Guzman v. Commissioner of Social Security

Filing 17

OPINION AND ORDER re: 3 MOTION to Appoint Counsel. filed by Virginia Guzman. Accordingly, subject to the provision set forth in the preceding paragraph, plaintiff's application for pro bono counsel is granted and the Office of the Pro Se Attorney is directed to add this matter to the list of cases submitted for the Pro Bono Panel's consideration. (Signed by Magistrate Judge Henry B. Pitman on 2/6/2015) Copies Sent By Chambers. (lmb)

' ':11.•'

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK

-----------------------------------X
VIRGINIA GUZMAN, on behalf of
Jeremy Martinez,
12 Civ. 2266 (TPG) (HBP)
Plaintiff,
OPINION
AND ORDER

-againstCOMMISSIONER OF SOCIAL SECURITY,
Defendant.

-----------------------------------X
PITMAN, United States Magistrate Judge:

By notice of motion dated March 16, 2012

(Docket Item

3), plaintiff seeks the appointment of pro bono counsel. 1

For

the reasons set forth below, the application is conditionally
granted.

1

In a civil case, such as this, the Court cannot actually
"appoint" counsel for a litigant. Rather, in appropriate cases,
the Court submits the case to a panel of volunteer attorneys.
The members of the panel consider the case, and each decides
whether he or she will volunteer to represent the plaintiff.
If
no panel member agrees to represent the plaintiff, there is
nothing more the Court can do.
See generally Mallard v. United
States District Court, 490 U.S. 296 (1989). Thus, even in cases
where the Court finds it is appropriate to request volunteer
counsel, there is no guarantee that counsel will actually
volunteer to represent plaintiff. Because there are more cases
on the list than the members of the panel can handle, the
submission of a case to the Pro Bono Panel does not guarantee
that plaintiff will get counsel.

The factors to be considered in ruling on a motion for
pro bono counsel are well settled and include "the merits of
plaintiff's case, the plaintiff's ability to pay for private
counsel,

[plaintiff's] efforts to obtain a lawyer, the availabil-

ity of counsel, and the plaintiff's ability to gather the facts
and deal with the issues if unassisted by counsel."
Sargenti Co., 877 F.2d 170, 172 (2d Cir. 1989).

Cooper v. A.

Of these,

"[t]he

factor which command[s] the most attention [is] the merits."
Id.; accord Odom v. Sielaff, 90 Civ. 7659 (DAB), 1996 WL 208203
(S.D.N.Y. Apr. 26, 1996)

(Batts, J.); see Berry v. Kerik, 366

F.3d 85, 88 (2d Cir. 2003).

As noted fifteen years ago by the

Court of Appeals:
Courts do not perform a useful service if they appoint
a volunteer lawyer to a case which a private lawyer
would not take if it were brought to his or her attention. Nor do courts perform a socially justified
function when they request the services of a volunteer
lawyer for a meritless case that no lawyer would take
were the plaintiff not indigent.
Cooper v. A. Sargenti Co., supra, 877 F.2d at 174; see also
Hendricks v. Coughlin, 114 F.3d 390, 392 (2d Cir. 1997)
deciding whether to appoint counsel .

("'In

. the district judge

should first determine whether the indigent's position seems
likely to be of substance.'").

2

The Court of Appeals for the Second Circuit has
stated in various ways the applicable standard for
assessing the merits of a prose litigant•s claim.
In
Hodge [v. Police Officers, 802 F.2d 58 (2d Cir. 1986)],
[the court] noted that 11 [e]ven where the claim is not
frivolous, counsel is often unwarranted where the
indigent•s chances of success are extremely slim, 11 and
advised that a district judge should determine whether
the pro se litigant•s 11 position seems likely to be of
substance, .. or showed 11 some chance of success. 11 Hodge,
802 F.2d at 60-61 (internal quotation marks and citation omitted).
In Cooper v. A. Sargenti Co., [the
court] reiterated the importance of requiring indigent
litigants seeking appointed counsel 11 to first pass the
test of likely merit. 11 877 F.2d 170, 173 (2d Cir.
1989) (per curiam) .
Ferrelli v. River Manor Health Care Ctr., 323 F.3d 196, 204
(2d Cir. 2003).
This action is brought by the mother of Jeremy Martinez, and is an appeal from the denial an application for Supplemental Security Income ( 11 SSI 11 ) Benefits filed on behalf of
Jeremy.

According to documents filed as part of the complaint

and the administrative record, Jeremy was born in March 2006, is
currently eight years of age and suffers from developmental
delays, speech delays and motor delays.

Jeremy•s mother is not

an attorney.
Although Jeremy and his mother have no automatic right
to the appointment, the Court of Appeals has explained that
District Courts should be particularly careful with respect to

3

applications for counsel in actions for SSI benefits brought on
behalf of minors:
We emphasize that district courts should not
automatically refuse to appoint counsel simply because
non-attorney parents may proceed on their own in SSI
cases. We have held that in determining whether to
appoint counsel for an indigent litigant a district
court judge should first consider 11 whether the indigent's position seems likely to be of substance, 11 then
assess the litigant's competence to proceed prose, the
complexity of the issues, and additionally 11 any special
reason in that case why appointment of counsel would be
more likely to lead to a just determination. 11 Wenger,
146 F.3d at 125 (quoting Hodge v. Police Officers, 802
F.2d 58, 61-62 (2d Cir. 1986)).
In those cases where
the claimant's position seems likely to be of substance, the district court must undertake a searching
examination into the claimant's competence, and assure
itself of that competence. Even after an initial
denial of the motion to appoint counsel, district
courts should continually assess whether counsel should
be appointed because the need for the appointment of
counsel may not have become apparent at the time of the
initial denial of the motion to appoint counsel. There
will be cases where, for example, the issues are sufficiently significant or complex so that a non-attorney
parent will not be able to proceed without compromising
the rights of his or her child. The approach of the
district court in the case before us is instructive.
While [the District Judge in this matter] initially
denied the plaintiff's motion for appointment of counsel, he noted that he would appoint counsel if it
became apparent that 11 as the case progresses that
Patricia Machadio needs help to protect her daughter's
11
rights .
That course is in keeping with the
view that district courts should not rely on the fact
that non-attorney parents may proceed on behalf of
their children in SSI cases to treat those cases less
favorably when deciding whether to appoint counsel.
Certainly, where the district court harbors any doubt
about the abilities of the non-attorney parent in a
matter involving a substantial claim, counsel should be

4

appointed. Under the law, children -- society's future
-- deserve no less.
Machadio v. Apfel, 276 F.3d 10, 107-08 (2d Cir. 2002).
Assessing whether a claim has substance is particularly
difficult 1n pro se social security cases.

The form complaint

does not ask the plaintiff to identify the grounds for the appeal
and most pro se plaintiffs do attempt to do so.
standards are technical and not intuitive. 2

The legal

The administrative

records are usually lengthy and routinely include substantial
amounts of hand-written material that utilize technical terms and
medical shorthand.

In short, the potential merit of a social

security appeal is rarely discernable on the basis of a cursory
review.
I conclude that the most prudent course of action is to
provisionally appoint counsel to represent plaintiff so that I
can have the benefit of an assessment of the record by an attarney.

Assuming a member of the Pro Bono Panel volunteers to

represent plaintiff, I would be inclined to grant an application

2

For example, the regulations applicable to determining
whether an individual is disabled and eligible to receive SSI
benefits define limits on "sitting, standing, walking, lifting,
carrying, pushing, and pulling" as exertional limitations while
limits on "reaching, handling, stooping, climbing, crawling, or
crouching'' are nonexertional limitations.
20 C.F.R. §
220.135(b), (c) (1) (vi).
I doubt that most individuals would
consider sitting to be an exertional activity or stooping,
climbing and crawling to be nonexertional activities.
5

by that attorney to be relieved if, after reviewing the record
and interviewing Jeremy and his mother, that attorney determines
that appeal lacks substance.
Accordingly, subject to the provision set forth in the
preceding paragraph, plaintiff's application for pro bono counsel
is granted and the Office of the Pro Se Attorney is directed to
add this matter to the list of cases submitted for the Pro Bono
Panel's consideration.
Dated:

New York, New York
February 6, 2015
SO ORDERED

J
HEN~ ~

United States Magistrate Judge
Copies transmitted to:
Ms. Virginia Guzman
Apt. 4-E
2760 Grand Concourse
Bronx, New York 10458
Susan D. Baird, Esq.
Assistant United States Attorney
United States Attorney's Office
Southern District of New York
One St. Andrew's Plaza
New York, New York 10007

6