Phifer v. Commissioner of Social Security

84 F. App'x 189
CourtCourt of Appeals for the Third Circuit
DecidedDecember 22, 2003
Docket03-1002
StatusUnpublished
Cited by13 cases

This text of 84 F. App'x 189 (Phifer v. Commissioner of Social Security) is published on Counsel Stack Legal Research, covering Court of Appeals for the Third Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Phifer v. Commissioner of Social Security, 84 F. App'x 189 (3d Cir. 2003).

Opinion

OPINION OF THE COURT

PER CURIAM.

I.

As we write for the parties only, we do not extensively set out the background of this case. Jeremy Phifer, through his mother Dorothea, brought this claim for supplemental security income (hereinafter “SSI”). The ALJ denied the claim. The District Court upheld this decision. Phifer appeals to this Court. Because there was a proper waiver of counsel and because substantial evidence supported the Commissioner’s decision, we find that none of Phifer’s grounds for appeal have merit, and so we affirm the order of the District Court.

II.

This Court reviews the factual findings of the Social Security Commissioner under the substantial evidence test. The review is “limited to determining whether [the] decision is supported by substantial evidence.” Hart ranft v. Apfel, 181 F.3d 358, 360 (3d Cir.1999). Substantial evidence “does not mean a large or considerable amount of evidence, but rather such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Id. (internal quotation marks and citation omitted). This means that even if this Court would have made a different decision regarding the original application, the Court must affirm if substantial evidence supports the Commissioner’s decision. Id.

III.

A.

Phifer argues that his right to counsel was violated. First, Phifer claims that he did not voluntarily and knowingly waive his right to counsel. Second, Phifer claims that as a result of the waiver his claim was prejudiced.

While there is no constitutional right to counsel at a social security disability hearing, a claimant does have a statutory and regulatory right to counsel at such a hearing. See Holland v. Heckler, 764 F.2d 1560, 1562 (11th Cir.1985); 42 U.S.C. § 406; 20 C.F.R. §§ 404.1700-404.1707. The claimant must be provided with notice of his right to counsel and can waive this right as long as such waiver is knowing and intelligent. See, e.g., Smith v. Schweiker, 677 F.2d 826, 828 (11th Cir. 1982) (describing how a claimant can “knowingly and intelligently waive his statutory right to counsel.”) A waiver in and of itself is not a sufficient justification for remand. Rather, remand is proper where *191 the lack of counsel prejudices a claimant or where the lack of counsel leads to an administrative proceeding marked by unfairness. Livingston v. Califano, 614 F.2d 342, 345 (3d Cir.1980).

Phifer was clearly informed of his right to counsel and made a knowing and intelligent waiver of this right. First, the record shows that Phifer was given sufficient notice of his right to legal representation. In a letter to Phifer dated July 25, 2000 the Social Security Administration (hereinafter “SSA”) states that he had a right to representation. Tr. at 46. Another letter sent the same day by the SSA advised Phifer that he has the “right to be represented by an attorney or other representative of [his] choice.” Id. at 50. This alone shows that Phifer was given adequate notice of his right to counsel. In addition, the ALJ, in his introductory remarks at the hearing, stated:

In your notice of hearing, you were advised if you wanted to be, you could be represented by an attorney or some other qualified person of your choice, and, since you appeared without an attorney or a qualified representative, I assume you want to proceed with the hearing without an attorney or a qualified representative?

Id. at 25-26. Dorothea Phifer, Jeremy’s mother, answered, ‘Tes,” to this statement and question of the ALJ. Id. at 26. There clearly was a voluntary waiver of counsel by Phifer.

Second, assuming arguendo that Phifer did not give a knowing and intelligent waiver, a remand would be appropriate only if Phifer was prejudiced by the lack of counsel. Our review of the record, however, shows that this was clearly not the case. On the contrary, the ALJ made efforts to develop the record fully. .

B.

Phifer also argues that the ALJ erred in finding that his impairment did not functionally equal in severity the criteria for an impairment listed in the regulations. 1

In evaluating whether a child is disabled and eligible for SSI, the Commissioner applies a three-part sequential analysis. First, if the child is doing substantial gainful activity, the Commissioner will determine that the child is not disabled. 20 C.F.R. § 416.924(a). Next, if the child is not working, the Commissioner will determine whether the impairment of the child is severe. Id. Finally, if the impairment is severe, the Commissioner must determine whether the impairment “meets, medically equals, or functionally equals the listings.” Id. To determine whether an impairment is functionally equivalent to a listing the Commissioner must determine that the impairment results in a marked limitation in two domains of functioning or an extreme limitation in one domain. 20 C.F.R. § 416.926a (a). The domains which the Commissioner is to analyze are: 1) acquiring and using inforhiation; 2) attending and completing tasks; 3) interacting and relating with others; 4) moving about and manipulating objects; 5) caring for oneself; and 6) health and physical well-being. 20 C.F.R. § 416.926a (b)(1). A marked limitation is present where the impairment interferes seriously with one’s ability to “independently initiate, sustain, or complete activities.” 20 C.F.R. § 416.926a (e)(2)(I). An extreme limitation is present where one’s impairment “interferes very seriously with [one’s] ability to independently initiate, sustain, or complete activities.” 20 C.F.R. § 416.926a (e)(3)(I).

*192 The record indicates that the ALJ had substantial evidence to conclude that Phifer’s impairments were not functionally equivalent to the listings.

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84 F. App'x 189, Counsel Stack Legal Research, https://law.counselstack.com/opinion/phifer-v-commissioner-of-social-security-ca3-2003.