The opinion of the court was delivered by: GREEN
This action to review denial of plaintiff's application for child's disability insurance benefits under the Social Security Act, as amended, 42 U.S.C. §§ 301-1396 (1982), is currently before the court on the parties' cross motions for summary judgment.
Plaintiff has been confined to a mental institution since December, 1978; he has been diagnosed as suffering from paranoid schizophrenia. Plaintiff's mental health problems were apparent as early as 1967 when he was treated for anxiety reaction. In order for plaintiff to be entitled to benefits, however, he must demonstrate that his mental illness became disabling prior to his twenty-second birthday. See 42 U.S.C. § 402(d)(1)(B) (1982). The operative date in this case is June 27, 1970. Plaintiff herein alleges a disability onset date of June 26, 1970.
Plaintiff's father filed an application on his son's behalf for disabled adult child's benefits on March 22, 1983. The application was denied initially and on reconsideration by the Office of Disability Operations of the Social Security Administration. The case was subsequently considered de novo by an Administrative Law Judge ("ALJ") before whom plaintiff's parents appeared unrepresented by counsel. The only testimony offered was that of the parents. Plaintiff was unable to appear due to his hospitalization at the Haverford State Hospital. The ALJ found that plaintiff did not have a severe mental impairment prior to his twenty-second birthday, and therefore, was not disabled as of such time. Thereafter, the Appeals Council denied plaintiff's request for review so that the ALJ's decision, finding plaintiff not disabled as of his twenty-second birthday and therefore not entitled to adult child's benefits, became the final decision of the Secretary of Health and Human Services ("Secretary"). It is from this final decision that plaintiff appeals.
The Third Circuit has stated that "when [a] claimant has been informed of his right to counsel before an administrative hearing and knowingly waives it, his lack of representation is not, of itself, cause for remand. Lack of counsel is sufficient cause for remand only if supported by a showing of clear prejudice or unfairness at the administrative hearing." Dobrowolsky v. Califano, 606 F.2d 403, 407 (3d Cir. 1979) (citations omitted). Such prejudice was found by the court in Dobrowolsky where the ALJ failed to pursue the possibility that the claimant came within one of the per se qualifications for disability under the applicable regulations. Id. at 407-08; see also Livingston v. Califano, 614 F.2d 342, 345-46 (3d Cir. 1980). Plaintiff urges that he was similarly prejudiced at this hearing before the ALJ.
Under 20 CFR Part 404, Appendix 1, § 12.03 (1984), a person is deemed to have a "functional psychotic disorder" and thereby disabled per se if both A. and B. are present:
A. Manifested persistence of one or more of the following clinical signs:
1. Depression (or elation) or
3. Psychomotor disturbances; or
4. Hallucinations or delusions; or
5. Autistic or other regressive ...