consultative evaluations, 20 C.F.R. § 416.919(a) provide in relevant part as follows:
(a)(1) General. The decision to purchase a consultative examination for you will be made after we have given full consideration to whether the additional information needed (e.g., clinical findings, laboratory tests, diagnoses, and prognosis) is readily available from the records of your medical sources.
(b) Situations requiring a consultative examination. A consultative examination may be purchased when the evidence as a whole, both medical and non-medical, is not sufficient to support a decision on your claim. Other situations listed below, will normally require a consultative examination: (1) the additional evidence needed is not contained in the records of your medical sources;20 C.F.R. § 416.919(a).
While it is reversible error for an ALJ not to order a consultative examination when such evaluation is necessary for him to make an informed decision, Reeves v. Heckler, 734 F.2d 519, 522 n. 1 (11th Cir. 1984), the ALJ is not required to order a consultative examination unless the record establishes that such an examination is necessary to enable the ALJ to render a decision. Holladay v. Bowen, 848 F.2d 1206, 1210 (11th Cir. 1988) (citing Ford v. Secretary of Health and Human Services, 659 F.2d 66, 69 (5th Cir. 1981)). In the case at hand, the ALJ determined that the record before him did not support the need for more evidence, and that he had all of the medical evidence necessary to make a determination as to Robert's condition. This Court's own review of the medical evidence, as set forth herein above, compels the same conclusion. In addition, Plaintiff's testimony regarding Robert's complete lack of functional limitations only bolsters the ALJ's determination. As set forth above, Plaintiff stated that Robert was gaining weight, that Robert's growth was normal for a one year old child, that she had not observed much difference between Robert's development and other children's development, that Robert walked, crawled, and pulled up at an appropriate age, and that the only thing that Robert was slow to do was talk, but that she had never been told that Robert was not developing in an age-appropriate manner. Therefore, the undersigned finds that the ALJ substantially fulfilled his requirement to fully develop the record, and that Plaintiff's contention that the ALJ failed to fully and fairly develop the administrative record is without merit.
The Social Security Regulations set forth a sequential evaluation process to be followed in determining disability in children. See 20 C.F.R. § 416.924. The regulations require that the ALJ make a determination as to (1) whether the child has engaged in substantial gainful activity; (2) whether the child has a "severe" impairment; and (3) whether the child's "severe" impairment results in "marked and severe" functional limitations. 20 C.F.R. § 416.924(a)-(d). The child's impairment causes "marked and severe" functional limitations if the impairment, or combination of impairments, meets or medically equals in severity the criteria for an impairment listed in the Listing of Impairments, or if the impairment, or combination of impairments, is functionally equal in severity to a listed impairment. 20 C.F.R. § 416.924(d). If the child's impairment, or combination of impairments, does not meet the duration requirement or does not meet, medically equal, or functionally equal in severity a listed impairment, the child is not considered to be disabled.
Here, the ALJ properly applied the evaluation process for determining disability in children. R. at 11-16. The ALJ determined that Robert had not engaged in any substantial gainful activity. R. at 11, 15. Based on the evidence of record, the ALJ determined that Robert had the severe impairments of sickle sell anemia and asthma, but that Robert did not have an impairment or combination of impairments which met or equaled the criteria for any of listed impairments. R. at 11-12, 16. The ALJ then determined that Robert's impairments were not functionally equal in severity to any listed impairment. R. at 13-15, 16. Therefore, the ALJ found that, based on the application filed on February 27, 1997, Robert was not disabled.
As stated previously, this Court may reverse the decision of the ALJ only when convinced that the decision is not supported by substantial evidence or that proper legal standards were not applied. Martin, 894 F.2d at 1529. After reviewing the medical evidence of record and Plaintiff's testimony from the administrative hearing, the undersigned finds that this evidence substantially supports the conclusions of the ALJ and his determination that Robert is not disabled. Accordingly, it is the recommendation of the undersigned that the decision of the Commissioner be affirmed.
Conclusion
Upon careful consideration of the administrative record and for the reasons set forth above, the Magistrate Judge recommends that the decision of the Commissioner be affirmed.
The attached sheet contains important information regarding objections to this recommendation.