Clark v. Schweiker

• Decision Date: 17 July 1981
• Docket Number: No. 79-3622,79-3622
• Citation: 652 F.2d 399
• Parties: Mozelle CLARK, Plaintiff-Appellant, v. Richard S. SCHWEIKER, Secretary of Health and Human Services, Defendant- Appellee. . Unit B
• Court: U.S. Court of Appeals — Fifth Circuit

Page 399

652 F.2d 399

59 A.L.R.Fed. 584

Mozelle CLARK, Plaintiff-Appellant, v. Richard S. SCHWEIKER, Secretary of Health and Human Services, Defendant- Appellee.

No. 79-3622.

United States Court of Appeals, Fifth Circuit.

Unit B

July 17, 1981.

Rehearing Denied August 7, 1981.

Phillip A. Bradley, Georgia Legal Services, Conyers, Ga., Deborah S. Ebel, Atlanta Legal Aid Society, Atlanta, Ga., for plaintiff-appellant.

Curtis E. Anderson, Asst. U. S. Atty., Holly A. Grimes, Asst. Reg. Atty., Atlanta, Ga., for defendant-appellee.

Appeal from the United States District Court for the Northern District of Georgia.

On Petition for Rehearing

Before TUTTLE, TJOFLAT and KRAVITCH, Circuit Judges.

TUTTLE, Circuit Judge:

We have carefully considered the appellee's petition for rehearing in this case. In the original briefs of the parties in this Court, the notice furnished to Mrs. Clark was treated as the notice we quoted in our opinion, 638 F.2d 1347. It now appears that Mrs. Clark actually received a different notice. We therefore withdraw the original opinion and substitute the following in its place:

Mrs. Mozelle Clark appeals from a decision of the district court affirming the decision of the Secretary of HEW that claimant was not entitled to a period of disability insurance benefits, or security income under the Social Security Act, 42 U.S.C. § 405(g), § 416(k), § 423(d) and § 1381. The case was assigned here for oral argument rather than being disposed of on the summary calendar because of problems arising from the kind of notice given by the Secretary to the claimant touching on her right to be represented by counsel at the hearing before the administrative law judge, the availability of free legal services for such appearance, and notice of the statutory limitations on the fees that lawyers are permitted to charge under a private contract with the claimant.

1. STATEMENT OF THE CASE

Appellant is a 43 year old woman with a seventh grade education. She can read and write when she has glasses. At the time of the hearing, she had no glasses and stated that she had been unable to buy them. All of her work experience has been as a domestic, a maid or cook. Her last regular work had occurred in 1973 although there is some evidence that she had worked briefly in 1975. Appellant applied for Social Security disability insurance benefits and supplemental security income on May 18, 1977. She alleged that because of blood clots, thyroid problems, chronic bronchitis and eye trouble she had been unable to work since July, 1973. In May of 1976, upon a previous application for benefits for disability allegedly beginning in 1974, she had been denied relief. The magistrate considered that period to be administratively barred for benefits by the doctrine of res judicata. The current application was denied initially July 8, 1977 and on reconsideration, on September 7, 1977. Appellant then filed a request for a hearing. The notice of hearing informed her of the date and location of the hearing. On the reverse side of the notice, there was contained the following statement:

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 attorney representation and cannot afford it, your social security office will provide a list of offices where you may be able to obtain representation. Any fee which your representative wishes to charge must be approved 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 petition, you will have a period of 20 days to comment, if you wish, regarding the requested fee.

Payment of any approved fee for any services rendered on your behalf with respect to your claim for Supplemental Security Income is a matter to be settled between you and your representative.

If you are found entitled to Disability Insurance Benefits and your representative is an attorney, 25 percent of your back benefits will normally be withheld 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 back benefits, the 25 percent withheld will be paid to your attorney and the difference is a matter to be settled between you and your attorney. If your representative is not an attorney, none of your benefits will be withheld, and payment of any approved fee is a matter to be settled between you and your representative.

On December 14, 1977, appellant appeared, unrepresented, before the ALJ who conducted the hearing by examining the appellant and a vocational expert. Mrs. Clark's testimony and the clinical records introduced in the administrative file were sufficient to have warranted a finding that Mrs. Clark suffered from "an impairment or a combination of impairment of sufficient severity to preclude substantial gainful activity for a long, continuous and indefinite period of time or a continuous period of 12 months or more, or that would result in death."

The ALJ then called on the vocational expert (VE) who had been present during the hearing and who had read the documentary evidence. The judge then posed two hypothetical questions to the VE. In the first, the VE was asked to assume that all of appellant's testimony was credited, including the testimony with respect to her subjective complaints and to then give an opinion as to her ability to work. The VE responded that under those circumstances, it was his opinion "that there would be no jobs that she would be able to perform on a full time basis." In the second hypothetical question, the VE was asked to assume that appellant had a vision problem correctable by glasses, a thyroid condition currently under control with treatment, and mild blood clots in her legs, that she could stand and walk at least four out of eight hours and could sit and work as much as six out of eight hours. He was then asked as to her ability to work. In response the witness testified that appellant would be able to engage in light work such as short order cook, cafeteria line, or light domestic work.

Immediately following the testimony by the VE, without voluntarily suggesting to the appellant that she could cross-examine him, the ALJ explained to the claimant what the VE's answers meant then said: "Is there any one doctor that knows more about your condition than anybody else?" She gave the name of Dr. Ferry but stated that he had not examined her for two or three years because she had a big bill from him and had no money to pay him. Mrs. Clark produced no personal physician nor other medical witness to testify as to her complaints.

The administrative law judge found that the claimant met the special earnings requirements for disability purposes in July, 1973. He then made the following findings of fact among others:

3. The claimant's impairments are poor vision correctable with glasses, mild localized venous thrombosis, mild airway obstruction, and hypothyroidism.

4. The claimant's pain is not of sufficient severity or frequency to be disabling.

5. The claimant maintains the residual functional capacity to work as a light domestic worker, short order cook, and cafeteria line worker.

7. The claimant is not under a disability as this term is defined in the Social Security Act, as amended.

In the opinion the judge stated:

The claimant's allegations of pain have also been considered by the Administrative Law Judge, since pain in itself can be disabling. However, based on the evidence of record, the Administrative Law Judge has concluded that the claimant's pain is not of sufficient severity or duration to be disabling. In reaching this conclusion, the Administrative Law Judge has resolved the credibility issue against the claimant. The claimant takes potent pain medication on an infrequent basis, and she did not appear to be in significant pain at the hearing. Her description of her social and leisure activities was also inconsistent with an individual in severe pain.

Appellant filed this action in the district court on July 7, 1978. The magistrate, to whom the matter had been referred, issued a report and recommendation that the decision of the Secretary be affirmed on February 23, 1979. The magistrate's report was approved by the district court on March 15 and claimant's action was dismissed. Claimant then filed a motion to alter or amend the judgment, in response to which the district court entered an order on June 22, 1979, adopting a rule requiring that the Secretary inform all claimants of the availability of free legal services; he thus remanded the case to the magistrate for a hearing on the issue of claimant's status as an indigent. However, before the hearing was held, the Secretary filed her motion to alter or amend, and on September 28, 1979, the district court entered an order reinstating its original dismissal of the claimant's action and affirming the Secretary's decision. Thereupon, the claimant filed her timely notice of appeal.

II. CLAIMANT'S RIGHT TO NOTICE OF RIGHT TO COUNSEL

Because of the importance of the problems arising out of the appellant's contention respecting her right to be represented by counsel, appropriate notice advising her of such a right, and the special obligations placed upon an administrative law judge in the event a claimant appears without counsel, we discuss this matter first.

The Supreme Court has not recognized a Constitutional right to counsel at a Social Security hearing. Goodman v. Richardson, 448 F.2d 388 (5th Cir. 1971). Nevertheless, a claimant has a statutory right to counsel at such a hearing. 42 U.S.C. § 406. This right is effectuated by regulation. 20 C.F.R. § 404.971. The parties both agree that in order for this regulation to be effective, there is an...