United States District Court, W.D. Wisconsin
OPINION AND ORDER
STEPHEN L. CROCKER Magistrate Judge
Susan Yealey is seeking review of a final decision by
defendant Nancy Berryhill, Acting Commissioner of Social
Security, denying her claim for disability insurance benefits
under the Social Security Act. 42 U.S.C. § 405(g).
Yealey applied for benefits on November 27, 2012, alleging
that she had been disabled since March 1, 2008 as a result of
various types of neuropathy, depression, anxiety, and chronic
pain and fatigue. Admin. Rec. (AR) 246, 249. After the local
disability agency twice denied her claim, Yealey had two
hearings before an administrative law judge (ALJ), who issued
a decision on September 23, 2015, finding that Yealey was not
disabled at any time between her alleged onset date and the
date that she was last insured, December 31, 2010. AR 17-28.
The Appeals Council subsequently denied Yealey's
application for review, making the ALJ's decision the
final decision of the Commissioner. Throughout the
administrative proceedings, Yealey was represented by a
non-attorney representative, Tammy Kellerman.
contends that the ALJ's failure to advise her of her
right to counsel and obtain a valid waiver of counsel
resulted in prejudice because the ALJ failed to develop the
record adequately with respect to her non-severe mental
impairments, pain, and medication side effects.
reasons explained below, I conclude that the ALJ did not
obtain a valid waiver of counsel in this case and that the
Commissioner has not met her burden of demonstrating that the
record was fully and fairly developed with respect to certain
mental limitations resulting from Yealey's non-severe
mental impairments, pain, and medication side effects,
resulting in prejudice to Yealey. Accordingly, I am reversing
the Commissioner's decision and remanding for further
proceedings consistent with this opinion.
following facts are drawn from the Administrative Record
(AR), filed with the Commissioner's answer in this case.
Relevant Medical History
Susan Yealey has a history of chronic pain as a result of
pudendal nerve entrapment. AR 853. On March 26, 2007, she
underwent a surgical procedure that reportedly relieved a lot
of pelvic pain that she was having. AR 539, 544, 546. On
December 21, 2007, Yealey's physician removed pelvic and
abdominal adhesions to address other pelvic pain that she was
having. AR 537. Yealey's pain improved in early 2008 and
completely resolved by February 2008. AR 534-36. Progress
notes dated June 29, 2009 and May 17, 2010 indicate that
Yealey's pudendal neuropathy was much better. AR 531-33.
On June 7, 2010, she had a carcinoma removed from her vulva.
AR 529. Although the surgeries improved her condition at
least temporarily, they did not completely relieve her pain.
AR 851. (Later medical records indicate that Yealey's
condition worsened again after 2011, but that is after her
date last insured.) Yealey took opiate painkillers four to
six times a day on a regular basis for many years. AR 561,
Yealey also suffers from low back pain as a result of a motor
vehicle accident that occurred in October 2008. AR 444. A
magnetic resonance imaging study taken of her cervical and
lumbar spine in December 2008 revealed only mild findings. AR
56-57. Chiropractic and massage treatments improved her
symptoms significantly but she continued to have some low
back pain that she reportedly managed “fairly
well” until September 2011. Id.
function report dated March 7, 2013, Yealey reported having
problems with her memory, completing tasks, concentration,
and following instructions, as well as “OCD like”
side effects from her medications. AR 269, 271.
Administrative Proceedings A. June 3, 2014 Hearing
testified that although she experienced some relief in 2006
and 2007 from the surgical treatment she received for
pudendal neuropathy, her pain returned either after she fell
on ice in 2008 or after her motor vehicle accident in October
2008. AR 53-55, 64. When Yealey began to experience symptoms
of pudendal neuropathy again in 2010 or 2011, she returned to
Dr. Analak, who told her that she had damaged her nerves
permanently and gave her injections for pain. AR 65. She has
taken several medications-including pain medication,
gabapentin, Klonopin, Cymbalta, and Amblify-since 2008 and
they make her sleepy and do not relieve all of her pain. AR
Howard McClure, a medical expert, testified that this case
was difficult to analyze because Yealey's principal
complaint is chronic pelvis and buttock pain for which she
has been taking narcotics four times a day for several years.
AR 49-50. He explained that her pain was not “clearly
orthopedic” but that there are no good objective
markers for pelvic pain “so it sort of boils down to a
question of credibility.” AR 50. Dr. McClure testified
that he did not see anything in the record concerning side
effects from Yealey's medications. AR 60-61. Based on his
review of the record, Dr. McClure concluded that Yealey did
not have any persistent limitations in her ability to work
for any 12-month period between March 1, 2008 and December
31, 2010. Id.
expressed concern about the record not having objective
clinical findings to support Yealey's subjective
complaints of pain, particularly with respect to her pudendal
neuropathy. AR 52. There also was some discussion by the ALJ
and Tammy Kellerman (Yealey's non-attorney
representative) about whether the record was complete with
respect to studies and evaluation of Yealey's pudendal
neuropathy because Yealey's main treating physician had
retried and placed his records in storage. AR 52-53.
Kellerman indicated that there were no treating physician
opinions because Yealey's doctor would not complete an
RFC. AR 59. Although Yealey insisted at the hearing that her
pudendal neuropathy came back before her last insured date in
2010, she and Kellerman admitted that the record before the
ALJ did not document that fact. AR 69. Kellerman indicated
that she would be submitting more records. Id.