Author: Disability Law News – September 2009 Issue

In Bula v. Commissioner of Social Security, 2009 WL 890665 (N.D.N.Y. March 30, 2009), Northern District of New York Magistrate Judge Gustave J. Di Bianco held that due to the multiple errors by the Administrative Law Judge (ALJ), the case should be reversed and remanded for further proceedings. The plaintiff argued that the ALJ incorrectly denied her application for Social Security Disability (DIB) and Supplemental Security Income (SSI) benefits because the ALJ had failed to provide a full and fair hearing to plaintiff.  Plaintiff also argued that the ALJ’s residual functional capacity (RFC) assessment was erroneous.

The ALJ Failed to Properly Inform Plaintiff of Her Right to Counsel

After appearing pro se at her hearing, plaintiff contended that at the time of the hearing she had not been properly advised by the ALJ of her right for a free attorney.  Despite the fact that plaintiff had been advised in writing of her right to counsel, this type of notice is not necessarily sufficient.  See Leonard v. Comm’r of Soc. Sec., 05-CV-1084, 2008 U.S. Dist. LEXIS 60900, *18 (N.D.N.Y. Aug. 7, 2008).  Under certain circumstances, merely advising a plaintiff of this right is inadequate.

In this case, the plaintiff did not speak English, and when advised of her right to counsel, the plaintiff tried to explain that she had been unsuccessful in obtaining counsel.  In the transcript, containing many inaudible sections, plaintiff replied in a confusing manner to the ALJ’s inquiry into why she had chosen to appear without any representative.  Plaintiff made several other statements demonstrating her uncertainty with proceeding pro se.  When the ALJ informed plaintiff that the hearing would be postponed for a later date if she decided to have a representative, plaintiff responded that “I don’t know.  I think I want to continue it or no.” (emphasis added).  The district court stated, “the ALJ certainly did not inquire very carefully about plaintiff’s desire to proceed without representation, and it is unclear whether plaintiff knowingly waived her right to have a representative.”

The lack of counsel alone is inadequate to justify a remand if the plaintiff was not prejudiced as a result of the ALJ’s error.  Yet, under the circumstances of this case, the court found that plaintiff had been prejudiced by the lack of counsel.  If plaintiff had a representative at the hearing, he or she could have assisted the ALJ in obtaining more current medical records, and could have addressed the problem of the inaudible transcript tape before the Appeals Council.  Since the ALJ had not properly notified plaintiff of her right to counsel, this was further support for the court to remand.

The ALJ Failed to Fully Develop the Record

An ALJ is required to make “every reasonable effort” to obtain treating source evidence.  The ALJ notified plaintiff at the hearing that she was going to obtain more recent medical records.  However, these records were never attained since the ALJ merely sent letters to plaintiff’s medical providers and never followed up when the providers did not respond.  Since plaintiff was pro se, the ALJ had a heightened duty to develop the record.  The court found that the ALJ erred by simply sending a letter to the plaintiff’s treating sources.

The ALJ also erred in utilizing an RFC assessment prepared by non-examining physicians to determine that plaintiff could do medium work and lift fifty pounds.  The assessment utilized by the ALJ was based only on a review of the records.  Further, as support for the non-examining physician’s opinion, the ALJ cited to a contradictory report by a consulting physician, who found that plaintiff’s prognosis was ‘guarded’ and plaintiff had a ‘moderate physical disability’ for lifting, carrying pushing, and pulling.  “It is unclear how this opinion supports a finding that plaintiff can lift fifty pounds,” according to the Magistrate. 2009 WL 890665*20 (N.D.N.Y.).  The ALJ failed to develop the record and contact plaintiff’s treating sources.  Therefore the ALJ’s finding that plaintiff could perform medium work was not supported by substantial evidence.

“The combination of plaintiff’s…inability to speak English, the ALJ’s statement that she would obtain the current medical records, and the fact…that the ALJ used non-examining sources to determine that plaintiff could perform ‘medium’ work, when there was no support in the treating sources’ reports, supports this court’s finding that the ALJ did not fully and fairly develop the record in this plaintiff’s case.” 2009 WL 890665*19 (N.D.N.Y.).  To further compound the situation, the transcript record had numerous ‘(INAUDIBLE)’ sections, as mentioned earlier.  The district court believed that the inaudible sections of plaintiff’s testimony were significant to the case and therefore the district court was unable to accurately review the testimony.

Plaintiff’s Credibility

The ALJ determined that the plaintiff was not credible because she had missed a doctor’s appointment.  However, there was no evidence in the record that asserts that she had ever missed an appointment.  The ALJ cited to an exhibit to support his finding, yet the exhibit was altogether unrelated to the ALJ’s allegation.  Further, due to the inaudible transcript record, the district court was unable to assess whether the ALJ’s finding of credibility could be supported by substantial evidence.


The district court determined that remand was necessary because the ALJ failed to adequately inform plaintiff of her right to free counsel, the plaintiff exhibited signs of uncertainty with proceeding pro se, the ALJ had not obtained current medical records, the RFC relied on was not supported by substantial evidence, the ALJ had no evidence to determine that plaintiff was not credible, and the significant gaps in the testimony made it impossible for the district court to properly review the transcript. Note however, that this decision was issued before the Second Circuit’s decision in Lamay v. Commissioner of Social Security, 562 F.3d 503 (2d Cir. 2009), which was unfavorable to a pro se claimant, and Moran v. Astrue, 569 F.3d 108 (2d Cir. 2009), which was favorable to a pro se claimant. Please let us know about any other decisions on this issue, so that we might be able to offer some constructive analysis on how to proceed after a pro se claimant loses at the ALJ stage.

The plaintiff was represented by Louise Tarantino of the Empire Justice Center. Thanks to summer law intern Stephanie Scalzo for her analysis of the Bula decision.