# Swanigan v. Commissioner of Social Security

> District Court, M.D. Florida · September 3, 2020

URL: https://www.frixlaw.com/law-library/cases/10105872

## Case

- **Court:** District Court, M.D. Florida
- **Decided:** September 3, 2020
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10105872

## How later opinions describe it (automated extraction)

- stating the court must scrutinize the entire record to determine the reasonableness of the Commissioner’s factual findings
- stating that the ALJ is required to “build an accurate and logical bridge from the evidence to [his] conclusion so that” a reviewing court “may assess the validity of the agency’s ultimate findings and afford a claimant meaningful judicial review”
- stating that insufficient questioning of the VE indicates that the claimant may have been prejudiced by the lack of counsel

## Opinion text

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
JACKSONVILLE DIVISION

MARY BELL SWANIGAN,

Plaintiff,

v. Case No. 3:19-cv-272-J-MCR

COMMISSIONER OF THE SOCIAL
SECURITY ADMINISTRATION,

Defendant.
_______________________________/

MEMORANDUM OPINION AND ORDER1

THIS CAUSE is before the Court on Plaintiff’s appeal of an administrative
decision denying her application for a period of disability and disability insurance
benefits (“DIB”). Plaintiff alleges she became disabled on January 15, 2013. (Tr.
32,162.) The assigned Administrative Law Judge (“ALJ”) held a video hearing on
March 19, 2018, at which Plaintiff appeared without representation. (Tr. 31, 52-
53.) The ALJ found Plaintiff not disabled from January 15, 2013 through June
21, 2018, the date of the decision.2 (Tr. 30-45.)
In reaching the decision, the ALJ found that Plaintiff had engaged in
substantial gainful activity from January 15, 2013 until May 31, 2016 and,

1 The parties consented to the exercise of jurisdiction by a United States
Magistrate Judge. (Docs. 13, 16.)

2 Plaintiff had to establish disability on or before September 30, 2018, her date
last insured, in order to be entitled to a period of disability and DIB. (Tr. 33.)
therefore, determined that the earliest date that Plaintiff could establish disability
was June 1, 2016. (Tr. 35.) The ALJ also found that Plaintiff’s severe
impairments included major depressive disorder and anxiety disorder, but found

her mild renal insufficiency, insomnia, obesity, hypertension, gout,
hyperglycemia, low back pain, and type II diabetes were non-severe
impairments. (Tr. 36.) The ALJ then determined that Plaintiff had the residual
functional capacity (“RFC”) to perform a full range of work at all exertional levels,
but with the following non-exertional limitations:

[Plaintiff] is able to understand, remember and carry out short,
simple instructions. [Plaintiff] is able to occasionally interact with
coworkers and supervisors and can engage in brief and superficial
contact with the public. She is able to respond appropriately to
changes in a routine work[-]place setting and make simple work-
related decisions.

(Tr. 38.) Based on the testimony of a Vocational Expert (“VE”), the ALJ found
Plaintiff was unable to perform her past relevant work as a furniture salesperson
(D.O.T. 270.357-030, light semi-skilled work). (Tr. 43.) The ALJ also noted, inter
alia, that Plaintiff was 60 years old on the alleged disability date, which was
defined as an individual closely approaching retirement age (20 C.F.R. §
404.1563). Pursuant to the VE’s testimony, and considering Plaintiff’s age,
education, work experience, and RFC, the ALJ concluded Plaintiff was capable
of performing jobs that exist in significant numbers in the national economy.3 (Tr.
43.)
Plaintiff is appealing the Commissioner’s decision that she was not

disabled from January 15, 2013 through June 21, 2018. Plaintiff has exhausted
her available administrative remedies and the case is properly before the Court.
The Court has reviewed the record, the briefs, and the applicable law. For the
reasons stated herein, the Commissioner’s decision is REVERSED and
REMANDED.

I. Standard of Review
The scope of this Court’s review is limited to determining whether the
Commissioner applied the correct legal standards, McRoberts v. Bowen, 841
F.2d 1077, 1080 (11th Cir. 1988), and whether the Commissioner’s findings are
supported by substantial evidence, Richardson v. Perales, 402 U.S. 389, 390

(1971). “Substantial evidence is more than a scintilla and is such relevant
evidence as a reasonable person would accept as adequate to support a
conclusion.” Crawford v. Comm’r of Soc. Sec., 363 F.3d 1155, 1158 (11th Cir.
2004). Where the Commissioner’s decision is supported by substantial
evidence, the district court will affirm, even if the reviewer would have reached a

3 In making this determination, and in assessing the extent to which Plaintiff’s
non-exertional “limitations erode[d] the occupational base of unskilled work at all
exertional levels,” the ALJ relied on the testimony of the VE that Plaintiff would be able
to perform the representative jobs of cleaner II (D.O.T 919.687.014, medium, unskilled
work), hand packager (D.O.T. 920.587-018, medium, unskilled work), and sandwich
board carrier (D.O.T. 299.687-014, light, unskilled work). (Tr. 44.)
contrary result as finder of fact, and even if the reviewer finds that the evidence
preponderates against the Commissioner’s decision. Edwards v. Sullivan, 937
F.2d 580, 584 n.3 (11th Cir. 1991); Barnes v. Sullivan, 932 F.2d 1356, 1358 (11th

Cir. 1991). The district court must view the evidence as a whole, taking into
account evidence favorable as well as unfavorable to the decision. Foote v.
Chater, 67 F.3d 1553, 1560 (11th Cir. 1995); accord Lowery v. Sullivan, 979 F.2d
835, 837 (11th Cir. 1992) (stating the court must scrutinize the entire record to
determine the reasonableness of the Commissioner’s factual findings).

II. Discussion
Plaintiff raises two issues on appeal. First, Plaintiff argues that the ALJ
erred by not properly advising her of the right to representation at the hearing,
that Plaintiff did not knowingly waive her right to be represented, and that Plaintiff
was prejudiced by the lack of legal representation. (Doc. 18 at 4-8.) Second,

Plaintiff argues that the ALJ erred by relying on the testimony of the VE that
Plaintiff could perform the medium exertion jobs4 of cleaner II and hand
packager, and the light exertion job of a sandwich carrier, when there was no
vocational testimony about the amount of adjustment that would be necessary to
perform this job as required by the Medical-Vocational Guidelines (the Grids).

(Id. at 8-10.) Plaintiff explains that her past relevant work of a furniture

4 Plaintiff argues that pursuant to the Dictionary of Occupational Titles, medium
exertion jobs require a claimant to be able to exert twenty to fifty pounds of force
occasionally. (Doc. 18 at 9.)
salesperson was light duty work, which she described as requiring the lifting of
no more than ten pounds and standing and walking most of the day. (Id. at 8.)
Plaintiff also contends that she “never testified how much she could lift and

accordingly there was no predicate for the ALJ to assume that the [P]laintiff could
perform at a greater exertional level than her past relevant work[,] i.e. light with
very limited lifting.” (Id.) Without directly challenging the ALJ’s RFC5
determination, Plaintiff argues that given her age,6 “the alternative employment
should have been either sedentary or light duty work without additional evidence

of how much the [P]laintiff could lift and carry.” (Id. at 9.)
Defendant counters that the Commissioner provided Plaintiff with sufficient
notice of her right to representation, she knowingly and voluntarily waived this
right, the ALJ was not required to further explain her right to representation, and
even if Plaintiff’s waiver was invalid, Plaintiff failed to show prejudice. (Doc. 21.)

5 Only in the Conclusion of the Brief does Plaintiff specifically challenge the RFC
by requesting that the Court reverse and award benefits based on Plaintiff’s age or,
alternatively, reverse and remand “for additional analysis regarding the [P]laintiff’s
residual functional capacity and additional vocational evidence specifically about the
adjustment of the [P]laintiff to other work.” (Doc. 18 at 10.)

6 Plaintiff, who was born in December of 1952, purportedly “accepts the amended
onset date” of August 20, 2015 and asserts that she was 62 years old on the amended
disability onset date. (Doc. 18 at 2, 9.) The August 20, 2015 amended onset date was
established by the district office based on Plaintiff’s earnings which represented
substantial gainful activity. (Tr. 35.) However, the ALJ found that Plaintiff engaged in
substantial gainful activity from January 15, 2013 through May 31, 2016 and determined
that the earliest date disability could be established was June 1, 2016. (Id.) Plaintiff
does not specifically challenge this finding. Thus, Plaintiff was actually 63 years old on
the amended onset date of June 1, 2016, as determined by the ALJ.
Defendant also asserts that substantial evidence supports the ALJ’s conclusion
that Plaintiff was not disabled. (Id.) The Court agrees with Plaintiff on the first
issue and, therefore, it does not address the remaining issues in detail.

“A Social Security claimant has a statutory right, which may be waived, to
be represented by counsel at a hearing before an ALJ.” Brown v. Shalala, 44
F.3d 931, 934 (11th Cir. 1995) (per curiam). The claimant must be notified of her
statutory right prior to the hearing. Cowart v. Schweiker, 662 F.2d 731, 734 (11th
Cir. 1981). To effectively waive the right to representation, the claimant must be

“properly apprised of her options concerning representation” and must knowingly
and intelligently waive the right to counsel. Newberger v. Astrue, No. 3:07-cv-
585-J-HTS, 2008 WL 299012, *1 (M.D. Fla. Feb. 1, 2008) (internal citations
omitted). Each claimant must be notified in writing of the options for obtaining
counsel, including the availability of free legal services and the statutory cap on

attorney’s fees. Id. at *2 (internal citations omitted). Also, “when it appears the
claimant may be incompetent or have a mental illness, the ALJ should explain
with even greater care the right to counsel as well as the role of an attorney in
the hearing to ensure the claimant understands these subjects.” Id.
Further:

Whether or not the applicant is represented, the ALJ still has a duty
to develop a full and fair record. When the right to representation
has not been waived, however, the hearing examiner’s obligation to
develop a full and fair record rises to a special duty. This special
duty requires, essentially, a record which shows that the claimant
was not prejudiced by lack of counsel. In carrying out this duty, the
ALJ must scrupulously and conscientiously probe into, inquire of,
and explore for all the relevant facts. Under this standard, we are
not required to determine that the presence of counsel would
necessarily have resulted in any specific benefits in the handling of
the case before the ALJ. Nevertheless, there must be a showing of
prejudice before we will find that the claimant’s right to due process
has been violated to such a degree that the case must be remanded
to the Secretary for further development of the record.

Brown, 44 F.3d at 934-35 (internal citations and quotations omitted).
Here, the ALJ held Plaintiff’s hearing on March 19, 2018. Plaintiff was
advised of her right to representation several times prior to the hearing. For
example, the November 20, 2015 Notice of Disapproved Claim stated in relevant
part:
IF YOU WANT HELP WITH YOUR APPEAL

You can have a friend, lawyer, or someone else help you. There are
groups that can help you find a lawyer or give you free legal services
if you qualify. There are also lawyers who do not charge unless you
win your appeal. Your local Social Security office has a list of
groups that can help you with your appeal.

If you get someone to help you, you should let us know. If you hire
someone, we must approve the fee before he or she can collect it.
And if you hire a lawyer, we will withhold up to 25 percent of any
past due Social Security benefits to pay toward the fee.

(Tr. 108.) The Notice of Reconsideration informing Plaintiff of her right to request
a hearing before an ALJ provided the same information. (Tr. 110-11.) In the
transcribed and summarized Request for Reconsideration, dated May 3, 2016,
Plaintiff stated “I understand I have a right to be represented at the
reconsideration.” (Tr. 115.) Similarly, the Request for Hearing by Administrative
Law Judge signed by Plaintiff on July 3, 2016 stated, “You have a right to be
represented at the hearing. If you are not represented, your Social Security
office will give you a list of legal referral and service organizations.” (Tr. 117

(emphasis in the original); see also Tr. 118-19 (acknowledging Plaintiff’s
understanding of her right to be represented).) The Commissioner also mailed a
letter to Plaintiff on October 5, 2016, explaining, among other things, the right to
representation:
You may choose to have a representative help you. We will work
with this person just as we would work with you. If you decide to
have a representative, you should find one quickly so that person
can start preparing your case.

Many representatives charge a fee only if you receive benefits.
Others may represent you for free. Usually, your representative may
not charge a fee unless we approve it. We are enclosing a list of
groups that can help you find a representative.

(Tr. 120-21; see also Tr. 124-25 (SSA Publication No. 05-10075, Your Right to
Representation) & 126-29 (Form HA-L1, Important Notice About
Representation).)
The Commissioner’s Notice of Hearing, dated February 21, 2018, also
reminded Plaintiff of the right to representation, urged Plaintiff to find a
representative quickly if she wished to be represented, and explained
representation fees. (Tr. 137.) The Commissioner again included a copy of SSA
Publication No. 05-10075, Your Right to Representation providing, inter alia,
additional information about the role of a representative, obtaining
representation, and representative fees. (Tr. 142-43.)
On March 19, 2018, Plaintiff appeared at the hearing before the ALJ

without a representative. (Tr. 68.) The following colloquy took place at the
beginning of the hearing:
ALJ: . . . Now, ma’am, you are here today without an attorney or a
non-attorney representative. Do you have questions as to [your]
rights to representation?
CLMT: No, sir.
ALJ: Is it your intention today to proceed with the hearing without
one?
CLMT: Yes, sir.
ALJ: Let the record reflect that the claimant has acknowledged her
right to representation and that she has waived that right as well.

(Tr. 52-53.) At the beginning of the VE’s examination by the ALJ, the following
exchange took place:
ALJ: Now, Ms. Swanigan, do you have any questions as to her
qualifications?
CLMT: Me?
ALJ: Yes, ma’am.
CLMT: I don’t know who Ms. Jackson is.
ALJ: I told you, Ms. Jackson is an impartial vocational expert. I
explained that at the beginning of the hearing.
CLMT: Oh, okay, sir.
ALJ: Her resume is in your file.

(Tr. 72.) The ALJ then proceeded to examine the VE. (Tr. 72-75.) After the ALJ
questioned the VE, the following colloquy took place:
ALJ: . . . Now, do you have any questions of Ms. Jackson, Ms.
Swanigan?
CLMT: No. Sir, I - -
ALJ: All right. We’ll let her go, and then you can talk to me.
. . .
ALJ: All right. What were you going to say?
CLMT: Did she say I was a sandwich wrapper?
ALJ: Well, that could be, is what she is saying. She said you were a
furniture salesperson. Under Social Security, if you cannot do your
past work, the question becomes whether you can do other work,
and it doesn’t matter what that job is, as long as you can do it.
CLMT: Oh, I misunderstood, sir.
ALJ: Yeah.
CLMT: I thought she said those were my past jobs.

(Tr. 75.)
Although not referenced or discussed during the hearing, on March 19,
2018, Plaintiff signed a form titled Claimant’s Right to Representation, explaining
a claimant’s right to a representative, the benefits of having a representative, the
cost of obtaining a representative, free representation, the right to proceed
without representation, and the right to postpone the hearing to obtain
representation. (Tr. 158.) The form then instructed and inquired as follows:
Answer below only if you want a postponement

Do you understand that if you want a postponement today in order to
obtain a representative, you are entitled to only ONE such
postponement; and if you do not have a representative at the next
scheduled hearing, the ALJ will require you to proceed without a
representative?

(Id.) Plaintiff checked off “Yes.” (Id.) The form then asked as follows:
Answer below only if you would like to proceed without
representation

Do you understand your right to have a representative at this
hearing?
Do you understand the benefits of having a representative?
Do you understand the cost of obtaining a representative?
Do you understand the possibility of obtaining free representation?
Do you want to proceed today without representation?

(Id.) Plaintiff also checked off “Yes” in response to all of these questions. (Id.)
As the record shows, Plaintiff received several notices from the
Commissioner explaining the right to representation prior to the hearing. It also
appears that on the date of the hearing, March 19, 2018, Plaintiff signed a form
indicating that she understood her right to representation. (Tr. 158.) However,
her answers were contradictory as she indicated that she wanted a
postponement of the hearing in order to obtain representation and that she
wished to proceed without representation. Plaintiff’s contradictory responses on
the Claimant’s Right to Representation form raise questions as to whether

Plaintiff understood what her options were regarding representation and/or
whether the ALJ accurately interpreted Plaintiff’s responses on the form,
although it is unclear whether the form was reviewed by the ALJ at all.
Moreover, in light of Plaintiff’s mental impairments, which the ALJ
acknowledged at the hearing, the ALJ had a heightened duty to ensure that

Plaintiff understood her right to representation and the role of an attorney in the
proceedings. The hearing testimony does not demonstrate that the ALJ fulfilled
this heightened duty during the hearing. In fact, the ALJ never inquired about
Plaintiff’s contradictory responses during the hearing or Plaintiff’s decision to
proceed without a representative beyond the cursory observations and questions

discussed above. (Tr. 52-53 (“Now, ma’am, you are here today without an
attorney or a non-attorney representative. Do you have questions as to rights to
representation? . . . Is it your intention today to proceed with the hearing without
one? . . . Let the record reflect that the claimant has acknowledged her right to

representation and that she has waived that right as well.”).) At best, Plaintiff’s
contradictory waiver responses and apparent confusion throughout the hearing
raise questions about Plaintiff’s ability to make an informed choice to proceed
without representation. See HALLEX I-2-6-52 (“Once the ALJ has determined
that the claimant is capable of making an informed choice, he or she will either

secure on the record the claimant’s decision concerning representation or obtain
from the claimant a written waiver of the claimant’s right to representation, which
will be marked as an exhibit.”). Based on the foregoing, the Court cannot
conclude that Plaintiff knowingly and voluntarily waived her statutory right to
representation. Cregar v. Astrue, No. 3:07-CV-1008-J-JRK, 2009 WL 383388, at

*7 (M.D. Fla. Feb. 13, 2009) (finding that the claimant had not knowingly and
voluntarily waived the right to representation where the claimant “was confused
about the process, as he had not even reviewed his file prior to the first hearing,”
and noting that “the ALJ should have explored other options available to” the
claimant “to ensure [claimant] was both aware of these options, and willing to

forego them”).
However, “there must be a showing of prejudice before it is found that the
claimant’s right to due process has been violated to such a degree that the case
must be remanded . . . for further development of the record.” Newberger, 2008
WL 299012 at *3 (internal citations omitted). This “requires a showing that the
ALJ did not have all of the relevant evidence before him in the record (which

would include relevant testimony from claimant), or that the ALJ did not consider
all of the evidence in the record in reaching his decision.” Townsend v. Comm’r
of Soc. Sec., 555 F. App’x 888, 891 (11th Cir. Feb. 7, 2014) (per curiam) (internal
citations omitted).
Plaintiff’s counsel now explains that once a person reaches the “closely

approaching retirement age” category (ages 60-64), “there must be very little
vocational adjustment to other work in terms of work processes, tools, settings or
the industry at the sedentary and light duty residual functional categories.” (Doc.
18 at 7-8.) Counsel argues that Plaintiff was prejudiced by the lack of
representation because she probably did not know about these Medical-

Vocational Guidelines and failed to cross-examine the VE regarding the
vocational adjustments that would be necessary to perform the sandwich carrier
job, categorized as light work. (Id.) The undersigned agrees and finds that
Plaintiff suffered unfairness or clear prejudice by her lack of representation. See
Cowart, 662 F.2d at 736 (stating that insufficient questioning of the VE indicates

that the claimant may have been prejudiced by the lack of counsel); Griffis v.
Astrue, 619 F. Supp. 2d 1215, 1224 (M.D. Fla. 2008) (citing Johnson v. Harris,
612 F.2d 993, 997-98 (5th Cir. 1980)) (“As found by the Fifth Circuit, insufficient
questioning of the vocational expert may establish good cause to remand a case
for further hearing and development of the record.”).
Moreover, Plaintiff’s counsel argues that Plaintiff was prejudiced by the

lack of representation “as an experienced representative would highlight the fact
that [she] has never performed medium work and there is no indication in the file
that she could even perform medium work,” and that Plaintiff “did not testify about
the amount of weight that she could lift and those questions should have been
asked to [ensure] that she had the physical strength to perform medium work.”

(Doc. 18 at 8.) Although the ALJ gave great weight to the State agency medical
consultant’s assessment that Plaintiff’s physical impairments were non-severe
(Tr. 41-42), it is nevertheless unclear what evidence, if any, the ALJ relied on in
determining that Plaintiff could perform the exertional requirements of medium
exertion work. See Lane-Rauth v. Barnhart, 437 F. Supp. 2d 63, 67 (D.D.C.

2006) (stating that the ALJ is required to “build an accurate and logical bridge
from the evidence to [his] conclusion so that” a reviewing court “may assess the
validity of the agency’s ultimate findings and afford a claimant meaningful judicial
review”) (quoting Scott v. Barnhart, 297 F.3d 589, 595 (7th Cir. 2002)).
Therefore, because Plaintiff was denied the right to a full and fair hearing, this

case is due to be remanded to the Commissioner for further proceedings.
Accordingly, it is ORDERED:
1. The Commissioner's decision is REVERSED and REMANDED for
further proceedings consistent with this Order, pursuant to sentence four of 42
U.S.C. § 405(g).
2. The Clerk of Court is directed to enter judgment accordingly,
terminate any pending motions, and close the file.
3. In the event that benefits are awarded on remand, any § 406(b) or §
1383(d)(2) fee application shall be filed within the parameters set forth by the
Order entered in /n re: Procedures for Applying for Attorney’s Fees Under 42
U.S.C. §§ 406(b) & 1383(d)(2), Case No.: 6:12-mc-124-Orl-22 (M.D. Fla. Nov.
13, 2012). This Order does not extend the time limits for filing a motion for
attorney's fees under the Equal Access to Justice Act, 28 U.S.C. § 2412.
DONE AND ORDERED at Jacksonville, Florida, on September 3, 2020.

UNITED STATES MAGISTRATE JUDGE
Copies to:
Counsel of Record

15

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10105872. Public record. Not legal advice.