Sheryl C. v. Kijakazi, Acting Comm’r of Soc. Sec., Case No. 1:20-cv-20151 (D.N.J. Mar. 14, 2023) (Decision by U.S. Magistrate Judge Norah McCann King, by consent)

Sheryl C. v. Kijakazi, Acting Comm’r of Soc. Sec., Case No. 1:20-cv-20151 (D.N.J. Mar. 14, 2023) (Decision by U.S. Magistrate Judge Norah McCann King, by consent)

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Briefs for purchase:

  • Plaintiff’s Brief

  • Plaintiff’s Reply Brief

  • Court decision 

Issues briefed

  1. 1)  The ALJ failed in his duty to develop the record for Plaintiff, who appeared pro se, by not updating the medical evidence as required.

  2. 2)  The ALJ failed to properly evaluate the opinion evidence from APN Mendoza.

  3. 3)  The ALJ did not properly evaluate Plaintiff’s subjective complaints and testimony.

  4. 4)  The ALJ committed reversible error in failing to mention and weigh the lay testimony of Plaintiff’s mother.

Court decision:
The court found that the ALJ failed to fully and fairly develop the record, considering that Plaintiff was proceeding without counsel during the administrative proceedings and hearing.
Slip op. at 12. Specifically, the ALJ failed to obtain more recent records from multiple sources which failure did not satisfy the ALJ’s heightened duty to develop the record given Plaintiff’s pro se status. Id.

In so holding, the court explained:

“An ALJ owes a duty to a pro se claimant to help him or her develop the administrative record. ‘When a claimant appears at a hearing without counsel, 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)) (cleaned up); see also Turby v. Barnhart, 54 F. App’x 118, 122 (3d Cir. 2002) (noting that the ALJ’s “duty [to develop the record] is most acute where the claimant is unrepresented”); Dobrowolsky v. Califano, 606 F.2d 403, 407 (3d Cir. 1979) (observing that, “when the claimant is unrepresented[,]” there exists a “heightened level of care and the responsibility of the ALJ to assume a more active role”); cf. Ventura v. Shalala, 55 F.3d 900, 902 (3d Cir.1995) (“ALJs have a duty to develop a full and fair record in social security cases.”). However,

“[t]he fact that a claimant is unrepresented by counsel and has 5

knowingly waived this rightis not alone sufficient for remand.” Livingston v. Califano, 614 F.2d 342, 345 (3d Cir.1980) (citations omitted). Where a claimant “knowingly and intelligently waived her right to representation, the burden lies with her to show that the ALJ did not adequately develop the record under her heightened duty to’scrupulously and conscientiously probe into, inquire of, and explore all the relevant facts.’” Whetstone o/b/o U.W. v. Berryhill, No. CV 16- 8602, 2017 WL5047899, at *3 (D.N.J. Nov. 2,2017) (quoting Vivaritas, 264 F. App’x at157–58) (cleaned up); Sudler v. Berryhill, No. 15-729, 2017 WL 1197676, at *10 (D. Del. Mar. 30, 2017) (“ALJs have a duty to develop a full and fair record in social security cases. Accordingly, an

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ALJ must secure relevant information regarding a claimant’s entitlement to social security benefits. This is so even though the claimant bears the burden to prove his disability.”) (citations omitted)

Id. at 13 (emphasis in original). The court noted the Third Circuit does “not prescribe any particular procedures that an ALJ must follow” under such circumstances, and “could have requested additional medical records or held another hearing to receive testimony from [the Plaintiff’s] treating physicians. . . .” Id. (citations omitted). Determining the adequacy of an ALJ’s development of the record is decided on a case-by-case basis. Id. at 14. (citations omitted).

The court found that plaintiff met her burden to show the ALJ failed to develop the record. She signed a medical release and was assured by the ALJ that she would request additional records, but the ALJ failed to request them. Id. The court rejected the Commissioner’s argument that Plaintiff unequivocally confirmed at the hearing that the record was complete; and agreed with Plaintiff’s argument that “it was not reasonable for the ALJ to rely on [Plaintiff’s] more general, mistaken belief, expressed by an unrepresented claimant with severe mental impairments.” Id. 16. The court found record evidence establishing the existence of additional evidence not in the record, including Plaintiff’s testimony and records relating to prescribed medication but without corresponding treatment notes, and concluded that “[A]n ALJ does not fulfill this heightened duty by simply relying on the equivocal statement—made by an unrepresented claimant with an eighth-grade education and severe mental impairments—that she ‘believe[d]’ the record was complete.” Id. at 16-17.

The court also rejected the Commissioner’s contention that Plaintiff’s reference to additional records was based on mere speculation, based on her testimony that she is seen every ten weeks for medication checks and to check on how she is doing. Id. at 17. Also persuasive was the fact that pharmacy records before the ALJ reflect prescriptions from providers which suggests that there exist associated progress notes that were not contained in the administrative record. Id. at 18. The court also rejected the Commissioner’s position that Plaintiff’s failure to present the alleged missing records is dispositive of her claim, instead concluding that the ALJ, who was on notice of the possibility of additional records, should have taken further action to assure the complete development of the record. Id.

The court concluded that remand of the matter for further development of the administrative record was appropriate, even if, upon further examination of additional records the ALJ again concludes that Plaintiff is not entitled to benefits, because such conclusion must be based on a proper foundation. Id. at 18-19. (citing Zuschlag v. Comm’r of Soc. Sec. Admin., No. 18-CV-1949, 2020 WL 5525578, at *8 (D.N.J. Sept. 15, 2020)). Because the court concluded that the matter must be remanded for further development of the administrative record, the court did not consider the other claims of error. Id. at 18, n. 7.

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Topics addressed:

  • Waiver of right to counsel

  • Duty to develop the record for unrepresented claimant

  • Medical opinions (new law) - persuasiveness

  • Subjective complaints - incomplete record

  • Subjective complaints - daily activities

  • Lay evidence

    Ruling addressed:

• Social Security Ruling 16-3p