Garcia v. Califano
| Decision Date | 04 September 1980 |
| Docket Number | No. 79-1292,79-1292 |
| Citation | 625 F.2d 354 |
| Parties | David M. GARCIA, Plaintiff-Appellant, v. Joseph CALIFANO, Secretary of Health, Education and Welfare, Defendant-Appellee. |
| Court | U.S. Court of Appeals — Tenth Circuit |
Anson B. Levitan, Northern New Mexico Legal Services, Inc., Taos, N. M., for plaintiff-appellant.
Barbara Allen Babcock, Asst. Atty. Gen., Washington, D. C., R. E. Thompson, U. S. Atty., and Ronald F. Ross, Asst. U. S. Atty., Albuquerque, N. M., and Andrew E. Wakshul, Atty., Dept. of Health, Education and Welfare, Baltimore, Md., for defendant-appellee.
Before HOLLOWAY, McWILLIAMS and BARRETT, Circuit Judges.
David M. Garcia appeals from the judgment of the District Court which affirmed the Secretary's decision denying Garcia's claim for social security disability benefits. Garcia asks this Court to remand the cause to the Secretary for further consideration of his claim.
When Garcia first applied for the disability benefits, he stated his disability as "sciatica arthritis". He also submitted two medical history and disability reports which described his illness as "sciatica arthritis" or "sciatica of the left side". In these reports Garcia explained that he stopped working because of arthritis, pain, cramps and lack of energy. Garcia supported his claim with the report of one Dr. Pogorski, who diagnosed "CNS disorder (with apathy, depression) ?post alcoholic?", among other problems which are not pertinent here. However, Garcia at no stage of the proceedings before the Secretary asserted that depression was a cause of his disability.
After the Secretary denied his claim, Garcia obtained a hearing before an examiner of the Social Security Administration. The Secretary mailed, and Garcia does not contend that he did not receive, a notice of the hearing which stated, inter alia,
Garcia appeared at the hearing and presented his evidence without representation. The hearing examiner did not advise Garcia that he had a right to have an attorney represent him. The reason why Garcia represented himself does not appear in the record.
At the hearing, Garcia stated that his worst problem was his back. The hearing examiner asked Garcia about his back, his earlier drinking problem and his work history. The subject of depression was not raised by anyone. The hearing examiner made no findings on depression in denying Garcia's claim.
On appeal Garcia presents two contentions. First, he argues that he did not receive a fair hearing because the examiner did not advise him of his right to be represented by an attorney. Second, Garcia contends that the hearing examiner should have inquired about his condition of depression as a cause of his alleged disability.
With respect to Garcia's first contention, we hold that the hearing examiner was not required at the hearing to advise Garcia of his right to be represented by an attorney. 42 U.S.C. § 405 delegates power to the Secretary to make rules and regulations and to establish procedures which are consistent with the social security statute and necessary or appropriate to carry out its provisions. Among the provisions of the statute are that a claimant who is dissatisfied with a decision of the Secretary shall receive "reasonable notice and opportunity for a hearing with respect to such decision" (42 U.S.C. § 405) and that a claimant may obtain the services of an attorney in good standing or other agent qualified under the Secretary's regulations to represent him in proceedings before the Secretary (42 U.S.C. § 406). Nothing in the statute requires the Secretary to provide counsel for claimants at the expense of the Social Security Administration. Muenich v. United States, 410 F.Supp. 944 (N.D.Ind.1976); Lonzollo v. Weinberger, 387 F.Supp. 892 (N.D.Ill.1974), rev'd. on other grounds, 534 F.2d 712 (7th Cir. 1976). Whenever a claimant represented by an attorney prevails on his claim, the attorney is entitled to such fee as the Secretary or the court prescribes pursuant to 42 U.S.C. § 406(a) and (b)(1). As to construction and application of the attorney's fee provision following a favorable court judgment for the claimant pursuant to 42 U.S.C. § 406(b)(1), see 22 A.L.R.3d 1081.
The Secretary's regulations are consistent with the statute and they appropriately carry out its provisions. 20 C.F.R. § 404.923 states...
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...hearing, neither the statute, ... nor the regulations ... required any more advisement than was given.") (relying on Garcia v. Califano, 625 F.2d 354, 356 (10th Cir.1980)). The preferable approach is to provide the claimant with adequate written notification prior to a hearing. Not only is ......
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