Darius Williams v. Andrew M. Saul ( 2019 )

NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with Fed. R. App. P. 32.1
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Argued August 7, 2019
Decided September 6, 2019
Before
DANIEL A. MANION, Circuit Judge
DIANE S. SYKES, Circuit Judge
AMY C. BARRETT, Circuit Judge
No. 18-3559
DARIUS T. WILLIAMS, Appeal from the United States District
Plaintiff-Appellant, Court for the Northern District of
Illinois, Eastern Division.
v.
No. 1:16-cv-11335
ANDREW M. SAUL,
Commissioner of Social Security, Michael T. Mason,
Defendant-Appellee. Magistrate Judge.
ORDER
Darius Williams, a 25-year-old with an IQ of 64, challenges the termination of his
social-security benefits upon his turning 18. After Williams’s pro se hearing, an
administrative law judge decided that Williams could perform simple, repetitive work
consisting of no more than one- or two-step tasks such as the work of a hand packer,
assembler, or sorter. Despite considerable evidence that Williams had the mathematical
acumen of a second-grader, however, the ALJ did not ask the vocational expert whether
the more sophisticated math requirements listed in the Dictionary of Occupation Titles
were consistent with what the jobs require in practice. Because the ALJ did not resolve
this conflict, his step-five finding is unsupported by substantial evidence, and we
therefore remand the case for a new hearing.
No. 18-3559 Page 2
Background
At age nine, Williams was diagnosed with learning and phonological disorders,
as well as a Full-Scale IQ score of 59, and he began receiving social security benefits.
After Williams turned 18, the Social Security Administration sent him for an evaluation
with Dr. Robert Prescott, a psychologist, to determine whether Williams qualified for
benefits under the adult standard. Dr. Prescott diagnosed Williams with a learning
disability, a phonological disorder, and “[b]orderline intellectual functioning,” and
commented that his IQ score of 641 was “fairly consistent” with the score of 59 that he
had received at age nine. Dr. Prescott also commented that if Williams was awarded
benefits, “he would not be an adequate manager” of his funds. The Commissioner
determined, based on Dr. Prescott’s evaluation, that Williams’s condition was “no
longer disabling” because he had “the ability to do unskilled work” despite some
functional limitations.
Williams appealed that determination. At his first hearing in December 2013, an
ALJ informed Williams of his right to representation. The ALJ explained that “[t]here
are two categories of representation; those people who represent you for free and those
people who will charge you money.” The ALJ next explained that anyone who charged
him for representation was “entitled to 25% of any past due benefits; nothing in the
future” and that “[i]f they lose, they get nothing.” The ALJ provided Williams with a
waiver-of-representation form and continued the hearing to another date. He also
explained to Williams that if he “c[a]me back” and “d[idn’t] have a representative” that
they would “get to the truth of the matter” together. Williams signed a form
acknowledging that the ALJ had postponed his hearing so that he could “seek to obtain
a representative,” that he understood he was “entitled to have only one postponement,”
and that if he did not “have a representative by the time of the next scheduled hearing,”
he must “be prepared to proceed with the hearing without a representative.”
Williams missed his next hearing, but after the ALJ found good cause for his
absence, it was rescheduled for May 2015. In the time leading up to this hearing
(between April 2013 and March 2015), the Commissioner mailed Williams six notices,
1 A Full-Scale IQ under 70 reflects “Intellectual Disability,” according to the
Wechsler Adult Intelligence Scale-IV. Wayne Silverman, et al., Stanford-Binet & WAIS IQ
Differences and Their Implications for Adults with Intellectual Disability (aka Mental
Retardation), NATIONAL INSTITUTES OF HEALTH PUBLIC ACCESS. March 1, 2011, at 1–2, 6–7,
10, https://www.ncbi.nlm.nih.gov/pubmed/20401180.
No. 18-3559 Page 3
some of which included a pamphlet entitled “Your Right to Representation” that listed
organizations that could help him find representation and explained his right to an
attorney, the fee structure, and the benefits of representation in disability proceedings.
Williams acknowledged receipt of at least four notices.
In preparation for the hearing, the ALJ scheduled Williams for a second
evaluation with Dr. Prescott. Dr. Prescott administered tests and diagnosed Williams
with a learning disability, depression, and “[b]orderline intellectual functioning, per
history.” On the math tests, Williams stated that “2+3=6” and “was unresponsive for
7+8.” He correctly responded that “2x3=6” but could not calculate “7x8.” When
Dr. Prescott asked Williams to do serial threes, Williams asked for directions three
times, then “responded by saying ‘skip.’” He was able to subtract two-digit numbers
“sometimes when carrying was not involved” but could not perform division.
Dr. Prescott concluded that Williams’s math skills were at a second-grade level.
Dr. Prescott further noted that Williams did not appear to be making his “very best
effort” and that the test scores “may slightly underestimate his level of functioning.”
At the hearing, the ALJ asked Williams if he remembered what the ALJ had told
him about his right to representation at the December 2013 hearing, and Williams
responded that he did. Williams also testified that he could read the notice of hearing
that the Commissioner sent him. The ALJ asked “So you’re going to go ahead and
proceed today without representation?” Williams said “Yes, sir.”
The ALJ then heard testimony from Williams and his aunt (his primary
caretaker). Williams testified that in high school he was in special education and that he
struggled with math. When the ALJ asked Williams about his meeting with
Dr. Prescott, Williams said that the meeting upset him because Dr. Prescott was
impatient and became frustrated when Williams did not answer the test questions
quickly. Williams’s aunt testified that Williams had been offered a job with a local
pipe-cutting company, but that the owner had retracted the offer because Williams
could not pass a math test.
Next, the ALJ heard testimony from Dr. Ellen Rozenfeld, a psychologist serving
as the medical expert. Dr. Rozenfeld testified that she had reviewed the exhibits and
listened to the testimony but had never examined Williams. She commented that the
“records clearly support … that he has cognitive limitations,” which fell into the
intellectual-disability range. She noted that despite Williams’s IQ of 64, Dr. Prescott had
not diagnosed Williams with a cognitive impairment or an intellectual disability.
Stating that math was Williams’s “weakest area,” Dr. Rozenfeld opined that Williams
No. 18-3559 Page 4
nevertheless had “adequate attention and concentration” to “handle one and two-step
tasks” with “end-of-day [production] goals.” Although Williams likely could not work
in a job with “sustained general public contact,” she opined, he could adequately
communicate with supervisors and coworkers so long as the work was not fast-paced.
The ALJ also consulted a vocational expert who had reviewed Williams’s records
and listened to the testimony. The ALJ asked if jobs existed for someone who “would be
limited to simple, routine, repetitive … one to two-step tasks” with “relaxed or flexible
production rate requirements and no sustained verbal contact with the public.” The VE
answered that someone with those restrictions could work as a hand packer
(DOT 920.687-066), an assembler (DOT 739.687-186), or a sorter (DOT 929.687-022). Each
of these jobs were “bench jobs” with quotas but were “not as fast-paced or as strict” as
jobs on an assembly line and would allow Williams to have time to collect himself
throughout the day.
Following the five-step evaluation process, see 20 C.F.R. § 416.920, the ALJ
determined that Williams was not disabled. The first step does not apply to
redetermining disability at age 18, see 20 C.F.R. § 416.987(b), so the ALJ began by
concluding that Williams’s learning disability and depressive disorder were severe
impairments (step two) and that his impairments did not meet or medically equal a listing
for a presumptively disabling condition (step three). Next, the ALJ concluded at step four
that Williams had the residual functional capacity to perform “work consisting of simple,
routine, and repetitive, one to two step tasks” with “flexible production rate requirements”
and no “sustained verbal contact with the public.” In reaching his decision, the ALJ gave
“greatest weight” to the opinion of Dr. Rozenfeld (the medical expert) and “good” weight
to that of Dr. Prescott (the consulting examiner). The ALJ assigned less weight to the
testimony of Williams’s aunt. Finally the ALJ credited the VE’s testimony, determined that
it was “consistent with the information contained in the Dictionary of Occupational Titles,”
and concluded that Williams could work as a hand packer, assembler, or sorter (step 5). The
Appeals Council denied Williams’s request for review, and the district court upheld the
denial of benefits.
Analysis
On appeal, Williams first argues that he did not validly waive his right to
representation. Though the ALJ explained the right to Williams in December 2013,
Williams maintains that the ALJ should have repeated this explanation at his hearing in
May 2015 in view of the long delay and considering the record evidence of Williams’s
cognitive impairments and difficulty with comprehension.
No. 18-3559 Page 5
A social-security claimant has a statutory right to counsel at a disability hearing,
but he may waive it if he is properly informed. 20 C.F.R. § 416.1500; Binion v. Shalala,
13 F.3d 243, 245 (7th Cir. 1994). To ensure a valid waiver, an ALJ must “explain to the
pro se claimant (1) the manner in which an attorney can aid in the proceedings, (2) the
possibility of free counsel or a contingency arrangement, and (3) the limitation on
attorney fees to 25 percent of past due benefits and required court approval of the fees.”
Id. In Jozefyk v. Berryhill, we upheld a claimant’s waiver after he had received written
notice via the “Your Right to Representation” pamphlet and a brief oral reminder that he
had a right to counsel at the hearing. 923 F.3d 492, 496–97 (7th Cir. 2019).
Here, Williams validly waived his right to counsel. He received both an oral
explanation of his right at his 2013 hearing and several later written notices, including
the “Your Right to Representation” pamphlet. The ALJ explained the various fee
structures that were available; the pamphlet Williams received repeated this
information and added details about the ways that an attorney could help him.
Moreover, Williams signed a form acknowledging that he understood that the ALJ had
continued the hearing to allow him to find an attorney, he acknowledged receiving
some of the written notices, and he agreed to proceed without counsel at the May 2015
hearing. These circumstances were sufficient to support a valid waiver. See Jozefyk,
923 F.3d at 497; Binion, 13 F.3d at 245.
Williams next argues that the ALJ failed to fulfill his duty fully and fairly to
develop the record, pointing to several problems with the ALJ’s examination of the VE.
As a result, he contends, the record is incomplete and cannot support the ALJ’s step-five
finding that he can perform at least three jobs that are sufficiently abundant in the
national economy.
An ALJ always has a duty fully and fairly to develop the record. Binion, 13 F.3d
at 245; see also Smith v. Apfel, 231 F.3d 433, 437 (7th Cir. 2000). That duty is greatly
heightened when the claimant is unrepresented and has mental impairments. Binion,
13 F.3d at 245; Ransom v. Bowen, 844 F.2d 1326, 1330 n.4 (7th Cir. 1988). A decision of no
disability based on an incomplete record is reversible error if there is a “significant”
omission in the evidence—that is, one likely to have prejudiced the proceedings. Nelson
v. Apfel, 131 F.3d 1228, 1235 (7th Cir. 1997).
Williams persuasively argues that the ALJ erred by failing to ask the VE whether
her testimony—that someone with Williams’s limitations could perform the jobs she
identified—conflicted with the definitions of those jobs in the Dictionary of
Occupational Titles. An ALJ is required to ask the VE whether her testimony conflicts
No. 18-3559 Page 6
with the Dictionary. See Social Security Ruling 00–4p, 2000 WL 1898704, at *4. A failure
to do so is harmless if no conflict exists. See Terry v. Astrue, 580 F.3d 471, 478 (7th Cir.
2009). But if a conflict is “apparent,” the ALJ must ask for a “reasonable explanation.”
Overman v. Astrue, 546 F.3d 456, 463 (7th Cir. 2008). “[A] claimant’s failure to raise a
possible violation of SSR 00–4p at the administrative level does not forfeit the right to
argue later that a violation occurred.” Id.
Here, a significant conflict between the VE’s testimony and the Dictionary
warrants remanding Williams’s case to further develop the record. Each of the jobs that
the VE identified requires level-one math proficiency, which the Dictionary defines as
the abilities to:
Add and subtract two digit numbers.
Multiply and divide 10’s and 100’s by 2, 3, 4, 5.
Perform the four basic arithmetic operations with coins as part of a dollar.
Perform operations with units such as cup, pint, and quart; inch, foot, and yard;
and ounce and pound.
See UNITED STATES DEPT. OF LABOR, DICTIONARY OF OCCUPATIONAL TITLES 1011 (4th ed.
1991). Meanwhile, the record shows that Williams’s math skills were at a second-grade
level. According to Dr. Prescott, Williams could not consistently add or multiply
single-digit numbers and could not perform serial threes or any division. And the ALJ
gave “good” weight to Prescott’s assessment. Moreover, Williams was turned down for
a job measuring and cutting pipes because he could not pass the required math test,
suggesting that he also may struggle to perform jobs that the Dictionary designates as
requiring level-one math skills.
We recognize that jobs designated as requiring level-one math skills may not
actually require the listed abilities. See Social Security Ruling 00–4p, 2000 WL 1898704,
at *2–3 (explaining that the Dictionary “lists maximum requirements”). But the ALJ may
set aside the Dictionary’s job requirements based only on another “reliable source of
occupational information.” Id.; accord Overman, 546 F.3d at 464. Here, the record
contains no such source because the ALJ did not ask the VE whether the Dictionary’s
listed math skills were real-world requirements. Thus, the ALJ’s step-five finding is not
supported by substantial evidence. See Prochaska v. Barnhart, 454 F.3d 731, 736 (7th Cir.
2006) (remanding where the jobs that the VE identified “as defined by the DOT”
required “capabilities that are beyond [the claimant’s] limitations”); accord Overman,
546 F.3d at 465 (remanding where “ALJ’s ruling was premised entirely on testimony
that conflicted with the DOT”).
No. 18-3559 Page 7
We VACATE the judgment and REMAND for further proceedings to develop
the record about whether jobs exist in the market that someone with Williams’s limited
mathematical abilities can perform. Because Williams would benefit from
representation in developing that record, we encourage him to renew his efforts to
obtain counsel before any evidentiary hearing.