Todd Allen Moats v. Commissioner of Social Security

RECOMMENDED FOR PUBLICATION
Pursuant to Sixth Circuit I.O.P. 32.1(b)
File Name: 22a0166p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
TODD ALLEN MOATS,
Plaintiff-Appellant,
v.
COMMISSIONER OF SOCIAL SECURITY,
Defendant-Appellee.
┐
│
│
│
│
│
│
│
┘
No. 21-3702
Appeal from the United States District Court for the Northern District of Ohio at Toledo.
No. 3:20-cv-00265—Jeffrey James Helmick, District Judge.
Decided and Filed: July 27, 2022
Before: SUTTON, Chief Judge; KETHLEDGE and READLER, Circuit Judges.
_________________
COUNSEL
ON BRIEF: Randal S. Forbes, FORBES RODMAN PC, Angola, Indiana, for Appellant.
Alison Schwartz, SOCIAL SECURITY ADMINISTRATION, Chicago, Illinois, for Appellee.
READLER, J., delivered the opinion of the court in which SUTTON, C.J. and
KETHLEDGE, J., joined. READLER, J. (pp. 10–14), also delivered a separate concurring
opinion.
_________________
OPINION
_________________
CHAD A. READLER, Circuit Judge. Todd Moats suffers from peripheral neuropathy,
which prevents him from wearing closed-toed shoes for lengthy periods. This condition caused
Moats to leave his job as a forklift operator and apply for disability insurance benefits and
supplemental security income through the Social Security Administration. Following a hearing,
>

-- 1 of 14 --

No. 21-3702 Todd Moats v. Comm'r of Soc. Sec. Page 2
an administrative law judge found that Moats’s condition prevented him from returning to his
previous job. Nonetheless, because, as the ALJ found, Moats could still perform a number of
jobs available throughout the national economy, his application for benefits was denied. As
substantial evidence supports that determination, we affirm. In so doing, we reject Moats’s
argument that the ALJ failed to adequately develop the record.
BACKGROUND
Todd Moats worked as a forklift operator at the Campbell Soup Company. He eventually
left that position due to pain and excessive sweating in his feet when he wore closed-toed shoes.
A few months later, he applied for disability insurance benefits and supplemental security
income through the Social Security Administration. In his application, Moats alleged that he was
disabled due to his neuropathy as well as a host of other conditions, including diabetes, fatigue,
and a learning disability. The agency denied Moats’s application and subsequent request for
reconsideration.
Moats requested a hearing before an ALJ. The agency notified Moats by letter that he
was allowed representation at the hearing and provided a list of legal aid organizations. In its
letter, the agency also detailed the process for submitting evidence, indicating that Moats could
testify and put on witnesses at the hearing. Finally, the agency explained what factors the ALJ
would consider when determining Moats’s eligibility for disability benefits.
Disability benefits hearings before the Social Security Administration, it bears noting, are
considered adjudicative, not adversarial, in nature. Biestek v. Berryhill, 139 S. Ct. 1148, 1152
(2019)). A claimant has the right to designate a person to represent him during the hearing. 42
U.S.C. § 406; 20 C.F.R. § 404.938(b)(2). The Social Security Administration, on the other hand,
has no representative before the ALJ. Carr v. Saul, 141 S. Ct. 1352, 1359 (2021). Together, the
ALJ and the claimant—here Moats—consider the claimant’s request for benefits through an
“informal” process “examining (among other things) the kind and number of jobs available for
someone with the applicant’s disability and other characteristics.” Biestek, 139 S. Ct. at 1151–
52.

-- 2 of 14 --

No. 21-3702 Todd Moats v. Comm'r of Soc. Sec. Page 3
On the day of Moats’s hearing, he arrived without legal counsel. The ALJ emphasized to
Moats the benefits of representation and offered to postpone the hearing if Moats desired more
time to secure a representative. But Moats declined, indicating that he did not “[n]eed a lawyer”
and was “doing this [him]self.”
So the hearing progressed to the evidentiary phase. The ALJ began by reviewing the case
file with Moats. Moats indicated that he had received additional treatment since the file was last
updated and provided copies of the relevant treating physician records. The ALJ explained the
process for evaluating disability claims; Moats had no questions. Moats then described his living
situation (house), age (38), marital situation (married with no children), educational attainment
(high school graduate), driving ability (licensed and drives roughly once each week), and ability
to perform household tasks (capable of completing typical household chores). Next, Moats
explained that, although he has some trouble spelling “big words,” he can read the newspaper
and do basic math. He also discussed his employment history. In response to a question from a
vocational expert, Moats indicated that he “probably could” perform a job that allowed him to
remain seated without shoes all day.
Following Moats’s testimony, the ALJ heard from two witnesses. One was Moats’s wife.
She confirmed that Moats could not wear closed-toed shoes for long periods and provided
additional details about medical treatment he had received. The other was a vocational expert.
His testimony’s overriding purpose was to contrast Moats’s previous jobs with other positions
available in the national economy. The ALJ asked the expert if someone with Moats’s
background could find gainful employment in a position that did not require closed-toed shoes
and involved only sedentary work with occasional movement up ramps or stairs. The expert
testified that roughly 32,000 jobs of that ilk were available in the national economy. Examples
included positions as a general office clerk, an addresser, and a surveillance monitor.
From this record, the ALJ determined that although Moats suffered from impairments
that prevented him from returning to his forklift position, his residual functional capacity was
sufficient to perform many other jobs in the national economy. Accordingly, the ALJ concluded
that Moats does not suffer from a “disability,” as that term is used in the Social Security Act, and
denied his request for benefits. Moats sought review of the ALJ’s decision in the district court.

-- 3 of 14 --

No. 21-3702 Todd Moats v. Comm'r of Soc. Sec. Page 4
That court sided with the Social Security Administration, concluding that substantial evidence
supported the ALJ’s determination. This appeal followed.
ANALYSIS
We review a district court’s decision regarding benefits eligibility de novo. Gentry v.
Comm’r of Soc. Sec., 741 F.3d 708, 722 (6th Cir. 2014). This means that we, like the district
court, will uphold the ALJ’s decision unless the ALJ failed to apply the correct legal standard or
made findings that are unsupported by “substantial evidence.” 42 U.S.C. § 405(g); McClanahan
v. Comm’r of Soc. Sec., 474 F.3d 830, 833 (6th Cir. 2006). “‘[S]ubstantial evidence’ is a ‘term
of art’” in this setting. Biestek, 139 S. Ct. at 1154 (citation omitted). And it is “not [a] high”
threshold. Id. While it requires “more than a mere scintilla” of evidence, substantial evidence
“means only . . . ‘such relevant evidence as a reasonable mind might accept as adequate to
support a conclusion.’” Id. (quoting Consol. Edison Co. v. NLRB, 305 U.S. 197, 229 (1938)).
Eligibility for benefits payments under Section 223 of the Social Security Act depends on
the existence of a “disability.” 42 U.S.C. § 423(a)(1)(E). A disability, in turn, is defined as the
“inability to engage in any substantial gainful activity by reason of any medically determinable
physical or mental impairment which can be expected to result in death or which has lasted or
can be expected to last for a continuous period of not less than 12 months.” Id. § 423(d)(1)(A).
Not every impairment, in other words, will satisfy this definition. Rather, the impairment must
be “of such severity that [the claimant] is not only unable to do his previous work but cannot,
considering his age, education, and work experience, engage in any other kind of substantial
gainful work which exists in the national economy.” Id. § 423(d)(2)(A). Gainful work “exists in
the national economy” if it “exists in significant numbers.” Id.
1. Moats challenges the ALJ’s finding that, despite Moats’s impairments, he could
perform a significant number of jobs in the national economy. Critical to the ALJ’s conclusion
was the vocational expert’s testimony indicating that Moats could work in a number of positions
(for example, as a general office clerk, addresser, or surveillance monitor) that together comprise
approximately 32,000 jobs nationwide.

-- 4 of 14 --

No. 21-3702 Todd Moats v. Comm'r of Soc. Sec. Page 5
How should a factfinder go about valuing a vocational expert’s testimony? We can
derive the answer in part from the Supreme Court’s Biestek decision. Vocational experts, Biestek
explained, are “professionals under contract with [the Social Security Administration] to provide
impartial testimony in agency proceedings.” 139 S. Ct. at 1152. The experts provide “current
knowledge” about the nature and availability of various jobs based on publicly available data as
well as the experts’ own experience in job placement or career counseling. Id. at 1152–53
(citation omitted). ALJs will often rely on vocational experts to determine what kind of work (if
any) a claimant could perform. See id.; 20 C.F.R. §§ 404.1566(e), 416.966(e). And, as Biestek
suggests, when a qualified vocational expert testifies that a person with the claimant’s work
experience and physical limitations could perform a significant number of jobs available in the
national economy, the ALJ has a solid basis for denying disability benefits. See Biestek, 139 S.
Ct. at 1155–57 (holding that a vocational expert’s testimony identifying a significant number of
sedentary jobs the claimant could perform was substantial evidence supporting the denial of
benefits); see also Wilson v. Comm’r of Soc. Sec., 378 F.3d 541, 549 (6th Cir. 2004); Smith v.
Halter, 307 F.3d 377, 378 (6th Cir. 2001). Especially so, we note, when the vocational expert is
well-credentialed and “has a history of giving sound testimony about job availability in similar
cases.” Biestek, 139 S. Ct. at 1155.
With this backdrop in mind, we agree that the vocational expert’s testimony at Moats’s
hearing amounted to substantial evidence supporting the ALJ’s decision. For one thing, the
expert is well-credentialed. He is certified by the American Board of Vocational Experts, has
worked for Ohio’s Bureau of Vocational Rehabilitation for 30 years, and has testified as a
vocational expert in at least 22 similar hearings since 2007—credentials even stronger than those
of the expert in Biestek. See id. at 1153 (noting that the Biestek expert had been an employment
counselor for ten years and served as a vocational expert in disability hearings for five years).
For another thing, his assessment that Moats could perform a number of available jobs was
consistent with data from the Dictionary of Occupational Titles, published by the Department of
Labor. See 20 C.F.R. §§ 404.1566(d)(1); 416.966(d)(1) (explaining that the ALJ will consider
the Dictionary of Occupational Titles when determining whether jobs appropriate for the
claimant exist in the national economy in significant numbers); O’Neal v. Comm’r of Soc. Sec.,
799 F. App’x 313, 317 (6th Cir. 2020) (order) (“[Dictionary of Occupational Titles] data can

-- 5 of 14 --

No. 21-3702 Todd Moats v. Comm'r of Soc. Sec. Page 6
establish the existence of jobs in the national economy in significant numbers.”). These twin
considerations bolster the value of the expert’s testimony as well as the ALJ’s decision to rely on
that testimony in denying Moats’s claim.
Moats disagrees. As he sees things, the vocational expert’s testimony lacks reliability for
two reasons. First, the expert did not produce (nor did the ALJ request) the survey data
supporting the expert’s testimony about national job numbers. Biestek, however, explains that
testimony from a well-credentialed expert “will clear (even handily so) the more-than-a-mere-
scintilla threshold” even in the absence of underlying survey data. 139 S. Ct. at 1157. Second,
Moats contends that neither the expert nor the ALJ specified the threshold number of suitable
jobs required to constitute a “significant” number of jobs for purposes of benefits considerations.
But this argument too falls flat. Congress did not define “significant” in the Social Security Act.
Nor has the Commissioner defined the term by rule. In the absence of a statutory or regulatory
command, we have said that the ALJ must make the determination on a case by case basis. Hall
v. Bowen, 837 F.2d 272, 275 (6th Cir. 1988). And the ALJ’s finding here that 32,000 suitable
jobs exist across the nation “fits comfortably within what this court and others have deemed
‘significant.’” Taskila v. Comm’r of Soc. Sec., 819 F.3d 902, 905 (6th Cir. 2016) (6,000 jobs);
see also Nejat v. Comm’r of Soc. Sec., 359 F. App’x 574, 579 (6th Cir. 2009) (2,000 jobs);
Jenkins v. Bowen, 861 F.2d 1083, 1087 (8th Cir. 1988) (500 jobs); Barker v. Sec’y of Health &
Hum. Servs., 882 F.2d 1474, 1479 (9th Cir. 1989) (1,266 jobs).
In sum, the expert’s uncontradicted testimony easily qualifies as “the kind of evidence—
far more than a mere scintilla—that a reasonable mind might accept as adequate to support a
finding about job availability.” Biestek, 139 S. Ct. at 1155 (quotation marks omitted).
2. Moats presses a second, related argument. Despite Biestek’s clear statement that a
vocational expert need not disclose the survey data underlying his testimony, Moats believes that
the ALJ should have taken it upon himself to question the expert about that information. Why?
Because Moats was not represented by counsel at his hearing, leaving the ALJ, in Moats’s mind,
with a heightened duty to develop the record.

-- 6 of 14 --

No. 21-3702 Todd Moats v. Comm'r of Soc. Sec. Page 7
Promoting the claimant’s case, of course, is not the ALJ’s obligation. The ALJ,
remember, is a neutral factfinder, not an advocate. See Sims v. Apfel, 530 U.S. 103, 110–11
(2000) (plurality opinion) (“Social Security proceedings are inquisitorial rather than
adversarial.”); Richardson v. Perales, 402 U.S. 389, 410 (1971) (“The [ALJ], furthermore, does
not act as counsel. He acts as an examiner charged with developing the facts.”). So while the
ALJ must ensure that every claimant receives “a full and fair hearing,” Duncan v. Sec’y of
Health & Hum. Servs., 801 F.2d 847, 856 (6th Cir. 1986), the ultimate burden of proving
entitlement to benefits lies with the claimant, 20 C.F.R. § 404.1512(a).
Invoking a handful of our earlier cases, Moats contends that his was a special case
deserving of heightened attention from the ALJ. He derives that rule from our decision in
Lashley v. Secretary of Health & Human Services, 708 F.2d 1048, 1051 (6th Cir. 1983), which
suggested that an ALJ has a “special duty” to develop the record “where the claimant appears
without counsel.” By way of published decisions, however, we have done little to build upon
whatever foundation Lashley laid some 40 years ago. Indeed, Moats fails to cite any other
published case from our Court that has imposed Lashley’s “special duty” on Social Security
ALJs.
Time and practice together confirm that Lashley is best viewed as an extreme example of
an ALJ failing to adequately develop the record before it. See Born v. Sec’y of Health & Hum.
Servs., 923 F.2d 1168, 1172 (6th Cir. 1990) (explaining that, given Lashley’s extreme
circumstances, that case merely held “that the ALJ’s duty to develop a full and fair record with a
pro se claimant had not been met”). The claimant there appeared without counsel. He had only
a fifth-grade education. And he “was inarticulate, and appeared to be easily confused.” Lashley,
708 F.2d at 1050–52. For instance, he explained to the ALJ that, after suffering a series of
strokes, he had difficulty gathering his thoughts; he would “know what [he was] trying to say”
but would be unable to say it. Id. at 1050. The strokes also impaired his memory and his ability
to read. Id. Despite these obvious limitations, the ALJ questioned Lashley only
“[s]uperficial[ly]” and concluded the hearing after a mere 25 minutes. Id. at 1052. That
combination of extreme impairments coupled with the ALJ’s perfunctory review seemingly left
an insufficient record to accurately gauge the extent of the claimant’s disability. Id. But absent

-- 7 of 14 --

No. 21-3702 Todd Moats v. Comm'r of Soc. Sec. Page 8
such acute circumstances, we do not “heighten” the ALJ’s fact-finding responsibility, even
where a claimant is unsophisticated and appears without counsel. See, e.g., Born, 923 F.2d at
1170–72 (finding that, in a case involving a claimant with only an eighth-grade education, the
ALJ satisfied the duty to develop the record even without extensive questioning because there
were no discrepancies in the record and the claimant “gave no evidence of impaired mental
ability”).
Thankfully, Moats’s case is not one of extreme circumstances. There is no indication that
Moats failed to understand the hearing’s procedures. To the contrary, when the hearing began,
he indicated that he had no questions about the process for evaluating his disability, and he opted
to proceed without representation because he could “do[] this [him]self.” His preparation for the
hearing—reviewing and supplementing his case file—indicates that he understood his
evidentiary burden as well. See Wilson, 280 F. App’x at 457–59 (explaining that the ALJ
adequately developed the record where, as here, the claimant was able to recount her
employment history, explain her disabling medical condition, and produce corroborating medical
records).
In addition, Moats was able to answer questions from the ALJ and vocational expert
regarding his medical, educational, and employment history. Moats explained how his
neuropathy forced him to leave his previous job and why he believed his condition would
preclude him from any job requiring him to wear closed-toed shoes. And his wife corroborated
that testimony with additional information about his impairment and treatment history. See
Nabours, 50 F. App’x at 275–76 (holding that the ALJ fully and fairly developed the record
where the claimant was “sufficiently articulate in her direct testimony”). In total, Moats’s
hearing lasted over an hour, more than twice as long as the hearing in Lashley.
On this record, we see no indication that Moats was prevented “from fully developing the
claims and relevant evidence.” Id. at 276. Indeed, the exact opposite is true. The ALJ made
every effort to assist Moats, including by inviting him to question the vocational expert and
offering to help him phrase his questions properly. See Thomas v. Comm’r of Soc. Sec., 550 F.
App’x 289, 291 (6th Cir. 2014) (per curiam) (finding no reversible error where the unrepresented
claimant had been notified of her right to question the expert and the ALJ invited her to do so

-- 8 of 14 --

No. 21-3702 Todd Moats v. Comm'r of Soc. Sec. Page 9
following the expert’s testimony). The ALJ thus satisfied his duty to investigate and develop the
relevant facts.
* * *
We affirm the judgment of the district court.

-- 9 of 14 --

No. 21-3702 Todd Moats v. Comm'r of Soc. Sec. Page 10
_________________
OPINION
_________________
CHAD A. READLER, Circuit Judge, concurring. Nearly four decades ago, before any
current member of the Court had joined our ranks, we decided Lashley v. Secretary of Health &
Human Services, 708 F.2d 1048 (6th Cir. 1983). Over time, Lashley has become something of a
legal relic, in no small part due to its loose reasoning. Lashley hinted at a nebulous “special
duty” imposed upon Social Security ALJs in unique instances. But it did not explain in any
detail the rule it purportedly adopted.
In light of that uncertainty, it was left to future panels to offer their best guesses as to
Lashley’s import. And those panels seemingly did so with trepidation, as none of them opted to
publish their conclusions. Some of those unpublished cases describe Lashley as establishing a
“heightened duty to develop the record” when three “special circumstances” are present: (1) the
claimant is without counsel, (2) he is unfamiliar with hearing procedures, and (3) he is unable to
present his case effectively. Wilson v. Comm’r of Soc. Sec., 280 F. App’x 456, 459 (6th Cir.
2008); see also Lambdin v. Comm’r of Soc. Sec., 62 F. App’x 623, 625 (6th Cir. 2003) (order);
Trandafir v. Comm'r of Soc. Sec., 58 F. App'x 113, 115 (6th Cir. 2003); Nabours v. Comm’r of
Soc. Sec., 50 F. App’x 272, 275 (6th Cir. 2002) (order); Norman v. Comm’r of Soc. Sec., 37 F.
App’x 765, 765 (6th Cir. 2002); Rise v. Apfel, 234 F.3d 1269, at *2 (6th Cir. 2000) (Unpublished
Table Decision); Weissmiller v. Sec’y of Health & Hum. Servs., 785 F.2d 311, at *2 (6th Cir.
1986) (per curiam) (Unpublished Table Decision). Yet in all but one instance, see Lambdin, 62
F. App’x at 625, we ultimately found the ALJ’s factual development adequate.
That trepidation was warranted. Upon reflection, Lashley’s suggestion of a “special
duty” has no shortage of imperfections. Start with a basic principle of administrative law.
Absent constitutional concerns, Article III courts may not impose procedural requirements on
agencies beyond those mandated by statute. Perez v. Mortg. Bankers Ass’n, 575 U.S. 92, 101–02
(2015); Vt. Yankee Nuclear Power Corp. v. Nat. Res. Def. Council, Inc., 435 U.S. 519, 543–49
(1978). That understanding alone deeply undermines Lashley, which failed to identify a basis in

-- 10 of 14 --

No. 21-3702 Todd Moats v. Comm'r of Soc. Sec. Page 11
the Social Security Act for imposing a “heightened duty” on ALJs in particular circumstances.
See BedRoc Ltd. v. United States, 541 U.S. 176, 183 (2004) (“[O]ur inquiry begins with the
statutory text, and ends there as well if the text is unambiguous.”). Nor is a textual basis readily
apparent. The Social Security Act merely instructs the Commissioner to “adopt reasonable and
proper rules . . . for the nature and extent of the proofs and evidence and the method of taking
and furnishing the same in order to establish the right to benefits.” 42 U.S.C. § 405(a). It makes
no mention of a “heightened duty.” And the Commissioner, to my knowledge, has not adopted
such a rule.
So where, one might ask, did Lashley discover this supposed duty? In the Act’s general
“remedial purpose.” Lashley, 708 F.2d at 1051. But that is perhaps the slimmest of reeds upon
which to rest such a broad duty. “After all,” the Supreme Court has more recently noted, “almost
every statute might be described as remedial in the sense that all statutes are designed to remedy
some problem.” CTS Corp. v. Waldburger, 573 U.S. 1, 12 (2014).
More to the point, we may not elevate a statute’s ostensible purpose over its text. See
Oklahoma v. Castro-Huerta, 142 S. Ct. 2486, 2496 (2022) (“As this Court has repeatedly stated,
the text of a law controls over purported legislative intentions unmoored from any statutory
text.”); In re Sanders, 551 F.3d 397, 402 (6th Cir. 2008) (“The most conspicuous place to look
for the purpose of a law of course is the text of the statute that both houses of Congress passed
and that the President signed into law.”). Perhaps Lashley’s “purposivist” manner of
interpretation had some pedigree when the case was decided. See, e.g., United Steelworkers of
Am. v. Weber, 443 U.S. 193, 201–203 (1979) (rejecting a “literal interpretation” of Title VII in
favor of “legislative history,” “historical context,” and “Congress’ primary concern in enacting”
the statute). But it has little to recommend it today, both for practical and substantive reasons.
See Sexton v. Panel Processing, Inc., 754 F.3d 332, 339 (6th Cir. 2014) (“Abstract appeals to
purpose and legislative history at any rate have little value in interpreting a precise and
reticulated statute . . . .” (quotation marks omitted)). Functionally, a statute’s “purpose” is not
always easily discerned. Cf. Patel v. U.S. Citizenship & Immigr. Servs., 732 F.3d 633, 636 (6th
Cir. 2013) (“[I]t is folly to talk about ‘the purpose’ of the statute when the statute reflects a
compromise between multiple purposes.”). And even if we are confident of Congress’s

-- 11 of 14 --

No. 21-3702 Todd Moats v. Comm'r of Soc. Sec. Page 12
intentions in enacting a law, as a substantive matter, “it is quite mistaken to assume . . . that
whatever might appear to further the statute’s primary objective must be the law.” Henson v.
Santander Consumer USA Inc., 137 S. Ct. 1718, 1725 (2017) (cleaned up). For this reason, it is
well understood today that we “cannot replace the actual [statutory] text with speculation as to
Congress’ intent.” Magwood v. Patterson, 561 U.S. 320, 334 (2010). Lashley’s “heightened
duty” language, in other words, is a textbook example of an interpretive practice that has long
fallen out of favor. See Food Mktg. Inst. v. Argus Leader Media, 139 S. Ct. 2356, 2364 (2019)
(deeming the purposivist approach “a relic from a bygone era of statutory construction”
(quotation marks omitted)).
To buttress its atextual approach, Lashley invoked the Supreme Court’s decision in
Richardson v. Perales, 402 U.S. 389 (1971). Why it did so, however, is far from clear. Perales
merely emphasized the simple (and seemingly neutral) point that a Social Security ALJ serves
“as an examiner charged with developing the facts,” rejecting the notion that the ALJ is biased in
favor of the Social Security Administration. Id. at 410. Remarkably, Lashley seemed to jerry-rig
Perales’s recognition of an ALJ’s even-handed responsibility for developing the facts into a
springboard to conclude that the ALJ must “assume a more active role in the proceedings” to
assist unrepresented claimants. Lashley, 708 F.2d at 1051 (cleaned up). How Perales can fairly
be read in that manner escapes the eye. For far from acknowledging an ALJ’s heightened duty to
assist the claimant, Perales at bottom rejected the idea that an ALJ should favor one side or the
other. 402 U.S. at 408–10.
Making matters worse, the Lashley “heightened duty” standard is no more workable than
it is grounded in law. In nearly all respects, the “heightened duty” rule suffers from problems of
administrability and unpredictability. Case in point, far from offering direction on how to apply
its own standard, Lashley instead confessed the haziness of its approach, conceding that “[t]here
is no bright line test for determining when the [ALJ] has . . . failed to fully develop the record.”
708 F.2d at 1052; cf. Tomei v. Parkwest Med. Ctr., 24 F.4th 508, 513 (6th Cir. 2022) (“[A]
bright-line rule . . . brings clarity and consistency”); Antonin Scalia, The Rule of Law as a Law of
Rules, 56 U. Chi. L. Rev. 1175 (1989) (discussing the advantages of bright line rules).

-- 12 of 14 --

No. 21-3702 Todd Moats v. Comm'r of Soc. Sec. Page 13
Left to fill in the gap, our Court’s subsequent unpublished decisions have identified three
factors as bearing on the inquiry. See, e.g., Wilson, 280 F. App’x at 459. None of these factors,
however, suffers from an abundance of precision. The first is the absence of counsel. Although
we have sometimes taken extra care to scrutinize the denial of benefits in cases involving
unrepresented claimants, we have also made it clear that a claimant may waive his statutory right
to counsel. See Nabours, 50 F. App’x at 275; Lashley, 708 F.2d at 1052. In other words, “the
mere fact that a claimant was unrepresented is not grounds for reversal.” Duncan v. Sec’y of
Health & Hum. Servs., 801 F.2d 847, 856 (6th Cir. 1986). It follows that in cases where the ALJ
has advised the claimant that he may designate a representative and the claimant subsequently
chooses to proceed without one, the ALJ has satisfied his statutory responsibility. See 42 U.S.C.
§ 406(c) (directing ALJs to “notify each claimant . . . of the options for obtaining attorneys”).
Any other approach has the dubious effect of incentivizing a claimant to forego counsel at his
hearing and, in the event of an unfavorable decision, appeal on the basis that the lack of counsel
denied him a fair hearing.
The two remaining factors are equally muddled. How “unfamiliar with hearing
procedures” must a claimant be, and, relatedly, how “ineffective” must the claimant be in
presenting his case, before an ALJ’s heightened duty is triggered? Lashley does not say. Nor, by
and large, do our follow-on unpublished cases. Yet as Lashley candidly refuses to offer ALJs a
roadmap for how best to conduct their hearings, it at the same time commits the Court to
“scrutiniz[ing] the record with care,” leaving the threat of reversal hanging over an ALJ’s head
should he not follow the unwritten rules we choose to impose “on a case by case basis.” 708
F.2d at 1052 (citation omitted). Suffice it to say, there is little “to guide the [ALJ’s]
decisionmaking or our review.” Rowden v. Chater, 87 F.3d 1315, *1 (6th Cir. 1996) (per
curiam) (Unpublished Table Decision).
In view of the impracticality and atextual roots of Lashley’s “heightened duty” standard,
it is no wonder that panels of this Court have been reluctant to apply it. To my knowledge, in the
nearly 40 years since Lashley, we have only once, in an unpublished decision, found that an
ALJ’s factual development fell short of Lashley’s “special duty.” And that case, it bears noting,
turned on facts as extreme as those in Lashley: an unrepresented claimant with only a sixth-

-- 13 of 14 --

No. 21-3702 Todd Moats v. Comm'r of Soc. Sec. Page 14
grade education who could not read “except for some ‘little words.’” Lambdin, 62 F. App’x at
624. A rule that has relevance only once every two decades strikes me as a historical artifact, not
a settled practice. And going forward, we would be wise not to upset the Social Security
Administration’s carefully crafted procedures with judge-made standards.

-- 14 of 14 --