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Ickes v. Astrue

July 29, 2010

PAMELA JEAN ICKES, PLAINTIFF,
v.
MICHAEL J. ASTRUE, COMMISSIONER, SOCIAL SECURITY ADMINISTRATION, DEFENDANT.



The opinion of the court was delivered by: Carla M. Woehrle United States Magistrate Judge

DECISION AND ORDER

The parties have consented, under 28 U.S.C. § 636(c), to the jurisdiction of the undersigned Magistrate Judge. Plaintiff seeks review of the Commissioner's denial of disability benefits. As discussed below, the court finds that the Commissioner's decision should be reversed and this matter remanded for further proceedings, on the basis that the record has not been fully developed.

I. BACKGROUND

Plaintiff Pamela Jean Ickes was born on November 11, 1955 and was fifty-three years old at the time of her administrative hearing. [Administrative Record ("AR") 19, 90.] She has a tenth grade education and no past relevant work experience. [AR 98, 94.] Plaintiff alleges disability on the basis of kidney and stomach problems and dizziness. [AR 94.]

II. PROCEEDINGS IN THIS COURT

Plaintiff's complaint was lodged on October 8, 2009, and filed on October 19, 2009. On April 14, 2010, Defendant filed an Answer and Plaintiff's Administrative Record ("AR"). On July 16, 2010, the parties filed their Joint Stipulation ("JS") identifying matters not in dispute, issues in dispute, the positions of the parties, and the relief sought by each party. This matter has been taken under submission without oral argument.

III. BACKGROUND

Plaintiff applied for supplemental security income ("SSI") under Title XVI of the Social Security Act on November 28, 2007, alleging disability since April 1, 2003. [AR 10.] After the application was denied initially and upon reconsideration, Plaintiff requested an administrative hearing on February 15, 2008. [AR 38-41.] In a written notice dated March 7, 2008, the Commissioner informed Plaintiff that her request had been granted and that Plaintiff would receive future notice setting the hearing date. [AR 50-54.] This notice informed Plaintiff that she had a right to representation at the hearing, that a representative "can help you get evidence, prepare for the hearing, and present your case at the hearing," that "some private lawyers charge a fee only if you receive benefits," and that "some organizations" may provide free legal representation. [AR 50.] A list of private attorneys and a list of organizations that provided free legal representation in Plaintiff's area were included with the notice. [AR 52.] Subsequent notices dated March 30, 2009 and April 2, 2009, informed Plaintiff of her right to representation [AR 55-56, 68-74.] The notice from April 2, 2009, also included a separate handout entitled "Your Right to Representation," explaining what a representative could do and fee agreements. [AR 73-74.]

An administrative hearing was held on April 22, 2009. [AR 19.] Plaintiff appeared without counsel. [Id.] At the start of the hearing, the following dialogue took place between the ALJ and the Plaintiff regarding her right to representation:

"ALJ: You are not represented at this time, is that correct?

CLMT: That's right.

ALJ: Okay, and do you understand that you have a right to be represented?

CLMT: Yes, sir.

ALJ: Okay, and do you have any questions ...


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