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Wolf v. Colvin

United States District Court, W.D. Wisconsin

October 3, 2016

SHELLEY WOLF, Plaintiff,
CAROLYN W. COLVIN, Acting Commissioner of Social Security, Defendant.



         Plaintiff Shelley Wolf seeks judicial review under 42 U.S.C. § 405(g) of a final decision of defendant Carolyn W. Colvin, the Acting Commissioner of Social Security, denying her application for Supplemental Security Income and Social Security Disability Insurance benefits. On July 22, 2016, the court heard oral argument on plaintiff's contentions that the administrative law judge (“ALJ”) erred in the following respects: (1) failing to obtain a valid waiver of counsel, resulting in prejudice; (2) failing to establish a proper foundation for the vocational expert's (“VE's”) testimony; (3) failing to give adequate consideration to Wolf's obesity; and (4) failing to translate Wolf's specific limitations properly in concentration, persistence and pace (CPP) in the hypothetical presented to the VE. While finding that the ALJ adequately accounted for CPP limitations in his hypothetical, the court will remand for further development of the record with respect to Wolf's waiver of right to counsel, the impact of Wolf's obesity on her other limitations, and the foundation of the VE's testimony.


         Wolf claims a disability onset date of March 13, 2010, because of asthma and pain in her left arm, back and neck. (AR 58-59.) She was 46 years old at that time and 48 years old when she applied for benefits. Wolf completed three years of college and has past work experience in several positions involving light to medium work at an unskilled or semi-skilled level, including food preparation, cashier, emergency medical technician, and security guard. (AR 32-33, 48.) Wolf stopped working at a deli in August 2010 because her employer could not accommodate her limitations following an injury to her left forearm and wrist in March 2010. (AR 49-51.)

         None of Wolf's treating physicians provided an opinion on her condition, although five different state consulting physicians provided opinions regarding her mental and physical limitations. Critical to Wolf's challenges is a February 14, 2013, Mental Residual Functional Capacity Assessment (“MRFCA”) form in which Dr. Eric Edelman checked off boxes indicating that Wolf was moderately limited in a number of specific functions: (1) ability to understand, remember, and carry out detailed instructions; (2) maintain attention; (3) perform on a schedule; (4) complete a normal workday or work week without interruption; (5) perform at consistent pace; and (6) adapt to changes in work setting.[1] In the narrative section of the form, Edelman wrote under the category of “understanding and memory” that Wolf “cannot remember procedure for complex or detailed task [sic], but she can perform simple repetitive tasks;” under the category of “concentration and persistence” that Wolf “is capable of maintaining concentration and persistence to complete workdays and workweeks in performance of simple repetitive tasks;” and under the category of “adaptation” that Wolf “[complains of] chronic pain, coupled with changes to routine, [which] may cause some difficulty dealing w[ith] work place stress, but can adjust to the settings that require simple repetitive tasks.” (AR 104-10, 125.)

         On July 24, 2013, the ALJ held an administrative hearing at which Wolf appeared without an attorney. At the outset of the hearing, the ALJ noted that, at a pre-hearing conference held off the record, he had already informed Wolf of her right to counsel and told her to read and sign a “Waiver of Representation” form. The ALJ also confirmed on the record that Wolf had read and understood the form and chose to proceed without an attorney. (AR 42-43.)

         The ALJ issued a written decision on September 16, 2013, finding Wolf not disabled. While the ALJ found that Wolf was severely impaired by peripheral neuropathy, degenerative disc disease, asthma, obesity, affective disorder, and anxiety disorder, he determined that her impairments, alone or in combination, did not meet or equal the criteria for any listed impairment. (AR 25-27.) In reviewing the “B criteria” of the mental impairment listings specifically, the ALJ noted that Wolf had moderate limitations in: (1) CPP based on her self-reports of lack of concentration due to pain; (2) not always finishing what she starts; (3) feeling overwhelmed by stress; and (4) not adapting well to changes in her routine. (AR 26-27.)

         The ALJ further determined that Wolf had the RFC to perform light work if limited to: (1) occasional overhead reaching and handling with her upper left arm; (2) no more than moderate exposure to irritants such as fumes, odors, dusts, and gases; (3) simple, routine, repetitive tasks; and (4) a low stress work environment with only occasional decision making and changes in the work setting. (AR 27.) In formulating this RFC, the ALJ expressly discounted Wolf's statements concerning her other symptoms and limitations, finding that: (1) her spinal x-rays showed no acute problem; (2) her MRI was insignificant and did not evidence her reported pain; (3) she had at least some use of her left arm; and (4) she provides daily care and feeding to several animals, cooks meals from scratch, drives, shops, and cleans. (AR 30-31.)

         The ALJ considered all of the state consultant medical opinions, placing great weight on Dr. Edelman's opinion. (AR 31-32.) In addition, he relied on the testimony of a VE who opined in response to a hypothetical question that Wolf's past relevant work would be precluded by her limitations, but that jobs exist in significant numbers in the national economy that she could perform, assuming Wolf had an RFC consistent with the ALJ's formulation, including usher, counter clerk and record clerk. (AR 34.)


         Generally speaking, the court finds the ALJ's opinion to be clear and well-reasoned. Even so, for reasons explained below, the ALJ should have developed the record further and he should have addressed more thoroughly three of the four areas challenged by Wolf.

         I. Invalid Waiver of Right to Counsel

         Social Security claimants have a statutory right to counsel at a disability hearing. 42 U.S.C. § 406. This right may be waived as long as the evidence shows the claimant did so knowingly. Ratulowski v. Astrue, 380 F.App'x 552, 554 (7th Cir. 2010); Skinner v. Astrue, 478 F.3d 836, 841 (7th Cir. 2007). The parties agree that a proper waiver must contain an explanation of: (a) the benefits of counsel; (b) the possibility of free counsel or a contingency fee arrangement; and (c) the statutory 25% withholding limitation on attorneys' fees, including required court approval of the fees. Binion v. Shalala, 13 F.3d 243, 245 (7th Cir. 1994); Thompson v. Sullivan, 933 F.2d 581, 584 (7th Cir. 1991). If the ALJ does not obtain a valid waiver of counsel, the case must be remanded for a new hearing. At the same time, the district court can deny remand if satisfied “that the ALJ fully and fairly developed the record.” Binion, 13 F.3d at 245-46 (ALJ duty met if he “probes the claimant for possible disabilities and uncovers all of the relevant evidence”). In turn, a claimant can rebut the Commissioner's showing that the ALJ adequately developed the record by demonstrating prejudice or an evidentiary gap. Id. For example, prejudice may be shown if the ALJ failed to elicit all relevant information. Id.

         The ALJ in this case held a prehearing conference at which he purportedly informed Wolf of her right to counsel and had her complete a “Waiver of Representation” form. There is no evidence, however, that the ALJ obtained a valid waiver because the conference was held off the record, the ALJ does not represent on the record what was discussed (so that the claimant might affirm her understanding) ...

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