United States District Court, M.D. Tennessee, Nashville Division
Jerry Lee Long, filed this action under 42 U.S.C.
§§405(g) and 1383(c) against the Defendant, the
Commissioner of Social Security, seeking judicial review of
the Commissioner's decision denying Plaintiffs
applications for disability benefits and supplemental
security income ("SSI"). Plaintiff asserts a
disability based upon his osteoarthritis, back disorder
status-post discectomy, obesity, and bilateral heel
contracture. Plaintiffs applications allege an onset date of
June 1, 2011. Plaintiffs applications were denied initially
and upon reconsideration. Plaintiff requested a hearing
before an Administrative Law Judge ("ALJ"), at
which Plaintiff proceeded without counsel.
the hearing, the ALJ denied Plaintiffs application, finding
that Plaintiff had "severe impairments" but could
perform his past work. The ALJ concluded Plaintiffs residual
functional capacity enabled him to lift and carry 20 pounds
occasionally and 10 pounds frequently; sit for 6 hours total;
stand or walk for 4 hours total each; occasionally push/pull
with the bilateral lower extremity; never climb ladders,
ropes, or scaffolds; occasionally perform all other postural
activities; and could not work around hazards such as
unprotected heights and moving machinery. (Docket Entry No.
16, Administrative Record, at 13). Based upon this finding,
the ALJ concluded that Plaintiff could perform his past
relevant work as a group home supervisor. Id. at 16.
The ALJ thus denied Plaintiffs applications.
request to the Appeals Council, Plaintiff, who was then
represented by counsel, submitted a medical source statement.
The Appeals Council could consider this statement as
"new evidence, " but did not do so because the
statement was after the ALJ's decision and did not alter
the ALJ's findings that Plaintiff was not disabled as of
January 9, 2014. Id. at 2. The Appeals Council
denied review. Id. at 1.
the Court is the Plaintiffs motion for judgment on the record
(Docket Entry No. 20) contending, in sum: (1) that the ALJ
failed to obtain a valid waiver of Plaintiffs right to
representation; (2) that the ALJ failed to perform her
heightened duty to develop a complete record; (3) that the
ALJ failed to explain adequately the role of the vocational
expert or elicit testimony relevant to Plaintiff s claim; and
(4) that the Appeals Council erred in not considering
Plaintiff s new evidence in its review.
response (Docket Entry No. 22), the Commissioner argues that
the ALJ repeatedly reviewed with Plaintiff his right to be
represented by counsel, but Plaintiff decided to proceed pro
se. In the Commissioner's view, the ALJ's heightened
duty does not extend to service as an advocate for Plaintiff.
Finally, the Commissioner contends the ALJ's decision is
supported by substantial evidence and the Appeals
Council's decision denying the appeal based upon
Plaintiffs new evidence was proper.
Review of the Record
Plaintiffs proceeding pro se, the Commissioner notes that
prior to the hearing before the ALJ, Plaintiff received
written notice of his right to counsel. At the hearing and
after introductory remarks, the ALJ examined Plaintiff about
So before we go any further I see that you do not have an
attorney or a nonattorney here to represent you. Because this
is such an important issue and very important for me, I need
discuss with you your rights on the record. So, Mr. Long
[Plaintiff], you have the right to have an attorney or a
nonattorney represent you. This person can obtain medical
records on your behalf. This person can explain to you
medical terms and can explain to you some of the terms that I
use, because I use very complicated terms, that we just use
in our agency.
This person can basically present your case in a light that
is most favorable to you. This person can charge you for
expenses such as obtaining or copying medical records, but
they cannot charge a fee unless I approve it. That means they
actually send in their fee agreement to me, I look at it, I
make sure it follows our rules and our regulations, and
I'll either send it back or I'll grant that fee
And then if they are granted a fee or if I do approve their
fee request, the fee is based upon back benefits. If you are
not awarded any back benefits, they do not get a fee. If you
are awarded back benefits, they are capped at either 25
percent of your back benefits or $6, 000, whichever is
So even if your back benefits were - and I'm just going
to use some unlikely number like $ 100, 000, 25 percent of
that would be 25, 000, they wouldn't get that, they'd
get the $6, 000. So I'm just using that as an example to
you because I'm not good at math.
ALJ: Now, you also have the right today to choose to proceed
without an attorney or a nonattorney. But again because this
is so important and there's a lot that rides on this, I
am taking this time out of your hearing time to explain to
you that you have this right. Now, if you want for me to
postpone this hearing, I'm going to let you know
you're stuck with me. So the next time that I schedule
your case you at least would have a familiar face. You and I
would see each other, we'll now recognize each other.
So if that gives you, you know, if that helps with your
anxiety level at all, it's not going to be one of our
other nine judges that are here in the office. So I would
basically just give you a short period of time to see if you