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Cochran v. Berryhill

United States District Court, W.D. Pennsylvania

August 29, 2019

ALEXANDER HUNTER COCHRAN
v.
NANCY A. BERRYHILL, COMMISSIONER OF SOCIAL SECURITY

          OPINION AND ORDER

          DONETTA W. AMBROSE SENIOR JUDGE

         SYNOPSIS

         Plaintiff filed an application for supplemental security income benefits, alleging mental and physical impairments, including Hirschprung disease, [1] 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 proceedings.

         OPINION

         I. STANDARD OF REVIEW

         Judicial 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.

         A 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).

         II. THE PARTIES' MOTIONS

         Plaintiff 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.

         A. WAIVER

         Plaintiff 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 “unrepresented.”[2]

         A 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).

         Our 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).[3] 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.

         B. QUALIFICATIONS OF REPRESENTATIVE

         Plaintiff 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.

         At the 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.

         After 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 hearing?
REP: Yes.
ALJ: Okay. Ma'am, I need you to be able to respond without looking at your daughter. ...

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