IN THE UNITED STATES DISTRICT COURT 

FOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

EMMA MCCASTER, )

)

Plaintiff, )

) No. 12 C 4059

v. )

) Magistrate Judge

CAROLYN W. COLVIN,1 ) Mary M. Rowland

ACTING COMMISSIONER OF )

SOCIAL SECURITY, )

)

Defendant. )

)

)

MEMORANDUM OPINION AND ORDER

Plaintiff Emma McCaster filed this action seeking review of the final decision 

of Defendant Commissioner of Social Security denying her applications for 

Disability Insurance Benefits (“DIB”) and Supplemental Security Income (“SSI”) 

under the Social Security Act. 42 U.S.C. §§ 416(i), 1381a. The parties have 

consented to the jurisdiction of the United States Magistrate Judge, pursuant to 28 

U.S.C. § 636(c). Plaintiff has filed a motion for summary judgment requesting the 

Court to reverse the Commissioner’s decision. For the reasons stated below, the case 

is remanded for further proceedings consistent with this opinion. 

I. THE FIVE-STEP SEQUENTIAL EVALUATION PROCESS

To recover DIB or SSI, a claimant must establish that he or she is disabled 

within the meaning of the Social Security Act.2 See Elder v. Astrue, 529 F.3d 408, 

1 On February 14, 2013, Carolyn W. Colvin became Acting Commissioner of Social Security 

and is substituted for her predecessor, Michael J. Astrue, as the proper defendant in this 

action. Fed. R. Civ. P. 25(d).

 
409–410 (7th Cir. 2008). A person is disabled if he or she is unable to perform “any 

substantial gainful activity by reason of any medically determinable physical or 

mental impairment which can be expected to result in death or which has lasted or 

can be expected to last for a continuous period of not less than 12 months.” 20 

C.F.R. § 416.905(a). In determining whether a claimant suffers from a disability, 

the ALJ conducts a standard five-step inquiry:

1. Is the claimant presently unemployed?

2. Does the claimant have a severe medically determinable 

physical or mental impairment that interferes with basic workrelated activities and is expected to last at least twelve months?

3. Does the impairment meet or equal one of a list of specific 

impairments enumerated in the regulations?

4. Is the claimant unable to perform his or her former occupation? 

5. Is the claimant unable to perform any other work?

20 C.F.R. §§ 416.909, 416.920; see Clifford v. Apfel, 227 F.3d 863, 868 (7th Cir. 

2000). “An affirmative answer leads either to the next step, or, on Steps 3 and 5, to 

a finding that the claimant is disabled. A negative answer at any point, other than 

Step 3, ends the inquiry and leads to a determination that a claimant is not 

disabled.” Zalewski v. Heckler, 760 F.2d 160, 162 n.2 (7th Cir. 1985). The claimant 

2 The regulations governing the determination of disability are set forth at 20 C.F.R. §§ 

416.901–999d for SSI and at 20 C.F.R. §§ 404.1501–404.1599 for DIB. In the interest of 

convenience, the Court mostly cites to the SSI regulations. The standards for determining 

DIB and SSI are virtually identical. See Craft v. Astrue, 539 F.3d 668, 674 n.6 (7th Cir. 

2008) (“Although the Code of Federal Regulations contains separate sections for DIB and 

SSI, the processes of evaluation are identical in all respects relevant to this case.”). 

Accordingly, this Court cites to both DIB and SSI cases.

McCaster v. Colvin, No. 12 C 4059 Page 2

 
bears the burden of proof through Step 4, but at Step 5 the burden shifts to the 

Commissioner. Clifford, 227 F.3d at 868. 

II. PROCEDURAL HISTORY

Emma McCaster applied for period of disability, DIB, and SSI on December 

11, 2008, alleging that she became disabled on December 27, 2007. (R. at 9; Dkt. 20 

at 1; Dkt. 27 at 1.) This application was denied initially on March 5, 2009 and, upon 

reconsideration, on September 16, 2009. (R. at 9, 43, 50.) Subsequently, on October 

27, 2009, McCaster filed a timely request for a hearing. (R. at 9.) An Administrative 

Law Judge (“ALJ”) conducted the hearing on July 12, 2010, during which McCaster 

appeared and testified without the assistance of counsel. (R. at 9, 20–38).)

On January 6, 2011, the ALJ denied McCaster’s request for period of 

disability, DIB, and SSI. (R. at 16.) The ALJ initially determined that McCaster met 

the insured status requirements of the Social Security Act through December 31, 

2012. (R. at 11.) The ALJ then engaged in the five-step sequential evaluation 

process, finding, at Step 1, that McCaster had not engaged in substantial gainful 

activity since December 27, 2007, the alleged onset date. (Id.) Then, at Step 2, the 

ALJ found that McCaster had the severe impairments of status post left ankle 

fracture, status post Achilles tendon repair surgery, and obesity. (Id.) At Step 3, the 

ALJ determined that McCaster did not have an impairment or combination of 

impairments that met or medically equaled one of the listings enumerated in the 

regulations. (R. at 12.)

McCaster v. Colvin, No. 12 C 4059 Page 3
The ALJ then assessed McCaster’s residual functional capacity (“RFC”), 

determining that she had the RFC to perform light work, as defined in 20 C.F.R. §§ 

404.1567(b), 416.967(b). (R. at 12.) The ALJ stated:

[McCaster had the] abilities (sic) to lift and carry up to 10 pounds 

frequently and 20 pounds occasionally, to sit for 6 hours in an 8-hour 

workday, and to stand and walk each for 6 hours in an 8-hour 

workday—except with the following additional limitations:

- Can never climb ladders; and

- Can only occasionally climb ramps and stairs, balance, 

stoop, crouch, kneel, and crawl. 

(Id.) At Step 4, the ALJ determined that McCaster was capable of performing her

past relevant work as a phlebotomist. (R. at 15.) Accordingly, the ALJ concluded 

that McCaster was not disabled, as defined by the Social Security Act, from 

December 27, 2007 through the date of the decision. (R. at 16.) 

On April 18, 2012, the Appeals Council denied McCaster’s request for review. 

(R. at 1–5.) McCaster now seeks judicial review of the ALJ’s decision, which stands 

as the final decision of the Commissioner. (Id.) See, e.g., Villano v. Astrue, 556 F.3d 

558, 561–62 (7th Cir. 2009). 

III. STANDARD OF REVIEW

Judicial review of the Commissioner’s final decision is authorized by section 

205(g) of the Social Security Act. See 42 U.S.C. § 405(g). In reviewing this decision, 

the Court may not engage in its own analysis of whether the plaintiff is severely 

impaired as defined by the Social Security Regulations. Young v. Barnhart, 362 

F.3d 995, 1001 (7th Cir. 2004). Nor may it “reweigh evidence, resolve conflicts in the 

record, decide questions of credibility, or, in general, substitute [its] own judgment 

McCaster v. Colvin, No. 12 C 4059 Page 4
for that of the Commissioner.” Id. The Court’s task is “limited to determining 

whether the ALJ’s factual findings are supported by substantial evidence.” Id.

(citing 42 U.S.C. § 405(g)). Evidence is considered substantial “if a reasonable 

person would accept it as adequate to support a conclusion.” Indoranto v. Barnhart, 

374 F.3d 470, 473 (7th Cir. 2004). “Substantial evidence must be more than a 

scintilla but may be less than a preponderance.” Skinner v. Astrue, 478 F.3d 836, 

841 (7th Cir. 2007). “In addition to relying on substantial evidence, the ALJ must 

also explain his analysis of the evidence with enough detail and clarity to permit 

meaningful appellate review.” Briscoe ex rel. Taylor v. Barnhart, 425 F.3d 345, 351 

(7th Cir. 2005). 

Although this Court accords great deference to the ALJ’s determination, it 

“must do more than merely rubber stamp the ALJ’s decision.” Scott v. Barnhart, 297 

F.3d 589, 593 (7th Cir. 2002) (internal quotations and citation omitted). The Court 

must critically review the ALJ’s decision to ensure that the ALJ has built an 

“accurate and logical bridge from the evidence to his conclusion.” Young, 362 F.3d at 

1002 (internal quotations and citation omitted). Where the Commissioner’s decision 

“lacks evidentiary support or is so poorly articulated as to prevent meaningful 

review, the case must be remanded.” Steele v. Barnhart, 290 F.3d 936, 940 (7th Cir. 

2002).

McCaster v. Colvin, No. 12 C 4059 Page 5
IV. RELEVANT MEDICAL AND VOCATIONAL EVIDENCE

A. Personal and Vocational Background

McCaster was born on April 23, 1954 and was 56 years old at the time of the 

hearing. (R. at 26.) She stood 5’3” tall and weighed approximately 230 pounds. (R. at 

26–27.) She completed three years of college. (R. at 118.) As of the hearing date, 

McCaster was single, had no minor children, and lived alone in her house. (R. at 

27.) 

As for McCaster’s vocational history, she worked as phlebotomist between 

1988 and 2007 and also carried out duties of a respiratory and an electrocardiogram

(“EKG”) technician. (R. at 16, 120–22.) According to McCaster, specific duties 

entailed drawing blood, administering EKGs and respiratory treatments, prepping 

IVs, and answering emergency calls to assist doctors. (R. at 114.) Her workday 

typically involved spending several hours reaching, walking, standing, 

writing/typing/handling small objects, and handling/grabbing/grasping big objects. 

(R. at 114, 121.) McCaster also suggested that she spent at least one hour each day 

sitting, stooping, kneeling, and crouching. (Id.) Although she said that “lifting and 

carrying” was not part of her job, (R. at 114.), she also stated that she “frequently” 

lifted ten or fewer pounds. (R. at 114, 121.) 

McCaster allegedly became unable to work on December 27, 2007. (R. at 28, 

113.) Her purported disability primarily resulted from two problems involving her 

left foot: (1) Achilles tendonitis; and (2) a subsequently incurred fracture to her left 

ankle. (R. at 112.) Symptoms included cramping, swelling, and difficulty with

McCaster v. Colvin, No. 12 C 4059 Page 6
standing and walking. (R. at 112, 143, 154.) As a result, she utilized a variety of 

assistive devices. (R. at 129, 133, 143.)

B. Medical Evidence

Pre-hearing Medical Evidence 

On July 5, 2007, McCaster was examined by Dr. Carlos Smith. (R. at 196.)

McCaster complained of left heel pain and soreness, which was exacerbated by 

either walking for a short period of time or standing for an extended period of time. 

(Id.) However, her condition could be relieved by sitting down or resting. (Id.)

On August 29, 2007, a musculoskeletal exam revealed areas of “quite 

apparent” spurring and lipping. (R. at 194.) These areas were “tender to touch and 

indicative of arthritic processes, causing degradation of the joints.” (Id.) The exam 

also noted a decreased range of motion in McCaster’s left ankle. An MRI of the 

relevant area proved to be “positive.” (Id.) As a result, Dr. Smith diagnosed 

McCaster with Achilles tendonitis and opined that “surgery [wa]s required.” (Id.) 

On December 12, 2007, Dr. Smith reiterated his recommendation for surgery, (R. at 

193.), and McCaster underwent the “Achilles tendon repair exostectomy” on 

January 3, 2008. (R. at 175.).

On February 7, 2008, McCaster had a follow-up appointment with Dr. Smith. 

(R. at 190.) Dr. Smith found that McCaster was doing “well at the post-operative 

site” and that the “pain with movement and position at the surgical site [wa]s as 

expected.” (Id.) The doctor also stated that McCaster had no problems with 

McCaster v. Colvin, No. 12 C 4059 Page 7
ambulation and that, overall, she “should continue to heal normally, barring any 

injury or accidents.” (Id.)

In March 2008, Dr. George Holmes determined that McCaster would be able 

to reach “maximum medical improvement” within approximately one month of 

March 20, 2008. (R. at 170–72.) However, on March 31, 2008, McCaster reported to 

her therapist (1) that her left foot felt “different” from her right; (2) that her left leg 

was fatigued; and (3) that she had been limping more. (R. at 166.) However, she also 

stated that she did not have any additional problems with her balance. (Id.)

As of April 16, 2008, McCaster was progressing with respect to her range of 

motion and gait. (R. at 167.) Nevertheless, it was noted that McCaster was “not yet 

ready to return to full duty due to the quantity of walking . . . .” (Id.) McCaster did 

“return[]” to light duty work on April 22, 2008. (R. at 170.) In June 2008, she was 

released to full duty, (R. at 171, 184.), and, on July 30, Dr. Smith noted that 

McCaster’s activity had not been limited by the effects of her surgery, (R. at 183.).

Several months later, on September 10, 2008, McCaster once more had a 

follow-up appointment with Dr. Smith. (R. at 181.) At the time, her primary 

complaint was of soreness in her left heel. (Id.) Dr. Smith noted that, although

McCaster displayed indications of “equinus deformity,” she was doing “well at the 

post-operative site” and her pain was as “expected.” (Id.) She also had no problems 

with ambulation. (Id.) In sum, Dr. Smith again anticipated that McCaster would 

have a “normal recovery, barring any injury or accidents.” (Id.)

McCaster v. Colvin, No. 12 C 4059 Page 8
On October 16, 2008, Dr. Holmes examined McCaster and determined that 

her Achilles tendon surgery had been successful and that she had reached 

maximum medical improvement. (R. at 171–72.) Further, he stated that she had “no 

limitations” at the time and “should be able to perform the requirements of her 

previous employment.” (R. at 172.) 

However, McCaster fell down in December 2008, fracturing—and again 

injuring—her left ankle. (R. 197.) On December 7, she saw Dr. Mark Nitekman at

Advocate Christ Medical Center. (R. at 197–99.) Dr. Nitekman determined that 

McCaster had suffered a “bimalleolar fracture with marked disruption of the ankle 

mortise” and that her “talus [was] displaced laterally in relation to the tibia.” (R. at 

197–99, 213.) 

McCaster subsequently had “ORIF” surgery on her left ankle. (R. at 271.) On 

March 5, 2009, she was seen by Dr. Alex Romero, who indicated that McCaster was 

doing “well” following the surgery and that she was being transitioned out of her 

“Cam boot.” (Id.) Moreover, at the appointment, McCaster denied having significant 

left ankle pain, swelling, numbness, tingling, or loss of sensation. (Id.) Nevertheless, 

on April 16, doctors recommended that McCaster wear a compression stocking to 

help alleviate swelling and that she use a cane to assist with walking. (R. at 272.)

An x-ray conducted on July 16, 2009 showed “good alignment” of the ankle 

joint but also “diffuse soft tissue swelling” around the ankle. (R. at 231.) Several 

months later, at a March 9, 2010 appointment, McCaster was noted for having a 

left-sided limp. (R. at 252.) 

McCaster v. Colvin, No. 12 C 4059 Page 9
McCaster’s Hearing Testimony

Prior to commencing the hearing, the ALJ provided an opening statement,

where he directly addressed McCaster. (R. at 22.) He first discussed McCaster’s lack 

of representation:

Now, first thing we do in these hearings is talk about the right to 

representation, how to find a representative, how to pay for a 

representative. And then after we’re done with that you’ll decide 

whether you want to waive your right to representation, do your 

hearing today, or if you wish to reschedule by that time getting a 

representative, having enough time to do that. . . . 

(Id.) 

The ALJ then gave McCaster papers that provided information on several 

legal aid organizations and described the various attorney fee structures. (R. at 22–

23.) After relaying this information to McCaster, the ALJ asked if she wished to 

proceed through the hearing without representation. (R. at 23.) McCaster answered 

that she wished to “[p]roceed through the hearing.” (Id.) 

Later, the ALJ asked McCaster whether she had looked at a computer disk 

containing all of the evidence the ALJ had on the case (R. at 22–24.) McCaster 

responded that, although she had not yet looked at the evidence, she would. (R. at 

24.)

After testimony commenced, McCaster stated that she first injured her left 

Achilles tendon in June 2007. (R. at 29.) By December, the injury had caused her to 

stop working. (Id.) Given the choice of either going to work or having surgery, 

McCaster chose the latter, which she ultimately underwent on January 3, 2008.

(Id.) 

McCaster v. Colvin, No. 12 C 4059 Page 10
By March 2008, her condition had apparently improved, and she was 

“released to light duty” in April. (R. at 30, 32–33.) She continued to experience pain 

but attempted to return to her old employer. (Id). However, she was informed that 

she had been terminated, and she did not actually perform any work. (Id.) After her 

doctor released her to full duty in “July,” McCaster began applying for other jobs. 

(Id.)3

Additionally, McCaster described the December 7, 2008 fracture to her left 

ankle. (R. at 30.) She said that she had been descending her stairs at home “one 

step at a time,” when she fell down to the bottom of the stairs. (R. at 31.) McCaster

explained that she was not entirely sure why she fell, (Id.), but stated that the 

fracture was somehow connected to her earlier left Achilles tendon problem. (R. at 

30.) In her own words, the “fracture happened right across the ankle,” and she was 

in “a lot of pain.” (R. at 31–32.) She underwent ankle surgery on December 24, 2008

and subsequently wore a cast with seven screws and one plate. (R. at 32.) 

McCaster testified that, as of the hearing date, the fracture had not yet 

healed, and it continued to be a problem for her. (R. at 30.) She had the symptoms of 

swelling and pulling, in addition to a sharp, sticking pain. (R. at 33.) She had a 

prescription for Vicodin and Percocet, and she took pain medication for her ankle 

“[m]ostly every day.” (R. at 34.) She also said that applying ice to her ankle helped 

ease her pain. (Id.) McCaster said that she did not have a doctor because she had no 

health insurance when she fell. (R. at 33.)

3 McCaster’s testimony is unclear concerning her return to work and her release to light/full

duty. However, according to her medical records, McCaster was released to light duty work 

in April 2008 and full duty work in June 2008. (R. at 170, 184.)

McCaster v. Colvin, No. 12 C 4059 Page 11

 
McCaster testified that her pain ranked a “3” or “4” on a 10-point scale while 

watching television.4 (R. at 34–35.) Her pain increased whenever she did “a lot of 

walking” or “moving around,” such as when she went to grocery stores, shopped, or

cleaned. (R. at 35.) She said that she needed to go to at least three or four different 

stores in order to budget her money. (Id.) Her pain ranked a “6” on the 10-point 

scale after walking around for three hours and ranked a “10” later on when she 

would lie down in bed. (Id.) As a result, she would be “up all night with it.” (R. at 

36.)

In addition, McCaster revealed that, since her termination, her “pseudotumor 

cerebral” had “acted up” due to stress. (Id.) As a result, she suffered from migraines

and sore feet. (Id.) She had received care from a neurologist and took the 

antidepressant “Amitriptyline.” (R. at 37.) 

McCaster testified that she had some difficulties driving. (R. at 27.) She 

stated that these difficulties were due to her migraine headaches and hampered 

vision and equilibrium. (R. at 28.)

Consultative Evidence

On March 3, 2009, Dr. Frank Jimenez, a Disability Determination Services 

(“DDS”) consultant, completed a physical RFC assessment of McCaster. (R. at 218–

25.) Jimenez opined that McCaster was limited in that she could occasionally lift 

only 20 pounds, frequently lift only 10 pounds, and stand/walk for a total of about 6

hours in an 8-hour workday. (R. at 219.) Furthermore, Dr. Jimenez found that 

4 The ALJ specified that a “10” on his scale corresponded to extreme pain, whereas a “0” 

corresponded to no pain. (R. at 34.) 

McCaster v. Colvin, No. 12 C 4059 Page 12

 
McCaster could sit for a total of 6 hours in an 8-hour workday and that she had an 

“unlimited” ability to push/pull. (Id.)

Moreover, McCaster could only occasionally climb ramps or stairs and could 

never climb ladders, ropes, or scaffolds. (R. at 220.) She could only occasionally 

balance, stoop, kneel, crouch, or crawl. (Id.) Dr. Jimenez stated that, even as of 

December 7, 2009, McCaster should still “avoid frequent postural activities and 

climbing.” (Id.) Dr. Jimenez also stated that McCaster should avoid concentrated 

exposure to fumes, odors, dusts, gases, poor ventilation, and “hazards.” (R. at 222.) 

The doctor recommended that McCaster avoid dust and fumes after December 9, 

2009, due to her “history of asthma.” (Id.) Dr. Jimenez noted, however, that 

McCaster had no manipulative, visual, or communicative limitations. (R. at 221–

22.) 

Dr. Jimenez found McCaster’s allegations about the severity of her symptoms 

and their impact on function to be consistent with the evidence. (R. at 223.) Jimenez 

added that McCaster was credible and that her “symptoms and alleged functional 

limitations ha[d] been consistently described throughout the case record.” (R. at 

225.) However, Dr. Jimenez also opined that her disabling condition would 

“improve.” (Id.) 

On September 12, 2009, Dr. David Bitzer affirmed Dr. Jimenez’ March 5 RFC 

assessment. (R. at 264–66.) 

McCaster v. Colvin, No. 12 C 4059 Page 13
V. DISCUSSION

McCaster raises the following four arguments in support of her request for 

reversal or remand: (1) the ALJ failed to obtain a valid waiver of McCaster’s right to 

representation; (2) the ALJ failed to develop a full and fair record; (3) substantial 

evidence does not support the ALJ’s determination that McCaster could return to 

her past relevant work; and (4) the ALJ failed to properly analyze McCaster’s 

obesity. (Dkt. 20.) 

A. Waiver of McCaster’s Right to Representation

First, McCaster argues that the ALJ failed to obtain a valid waiver of her 

right to representation. (Dkt. 20 at 5.) A claimant has a statutory right to be 

represented by counsel at a disability hearing. 42 U.S.C. § 406; 20 C.F.R. §§

404.1700, 416.1500; see Binion v. Shalala, 13 F.3d 243, 245 (7th Cir. 1994). 

However, a claimant may also waive this right. Binion, 13 F.3d at 245. For the 

waiver to be valid, the ALJ must inform the pro se claimant of (1) the manner in 

which an attorney can aid in the proceedings; (2) the possibility of free counsel or a 

contingency arrangement; and (3) the limitation on attorney fees to 25 percent of 

past-due benefits and required court approval of the fees. Id.; see Thompson v. 

Sullivan, 933 F.2d 581, 584 (7th Cir.1991).

In this case, the ALJ did not address all three of these “Thompson factors.” 

The ALJ did discuss at length the possibility of McCaster obtaining free counsel and 

the 25 percent limitation on attorney fees. (R. at 22–23.) However, the ALJ said 

McCaster v. Colvin, No. 12 C 4059 Page 14
nothing about the manner in which an attorney could aid McCaster in the 

proceedings. Accordingly, the ALJ failed to obtain a valid waiver of representation.

Prior to the hearing, McCaster was given detailed written information that 

addressed what an attorney could do for her. (R. at 67, 70–72.) But in the Seventh 

Circuit, it is unclear whether such types of written materials can replace the oral 

admonishment. See Gatewood ex rel. D.P. v. Astrue, No. 10 C 283, 2011 WL 904864,

at *9 (N.D. Ill. March 14, 2011) (“The Seventh Circuit has not directly addressed 

whether a claimant’s receipt of written materials that sets (sic) forth the necessary 

elements is sufficient to establish a claimant’s knowing waiver.”). A district court

has held that these materials might suffice, provided the ALJ “establishe[d] at the 

hearing that the claimant received, read and understood the notices.” Seamon v. 

Barnhart, No. 05 C 13 C, 2005 WL 1801406, at *10 (W.D. Wis. July 29, 2005); see 

also Gatewood, 2011 WL 904864, at *9 (citing the Seamon reasoning). But see 

Dillard v. Barnhart, No. 02 C 6251, 2003 WL 22478775, at *2 (N.D. Ill. Oct. 31, 

2003) (holding that sending a pre-hearing letter did not relieve the ALJ of the 

hearing obligation to properly notify a claimant of the right to counsel). 

However, in this case, the ALJ never mentioned written notices and did not 

establish that McCaster ever received, read, or understood any pre-hearing notices. 

The ALJ did provide McCaster a sheet of paper with legal aid organizations listed 

on the first page and bar associations listed on the second. (R. at 22–23.) But the 

hearing transcript provides no indication that these materials contained any 

McCaster v. Colvin, No. 12 C 4059 Page 15
information about the role of an attorney in a disability determination hearing. For 

these reasons, McCaster’s waiver of counsel was invalid. 

B. Development of a Full and Fair Record

McCaster next argues that the ALJ failed to develop a full and fair record. 

(Dkt. 20 at 6.) In the Seventh Circuit, courts consider several factors when deciding 

whether a record has been “fully and fairly” developed. Ferguson v. Barnhart, 67 F. 

App’x 360, 367 (7th Cir. 2003). Some factors include (1) whether the ALJ obtained 

all of the claimant’s medical records; (2) whether the ALJ elicited detailed 

testimony from the claimant at the hearing; and (3) whether the ALJ heard 

testimony from examining or treating physicians. See id. In the case of a pro se

claimant, an ALJ fails to develop a full and fair record when there is a “significant

omission.” See Nelms v. Astrue ̧ 553 F.3d 1093, 1098 (7th Cir. 2009). An omission is 

significant if it is prejudicial. Id.; see Nelson v. Apfel ̧ 131 F.3d 1228, 1235 (7th Cir. 

1997). 

As noted above, in this case, the ALJ did not obtain a valid waiver of 

McCaster’s right to representation. While such a failure does not, by itself, 

necessitate remand, it does heighten the ALJ’s duty to develop the record. See 

Skinner, 478 F.3d at 841 (quoting Smith v. Sec. of Health, Educ. & Welfare, 587 

F.2d 857, 860 (7th Cir. 1978)) (“When an ALJ fails to adequately inform an 

unrepresented claimant of the right to counsel, the ALJ must ‘scrupulously and 

conscientiously probe into, inquire of, and explore for all relevant facts.’”).

McCaster v. Colvin, No. 12 C 4059 Page 16
In the case of a valid waiver, the claimant must show that the ALJ failed to 

elicit the relevant information. See Nelms, 553 F.3d at 1098 (“[A] claimant must set 

forth specific, relevant facts . . . that the ALJ did not consider.”). However, in the 

case of an invalid waiver, the burden of demonstrating that the ALJ adequately 

developed the record shifts to the Commissioner. See Binion, 13 F.3d at 245. 

In this case, the Commissioner has not established that the ALJ satisfied this 

heightened duty. First, we agree with McCaster that, during the hearing, the ALJ 

should have asked direct questions about the requirements of her past job as a 

phlebotomist. (Dkt. 20 at 9.) In his ultimate decision, the ALJ found that McCaster 

was able to perform her past relevant work “as actually performed.” (R. at 16.) Prior 

to the hearing, McCaster had filled out several written forms that described the 

number of hours she spent completing various tasks at her old job. (R. at 114, 121, 

270.) 

However, McCaster’s three accounts were inconsistent. In the first, undated 

account, McCaster stated that the job required her to walk/stand for 4 hours. (R. at 

114.) In a second account, dated January 23, 2009, she stated that the job required 

her to walk/stand for 10.5 hours. (R. at 121.) In a third, dated October 27, 2009, she 

said that the job required her to stand/walk for 10 hours in a 12-hour day and 

stand/walk for 6 hours in an 8-hour day. (R. at 270.) 

The ALJ briefly mentioned these inconsistencies in his decision and 

concluded that the third account was the “most recent.” (R. at 16.) In determining 

that McCaster was capable of performing her past relevant work as actually 

McCaster v. Colvin, No. 12 C 4059 Page 17
performed, the ALJ apparently put the most stock in this third job description, 

which ultimately aligned with McCaster’s assessed RFC.5

Because of the ALJ’s “heightened duty” to develop the record, the ALJ ought 

to have questioned McCaster about these different job requirements. Particularly 

notable, it is unclear whether McCaster worked 8-hour or 12-hour days. Assuming, 

arguendo, that the ALJ’s RFC assessment was proper, the ability to work 6 hours in 

an 8-hour workday does not necessarily equate to the ability to work 10 or 10.5

hours in a longer day.

Of particular relevance, McCaster’s testimony suggests that her ability to 

walk and stand was less robust than that described by the RFC assessment. 

McCaster testified that, after shopping for a mere three hours, she would lie in bed

at night and experience “10” out of “10” pain. (R. at 35–36.) McCaster added that 

she would remain awake all night because of the pain. (R. at 36.) Yet, after 

McCaster revealed this information, the ALJ moved on to a new topic, neither 

asking any follow-up questions to illuminate McCaster’s claims nor attempting to 

reconcile them with other evidence. In effect, McCaster was suggesting that 

shopping for a few hours could increase her pain from a “3” or “4” to a “10.” It is 

unclear whether the ALJ ever considered this potentially important piece of 

evidence, as it was absent from his written opinion. 

Regardless of which of McCaster’s occupational summaries put forth the most 

accurate overview of her position as a phlebotomist, it is fair to say that the job 

5 The ALJ determined that McCaster had the RFC to stand/walk for 6 hours in an 8-hour 

workday. (R. at 12.)

McCaster v. Colvin, No. 12 C 4059 Page 18

 
required a considerable amount of standing and walking. With that in mind, 

McCaster’s actual ability to stand and walk was a critical component of any inquiry 

into whether she was able to perform her past relevant work. See also Social 

Security Ruling (SSR)6 96-8p (“[T]he first consideration at . . . step [4] is whether 

the individual can do past relevant work as he or she actually performed it.”).

In this case, the ALJ could have ordered a consultative examination to more 

fully and fairly develop the record. Specifically, such an examination could have 

uncovered the current state of McCaster’s impairments. An ALJ is generally not 

required to order a consultative examination. See Skinner, 478 F.3d at 844 (“The 

ALJ is not required to order such examinations, but may do so if an applicant's 

medical evidence about a claimed impairment is insufficient.”) (emphasis in 

original). In this case, a consultative examination might have yielded clarifying

information about McCaster’s condition as of the hearing date. See Nelms, 553 F.3d 

at 1098 (“Although pro se litigants must furnish some medical evidence to support 

their claim . . . the ALJ is required to supplement the record, as necessary, by 

asking detailed questions, ordering additional examinations, and contacting 

treating physicians and medical sources to request additional records and 

information.”) (internal citations omitted).

6 SSRs “are interpretive rules intended to offer guidance to agency adjudicators. While

they do not have the force of law or properly promulgated notice and comment regulations,

the agency makes SSRs binding on all components of the Social Security Administration.”

Nelson v. Apfel, 210 F.3d 799, 803 (7th Cir. 2000); see 20 C.F.R. § 402.35(b)(1). While the

Court is “not invariably bound by an agency’s policy statements,” the Court “generally

defer[s] to an agency’s interpretations of the legal regime it is charged with

administrating.” Liskowitz v. Astrue, 559 F.3d 736, 744 (7th Cir. 2009).

McCaster v. Colvin, No. 12 C 4059 Page 19

 
Finally, the ALJ’s questioning of McCaster at the hearing was brief and 

perfunctory. The hearing lasted approximately 27 minutes and was recorded in 

fewer than 15 pages. (R. at 22–38.) McCaster’s actual testimony was recorded in 

fewer than 12. (R. at 26–37.) In light of the omissions described above, the brevity of 

the hearing and the cursory questioning warrant remand. 

While a hearing’s length is not dispositive of whether the ALJ failed to satisfy 

her obligations, Thompson, 933 F.2d at 585–88, a perfunctory hearing may be 

indicative of such a failure, see, e.g., Nelms, 553 F.3d at 1097–99 (“[During a 25–

minute hearing] the ALJ did not probe, in any depth, [claimant’s] recent past at the 

hearing or gather any medical evidence to fill the two-year gap in the record.”); 

Henderson v. Barnhart, 205 F. Supp. 2d 999, 1010 (E.D. Wis. 2002) (finding that the 

Commissioner did not demonstrate a fully and fairly developed record where the 

hearing “was brief, almost perfunctory, lasting barely one-half hour”); Harris v. 

Barnhart, 219 F. Supp. 2d 966, 974 (E.D. Wis. 2001) (finding that the ALJ failed to 

fully and fairly develop the record during a 23–minute hearing); Bailey v. Barnhart, 

No. 01 C 1909, 2002 WL 31040350, at *14 (N.D. Ill. Sept. 12, 2002) (finding that the 

ALJ failed to develop the record at a claimant’s hearing, which was transcribed onto 

a mere 11 pages).

For the above reasons, the Commissioner has not met her burden of showing 

that the ALJ fully and fairly developed the record. Accordingly, the Court remands 

this case to the Commissioner to develop the record, and it declines to address 

McCaster’s other contentions. Nevertheless, on remand, the ALJ should reevaluate 

McCaster v. Colvin, No. 12 C 4059 Page 20
McCaster’s impairments and RFC, considering all of the evidence in the record, 

including McCaster’s testimony, and shall explain the basis of his findings in 

accordance with applicable regulations and rules. In particular, we urge the ALJ to 

heed the requirement that he build an “accurate and logical bridge from the 

evidence to his conclusion.” See Young, 362 F.3d at 1002 (internal quotations and 

citation omitted). Furthermore, if McCaster appears at a subsequent hearing 

without representation, the ALJ shall obtain a valid waiver of representation. 

VI. CONCLUSION

For the reasons stated above, McCaster’s Motion for Summary Judgment [20] 

is GRANTED. Pursuant to sentence four of 42 U.S.C. § 405(g), the ALJ's decision is 

reversed, and the case is remanded to the Commissioner for further proceedings 

consistent with this opinion.

Dated: May 23, 2014

E N T E R:

MARY M. ROWLAND

United States Magistrate Judge

McCaster v. Colvin, No. 12 C 4059 Page 21