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FRANK v. CHATER

May 1, 1996

ARKADY FRANK, Plaintiff, against SHIRLEY S. CHATER, Commissioner of Social Security, 1 Defendant.


The opinion of the court was delivered by: BLOCK

 BLOCK, District Judge:

 Plaintiff Arkady Frank ("Frank") brings this action pursuant to 42 U.S.C. ยงยง 405(g) and 1383(c)(3) of the Social Security Act ("Act"), seeking review of the denial of his application for Supplemental Security Income benefits ("SSI") under Title XVI of the Act by the Secretary of the Department of Health and Human Services ("HHS"). Both parties have filed motions for judgment on the pleadings pursuant to Federal Rule of Civil Procedure 12(c). In addition to several other issues prevalent in Social Security appeals to district courts, this case addresses the responsibilities of HHS to adequately notify a claimant of his or her options for obtaining legal representation in writing prior to the administrative hearing and the ensuing responsibilities of the administrative law judge ("ALJ") whenever a claimant appears without an attorney. For the reasons that follow, the Court remands for additional proceedings.

 I.

 BACKGROUND

 Frank, an attorney in the former Soviet Union for several years prior to coming to the United States, filed an application for SSI benefits on October 1, 1991, claiming disability due to a heart condition and memory loss. HHS denied Frank's application initially, and on reconsideration. In its reconsideration decision, HHS advised Frank regarding representation as follows:

 
In having your case heard, you can represent yourself or be represented by a lawyer, a friend, or any other person. Contact your Social Security office for names of organizations that can help you.

 (Tr. 43.) Frank then requested a hearing before an ALJ. HHS sent a subsequent notice informing Frank of the hearing date. The reverse side of the notification contained additional information regarding Frank's options for obtaining representation:

 
REPRESENTATION AND FEES FOR REPRESENTATION: You may designate a person to represent you. If you are found entitled to Supplemental Security Income benefits, none of your benefits may be withheld by the Social Security Administration for payment of a fee to your representative. *fn2" If you are represented and your representative petitions to receive a fee, your representative must mail you a copy of the fee petition. The fee is subject to the approval of the Office of Hearings and Appeals and when you receive your copy of the fee petition, you will have 20 days to comment, if you wish, concerning the fee your representative wishes to charge you. If the Office of Hearings and Appeals approves a fee for representation, payment of the fee in the amount approved will have to be settled between you and your representative.

 (Tr. 21.)

 On December 10, 1992, Frank appeared at the hearing without counsel. After Frank stated that he desired counsel and that he had not received the list of referral organizations from HHS, the ALJ adjourned the hearing to allow Frank to pursue free legal representation. At the subsequent hearing, held on January 14, 1993, Frank again appeared without counsel, but stated that he would like to proceed without the assistance of counsel even though he had an appointment with a legal aid organization later that day. The colloquy between Frank and the ALJ was as follows:

 
[ALJ]: We sent a letter on, on October 14, 1992, advising you of your right to representation. When you appeared on December 10, '92, you were given an adjournment to obtain representation. You were not able to do it, you were not able to obtain representation?
 
[Frank]: They . . . gave me an appointment for today only but I would like to proceed today.

 (Tr. 175.) The ALJ then proceeded to conduct a brief hearing.

 On June 15, 1993, the ALJ issued a short decision in which he determined principally that Frank's condition was not sufficiently severe to render him disabled and that, in any event, Frank was capable of performing his past relevant work as an attorney in the former Soviet Union. The ALJ's decision relied primarily on the opinion of a consulting physician, Dr. Antonio Deleon, who examined Frank once on February 12, 1992 at the request of HHS, and on the assessment of a vocational expert designated by HHS, Dr. Charles Plotz, who had never examined Frank and based his opinion on the medical record available at the time of the hearing even though the record was significantly supplemented after the hearing.

 HHS sent Frank the ALJ's decision, which referred to Frank's options for obtaining legal representation if he chose to appeal:

 
You may appoint an attorney or other qualified person to represent you in any appeal you may file with the Appeals Council. Your local Social Security office has a list of groups that can help you find an attorney.
 
Some private attorneys do not charge a fee unless you receive benefits. Some legal services organizations can provide legal services free of charge if you meet the organization's qualifying requirements. A representative may not collect a fee for services performed in representing you in dealing with us unless we have approved the fee.

 (Tr. 9.)

 Frank's request for review of the ALJ's decision was denied by the Appeals Council on November 4, 1993, rendering the ALJ's decision the final decision of HHS. Frank thereafter brought this action and is now represented by counsel.

 Frank seeks reversal or, in the alternative, remand arguing that: (1) the ALJ deprived Frank of a full and fair hearing by failing to adequately inform Frank of his right to counsel, conducting only a brief hearing with cursory examination of Frank, and failing to assist Frank as a pro se claimant in obtaining the relevant evidence for the record; (2) the ALJ's determination that Frank's alleged impairments did not meet or equal a listed impairment was not supported by substantial evidence; (3) the ALJ's determination that Frank could engage in his past relevant work as an attorney in the former Soviet Union was erroneous as a matter of law and not supported by substantial evidence; and (4) the ALJ improperly relied on Frank's daily activities in concluding that he was not disabled. HHS, on the other hand, argues that the ALJ's decision should be affirmed because it was supported by substantial evidence.

 II.

 DISCUSSION

 Among HHS' basic responsibilities is the duty to provide a claimant with a full and fair hearing in accordance with the beneficent purposes of the Act and the regulations promulgated thereunder. See Echevarria v. Secretary of Health & Human Servs., 685 F.2d 751, 755 (2d Cir. 1982) (quoting Gold v. Secretary of Health, Educ. & Welfare, 463 F.2d 38, 43 (2d Cir. 1972)); Smith v. Sullivan, 776 F. Supp. 107, 112 (E.D.N.Y. 1991) (Glasser, J.). This obligation emanates from the unique nature of a benefits proceeding. Unlike the adversarial nature of a trial, where the primary responsibility for developing the facts rests with the parties, a benefits proceeding is essentially nonadversarial in nature and imposes an affirmative duty on the ALJ to develop the record to ensure that all claimants receive a fair hearing. Cruz v. Sullivan, 912 F.2d 8, 12 (2d Cir. 1990); Echevarria, 685 F.2d at 755. Among other things, this heightened duty provides the impetus for HHS' and the ALJ's obligation to provide notification regarding the options for obtaining legal counsel in a benefits proceeding as well as the ALJ's responsibilities to ensure that there are no significant gaps in the record and to accord the appropriate weight to a treating physician's opinion.

 A. The Right to Notification Regarding the Options for Obtaining Legal Counsel

 Notwithstanding the nonadversarial nature of a benefits proceeding, the Second Circuit has recognized the benefits of counsel by imposing a higher duty on the ALJ when a claimant proceeds pro se. Thus, although the ALJ's duty to develop the record applies even where the claimant is represented by counsel, see Perez v. Chater, 77 F.3d 41, 47 (2d Cir. 1996); Gecevic v. Secretary of Health & Human Servs., 882 F. Supp. 278, 287 (E.D.N.Y. 1995) (Seybert, J.), "the ALJ is under a heightened duty 'to scrupulously and conscientiously probe into, inquire of, and explore for all the relevant facts[]'" where the claimant is unrepresented by counsel. Cruz, 912 F.2d at 11 (quoting Echevarria, 685 F.2d at 755) (citation and quotation omitted). *fn3" Therefore, a court must satisfy itself that the ALJ "'adequately protected the rights of [a] pro se litigant by ensuring that all of the relevant facts [were] sufficiently developed and considered.'" Echevarria, 685 F.2d at 755 (quoting Hankerson v. Harris, 636 F.2d 893, 895 (2d Cir. 1980)).

 The law in the Second Circuit is thus clear that the nature of the ALJ's duty to develop the record turns on whether a claimant appears with or without counsel at a benefits proceeding. What is less clear, however, are the standards by which a court must evaluate whether a claimant's decision to proceed without counsel was based on adequate information. The Act and the regulations promulgated thereunder impose certain obligations on HHS to notify a claimant of the options for obtaining counsel. The Second Circuit has touched upon this obligation and the importance of counsel at a benefits proceeding generally in discussing an ALJ's failure to adequately discharge her or his heightened duty to a pro se claimant. See, e.g., Lopez v. Secretary of Dep't of Health & Human Servs., 728 F.2d 148, 149-50 (2d Cir. 1984); Echevarria, 685 F.2d at 755-57; Hankerson, 636 F.2d at 895; Gold, 463 F.2d at 43-44. However, no court in this Circuit has yet to clearly articulate what HHS' notification should encompass or when such notification should be given in order for a claimant to effectively waive that option. In Echevarria, the Second Circuit declined to address these issues, stating that "since we hold that remand is required . . . [for failure to ensure a fair and adequate hearing], we do not need to decide whether Echevarria was accorded adequate notice of his right to counsel and the possibility of free legal ...


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