STEWART-BROWN v. SAUL

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

KATHLEEN LOUISE STEWART-BROWN, :

: CIVIL ACTION

Plaintiff, :

: NO. 20-2052

v. :

:

ANDREW SAUL, :

Commissioner of Social Security, :

:

Defendant. :

MEMORANDUM OPINION

Kathleen Louise Stewart-Brown (“Stewart-Brown” or “Plaintiff”) seeks review, pursuant

to 42 U.S.C. § 405(g), of the Commissioner of Social Security’s (“Commissioner”) decision

denying her claim for Disability Insurance Benefits (“DIB”) pursuant to Title II of the Social

Security Act.1 For the reasons that follow, Stewart-Brown’s Request for Review will be denied.

I. FACTUAL AND PROCEDURAL BACKGROUND

Stewart-Brown was born on March 19, 1962. R. at 177.2 She is able to communicate in

English, id. at 213, and has a high school education, id. at 215. Her past relevant work

experience was as a statement clerk. Id. at 66, 103. Stewart-Brown applied for DIB benefits on

July 10, 2018, id. at 177-83, alleging that she became disabled on January 17, 2017, id. at 177,

due to diabetes, an ankle fracture, and a coccyx fracture, id. at 214. Her application was initially

denied on October 15, 2018. Id. at 120-24. Stewart-Brown then filed a written request for a

1 In accordance with 28 U.S.C. § 636(c), the parties voluntarily consented to have the

undersigned United States Magistrate Judge conduct proceedings in this case, including the entry

of final judgment. See Doc. Nos. 3, 4.

2 Citations to the administrative record will be indicated by “R.” followed by the page number.

hearing on December 10, 2018, id. at 128-29, and an Administrative Law Judge (“ALJ”) held a

hearing on her claim on August 21, 2019, id. at 71-107. On August 21, 2019, after the

administrative hearing on her claim was concluded, Stewart-Brown’s counsel submitted a

hearing withdrawal request pursuant to 20 C.F.R. § 404.957(a). Id. at 172. On September 24,

2019, the ALJ issued an opinion denying Stewart-Brown’s disability claim and hearing

withdrawal request. Id. at 52-70. Stewart-Brown filed an appeal with the Appeals Council,

which the Appeals Council denied on March 11, 2020, thereby affirming the decision of the ALJ

as the final decision of the Commissioner. Id. at 1-7. Stewart-Brown then commenced this

action in federal court.

II. THE ALJ’S DECISION

In her decision, the ALJ found that Stewart-Brown had not engaged in substantial gainful

activity since January 17, 2017, the alleged onset date. Id. at 57. The ALJ determined that

Stewart-Brown suffered from the severe impairments of left ankle osteoarthritis, lumbar

degenerative disc disease, and obesity, as well as the non-severe impairments of vertigo,

hypertension, diabetes mellitus, generalized anxiety disorder, and post-traumatic stress disorder.

Id. at 58. The ALJ concluded that neither Stewart-Brown’s individual impairments, nor the

combination of her impairments, met or medically equaled a listed impairment. Id. at 60. The

ALJ found that, during the relevant period, Stewart-Brown had the residual functional capacity

(“RFC”) to perform:

light work as defined in 20 CFR 404.1567(b) except occasional stooping,

kneeling, crawling, crouching, balancing and climbing ramps or stairs; no

climbing ladders, ropes, or scaffolds; occasional use of left lower extremity

for operation of foot controls; no exposure to unprotected heights and

unprotected moving mechanical parts; no operation of a motor vehicle as a

job requirement; and occasional exposure to extreme cold, wetness,

humidity, and vibration.

Id. Based on this RFC determination, and relying on the vocational expert who appeared at the

hearing, the ALJ found that Stewart-Brown was capable of performing past relevant work as a

statement clerk. Id. at 66. Accordingly, the ALJ concluded that Stewart-Brown was not

disabled. Id.

III. STEWART-BROWN’S REQUEST FOR REVIEW

In her Request for Review, Stewart-Brown contends that the ALJ erred by: (1) denying

her post-hearing request to dismiss the request for a hearing; and (2) failing to properly develop

the record.

IV. SOCIAL SECURITY STANDARD OF REVIEW

The role of the court in reviewing an administrative decision denying benefits in a Social

Security matter is to uphold any factual determination made by the ALJ that is supported by

“substantial evidence.” 42 U.S.C. § 405(g); Richardson v. Perales, 402 U.S. 389, 401 (1971);

Doak v. Heckler, 790 F.2d 26, 28 (3d Cir. 1986); Newhouse v. Heckler, 753 F.2d 283, 285 (3d

Cir. 1985). A reviewing court may not undertake a de novo review of the Commissioner’s

decision in order to reweigh the evidence. Monsour Med. Ctr. v. Heckler, 806 F.2d 1185, 1190

(3d Cir. 1986). The court’s scope of review is “limited to determining whether the

Commissioner applied the correct legal standards and whether the record, as a whole, contains

substantial evidence to support the Commissioner’s finding of fact.” Schwartz v. Halter, 134 F.

Supp. 2d 640, 647 (E.D. Pa. 2001).

Substantial evidence is a deferential standard of review. See Jones v. Barnhart, 364 F.3d

501, 503 (3d Cir. 2004). “Substantial evidence ‘does not mean a large or considerable amount of

evidence, but rather such relevant evidence as a reasonable mind might accept as adequate to

support a conclusion.’” Hartranft v. Apfel, 181 F.3d 358, 360 (3d Cir. 1999) (quoting Pierce v.

Underwood, 487 U.S. 552, 564-65 (1988)); see also Kangas v. Bowen, 823 F.2d 775, 777 (3d

Cir. 1987). It is “more than a mere scintilla but may be somewhat less than a preponderance of

the evidence.” Rutherford v. Barnhart, 399 F.3d 546, 552 (3d Cir. 2005). The court’s review is

plenary as to the ALJ’s application of legal standards. Krysztoforski v. Chater, 55 F.3d 857, 858

(3d Cir. 1995).

To prove disability, a claimant must demonstrate some medically determinable basis for a

physical or mental impairment that prevents him or her from engaging in any substantial gainful

activity for a 12-month period. 42 U.S.C. § 1382c(a)(3)(A); accord id. § 423(d)(1). As

explained in the applicable agency regulation, each case is evaluated by the Commissioner

according to a five-step sequential analysis:

(i) At the first step, we consider your work activity, if any. If you are doing

substantial gainful activity, we will find that you are not disabled. (ii) At the

second step, we consider the medical severity of your impairment(s). If you

do not have a severe medically determinable physical or mental impairment

that meets the duration requirements in § 404.1509, or a combination of

impairments that is severe and meets the duration requirement, we will find

that you are not disabled. (iii) At the third step, we also consider the medical

severity of your impairment(s). If you have an impairment(s) that meets or

equals one of our listings in appendix 1 of this subpart and meets the

duration requirement, we will find that you are disabled. (iv) At the fourth

step, we consider our assessment of your residual functional capacity and

your past relevant work. If you can still do your past relevant work, we will

find that you are not disabled. (v) At the fifth and last step, we consider our

assessment of your residual functional capacity and your age, education and

work experience to see if you can make an adjustment to other work. If you

can make an adjustment to other work, we will find that you are not

disabled. If you cannot make an adjustment to other work, we will find that

you are disabled.

20 C.F.R. §§ 404.1520(a)(4)(i)-(v) (references to other regulations omitted).

V. DISCUSSION

A. The ALJ Properly Denied Stewart-Brown’s Hearing Withdrawal Request

Stewart-Brown claims that the ALJ erred in denying her post-hearing request to withdraw

her hearing request. Pl.’s Br. (Doc. No. 19) at 3-13; Pl.’s Reply Br. (Doc. No. 25) at 1-9. There

is no merit to this claim.

Stewart-Brown applied for DIB benefits on July 10, 2018, R. at 177-83, and her

application was initially denied on October 15, 2018, id. at 120-24. She subsequently filed a

written request for a hearing on December 10, 2018. Id. at 128-29. On August 13, 2019,

Stewart-Brown’s attorney submitted a pre-hearing letter brief to the ALJ summarizing the

administrative record and explaining why Stewart-Brown should be found disabled. Id. at 283-

87. The letter brief made no mention of additional, unavailable, or forthcoming medical records

and/or treatment. See id. Stewart-Brown’s administrative hearing took place on August 21,

2019. Id. at 71-107. That same day, after the hearing had concluded, Stewart-Brown’s counsel

submitted a hearing withdrawal request pursuant to 20 C.F.R. § 404.957(a). Id. at 172. This

request indicated:

As explained at the hearing, Ms. Stewart-Brown had limited insurance

coverage which affected her access to evaluation and treatment in

subsequent months. More recently, she has been able to secure

appointments with cardiology and neurology, inter alia. She has been

prescribed Meclizine for vertigo and MRI studies showed white matter

disease consistent with chronic small vessel ischemic disease. Investigation

of this and other problems have been more recent, however, and records of

testing not yet available are expected to provide additional insight.

Id.

Section 404.957(a) states, in relevant part that:

An administrative law judge may dismiss a request for a hearing under any

of the following conditions:

(a) At any time before notice of the hearing decision is mailed, you or the

party or parties that requested the hearing ask to withdraw the request. This

request may be submitted in writing to the administrative law judge or made

orally at the hearing.

20 C.F.R. § 404.957(a) (emphasis added). As the foregoing establishes, upon a written request

or an oral request at the hearing, Section 404.957(a) vests an ALJ with the discretion, not the

obligation, to dismiss a request for a hearing at any time before notice of the hearing decision is

mailed. Here, after reviewing Stewart-Brown’s hearing withdrawal request, the ALJ found that

she did not satisfy Section 404.957(a), reasoning:

That evidence of treatment in the future may strengthen [Stewart-Brown’s]

disability claim is not compelling. The status of [Stewart-Brown’s] health

insurance coverage, or lack thereof, was information known to [Stewart-

Brown] prior to the hearing, as were the results of the recent magnetic

resonance imaging (MRI) study, investigation into which [Stewart-Brown]

now asserts “may provide additional insight.” Yet, [Stewart-Brown’s] pre-

hearing brief made no mention of these factors. To the contrary, the brief

submitted just two weeks before the hearing argued that the evidence of

record, without more, fully supported a favorable decision. The recent MRI

was briefly mentioned in the last paragraph of the argument. The

undersigned has denied [Stewart-Brown’s] request to [withdrawal] her

hearing request and, should future medical evidence support a finding of

disability, [Stewart-Brown] may file a new application with a request to

reopen this decision, if warranted.

R. at 55 (emphasis in original).3

Here, the ALJ did not err in denying Stewart-Brown’s hearing withdrawal request. As

the ALJ made clear in her decision, “should future medical evidence support a finding of

disability, [Stewart-Brown] may file a new application with a request to reopen this decision, if

3 Subparts (b) and (c) of Section 404.957 set forth several other circumstances in which the

ALJ may dismiss a request for a hearing. See 20 C.F.R. § 404.957(b)-(c). As the ALJ

explained, Stewart-Brown “has not asserted evidence or facts satisfying any of the conditions set

forth in . . . [Section 404.957] subparts” (b) or (c). R. at 55. Moreover, Stewart-Brown, by her

own admission, does not meet the other “for cause” reasons set forth in 20 C.F.R. § 404.957(b)-

(c). Pl.’s Br. at 7.

warranted.” Id.; see also 20 C.F.R. §§ 404.987, 404.988.4 This determination is entirely

consistent with the applicable regulations and supported by the record in this case.

Insofar as Stewart-Brown argues that the ALJ’s denial of her hearing withdrawal request

is prejudicial under the doctrine of res judicata, Pl.’s Br. at 8-9, her claim is unpersuasive.

Indeed, “even if res judicata may properly be applied, the Commissioner has discretion whether

to reopen a prior disability benefits application for ‘good cause’ within four years of the date of

notice of the initial determination.” Tobak v. Apfel, 195 F.3d 183, 186 (3d Cir. 1999) (citing 20

C.F.R. §§ 404.988(b), 404.989).

Accordingly, for the foregoing reasons, the ALJ did not err in denying Stewart-

Brown’s hearing withdrawal request.

B. The ALJ Properly Developed the Record

Stewart-Brown also maintains that the ALJ erred by failing to further develop the record

with respect to her additional medical treatment. Pl.’s Br. at 3, 13-14; Pl.’s Reply Br. at 9-10.

This argument lacks merit.

Because of the non-adversarial nature of Social Security proceedings, an ALJ has “a duty

to develop a full and fair record” by attempting to secure all of the information relevant to

deciding the claimant’s claim. Ventura v. Shalala, 55 F.3d 900, 902 (3d Cir. 1995) (citations

omitted). This is true even if the claimant is represented by counsel at the hearing, though in

4 Stewart-Brown also relies on Section I-2-4-20 of the Social Security Administration’s

Hearings, Appeals, and Litigation Law Manual (“HALLEX”) to support her argument that the

ALJ should have granted her hearing withdrawal request. Pl.’s Br. at 7-8; see also HALLEX I-2-

4-20, 1993 WL 643011 (Aug. 2, 2016). Section I-2-4-20, however, mirrors the language

contained in 20 C.F.R. § 404.957(a), namely that “[a]t the request of a claimant, an

administrative law judge (ALJ) may dismiss a request for hearing (RH) at any time before

mailing notice of the decision.” HALLEX I-2-4-20, 1993 WL 643011 (Aug. 2, 2016) (emphasis

added). Again, the ALJ’s decision to dismiss a hearing request is discretionary.

such cases the duty is somewhat lessened. See Rutherford, 399 F.3d at 557; Boone v. Barnhart,

353 F.3d 203, 208 n.11 (3d Cir. 2004) (citations omitted); Dobrowolsky v. Califano, 606 F.2d

403, 407 (3d Cir. 1979) (noting that an ALJ must “assume a more active role when the claimant

is unrepresented”). Whenever a claimant is represented, an ALJ can assume that the claimant,

through his or her counsel, “is making the strongest case possible for benefits.” Colavito v.

Apfel, 75 F. Supp. 2d 385, 399 n.21 (E.D. Pa. 1999). Thus, the onus is on counsel to ensure that

the ALJ is aware of all of the evidence favorable to a claimant’s case and to probe all of the

relevant issues. Turby v. Barnhart, 54 F. App’x 118, 122-23 (3d Cir. 2002) (citations omitted);

Harrison v. Colvin, No. 14-cv-00719, 2014 WL 5148156, at *4 (W.D. Pa. Oct. 14, 2014).

Ultimately, the claimant has the burden to present evidence to demonstrate that he or she is

unable to engage in any substantial gainful activity. See Santiago v. Comm’r of Soc. Sec., 273

F. App’x 211, 213 n.1 (3d Cir. 2008) (citing 42 U.S.C. § 1382c(3)(A)). It is also the claimant’s

burden to “prove [his or] her medical condition and [the resulting] functional limitations.”

Esposito v. Apfel, No. 99-771, 2000 WL 218119, at *4 (E.D. Pa. Feb. 24, 2000) (citing Diaz v.

Shalala, 59 F.3d 307, 315 (2d Cir. 1995), Torres v. Schweiker, 682 F.2d 109, 111 (3d Cir.

1982)); see also Bowen v. Yuckert, 482 U.S. 137, 146 n.5 (1987) (claimant bears the burden of

proof at steps one through four of the sequential analysis). Absent a clear showing of prejudice

from failure to investigate further, courts have denied remand. See, e.g., Glenn v. Comm’r of

Soc. Sec., 67 F. App’x. 715, 719 (3d Cir. 2003).

Here, Stewart-Brown was represented by counsel at the administrative hearing. “Because

[she] was represented by counsel at the administrative hearing, the ALJ had no enhanced duty to

develop the administrative record.” Wert v. Comm’r of Soc. Sec., No. 13-5705, 2015 WL

1808594, at *13 (E.D. Pa. Apr. 21, 2015) (citing Turby, 54 F. App’x at 122, Smith v. Harris, 644

F.2d 985, 989 (3d Cir. 1981) (“Particularly where the claimant is unrepresented by counsel, the

ALJ has a duty to exercise ‘a heightened level of care’ and ‘assume a more active role’”)).

Instead, Stewart-Brown’s counsel was “responsible for ensuring that the ALJ was aware of any

facts favorable to [Stewart-Brown’s] claim for benefits.” See Turby, 54 F. App’x at 122-23

(citing 20 C.F.R. § 404.1740(b)(a)). The ALJ was entitled to assume that Stewart-Brown’s

counsel made the strongest case for her benefits. See, e.g., Yoder v. Colvin, No. 13-107, 2014

WL 2770045, at *3 (W.D. Pa. June 18, 2014).

In furtherance of his responsibility to ensure that the ALJ was aware of any facts

favorable to his client’s claim, Stewart-Brown’s counsel submitted a pre-hearing letter brief in

which he represented that the evidence that would be presented at the hearing supported the

conclusion that Stewart-Brown was disabled. R. at 283-87. The letter brief did not mention

additional medical evidence or potential future treatment. See id. Instead, it was not until the

administrative hearing that Stewart-Brown and her counsel referenced the possibility of future

treatment, including future appointments with a neurologist and a cardiologist. Id. at 85, 89, 90-

91, 106-07. But at no point during the hearing did Stewart-Brown’s counsel request to keep the

hearing record open so that it could be supplemented with additional evidence. See id. at 71-

107. Nor did her counsel seek the ALJ’s assistance in obtaining any outstanding medical

records. See id. It was not until Stewart-Brown’s counsel submitted a hearing withdrawal

request that there was any indication that Stewart-Brown sought to submit future medical

records. Id. at 172. As the ALJ explained, however, this request relied on information that was

known to her and her counsel at the time of the hearing, namely her: (1) limited insurance

coverage; (2) recent MRI results; and (3) newly scheduled cardiology and neurology

appointments. See id. at 55, 89-91, 101, 106-07, 172, 286. Furthermore, counsel’s request did

not indicate how evidence of future treatment would impact Stewart-Brown’s claim. See id. at

55, 172.

The expectation that Stewart-Brown’s future medical records would provide additional

insight was not a sufficient reason to grant her hearing withdrawal request. See id. at 55. This is

particularly true where, as here, the ALJ “conducted a full hearing and thoroughly reviewed the

medical evidence, reports, and testimony.” Glenn, 67 F. App’x at 719. Indeed, the ALJ

questioned Stewart-Brown at length about her conditions and asked her three times if there was

anything that they had not discussed. R. at 86, 89, 94. The ALJ also “ensured[d] that [Stewart-

Brown’s] complete medical history [was] developed on the record before finding that [she] [was]

not disabled.” Money v. Barnhart, 91 F. App’x 210, 215 (3d Cir. 2004). This “history is defined

as records of the claimant’s medical sources for at least 12 months preceding when the claimant

filed the application for disability benefit[s] unless the claimant states that his or her disability

began less than 12 months before the application was filed.” Id. at 215-16 (citing 20 C.F.R.

§ 404.1527(c)(3)). Stewart-Brown filed her application for DIB benefits on July 10, 2018, R. at

177-83, and the ALJ evaluated medical records dating from January 2016 through August 2019,

a period spanning approximately three and one-half years, id. at 61-65. This evidence

undoubtedly meets the standard for a “complete medical history” as set forth in 20 C.F.R.

404.1512(d). There is no indication that the record lacked sufficient evidence for the ALJ to

make a well-informed decision as to whether Stewart-Brown was disabled.

Accordingly, as the foregoing demonstrates, the ALJ sufficiently fulfilled her obligation

to develop Stewart-Brown’s complete medical history on the record before finding that she was

not disabled.

VI. CONCLUSION

For the reasons set forth above, I find that the ALJ’s decision is supported by substantial

evidence. Therefore, Plaintiff’s Request for Review will be denied and dismissed. An

appropriate order follows.

Dated: May 25, 2021

BY THE COURT:

/s/ Marilyn Heffley

MARILYN HEFFLEY

UNITED STATES MAGISTRATE JUDGE