WTN: Okay.

ALJ: Or if you wanted to be here as her representative you could

stay in the room, but then we wouldn’t be able to take your
testimony so —

WTN: Well, if I have to leave -

ALJ: It’s pretty much your choice.

WIN: -— the room to get this done.

ALJ: You wish to testify then today too?

WIN: Yes.

(Soc. Sec. Admin. Office of Hr’gs & Appeals R. at 298-99 (June 11, 2003).) After reviewing the
transcript, the Court concludes that the ALJ did not secure a valid waiver of Plaintiff’s statutory right
to counsel. In fact, the ALJ failed to discuss with Plaintiff any of the three issues set forth in Binion.®
See 13 F.3d at 245,

This finding, by itself, is an insufficient ground from which to remand the case for
additional proceedings. See id. (“[A] claimant is not entitled to a remand based on inadequate notice
of the right to representation unless the ALJ did not develop a full and fair record.”) (citation
omitted). Instead, it serves to shift the burden of showing that the ALJ fully and fairly developed
the administrative record to the Commissioner.’ See Nelson v. Apfel, 131 F.3d 1228, 1235 n.3 (7"
Cir. 1997); Binion, 13 F.3d at 245. In order to satisfy this burden, the Commissioner must show that
the ALJ fulfilled his “duty to ‘scrupulously and conscientiously probe into, inquire of, and explore

for all relevant facts.’” Nelson, 131 F.3d at 1235 (citation omitted); see also Thompson, 933 F.2d

at 585-86 (same). This duty is fulfilled when “the ALJ probes the claimant for possible disabilities

6This conclusion is not in dispute. (See Comm’r’s Br., at 7 (“As plaintiff points out, in
the present case the ALJ did not explain all the requirements set forth in Binion.”)

7It is worth noting that “[t]he ALJ in a social security hearing has a basic obligation to
develop a full and fair record” regardless of whether a pro se claimant’s “waiver of counsel [i]s
valid.” Nelson v, Apfel, 131 F.3d 1228, 1235 (7" Cir. 1997) (citations and internal quotation
marks omitted); see also Binion, 13 F.3d at 245 (same).

4



remaining arguments. Instead, the case must be remanded for additional administrative proceedings.
When conducting these proceedings, the ALJ must act to ensure that the entire record is developed,
such that every issue relevant to the determination of Tatiana Chatmon’s disability claim is fully and
fairly explored. Furthermore, Plaintiff should either have counsel present during the proceedings,
or the ALJ should obtain a valid waiver of Plaintiff's statutory right to counsel prior to allowing
Plaintiff to proceed without an attorney.

ORDERED: Plaintiffs Motion to Reverse the Final Decision of the Commissioner
of Social Security [19] is granted in part. Defendant’s Motion for Summary Judgment [21] is
denied. Pursuant to sentence four of 42 U.S.C. § 405(g), the Commissioner’s final decision is
reversed, and the case is remanded for action consistent with this Memorandum and Order.
Judgment will be set forth on a separate document and entered in the civil docket. See Fed. R. Civ.
P. 58, 79(a).
parep: _AUG12 2004 ENTER: A, ,

HON. silo Ds W. LINDBERG
United States District Judge



with the evidence provided by the claimant’s mother. . concerning specific instances of the
claimant’s fighting at school.” Plaintiff also alleges that “there is an inconsistency between the
teacher’s report concerning the claimant and the testimony by the mother that the claimant had been
required to be disciplined by the school principal from time to time.” Both of the inconsistencies
identified by Plaintiff essentially address the same issue — alleged conflicts between Marshalynn
Chatmon’s testimony and written reports from Tatiana Chatmon’s teachers concerning Tatiana
Chatmon’s ability to interact and relate with others while at school.

Areview of the administrative record confirms the existence of these inconsistencies.
Although the written reports never mention that Tatiana Chatmon fought with her peers or was
subjected to formal discipline, Marshalynn Chatmon testified before the ALJ that her daughter was
repeatedly disciplined by her school principal for fighting and other incidents of misbehavior. For
example, Marshalynn Chatmon described occasions when Tatiana Chatmon (1) physically assaulted
other students, (2) stole from other students, and (3) was disciplined by her school principal. See,
e.g., (Soc. Sec. Admin. Office of Hr’gs & Appeals R. at 322, 326-29 (June 11, 2003).) In fact,
Marshalynn Chatmon testified that the school principal had actually considered suspending or
expelling her daughter. (/d. at 328-29.)

“There is a statutory requirement that, if you are eligible for disability benefits as a
disabled child, your continued eligibility for such benefits must be reviewed periodically.” 20C.F.R.
§416.994a(a). When reviewing a claimant’s eligibility, the ALJ must determine, inter alia, whether
the claimant’s impairment(s) functionally equal any listed impairment(s). See id at §
416.994a(b)(3)(ii) & (b)(3)(iii). In order to functionally equal a listed impairment, a claimant’s

impairment “must be of listing-level severity; i.e., it must result in ‘marked’ limitations in two



and uncovers all of the relevant evidence.” Binion, 13 F.3d at 245 (citations omitted); see also
Thompson, 933 F.2d at 586 (“[W]e note that to develop the record fully and fairly, the ALJ must be
especially diligent in ensuring that favorable as well as unfavorable facts and circumstances are
elicited.”) (citation and internal quotation marks omitted). If the Commissioner fails to make the
requisite showing, the case must be remanded. See Thompson, 933 F.2d at 586.

Generally, “‘a significant omission is. . required before th[e Court will find that the
[Commissioner] failed to assist [a] pro se claimant[] in developing the record fully and fairly.’”
Nelson, 131 F.3d at 1235 (citation omitted); see also Luna v. Shalala, 22 F.3d 687, 692 (7" Cir.
1994) (same). Moreover, any such omission must be prejudicial.* See Nelson, 131 F.3d at 1235.
If the Commissioner successfully establishes that the ALJ fully and fairly developed the record,
Plaintiff“may rebut this showing by demonstrating prejudice. The plaintiff can meet this burden by
showing that the ALJ failed to elicit all of the relevant information from the claimant.”® Nelson, 131
F.3d at 1235 n.3 (citation omitted); see also Binion, 13 F.3d at 245-46 (“evidentiary gap” also
sufficient to rebut Commissioner’s case) (citations omitted).

Here, Plaintiff has identified two inconsistencies in the administrative record.
Initially, Plaintiff argues that “records from the claimant’s school teachers {that] appear to paint a

rather euphoric picture of the claimant’s academic and social progress in school. . .do[] not comport

*<Mere conjecture or speculation that additional evidence might have been obtained in
the case is insufficient to warrant a remand.’” Nelson, 131 F.3d at 1235 (citation omitted); see
also Binion, 13 F.3d at 246 (same).

°But see Luna, 22 F.3d at 692 (While the ALJ has a heightened duty to make sure that
the record is developed when a claimant is unrepresented,. ..how much evidence to gather is a
subject on which we generally respect the [Commissioner’s] reasoned judgment.”) (citations
omitted).


type of detailed information (¢.g., who, what, when, where, why, and how), written
records/documents, or testimony that would permit the Court to conclude that a full and fair record
was developed.

While it is within the ALJ’s discretion to decide how much evidence to collect with
respect to the issues before him or her (see Luna, 22 F.3d at 692), the ALJ’s efforts in this case were
insufficient. In fact, Marshalynn Chatmon actually voiced her concern during the hearing that she
may not have provided all of the facts relevant to Tatiana Chatmon’s claim of continued disability."°
If nothing else, these revealing statements should have alerted the ALJ to the possibility that
Marshalynn Chatmon’s testimony may not have been complete. Regrettably, they did not. And
since Marshalynn Chatmon’s testimony was relevant to the determination of whether an extreme
limitation exists in one of the six domains — interacting and relating with others — the failure to
adequately develop the record with respect to that issue prejudiced Plaintiff by denying Marshalynn
Chatmon a full and fair opportunity to contest the written reports provided by her daughter’s teachers
and present testimony and evidence favorable to Tatiana Chatmon’s disability claim.

Because the ALJ did not (1) obtain a valid waiver of Plaintiff's right to counsel or (2)

fulfill his duty to fully and fairly develop the record, it is not necessary to address Plaintiff's

The transcript of Plaintiffs June 11, 2003 hearing includes the following excerpt:

ALJ: And do you have any questions for the medical expert at
this point?

WTN: [Marshalynn Chatmon] No. I’m just nervous. I don’t know
why I’m nervous, but I just am. I can’t think of anything to
say right now. Probably when I get home Ill be like I
should have said that.

(Soc. Sec. Admin. Office of Hr’gs & Appeals R. at 332 (June 11, 2003).)
8



Minute Order Form (06/97)

WL)

United States District Court, Northern District of Illinois

Name of Assigned Jud i Sitting Judge if Oth
nor Magisteate Judge George W. Lindberg than Assigned Judge
CASE NUMBER 04 C 344 DATE 8/12/2004
CASE Marshalynn Chatmon vs. Jo Anne B. Barnhart
TITLE

[Inthe following box (a) indicate the party filing the motion, e.g,, plaintiff, defendant, 3rd party plaintiff, and (b) state briefly the nature

of the motion being presented.)

e33)

MOTION:
DOCKET ENTRY:
qd) oO Filed motion of [ use listing in “Motion” box above.]
(2) im Brief in support of motion due
(3) a Answer brief to motion due___. Reply to answer brief due.
(4) a Ruling/Hearing on___—ssetfor___—_at ‘
(5) oO Status hearing[held/continued to] [set for/re-set for]on___setfor___——_att
(6) oO Pretrial conference[held/continued to] [set for/re-set for]on__—_—setfor__—s—sat_—
(7) oOo Trial[set for/re-set for]on___— at
(8) oO [Bench/Jury trial] [Hearing] held/continued to____at
(9) Qa This case is dismissed [with/without} prejudice and without costs[by/agreement/pursuant to]
QUFRCP4(m) (OlLocal Rule 41.1 OOFRCP41(a)(1) 1 FRCP41(a)(2).
(10) Mi [Otherdocketentry] Plaintiffs motion to reverse the Final Decision of the Commissioner of Social

Security (19) is granted in part. Defendant’s motion for summary judgment (21) is denied. Enter

memorandum and order.

a [For further detail see order attached to the original minute order.]

No notices required, advised in open court.

No notices required, number of notices

Document
Number:

Notices mailed by judge’s staff. al 4
IG 43 904

Notified counsel by telephone. date docketed

Docketing to mail notices.

Mail AO 450 form.

fepay initials

4)

Copy to judge/magistrate judge | ; sa7sn

date mailed notice
courtroom

SLB depuly’s
initials

SH 21 O07 8002

_ Date/time received ip ;
central Cletle’s Office mailing deputy initials



domains of functioning or an ‘extreme’ limitation in one domain... .” 20 C.F.R. § 416.926a(a). An
ALJ will find an extreme limitation in a domain when the claimant’s impairment “interferes very
seriously with [his or her] ability to independently initiate, sustain, or complete activities.” Jd. at §
416.926a(e)(3)(i). Among the six domains to be considered by the ALJ is the domain “[i]nteracting
and relating with others.” Jd. at § 416.926a(b)(1)(iii). That particular domain encompasses “how
well [the claimant] initiate[s} and sustain{s] emotional connections with others, develop[s] and use[s]
the language of [his or her] community, cooperate[s] with others, compl|[ies] with rules, respond[s]
to criticism, and respect[s] and take[s] care of the possessions of others.” Jd. at § 416.926a(i).
Employing that definition, the Court finds that evidence concerning Tatiana Chatmon’s ability to
interact and relate with her peers is crucial to any evaluation of her continued eligibility for
Supplemental Security Income benefits. See, e.g., id. at § 416.926a(a) & (b)(1)(iii). And it flows
from this finding that any failure to fully and fairly develop the record or any evidentiary gaps with
respect to the previously-described inconsistencies could prejudice Plaintiff.

Here, the Commissioner has failed to show that the record was fully and fairly
developed as to Tatiana Chatmon’s ability to interact and relate with others while at school. More

specifically, the transcript of the June 11, 2003 hearing establishes that the ALJ failed to

e 299

scrupulously and conscientiously probe into, inquire of, and explore for all [of the] relevant facts’
related to the incidents of fighting and misbehavior identified by Marshalynn Chatmon. Nelson, 131
F.3d at 1235 (citation omitted); see also Thompson, 933 F.2d at 585-86 (same). For example, neither
the ALJ nor the medical expert scrupulously probed into or explored the specific occasions of
fighting and formal discipline mentioned by Marshalynn Chatmon. See, e.g., (Soc. Sec. Admin.

Office of Hr’gs & Appeals R. at 322, 326-29 (June 11, 2003).) As a result, the record is void of the



322 F.3d 912, 915 (7" Cir. 2003) (citation omitted); see also Lopez v. Barnhart, 336 F.3d 535, 539
(7* Cir. 2003) (same).

Plaintiffadvances several arguments in support of her motion. Initially, she proposes
that “[t]he ALJ failed to obtain a valid waiver of claimant’s right of representation” and that the
participation of an attorney “may have afforded a different outcome to this case.” The Court agrees.

It is settled that “[a] claimant has a statutory right to counsel at a disability hearing.”
Binion v. Shalala, 13 F.3d 243, 245 (7 Cir. 1994) (citations omitted); see also Thompson v.
Sullivan, 933 F.2d 581, 584 (7" Cir. 1991) (same). However, this right may be waived. See id To
ensure that any such waiver is valid, an ALJ must “explain to the pro se claimant (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.” Binion, 13 F.3d at 245 (citation omitted).

Here, a valid waiver of Plaintiff's statutory right to counsel was not obtained. The
transcript of Plaintiff's June 11, 2003 hearing before the ALJ revealed the following discussion
concerning Plaintiff’s right to counsel:

ALJ: Okay. A couple of things I want to go over before we proceed

and the first thing is I notice the Notice of Hearing and other
information we sent to you indicate that you could have an
attorney or other representative here to assist you if you so
choose or if you wish to proceed today without out that’s fine
also. I just want to make sure you understand —

WTN: [Marshalynn Chatmon] Yes.

ALJ: —you have the right.

WTN: Yes.

ALJ: And under the Social Security it’s our policy that if you wish

to testify then when we examine your daughter we would ask

you to leave the room and then come back in once it’s your
turn to testify. If that’s what you wanted to do.



Analysis

It is well-established that “[c]ross-motions for summary judgment are the standard
method for presenting a case to a district court for decision on the record compiled by the
administrative tribunal that the court is reviewing.” Dale M. v, Bd. of Educ. of Bradley-Bourbonnais
High Sch. Dist. No, 307, 237 F.3d 813, 816 (7" Cir. 2001) (citations omitted); see also Scheck v.
Barnhart, 357 F.3d 697, 699, 703 (7° Cir. 2004) (affirming district court decision denying plaintiff's
cross-motion for summary judgment and granting Commissioner’s cross-motion for summary
judgment). In reviewing the Commissioner’s final decision, the Court must consider the entire
administrative record but may not “reweigh evidence, resolve conflicts in the record, decide
questions of credibility, or, in general, substitute [its] own judgment for that of the Commissioner.”
Young v. Barnhart, 362 F.3d 995, 1001 (7" Cir. 2004) (citation omitted); see also Jens v. Barnhart,
347 F.3d 209, 212 (7" Cir. 2003) (same). Review of the administrative law judge’s (“ALJ”) factual
findings is “limited to determining whether the. . findings are supported by substantial evidence.”*
Young, 362 F.3d at 1001 (citations omitted); see also Scheck, 357 F.3d at 699 (same). Of course,

nS

the Commissioner’s final decision must also be “free of legal error.”* Golembiewski v. Barnhart,

‘Substantial evidence is defined as evidence that “a reasonable person would accept. . .as
adequate to support the conclusion.” Young, 362 F.3d at 1001 (citation omitted), The substantial
evidence standard is “a deferential but not entirely uncritical standard. . . .” Golembiewski v.
Barnhart, 322 F.3d 912, 915 (7" Cir. 2003) (citation omitted). While the Court is obligated to
conduct “a critical review of the evidence[,]” factual findings that are supported by substantial
evidence must be affirmed “even if an alternative position is also supported by substantial
evidence.” Scheck, 357 F.3d at 699 (citation omitted); Lopez v. Barnhart, 336 F.3d 535, 539 (7"
Cir. 2003) (The ALJ’s decision “cannot stand if it lacks evidentiary support or an adequate
discussion of the issues” and “must build an accurate and logical bridge from the evidence to his
conclusion. . . .”) (citations and internal quotation marks omitted).

An ALJ’s conclusions of law are not generally entitled to the deference that is afforded
to his or her factual findings. See Binion v. Chater, 108 F.3d 780, 782 (7" Cir. 1997).

2



UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ILLINOIS DS? es)
EASTERN DIVISION wee

MARSHALYNN CHATMON, o/b/o
TATIANA CHATMON
Plaintiff,
Case No. 04 C 344
v.

JO ANNE B. BARNHART,
COMMISSIONER OF THE SOCIAL
SECURITY ADMINISTRATION,

)

)

)

)

)

) George W. Lindberg
) Senior United States District Judge
)

)

)

)

Defendant. AUG 13 2004

MEMORANDUM AND ORDER

Pursuant to 42 U.S.C. § 405(g), Marshalynn Chatmon, on behalf of Tatiana

Chatmon', (collectively, “Plaintiff’) seeks judicial review of the Commissioner’s final decision to

terminate Tatiana Chatmon’s Supplemental Security Income benefits. Plaintiff's complaint, inter

alia, asks the Court to find that Tatiana Chatmon is entitled to the terminated benefits or,

alternatively, reverse the Commissioner’s final decision with respect to Tatiana Chatmon’s benefits
and remand the case for additional administrative hearings.

Plaintiff has filed a motion to reverse the Commissioner’s final decision? and

Defendant has filed a motion for summary judgment.’ Plaintiff's motion is hereby granted in part

and Defendant’s motion is hereby denied.

'Marshalynn Chatmon is the mother of Tatiana Chatmon.
*Plaintiff’s motion will be construed as a summary judgment motion.
>Defendant’s response to Plaintiff's motion consists of Defendant’s summary judgment

motion. In the interest of judicial economy, Defendant’s summary judgment motion will be
construed as both (1) Defendant’s response to Plaintiffs motion and (2) a cross-motion for

summary judgment.