Filing 15

OPINION. Signed by Chief Judge Jose L. Linares on 6/5/17. (cm, )

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NOT FOR PUBLICATION UNITED STATES DISTRICT COURT DISTRICT OF NEW JERSEY Civil Action No.: 16-5765 (JLL) SEAN PATRICK NEVINS, Plaintiff, OPINION V. COMMISSIONER OF SOCIAL SECURITY, Defendant. LINARES, District Judge. This matter comes before the Court by way of Plaintiff Sean Patrick Nevins’ appeal for judicial review of a final decision issued on behalf of the Commissioner of the Social Security Administration (“Commissioner”), which denied his claim for disability insurance benefits. (ECF No. 1). See also 42 U.S.C. § 405(g); L. Civ. R. 9.1. After carefully considering the administrative record, as well as the submissions made in support of and in opposition to the instant appeal, the Court decides this matter without oral argument pursuant to Rule 78 of the Federal Rules of Civil Procedure. (ECF No. 6; ECF No. 11; ECF No. 14). For the reasons set forth below, the Court rernands this matter for further proceedings that are consistent with this Opinion. 1 I. BACKGROUND’ Plaintiff Sean Patrick Nevins appeared before the Social Security Administration in March 2012 to ascertain whether Plaintiff, as an adult, was entitled to disability benefits. He had previously received “Child’s SSI” starting eleven days after his birth on July 30, 1993 after he was found to suffer Spina Bifida, Arnold Chiari Malformation, and other related disorders. (See R. at 66-67). Plaintiffs benefits were renewed when he was ten years old on the same grounds. (Id.). In 2012, he was deemed no longer disabled and thus ineligible to receive benefits as an adult because he could perfonn the full range of sedentary work. (See R. at 78). Upon the plaintiffs request, a hearing was held on October 16, 2014 to review his application de novo. (Id. at $1). At the time of Plaintiffs hearing, he was 21 years old and was enrolled in his second year at community college where he was pursuing his Associate’s Degree. (Id. at 40, 42). Plaintiff appeared before the administrative law judge (“AU”), Luis M. Catanese, without representation. ALl began the hearing by introducing himself and the reporter. (R. at 36). He then addressed the claimant’s lack of representation: AU: Now, Mr. Nevins, I see you are here by yourself. You don’t have like an attorney or any legal representative to assist you? CLMT: No. AU: I have the duty to inform you that you have the right to have such an individual to help represent you during your hearing. You don’t have to have one, but if you desire, usually these people are very well versed in our rules and regulations, and they know how to present evidence and make arguments on your behalf. Usually the way it works, is they, generally, don’t take an up-front fee. They usually get a contingent fee. In your case, it’s a little different, because you are already entitled to benefits. CLMT: Right. AU: Generally, they will do that in cases where someone is just applying for the first time for benefits. So, you know, it’s really your choice how you wish to proceed. If you feel comfortable going forward by yourself. I’d be happy to hold your hearing this afternoon. If you have any desire to see if you can find an attorney or legal representative to help you, what I would do is postpone this afternoon’s hearings, but only for the purpose of allowing you to try and get an attorney or a representative. CLMT: Okay. I guess I willjust continue with our hearing. “R.” refers to the Administrative Record, which uses continuous pagination and can be found at ECF No. 6. 2 AU: You feel comfortable going forward? CLMT: Yeah. AU: Okay. So, I will find that you waive your right to have a representative during your hearing. (Id. at 36-37)(emphasis added). There was no further mention of an attorney during the hearing. AU determined that Plaintiff was no longer eligible for benefits in a decision issued on January 1, 2015 (R. at 1$). He concluded that the claimant has four severe impairments: Spina Bifida, Arnold Chiari malformation, asthma, and morbid obesity (Id. at 20) (citing 20 C.F.R. § 416.920(c)) but did not have “an impairment or combination of impairments that meets or medically equals the severity of one of the listed impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1. (R. at 20) (citing 20 C.F.R. § 416.920(d), 416.925,416.926)). Thus, AU concluded Plaintiff had a “residual functional capacity to perform sedentary work as defined in 20 CFR 4 16.967(a) except he can only occasionally climb ramps and stairs, and never climb ladders, ropes, or scaffolds.” (R. at 23). The residual functional capacity (“RFC”) also accounted for Plaintiffs limited ability to “balance, stoop, kneel, crouch, and crawl” and his need to avoid “exposure to pulmonary irritants.” (Id.). Plaintiff, without the aid of an attorney, requested an appeal of the decision. On July 28, 2016 the Appeals Council held that were no grounds for review. (R. at 1). Plaintiff is currently represented by counsel. II. LEGAL STANDARD Although a claimant for disability insurance benefits from the Social Security Administration does not have a constitutional right to representation at the administrative hearing, the claimant does have a statutory right to representation. See Vivaritas v. Comm ‘r of Soc. Sec., 264 F. App’x 155, 157 (3d Cir. 2008); 42 U.S.C. § 406; 20 C.F.R. § 404.1705. Thus, an AU must give the claimant notice of his right to counsel and the claimant can only waive this right 3 through a knowing and intelligent waiver. See Smith v. Schweiker, 677 F.2d 826, 828 (11th Cir. 1982). “The information necessary to ensure an intelligent and knowing waiver of counsel includes an explanation of the valuable role that an attorney could play in the proceedings, the possibility of free counsel, and the limitations on attorney ‘s fees to 25 percent of any eventual awards.” Vance v. Heckler, 579 F. Supp 318, 321 (N.D. Ill. 1984)(emphasis added); see also Yakley v. Astrue, 2013 WL 1010671, *4 (D.N.J. Mar. 13, 2013)(applying the above referenced Seventh Circuit criteria and remanding the matter due to the absence of a knowing and intelligent waiver of the right to counsel). The lack of representation alone is not grounds for remand. See Phifer v. Comm ‘r ofSoc. Sec., $4 F. App’x 189, 190-91 (3d Cir. 2003); Yakley, 2013 WL 1010671 at *5• However, the Court can remand a decision if “the lack of counsel prejudices a claimant or where the lack of counsel leads to an administrative proceeding marked by unfairness.” Phifer, $4 F. App’x 19091; see also Mack, Civ. No. 15-8527 at 7-8 (D.N.J. Jan. 12, 2017)(Linares, J.)(citing Vivaritas, 264 F. App’x at 15$ (3d Cir. 2008)). This exception is permissible because “[willie a claimant represented by counsel is presumed to have made her best case before the AU, no such presumption attaches to an unrepresented claimant.” Vivaritas, 264 F. App’x at 15$ (quoting Skinner v. Astrue, 47$ F.3d $36, $42 (7th Cir. 2007). Thus, the burden of proof falls on the Commissioner to show that he “adequately developed the record.” Yakley, 2013 WL 1010671 at *5 (quoting Binion v. Shahala, 13 F.3d 243, 245 (7th Cir. 1994)). III. ANALYSIS The Court finds that AU ‘s colloquy was not sufficient to elicit a valid waiver of the right to representation from Plaintiff. While AU informed Plaintiff of his right to counsel and briefly explained the role an attorney might play, he did not discuss the 25% cap on attorney’s fees nor 4 did he discuss the possibility of free counsel. Additionally, afler informing Plaintiff that attorneys “usually” do not receive an up-front fee and “usually get a contingent fee,” he added, “[i]n your case, it’s a little different, because you are already entitled to benefits.” (R. at 37). The Plaintiff asserts, and the court agrees, that the aforementioned statement may have confused the claimant about his rights. To a lay person, it may seem as though AU was distinguishing Plaintiffs right to counsel from first-time applicants or that Plaintiff may be required to pay an upfront fee. Commissioner argues that the May 29, 2014 Notice of Reconsideration, June 1$, 2014 hearing notice, and information sheet entitled “Your Right to Representation” suggest that Plaintiff was properly appraised of his right to counsel. (See ECF No. 14 at 7; R. at 97, 100-13). Commissioner relies on Fhkr v. Comm ‘r of Soc. Sec. where the Third Circuit Court held that written notice alone shows that the Plaintiff was given adequate notice of his right to counsel. Fhtfer v. Comm ‘r ofSoc. Sec., 84 F. App’x 189, 190 (3d Cir. 2003); see also Boyd v. Barnlza,i, 98 F. App’x 146, 147 (3d Cir. 2004)(holding written notices in addition to AU’s colloquy sufficient for waiver). But in FhUèr the AU explicitly referred to the Notice of Representation at the hearing before offering to postpone the hearing until the plaintiff obtained representation. In Mack v. Comm ‘r ofSoc. Sec. this Court found written notice insufficient because “the AU failed to at least ask [claimant] if she had indeed received the written notices from Social Security Administration concerning the benefits of having an attorney represent her at the administrative hearing, and if so, whether she understood their contents.” See Mack v. Comm ‘r ofSoc. Sec., Civ. No. 15-8527 at 7. As in Mack, AU did not verify that Plaintiff had ever received written notice, let alone that he understood same. Additionally, AU’s colloquy was insufficient since he failed to mention the cap on the amount an attorney can receive and the possibility of free counsel. Moreover, ALl’s assertion that 5 the Plaintiffs case was “different” may have confused the Plaintiff and possibly led him to believe his right to counsel was different from other litigants or that the benefits he was currently receiving until the completion of the hearing were not at stake. This Court must show deference to apro se litigant who did not knowingly and intelligently waive his right to representation. See Schweiker, 677 F.2d at 82$. Furthermore, the Court finds that Plaintiff suffered prejudice and/or unfairness at the administrative hearing due to his lack of counsel. Plaintiff contends such prejudice is shown through AU’s failure to explain the role of the vocational expert and failure to follow up on the Plaintiffs obesity. Notably, ALl’s decision does not take into account obesity at Step 3 either alone or in conjunction with Plaintiffs other severe impainnents because it was not listed in the appendix. (R. at 22). An attorney might have emphasized the effect of obesity on pre-existing impairments and noted that Social Security Ruling 02-ip requires AU to weigh obesity on a caseby-case basis at steps three, four, and five. See Garcia-Estrada v. Comm ‘r of Soc. Sec., No. 162037, 2017 WU 498714, *3 (remanding an ALl’s decision for failure to consider the effect of claimant’s obesity on her other impairments). Plaintiff further asserts that an attorney might have “qualified the yE, objected to the ALl hypotheticals, cross examined the VE’s direct testimony and posed hypothetical questions more reflective of the evidence and more favorable to plaintiffs cause.” (See ECF No. 11 at 6). The Court agrees that an attorney would have known the weight of the vocational expert’s testimony and thus attempted to qualify or cross-examine the expert. Accordingly, Plaintiffs lack of representation resulted in prejudice at the administrative hearing. 6 The Court presumes that Plaintiff will retain representation on remand. However, should Plaintiff choose to proceed without representation, the “AU should explain [his] right to have counsel and counsel’s availability in full detail.” Vivaritas, 264 F. App’x at 161. CONCLUSION For the aforementioned reasons the Court concludes that AU failed to obtain a valid waiver of Plaintiffs right to representation at the administrative hearing. Additionally, Plaintiff suffered prejudice in the administrative hearing due to the lack of representation. Since the matter was decided on the absence of a meaningful waiver of the right to representation, the court declines to comment on the parties’ other arguments. Therefore, the Court remands this matter for additional proceedings consistent with the instructions contained herein. An appropriate Order accompanies this Opinion. DATED: June St2017 JOSEL.L ES UNITED T TES DISTRICT JUDGE 7

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