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July 19, 1999


The opinion of the court was delivered by: Chin and Hellerstein, District Judges.


These appeals from the denial of applications by minors for social security benefits were brought on their behalves by their parents, who are not attorneys. Relying on Second Circuit decisions holding, generally, that non-attorney parents may not represent their children in litigation, the Commissioner of Social Security (the "government") argues in both cases that the Court must either appoint counsel for the minors, or dismiss their complaints without prejudice if counsel cannot be found. We heard argument and considered the two cases together because the issue is an important one. For the reasons set forth below, the government's arguments are rejected and we hold that plaintiffs may prosecute these appeals on behalf of their children with or without the assistance of counsel.


A. Supplemental Security Income ("SSI")

The purpose of the SSI program is to maintain recipients' income "`at a level viewed by Congress as the minimum necessary' for subsistence." Jacques v. United States R.R. Retirement Bd., 736 F.2d 34, 37-38 n. 2 (2d Cir. 1984) (quoting Whaley v. Schweiker, 663 F.2d 871, 873 (9th Cir. 1981)). To qualify for SSI benefits, a person "must meet stringent income and resources standards" and must also be aged, blind, or disabled. Id. at 38 n. 2; see Gordon v. Shalala, 55 F.3d 101, 101-02 (2d Cir. 1995), cert. denied, 517 U.S. 1103, 116 S.Ct. 1317, 134 L.Ed.2d 470 (1996). SSI provides recipients with cash benefits as well as access to Medicaid. See Linda C. Fentiman, Health Care Access for Children With Disabilities, 19 Pace L.Rev. 245, 247 (1999).

Children as well as adults may qualify for SSI benefits. As of March 1999, the average monthly payment for recipients under eighteen was $451 per month. See Social Security Administration, Highlights of Supplemental Security Income Data, March 1999 (visited June 2, 1999) <>. In some cases, these payments permit low-income families "to buy necessary supportive products and services, such as state of the art wheelchairs, nutritional supplements, and other items not covered by Medicaid," as well as "child care services that permit [the parents] to work more hours, and thus, try to bring the family out of poverty." Fentiman, supra, at 247-48.

Applications for SSI benefits for disabled children are often made by their parents. See generally Robert L. Raper, An Advocate's Guide to Childhood Disability Under the New Supplemental Security Income Standard, 6 Ky. Children's Rts. J. 1 (1998) (describing the process of applying for benefits). Regulations provide procedures to assure that parents "are of good character and in good repute, possessed of the necessary qualifications to enable them to render [their children] valuable service, and otherwise competent to advise and assist [their children] in the presentation of their cases." 42 U.S.C. § 406 (a)(1).*fn1 A parent, on behalf of the child, submits the initial application for benefits, with supporting documentation, to the Social Security Administration (the "SSA"). See 20 C.F.R. §§ 416.310 & 416.315(b). If the SSA determines that a minor child is qualified to receive benefits, cash benefits are paid to the parent or other qualified representative, termed a "representative payee." Id. § 416.621(b). See generally id. §§ 416.601-665. The representative payee is required to "[u]se the payments he or she receives only for the use and benefit of the beneficiary." Id. § 416.635(a). Where a child is entitled to past due benefits, a lump-sum retroactive benefit is paid. In such cases, the representative payee is required to establish a dedicated account for the child's benefit id. §§ 416.546 & 416.640(e), and must maintain records and receipts of all deposits to and withdrawals from the dedicated account, id. § 416.640(e)(3). The payee can be held liable for the unauthorized use of these funds. Id. § 416.640(e)(4).

If the parent wishes to appeal an adverse determination of the initial application for benefits, the first step is filing a request for reconsideration. Id. §§ 416.1407 & 416.1409(a). On reconsideration, a parent has a right to request a hearing and may present additional evidence. Id. § 416.1413. If the claim for benefits is denied upon reconsideration, the parent may file a request for a hearing before an administrative law judge ("ALJ"). Id. § 416.1429. To contest an ALJ's decision, or the denial of the request for a hearing, a parent may request that the Appeals Council review the determination by filing a written request and supporting documentation. Id. §§ 416.1467-1468. Finally, a civil action may be filed in district court to obtain review of a final adverse determination of the SSA. 42 U.S.C. § 405 (g); 20 C.F.R. § 416.1481.

In passing the legislation that provides SSI benefits for disabled children living in low-income households, Congress found that such children were "among the most disadvantaged of all Americans." H.R.Rep. No. 92-231 (1971), reprinted in 1972 U.S.C.C.A.N. 4989, 5133-34; see also Raper, supra, at 2 (discussing this legislative history). SSI was intended to provide them with "special assistance in order to help them become self-supporting members of our society." Id. at 5134. The benefits provided by Congress, and the procedures established by statute and regulations to carry out these benefits, were thus intended to flow to those in need at the time of their need to enable them to overcome their disabilities and enter society.

B. The Facts

1. Maldonado

On August 30, 1994, Nurys Maldonado ("Ms. Maldonado") applied for SSI benefits on behalf of her six-year-old son, Rogelio Maldonado ("Rogelio"). (Maldonado Admin. R. at 17-20).*fn2 Ms. Maldonado alleged that Rogelio suffered from severe visual problems and has been diagnosed as legally blind. (Maldonado Aff. ¶ 2). Ms. Maldonado has four children, one of whom is mentally retarded and currently receives SSI benefits; her husband and Rogelio's father, also named Rogelio Maldonado ("Mr. Maldonado"), is disabled and has applied for Social Security benefits. (Id. ¶ 3). The family is supported by public assistance. (Id.),

On January 5, 1995, the application for Rogelio's SSI benefits was denied. (Maldonado Admin. R. at 24-26). Two months later, on March 7, 1995, Ms. Maldonado sought reconsideration of this decision, and upon reconsideration the application was again denied on July 21, 1995. (Id. at 27-34.). On September 19, 1995, Ms. Maldonado submitted a request for an administrative hearing before an ALJ. (Id. at 35-36). By letter dated October 13, 1995, the SSA acknowledged Ms. Maldonado's request for a hearing and advised her of the steps necessary to prepare for the hearing. (Id. at 37-38). This letter contained a section entitled "Your Right to Representation." (Id. at 37.). The letter stated that Rogelio could be represented "by a lawyer or other person" and that some lawyers may charge a fee, which must be approved by the SSA. In addition, attached to the letter, but not included in the administrative record on file with the Court, was a list of groups that provide legal assistance to individuals seeking SSI benefits. (Id.).

On May 22, 1996, Ms. Maldonado was notified that a hearing before an ALJ was scheduled for June 10, 1996. (Maldonado Admin. R. at 75-83). At the hearing, Mr. Maldonado*fn3 informed the ALJ that he had been unable to obtain an attorney. (Maldonado Supp. Admin. R. at 107-08).*fn4 The hearing began and concluded that same day. After the hearing, as the ALJ would subsequently state in his written opinion, "the case was held in abeyance pending implementation of the new statutory standard for evaluating childhood disability claims." (Maldonado Admin. R. at 10). That new standard became effective on August 22, 1996, when Congress amended the definition of childhood disability to tighten various requirements. See 42 U.S.C. § 1382c(a)(3)(C)(i); Quinones v. Chater, 117 F.3d 29, 33 n. 1 (2d Cir. 1997).

Some eight months later, by letter dated April 14, 1997, the ALJ informed Mr. Maldonado of the change in law and gave him an opportunity to submit additional information or written comments, or to request a supplemental hearing. (Maldonado Admin. R. at 101-02). By letter dated April 22, 1997, Ms. Maldonado responded to the ALJ's letter and complained of the long delay in handling her son's case, noting that they applied for benefits in August of 1994. She alleged that were it not for the SSA's mishandling of the case, it would have been resolved long before the new law took effect. (Id. at 103). There is no record of a supplemental hearing. On November 26, 1997, the ALJ issued a decision denying the application for benefits. (Id. at 7-16). On December 15, 1997, Ms. Maldonado submitted a form requesting that the Appeals Council review the ALJ's decision, and on July 24, 1998, the Appeals Council denied the request for review. (Id. at 3-6).

Throughout these administrative proceedings, Ms. Maldonado represented Rogelio. This was not, however, due to a lack of effort in trying to find an attorney. Soon after the SSA sent Ms. Maldonado the October 13, 1995 letter containing the list of groups that provide legal assistance to individuals seeking SSI benefits, she and her husband began to try to find a lawyer to represent Rogelio and "contacted every organization on the list in Manhattan and the Bronx." (Maldonado Aff. ¶¶ 5-6). None of these lawyers offered Ms. Maldonado so much as an initial appointment. (Id. ¶ 6). Ms. Maldonado then sought the services of private lawyers who advertised that they took disability cases. (Id.). Some replied that they did not take children's cases, while others said that they might take a child's case, but only if the family paid a retainer of $1,000. (Id.). The family, however, was not financially able to pay the requested retainer and thus Ms. Maldonado continued to represent her son. (Id.).

By letter dated February 19, 1999, the U.S. Attorney's office advised the Court that Ms. Maldonado filed this action on behalf of Rogelio and that the Second Circuit has held that a non-attorney parent cannot appear on behalf of an infant. On March 5, 1999, this Court entered an Order holding that pursuant to Wenger v. Canastota Central School District, 146 F.3d 123 (2d Cir. 1998) (per curiam), cert. denied, ___ U.S. ___, 119 S.Ct. 1267, 143 L.Ed.2d 363 (1999), this case would be dismissed without prejudice if, by April 8, 1999, plaintiff was either unable to retain counsel or establish that there were sufficient merits to justify a listing of the case for pro bono representation. By letter of that same date, Bronx Legal Services requested permission to file a limited notice of appearance for purposes of challenging the arguments made by the U.S. Attorney's Office in its February 19 letter. Shortly thereafter, the Center for Disability Advocacy Rights, Inc. filed a similar limited notice of appearance. On March 11, 1999, the Court vacated the March 5 Order and approved a briefing schedule for the government's motion to dismiss.

2. Olavarria

On May 3, 1995, Claudia Olavarria ("Ms. Olavarria") applied for SSI benefits on behalf of her son, Shaun Olavarria ("Shaun"). (Olavarria Admin. R. at 21-23).*fn5 Ms. Olavarria alleged that Shaun suffers from severe attention deficit hyper-activity disorder ("ADHD"). (See Olavarria Aff. ¶ 1). Ms. Olavarria resides with her husband and four of her seven children. (Id. ¶ 2). The eldest child at home is twenty-five and attends college; the three youngest are all in school. (Id.). The husband is disabled and receives Workers' Compensation benefits. (Olavarria Supp. ...

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