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Long v. Social Security Administration

United States District Court, M.D. Tennessee, Nashville Division

November 3, 2016

JERRY LEE LONG, Plaintiff,


          Haynes Senior Judge

         Plaintiff, 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.

         After 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.

         In his 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.

         Before 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.

         In 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.

         A. Review of the Record

         As to 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 retaining counsel:

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 request.
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 higher.
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.
CLMT: Right.
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 could ...

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