Cowart v. Schweiker
| Citation | 662 F.2d 731 |
| Decision Date | 30 November 1981 |
| Docket Number | No. 81-7124,81-7124 |
| Parties | Marvia A. COWART, SSN 258-70-3097, Plaintiff-Appellant, v. Richard S. SCHWEIKER, Secretary of Health and Human Services, Defendant- Appellee. Non-Argument Calendar. |
| Court | United States Courts of Appeals. United States Court of Appeals (11th Circuit) |
Donald B. Hanna, Decatur, Ga., for plaintiff-appellant.
Bernard E. Namie, Asst. U. S. Atty., Macon, Ga., for defendant-appellee.
Appeal from the United States District Court for the Middle District of Georgia.
Before TJOFLAT, VANCE and CLARK, Circuit Judges.
Marvia A. Cowart appeals from the judgment of the district court affirming a decision by the Secretary of Health and Human Services (Secretary) denying Mrs. Cowart's claim for disability insurance benefits under the Social Security Act. The district court found that the Secretary's decision was supported by substantial evidence and thus affirmed. After a careful review of the record in this case, we conclude, for several reasons, that Mrs. Cowart did not receive a "full and fair hearing" in the administrative proceedings. Accordingly, we reverse the judgment of the district court and remand this case with instructions that it be returned to the Secretary for further proceedings consistent with this opinion.
The appellant, Marvia A. Cowart, worked as a nurse from 1962 until October 1978. On October 25, 1978, Mrs. Cowart underwent surgery to correct a bloodvessel malformation in her brain. Following this surgery, complications ensued and Mrs. Cowart required further operations on November 2, 1978, and November 17, 1978. On March 21, 1979, Mrs. Cowart filed an application for Social Security disability insurance benefits, alleging disability due to certain aftereffects of her surgery. Mrs. Cowart's claim was denied on May 10, 1979. On July 3, 1979, Mrs. Cowart filed a request for reconsideration of her claim. After reconsideration, her claim again was denied on August 6, 1979.
On October 4, 1979, Mrs. Cowart filed a request for a hearing before an administrative law judge (ALJ). This hearing was held on January 3, 1980, and lasted for 40 minutes. Mrs. Cowart appeared at the hearing without counsel. The only witnesses appearing before the ALJ were Mrs. Cowart and her husband, David Cowart. Mrs. Cowart testified that her disability consisted of the following ailments: vision impairment, difficulty in concentrating, severe headaches, nervousness, partial loss of sensation in her left leg, a history of seizures, side effects from prescribed medications, poor balance, a tendency to drop things, and speech impairment. Subsequent to the hearing, the ALJ arranged for Mrs. Cowart to be examined by two physicians, one a neurologist and the other an ophthalmologist. These physicians submitted reports to the ALJ, who incorporated the reports into the record of the hearing.
The ALJ found that Mrs. Cowart, although unable to perform her prior work as a nurse, was able to perform the requirements of sedentary work activity. He thus determined that Mrs. Cowart did not qualify for disability insurance benefits and denied her claim on April 9, 1980. On June 12, 1980, Mrs. Cowart filed a request for review of the ALJ's decision by the Appeals Council. This request was denied on July 15, 1980. The decision of the ALJ therefore became the final decision of the Secretary.
Mrs. Cowart appealed the Secretary's decision to the district court under 42 U.S.C. §§ 405(g) and 1383(c)(3). The district court affirmed on the ground that the Secretary's decision was supported by substantial evidence. Mrs. Cowart thereupon appealed to this court, claiming that she was denied due process of law because the district court failed to consider and comment upon all issues raised before it by the appellant. We find no merit in this contention as such. We do find serious procedural deficiencies in the administrative proceedings and we believe that justice requires reversal of the district court judgment.
The Secretary contends that the only issue before this court is whether the decision of the Secretary is supported by substantial evidence. This assertion is correct only insofar as our review of the merits of appellant's disability claim is concerned. This is not correct when an appellant raises a due process issue, and intervening cases, which we will later discuss, clarify Social Security claimants' right to counsel.
A claimant has a statutory right to counsel at a Social Security hearing. 42 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 petition.
U.S.C. § 406. The Secretary has a duty to notify the claimant of this right prior to such a hearing. Clark v. Schweiker, 652 F.2d 399, 403 (5th Cir. 1981). In several recent cases, this circuit has concluded that the Secretary's notice to the claimant of the right to counsel was inadequate. See Peppers v. Schweiker, 654 F.2d 369 (5th Cir. 1981); Benson v. Schweiker, 652 F.2d 406 (5th Cir. 1981); Clark v. Schweiker, 652 F.2d 399 (5th Cir. 1981); Doss v. Harris, 638 F.2d 1354 (5th Cir. 1981). In the case sub judice, the Secretary provided the following notice concerning the appellant's right to counsel at the hearing before the ALJ:
If you are found entitled to benefits and your representative is an attorney, 25 percent of your back benefits will normally be withheld for payment to your attorney upon approval of his fee. If the approved fee is less than the 25 percent withheld, the difference will be paid directly to you. If the approved fee is more than 25 percent, payment of 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 the fee which is approved is a matter to be settled between you and him.
This notice is substantially the same as the notices involved in Peppers, Clark, and Benson. See Peppers v. Schweiker, supra, at 370; Benson v. Schweiker, 652 F.2d at 407-08; Clark v. Schweiker, 652 F.2d at 401. On the basis of these cases and for the reasons stated therein, we hold that the notice to Mrs. Cowart was inadequate.
The ALJ stated in his decision that Mrs. Cowart "wished to proceed without an attorney or representative." (Emphasis supplied.) If Mrs. Cowart in fact had wished to proceed without counsel, of course, this would constitute a waiver of her right to counsel. The ALJ's conclusion that Mrs. Cowart waived the right to counsel was based on the following exchange at the hearing:
We do not agree that Mrs. Cowart's statement at the hearing evinced a "wish" to proceed without counsel. To the contrary, it seems clear from the following statements made before the ALJ by Mrs. Cowart's husband, David, that Mrs. Cowart wished to proceed with counsel, but was unsuccessful in her attempts to obtain free public counsel and could not afford private counsel:
On the basis of this testimony, we conclude that Mrs. Cowart's failure to obtain counsel was due to her inability to afford counsel rather than a "wish" to proceed without counsel. Thus, we hold that there was no waiver of Mrs. Cowart's right to be represented by counsel at the ALJ hearing. For reasons expressed throughout the remainder of this opinion, we also hold that Mrs. Cowart was prejudiced by the lack of counsel.
Because a hearing before an ALJ is not an adversary proceeding, the ALJ has a basic obligation to develop a full and fair record. This obligation exists even if the claimant is represented by counsel, Thorne v. Califano, 607 F.2d 218, 219 (8th Cir. 1979), or has waived the right to representation, Clark v. Schweiker, 652 F.2d 399, 404 (5th Cir. 1981). Where the right to representation has not been waived, as in this case, the ALJ's " 'basic obligation to develop a full and fair record rises to a special duty when an unrepresented claimant unfamiliar with hearing procedures appears before him.' " Clark v. Schweiker, 652 F.2d at 404 (quoting Barker v. Harris, 486 F.Supp. 846, 849 (N.D.Ga.1980)). This duty requires the ALJ to "scrupulously and conscientiously probe into, inquire of, and explore for all the relevant facts." Cox v. Califano, 587 F.2d 988, 991 (9th Cir. 1978); Gold v. Secretary of Health, Education & Welfare, 463 F.2d 38, 43 (2d Cir. 1972). The ALJ must be "especially diligent in ensuring that favorable as well as unfavorable facts and circumstances are elicited." Cox v. Califano, 587 F.2d at 991 (quoting Rosa v. Weinberger, 381 F.Supp. 377, 381 (E.D.N.Y.1974)).
We hold that the ALJ failed to discharge his special duty to...
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...(11th Cir.1999); Graham v. Apfel, 129 F.3d 1420, 1422 (11th Cir.1997) Welch v. Bowen, 854 F.2d 436 (11th Cir.1988); Cowart v. Schweiker, 662 F.2d 731, 735 (11th Cir.1981). Furthermore, the ALJ must comply with this obligation even if the claimant is represented by counsel. This Court's revi......
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Administrative review issues
...if one is needed to make an informed decision.” Durham v. Apfel , 34 F. Supp.2d 1373, 1381 (N.D. Ga. 1998), citing Cowart v. Schweiker , 662 F.2d 731, 735-36 (11 th Cir. 1981); Smith v. Schweiker , 677 F.2d 826, 829 (11 th Cir. 1982); Nelms v. Bowen , 803 F.2d 1164, 1165 (11 th Cir. 1986); ......
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Issue topics
...Human Servs. , 913 F.2d 882, 884 (11th Cir. 1990), citing Hudson v. Heckler , 755 F.2d 781, 784 (11th Cir. 1985) and Cowart v. Schweiker , 662 F.2d 731, 737 (11th Cir. 1981). The Eleventh Circuit further held that even assuming that the right to cross-examination is not absolute, the ALJ ab......
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Issue Topics
...Human Servs. , 913 F.2d 882, 884 (11th Cir. 1990), citing Hudson v. Heckler , 755 F.2d 781, 784 (11th Cir. 1985) and Cowart v. Schweiker , 662 F.2d 731, 737 (11th Cir. 1981). The Eleventh Circuit further held that even assuming that the right to cross-examination is not absolute, the ALJ ab......
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Table of cases
...(9th Cir. 1997), §§ 317.2, 603.10, 801, 1317.1 Cowan v. Astrue , 552 F.3d 1182 (10th Cir. Dec. 24, 2008), 10th-08 Cowart v. Schweiker , 662 F.2d 731, 735-36 (11th Cir. 1981), §§ 504.1, 1505 Cox v. Apfel , 160 F.3d 1203, 1207 (8th Cir. 1998), §§ 107.1, 204.6, 205.2, 205.3, 205.4, 205.5, 205.......