Lamay v. Commissioner of Social Sec.

• Decision Date: 14 April 2009
• Docket Number: Docket No. 07-4205-cv.
• Citation: 562 F.3d 503
• Parties: Crystal LAMAY, o/b/o Kyle Phillips-Dowler, Plaintiff-Appellant, v. COMMISSIONER OF SOCIAL SECURITY, Michael J. Astrue, Defendant-Appellee.
• Court: U.S. Court of Appeals — Second Circuit

562 F.3d 503

Crystal LAMAY, o/b/o Kyle Phillips-Dowler, Plaintiff-Appellant, v. COMMISSIONER OF SOCIAL SECURITY, Michael J. Astrue, Defendant-Appellee.

Docket No. 07-4205-cv.

United States Court of Appeals, Second Circuit.

Submitted: December 22, 2008.

Decided: April 14, 2009.

Howard D. Olinsky (Jaya A. Shurtliff, on the brief), Olinsky & Shurtliff, LLP, Syracuse, N.Y., for Plaintiff-Appellant (on submission).

Ellen E. Sovern, Special Assistant U.S. Attorney (Barbara L. Spivack, Chief Counsel — Region II, Office of the General Counsel, Social Security Administration, of counsel), Glenn T. Suddaby, United States Attorney for the Northern District of New York, Syracuse, N.Y., for Defendant-Appellee (on submission).

Before NEWMAN, CALABRESI, and SACK, Circuit Judges.

CALABRESI, Circuit Judge:

Plaintiff-Appellant Crystal Lamay, on behalf of her son Kyle, appeals from the judgment of the United States District Court for the Northern District of New York (Sharpe, J.) granting Defendant-Appellee Commissioner of Social Security ("Commissioner") judgment on the pleadings and dismissing Lamay's complaint. Lamay had complained in the District Court that the judgment of the Administrative Law Judge ("ALJ") denying her petition for supplemental security income on behalf of Kyle was in error because her waiver of counsel was not knowing and voluntary and because the ALJ failed to meet his duty to develop the record. For the reasons that follow, we conclude that, although the disclosures for which Lamay argues, which go beyond those mandated by statute, may be salutary, such disclosures are not required for a knowing and voluntary waiver of counsel. Given that the statutory minimum disclosure requirements were met, Lamay was adequately informed of her right to counsel and so must be deemed knowingly and voluntarily to have waived that right. Accordingly, we affirm the judgment of the District Court.

BACKGROUND

Because the facts and procedural posture of this case have already been set out in some detail by the District Court, see Lamay v. Astrue, No. 5:05-cv-0845 (N.D.N.Y. Aug. 22, 2007), and the Magistrate Judge's Report & Recommendation, see Lamay v. Astrue, No. 5:05-cv-0845 (N.D.N.Y. July 31, 2007), we set forth below only such facts as are relevant to this appeal. In January 2003, Lamay protectively filed an application for Supplemental Security Income ("SSI") benefits for her son, K.P. K.P. was born on August 18, 1997. Lamay alleged that K.P. had been disabled since January 6, 2003 due to attention deficit hyperactivity disorder ("ADHD"); developmental delays in speech, language, and motor skills; headaches; and asthma. The Agency denied her application, and Lamay thereafter requested a hearing before an ALJ. A hearing was held on September 27, 2004, at which Lamay appeared pro se.

On three separate occasions prior to that hearing, Lamay received written notification of her right to be represented by counsel before the ALJ.

• When the Agency initially denied K.P.'s application, it sent a notice of the adverse determination and advised Lamay:

If You Want Help With Your Appeal

You can have a friend, lawyer, or someone else help you. There are groups that can help you find a lawyer or give you free legal services if you qualify. There are also lawyers who do not charge unless you win your appeal. Your local Social Security office has a list of groups that can help you with your appeal.

If you get someone to help you, you should let us know. If you hire someone, we must approve the fee before he or she can collect it.

• On the form titled "Request for Hearing by Administrative Law Judge," the following language appeared: "You have a right to be represented at the hearing. If you are not represented but would like to be, your Social Security office will give you a list of legal referral and service organizations." (Significantly, an Agency employee, in completing the Acknowledgment of Request for Hearing, indicated that Lamay was unrepresented and had been provided with a list of legal referral and service organizations. Lamay has not contested receipt of this list.)

• In the Notice of Hearing sent to Lamay, the Agency advised Lamay:

You May Choose To Have A Person Represent You

If you want to have a representative, please get one right away. You should show this notice to anyone you may appoint. You or that person should also call this office to give us his or her name, address, and telephone number.

Lamay's hearing with the ALJ took place via videoconference. At the beginning of the hearing, the ALJ and Lamay engaged in the following exchange, punctuated by technical difficulties, regarding Lamay's right to counsel:

ALJ: I do need to inform you that you do have the right to legal counsel. If you wanted a lawyer and wanted to have a postponement of today's hearing, I would allow you to have such a postponement. On the other hand, you're not required to have a lawyer. So if you wish to present your case today without a lawyer, that's fine also. I want you to realize that you have both options.

Hearing Reporter: You're breaking up again, Your Honor.

ALJ: I want you to realize that you have both options, either continue with the hearing today or —

Hearing Reporter: It's not working and we have little lightning strikes on the screen.

ALJ: Okay. Try it again. I will make sure that you know [INAUDIBLE] either to have a postponement of the hearing and get a lawyer or you can [go] forward with the hearing today. It's your choice.

Lamay: Go forward, please, Judge.

ALJ: You want to go forward?

Lamay: Please.

ALJ: Okay. Again, I find that the Claimant's mother has waived her right to counsel [INAUDIBLE] case.

On January 5, 2005, the ALJ issued a decision finding that K.P. was not disabled within the meaning of the Social Security Act. Lamay filed a pro se Request for Review by the Appeals Council, which the Appeals Council denied on May 5, 2005. Following the Appeals Council's denial, Lamay obtained counsel and filed this civil action in the United States District Court for the Northern District of New York. The case was referred to a Magistrate Judge, who issued a Report & Recommendation ("R & R") on July 31, 2007, recommending that the Commissioner's motion for judgment on the pleadings be granted, the Commissioner's determination of no disability be affirmed, and Lamay's complaint be dismissed. The District Court adopted the R & R in full. Lamay timely filed this appeal.

DISCUSSION

On appeal, Lamay renews her interrelated claims (a) that she did not knowingly and voluntarily waive the right to representation and (b) that, as a result, K.P. was prejudiced since the ALJ failed to meet his heightened duty to develop the record. In reviewing a final decision of the SSA, this Court is limited to determining whether the SSA's conclusions were supported by substantial evidence in the record and were based on a correct legal standard. 42 U.S.C. § 405(g). "Substantial evidence" is "more than a mere scintilla. It means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Richardson v. Perales, 402 U.S. 389, 401, 91 S.Ct. 1420, 28 L.Ed.2d 842 (1971) (internal quotation marks omitted). We undertake a plenary review of the administrative record, and our focus is on the administrative ruling more than on the district court's decision. See Cruz v. Sullivan, 912 F.2d 8, 11 (2d Cir.1990).

A.

Although a claimant does not have a constitutional right to counsel at a social security disability hearing, she does have a statutory and regulatory right to be represented should she choose to obtain counsel. 42 U.S.C. § 406; 20 C.F.R. § 404.1705. If properly informed of this right, a claimant may waive it. Lamay contends that her waiver of counsel was invalid because she was not given important information relevant to her decision to proceed pro se. In her argument, she urges this Court to adopt a more rigorous standard of disclosure for a valid waiver of counsel than the minimum disclosures required by statute.

The applicable statute and regulations state that, when notifying a claimant of an adverse determination, the Commissioner of Social Security (or his agent for these purposes) must "notify [the] claimant in writing" of (1) her "options for obtaining [an] attorney[ ] to represent [her]" at her hearing, and (2) "the availability ... of ... organizations which provide legal services free of charge" to "qualifying claimants." 42 U.S.C. §§ 406(c), 1383(d)(2)(D); see also 20 C.F.R. § 404.1706. Moreover, at the hearing itself, "the ALJ must ensure that the claimant is aware of [her] right [to counsel]." Robinson v. Sec'y of Health & Human Servs., 733 F.2d 255, 257 (2d Cir. 1984).

Some Circuits, however, have required broader disclosures than those mandated by statute. See, e.g., Binion v. Shalala, 13 F.3d 243 (7th Cir.1994); Edwards v. Sullivan, 937 F.2d 580 (11th Cir.1991); Thompson v. Sullivan, 933 F.2d 581, 584 (7th Cir.1991); Clark v. Schweiker, 652 F.2d 399 (5th Cir. Unit B 1981). For a waiver of counsel to be valid, these Circuits require that a pro se claimant be informed of "(1) the manner in which an attorney can aid in the proceedings, (2) the possibility of free counsel or a contingency arrangement, and (3) the limitation on attorney fees to 25 percent of past due benefits and required court approval of the fees." Binion, 13 F.3d at 245. Some district courts in this Circuit have adopted similar requirements, see Frank v. Chater, 924 F.Supp. 416, 423-24 (E.D.N.Y.1996) (discussing and adopting this standard), while others have rejected them, see Johnson v. Barnhart, No. 03 Civ. 4606, 2006 WL 1063195, **8-9, 2006 U.S. Dist. LEXIS 22096, at *24-25 (S.D.N.Y. Apr. 20, 2006) (noting that district courts in this Circuit have both followed, and not followed, Frank).

This Court has not yet adopted or rejected enhanced disclosure requirements in a precedential opinion. See Joh...