United States District Court, Southern District of Indiana, Indianapolis Division
MATHEW V. BRIZENDINE, Plaintiff,
CAROLYN W. COLVIN Acting Commissioner of the Social Security Administration, Defendant.
REPORT AND RECOMMENDATION ON PLAINTIFF’S BRIEF IN SUPPORT OF APPEAL
Tim A. Baker, United States Magistrate Judge Southern District of Indiana
The parties appeared by counsel July 10, 2014, for an oral argument on Plaintiff’s claim for disability benefits. Set forth below is the Court’s oral ruling from the bench following that argument. As set forth below, the Magistrate Judge recommends that the ALJ’s decision be affirmed, and that judgment be entered against Plaintiff and in favor of Defendant. Any objections to the Magistrate Judge’s Report and Recommendation shall be filed with the Clerk in accordance with 28 U.S.C. § 636(b)(1). Failure to file timely objections within fourteen days after service shall constitute waiver of subsequent review absent a showing of good cause for such failure.
THE COURT: I will now recommend my conclusions in this case which I do with the benefit of the briefing and the oral argument that we just completed. This case arises from Plaintiff, Mathew Brizendine’s, July 6, 2010, applications for disability insurance benefits and for supplemental security income benefits. The alleged disability onset date was October 31, 2009.
After a hearing before an administrative law judge, it was found that Plaintiff was not disabled. On June 4, 2013, the appeals counsel denied Plaintiff's request for review, and this appeal followed.
In considering this appeal I am bound by the standard review which provides that the commissioner's factual findings shall be conclusive if substantial evidence supports them. Powers, P-O-W-E-R-S v. Apfel, A-P-F-E-L, 207 F.3d 431 at 434-435 (7th Cir. 2000).
Plaintiff raises five issues in this appeal. First, that the ALJ did not obtain a valid waiver of counsel or fully and fairly develop the record; two, that substantial evidence does not support the ALJ’s conclusion that Plaintiff was not disabled because his impairments did not meet or equal a listing; three, the ALJ erred in failing to summon a medical advisor; four, the ALJ’s credibility determination is patently erroneous; and five, the ALJ’s step-five determination is not supported by substantial evidence.
I will first address whether the ALJ obtained a valid waiver of counsel. To secure a valid waiver of counsel, an ALJ must explain to an unrepresented claimant the manner in which an attorney can aid in the proceedings, the possibility of free counsel, or a contingency agreement and the limitation of attorney fees to 25 percent of past due benefits and required court approval of the fees, Binion, B-I-N-I-O-N v. Shalala, S-H-A-L-A-L-A, 13 F.3d 243 at 245 (7th Cir. 1994).
The record, specifically at pages 31 and 32, reflects that the ALJ advised the Plaintiff of all salient facts and requirements. The Plaintiff's argument to the contrary borders on the frivolous. As acknowledged during oral argument, the ALJ did not say anything to the claimant that wasn't true, and while the ALJ did not specifically use the word “contingency, ” the ALJ went to great lengths to explain exactly what a contingency fee meant, which under any reasonable analysis, would be more instructive to a claimant than using the word “contingency.”
The ALJ specifically noted that the Plaintiff previously had a representative and asked him whether he wanted to proceed or adjourn to try to obtain additional representation. Plaintiff declined representation and stated he wished to proceed without representation.
Plaintiff contends in his brief, signed under Rule 11, that the ALJ asked Plaintiff a “series of leading questions.” That is in the brief at -- which is Docket No. 15 at page 10. This assertion has no support in the record. Plaintiff also signed a written waiver of counsel form that is in the record at page 28, and that form contains all the requirements for a valid waiver of representation.
Plaintiff's entire argument in this regard fails. Moreover, the ALJ asks the Plaintiff numerous questions about his work history, impairments, and their effect on his functioning, treatment history, medication, and daily activities. That is in the record at pages 40 through 62. The Plaintiff's wife also testified.
The Plaintiff has not met his burden of showing that he was prejudiced or treated unfairly. The ALJ adequately developed a full and fair record. Plaintiff argues that he was prejudiced or treated unfairly because based on the hearing testimony, the ALJ should have ordered a neurological evaluation.
Plaintiff testified that after he passed out in April of 2011, he was supposed to get a neurological evaluation, but it had to be rescheduled. And he also stated, “and now with the insurance, I don't know if I can get it done or not.” That is in the record at page 58.
The Plaintiff contends that the ALJ should have ordered a neurological evaluation because the fainting episodes seemed to be connected to his left leg thoracic spine problems, but there is scant evidence in the record about the Plaintiff's fainting spell. The record shows that in April of 2011, the Plaintiff went to ...