United States District Court, W.D. Pennsylvania
OPINION AND ORDER
DONETTA W. AMBROSE SENIOR JUDGE
filed an application for supplemental security income
benefits, alleging mental and physical impairments, including
Hirschprung disease,  depression, and anxiety. His application
was denied initially, and upon video hearing on May 10, 2017
by an Administrative Law Judge (“ALJ”). At the
hearing, Plaintiff's grandmother appeared as his
representative. The Appeals Council denied Plaintiff's
request for review. Before the Court are the parties'
Cross-Motions for Summary Judgment. For the following
reasons, Plaintiff's Motion will be granted and
Defendant's denied, and this matter remanded for further
STANDARD OF REVIEW
review of the Commissioner's final decisions on
disability claims is provided by statute. 42 U.S.C.
§§ 405(g) 6 and 1383(c)(3) 7. Section 405(g)
permits a district court to review the transcripts and
records upon which a determination of the Commissioner is
based, and the court will review the record as a whole. See 5
U.S.C. §706. When reviewing a decision, the district
court's role is limited to determining whether the record
contains substantial evidence to support an ALJ's
findings of fact. Burns v. Barnhart, 312 F.3d 113,
118 (3d Cir. 2002). Substantial evidence is defined as
"such relevant evidence as a reasonable mind might
accept as adequate" to support a conclusion. Ventura
v. Shalala, 55 F.3d 900, 901 (3d Cir. 1995) (quoting
Richardson v. Perales, 402 U.S. 389, 401, 91 S.Ct.
1420, 28 L.Ed.2d 842 (1971)). Substantial evidence may be
"something less than the weight of the evidence, and the
possibility of drawing two inconsistent conclusions from the
evidence does not prevent [the ALJ's decision] from being
supported by substantial evidence." Consolo v. Fed.
Maritime Comm'n, 383 U.S. 607, 620, 86 S.Ct. 1018,
16 L.Ed.2d 131 (1966). If the ALJ's findings of fact are
supported by substantial evidence, they are conclusive. 42
U.S.C. § 405(g); Richardson, 402 U.S. at 390.
district court cannot conduct a de novo review of the
Commissioner's decision, or re-weigh the evidence of
record; the court can only judge the propriety of the
decision with reference to the grounds invoked by the
Commissioner when the decision was rendered. Palmer v.
Apfel, 995 F.Supp. 549, 552 (E.D. Pa. 1998); S.E.C.
v. Chenery Corp., 332 U.S. 194, 196 - 97, 67 S.Ct. 1575,
91 L.Ed. 1995 (1947). Otherwise stated, “I may not
weigh the evidence or substitute my own conclusion for that
of the ALJ. I must defer to the ALJ's evaluation of
evidence, assessment of the credibility of witnesses, and
reconciliation of conflicting expert opinions. If the
ALJ's findings of fact are supported by substantial
evidence, I am bound by those findings, even if I would have
decided the factual inquiry differently.” Brunson
v. Astrue, No. No. 10-6540, 2011 U.S. Dist. LEXIS 55457
(E.D. Pa. Apr. 14, 2011) (citations omitted).
raises overlapping challenges in this appeal. The first
regards the adequacy of his representation at the hearing,
and the second regards the ALJ's obligation to develop
the record. These arguments raise various questions, several
of which are undeveloped within this Circuit, and all of
which relate to the ALJ's duties when a claimant appears
with a non-attorney representative.
first contends that the ALJ erred when she failed to obtain a
knowing and intelligent waiver of the right to counsel. The
Defendant cites to HALLEX, which is not binding on this
Court, in support of its assertion that the ALJ need obtain a
waiver only if a claimant is
claimant has a statutory and regulatory right to counsel at a
social security hearing. Phifer v. Comm'r of Soc.
Sec., 84 Fed.Appx. 189, 190 (3d Cir. 2003). The
ALJ's duties are relatively clear when a claimant appears
without any representation at all. In that case, “[t]he
claimant must be provided with notice of his right to counsel
and can waive this right as long as such waiver is knowing
and intelligent.” Vivaritas v. Comm'r of Soc.
Sec., 264 Fed.Appx. 155, 157 (3d Cir. 2008). If waiver
of counsel was ineffective, remand is proper if clear
prejudice or unfairness at the hearing resulted.
Capoferri v. Harris, 501 F.Supp. 32, 38 (E.D. Pa.
1980) aff'd, 649 F.2d 858 (3d Cir. 1981).
Court of Appeals has not addressed whether a waiver is
required when a claimant is represented by a non-attorney.
Within some other Circuits, such as the Seventh, an ALJ must
secure a waiver of the right to counsel when a claimant
appears with a non-attorney representative. See, e.g.,
Beth v. Astrue, 494 F.Supp.2d 979 (E.D. Wis. 2007);
Goo v. Colvin, No. 15-5858, 2016 U.S. Dist. LEXIS
83540, at *13 (N.D.Ill. June 28, 2016). In Sessaman
v. Colvin, No. 14-1086, 2015 U.S. Dist. LEXIS 91834, at
*16 (M.D. Pa. June 25, 2015), however, my sister Court
determined that the ALJ need not obtain a waiver of the right
to counsel, when a plaintiff exercised that right by choosing
a non-attorney representative. At this juncture, I decline to
depart from the approach taken in Sessaman. Accordingly, I
find no error in the ALJ's failure to obtain a waiver.
QUALIFICATIONS OF REPRESENTATIVE
also challenges the ALJ's failure to inquire as to his
grandmother's qualifications to serve as representative.
The applicable regulation provides that a non-attorney
representative must be someone who is “capable of
giving valuable help…in connection with the claim,
” and is “generally known to have a good
character and reputation.” 20 C.F.R. §
404.1705(b). Section 404.1705 further states that “we
may refuse to recognize” a representative who does not
meet the stated requirements. These provisions suggest, at
the very least, some minimal level of oversight or inquiry on
the part of Defendant and the ALJ; otherwise, they are
utterly meaningless. In Sessaman, for example, the
Court noted that “the ALJ properly identified
[plaintiff's representative, a paralegal] as a qualified
non-attorney that satisfies Plaintiff's rights under the
statutory and regulatory scheme.” Sessaman,
2015 U.S. Dist. LEXIS at *16.
present Plaintiff's hearing, the ALJ introduced herself
and the matter at bar. She then stated, “The Claimant
is present and is represented by ----.” Plaintiff's
grandmother responded, “His grandmother, Pauletta
MacPhedran.” Other than these two statements,
Plaintiff's representation was not addressed in any way,
by any person present at the hearing.
Ms. MacPhedran was identified, the ALJ's first exchange
with her was as follows:
ALJ: Ma'am, have you and the Claimant had an opportunity
to review the file with proposed Exhibits prior to this
ALJ: Okay. Ma'am, I need you to be able to respond
without looking at your daughter. ...