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) <http://www.ssa.gov/statistics/hi-ghssi.html>.
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.
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
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
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
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.
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. ...