Order for Modification of Opinion
Before TUTTLE, TJOFLAT and KRAV-ITCH, Circuit Judges.
We have carefully considered the petition for rehearing in the companion case,
Clark v. Harris,
This appeal, like that of
Doss v. Harris,
Mrs. Benson’s case suffers from the same defects as the other two, in that the notice given to her with respect to the right to have representation by counsel is not substantially different from that contained in the other two cases.
The notice here, contained on the face of the notice of hearing was as follows:
Represen tation
While it is not required you may be represented at the hearing by an attorney or other qualified person of your choice. If you wish to be represented by an attor *408 ney and cannot afford it, your local social security office will provide a list of offices where you may be able to obtain such representation. [Emphasis in original.]
Fees for Representation
Any fee which your representative wishes to charge is subject to approval by the Bureau of Hearings and Appeals, and your representative must furnish you with a copy of the fee petition. When you receive your copy of the fee petition, you will have 20 days to comment, if you wish, regarding the requested fee.
If you are found entitled to past-due Disability Insurance Benefits and your representative is an attorney, 25 percent of such past-due benefits will be withheld by the Social Security Administration pending approval of a fee for your attorney. If the approved fee is less than the 25 percent withheld, the amount of the fee will be paid to your attorney from the amount withheld and the difference will be sent to you. If the approved fee is more than 25 percent of your past-due benefits, the 25 percent will be paid to your attorney and the difference is a matter to be settled between you and your attorney. If you are found not entitled to past-due Disability Insurance Benefits, or if your representative is not an attorney, none of those benefits will be withheld by the Social Security Administration. Payment of any fee for representation is, therefore, a matter to be settled between you and your representative, after the amount of the fee has been approved by the Bureau of Hearings and Appeals.
If you are found entitled to any Supplemental Security Income Benefits, none of those benefits will be withheld by the Social Security Administration. Payment of any fee for representation is, therefore, a matter to be settled between you and your representative, after the amount of the fee has been approved by the Bureau of Hearings and Appeals. [Emphasis in original.]
We hold, as we did in Clark and Doss, that this was inadequate notice to the claimant both for the possibility of her having free counsel and of the limitations on the fee that counsel could charge as a part of the recovery if any was made.
Moreover, the claimant contends that she did not actually waive the right to counsel at the time of the hearing, because of the ambiguous nature of the statement made to her by the administrative law judge. That statement and her answer follow:
In your notice of hearing you were advised of your right to an attorney. It is not required. Since you are appearing alone I am assuming you do not wish to have a representative. Therefore I will ask the questions considered necessary in order to obtain a full record of the facts in this case. Is that agreeable with you?
MRS. BENSON: Yes, sir.
The claimant contends that by answering “Yes, sir” it may well be that Mrs. Benson was agreeing to the latter part of the ALJ’s statement “therefore I will ask the questions considered necessary in order to obtain a full record of the facts in this case,” since, when he asked: “Is that agreeable with you?”, Mrs. Benson may well have overlooked that part of the statement: “I am assuming you do not wish to have a representative.”
Mrs. Benson’s reply to this statement was ambiguous. Such a reply, therefore, must be considered something less than an unequivocal waiver. However, we conclude that regardless of the adequacy of the notice in this case, this hearing did not meet the standards of a “full and fair hearing” set out by this Court in
Herridge v. Richardson,
This Court has held that subjective evidence of pain, as testified to by the claimant, when linked to a “medically determinable impairment” may be sufficient to support a finding by the secretary of the inability to engage in any substantial gain
*409
ful activity, although testimony about the claimant’s pain is based on the purely subjective experience of the patient and the existence of pain itself is unsupported by objective medical evidence.
DePaepe v. Richardson,
At no time during the hearing was the claimant observed to be suffering any physical or mental discomfort, nor was physical pain or discomfort evidenced by any facial grimaces or restlessness. 1
The medical evidence reveals that although the claimant suffers some discomfort from her impairments, they do not appear severe.
It will be noted that the ALJ here refers to the “medical evidence.” There is no indication that he paid any attention to the claimant’s own testimony about a continuous pain. Certainly, he made no finding that he disbelieved her testimony, since he made no credibility findings at all.
Since the record discloses a case upon which the claimant could have prevailed if all of her evidence had been believed, it was clear error for the administrative law judge to disregard completely the subjective evidence developed at the hearing. Here, the ALJ apparently applied an improper legal The case must, therefore, be remanded for a further hearing. standard to the evidence,
The judgment is REVERSED and the case is REMANDED for further proceedings not inconsistent with this opinion.
Notes
. The hearing lasted only 51 minutes.