Opinion
01 Civ. 8657 (SAS)
February 21, 2003
William Gottlieb, Esq., Axelrod and Gottlieb, New York, New York, Counsel for Plaintiff.
Susan D. Baird, Assistant United States Attorney, New York, New York, Counsel for Defendant.
OPINION AND ORDER
I. INTRODUCTION
Candida Francisco brings this action pursuant to 42 U.S.C. § 405(g) seeking judicial review of a final decision by the Commissioner of the Social Security Administration ("Commissioner") denying her claim for supplemental security income ("SSI") disability benefits. Both parties move for judgment on the pleadings under Rule 12(c) of the Federal Rules of Civil Procedure. For the following reasons, the plaintiff's motion is granted and the case is remanded to the Commissioner for further proceedings in accordance with this opinion.
During the Social Security Administration ("SSA") proceedings, John Omoigui-Jumbo, who is not an attorney, represented plaintiff. Plaintiff is now represented by counsel.
Plaintiff mistakenly made a motion for judgment on the pleadings pursuant to Rule 12(b) of the Federal Rules of Civil Procedure. Motions for judgment on the pleadings are properly brought pursuant to Rule 12(c). See Fed.R.Civ.P. 12(c).
II. BACKGROUND
A. Procedural Background
Plaintiff filed for SSI benefits on April 23, 1999. Transcript ("Tr.") at 67-69. The Commissioner denied plaintiff's application initially, Tr. at 33-36, and on reconsideration. Tr. at 27-30. Plaintiff then requested a hearing, but waived her right to appear at the hearing and instead sought a decision based on the administrative record. Tr. at 61. On September 18, 2000, the Administrative Law Judge ("ALJ") issued a decision finding plaintiff was not disabled and therefore not entitled to disability benefits. Tr. at 11-17. This decision became final on July 6, 2001, when the Appeals Council denied plaintiff's request for review of the ALJ's decision. Tr. at 3-5.
"Tr." refers to the transcript filed by the Commissioner as part of her answer.
B. Factual Background
Francisco was born on November 2, 1963. Tr. at 67. In 1993, she moved to the United States from the Dominican Republic and became a lawful permanent resident. Id. Plaintiff worked for three years cleaning a factory operated by a vocational rehabilitation agency, Tr. at 79, 86, but has not worked since. Id. Although Plaintiff completed high school in the Dominican Republic, Tr. at 92, she cannot read, speak, or write English. Tr. at 80, 83, 85.
1. Medical Evidence
Plaintiff claimed that she felt "depressed very often" and "very drowsy and out of it" as a result of her medications. Tr. at 72. She reported feelings of sadness, anxiety and insomnia, Tr. at 99, as well as auditory hallucinations. Tr. at 132, 148. She required help from her parents to travel, grocery shop, cook, and perform household chores. Tr. at 78-79. Additionally, plaintiff complained of internal derangement of the right knee and shoulder, which limits her to sedentary work. See Physician's Employability Report, Ex. A to Pl. Mem., at 17.
Plaintiff submitted an employability report after the ALJ issued his decision. This report contained new material evidence of physical injury caused by a degenerative joint disease. Plaintiff claims she lost the opportunity to present this new material evidence of disability when she waived her appearance. See Plaintiff's Memorandum of Law in Support of Plaintiff's Motion for Judgment on the Pleadings at 11-12 ("Pl. Mem.")
When remanding pursuant to "sentence four" of 42 U.S.C. § 405(g), the more restrictive requirements of a "sentence six" remand "need not be met in order for this Court to compel the Commissioner to add the results of the [report] into the record and to direct that the ALJ reconsider the claim in light of this added evidence." Clark v. Callahan, No. 96 Civ. 3020, 1998 WL 512956, at *3 (S.D.N.Y. Aug. 17, 1998). Plaintiff should be permitted to introduce evidence concerning her joint disorder at the new hearing.
2. Administrative Proceedings
After the Commissioner initially denied plaintiff's application for benefits, she filed a timely request for a hearing before an ALJ. Tr. at 61. Plaintiff checked a box on the request form stating "I do not wish to appear and I request that a decision be made based on the evidence in my case." Id. Both plaintiff and Mr. Omoigui-Jumbo signed the form on March 10, 2000. Id. On May 5, 2000, the Chief ALJ of the Office of Hearings and Appeals ("OHA") sent a letter to Mr. Omoigui-Jumbo acknowledging plaintiff's hearing request and explaining the hearing process. Tr. at 55-56. The letter informed Mr. Omoigui-Jumbo that a Notice of Hearing detailing the time and place of the hearing would be mailed to him and Francisco at least twenty days before the hearing. Id.
The Social Security Administration received the hearing request form on March 30, 2000. Tr. at 61. The form is stamped as received by the Office of Hearings and Appeals on May 4, 2000. Tr. at 61.
OHA sent Francisco a contrary letter on May 12, 2000, acknowledging her waiver of appearance at the hearing. Tr. at 60. OHA failed to send this letter to Mr. Omoigui-Jumbo. Id. Enclosed with the May 12 letter was Form HA-4608, which provides a detailed explanation of a social security claimant's rights. Tr. at 57. Plaintiff signed this Form on May 23, 2000, and explained she did not want to appear in person at the hearing because she was recuperating from surgery and did not feel well. Id. None of this correspondence included Spanish-language translations. Tr. at 55-58, 60-62.
III. DISCUSSION
A. Legal Standard
1. Waiver of Appearance
Section 405(b) of Title 42 of the United States Code entitles Social Security claimants to "reasonable notice and opportunity for a hearing" with respect to the Commissioner's decision. Social Security Act § 205(b), 42 U.S.C. § 405(b) (2000); 20 C.F.R. § 416.1450(a) (2003). However, claimants may forfeit this right by making a knowing and voluntary waiver. See 20 C.F.R. § 416.1450(b). Social Security Ruling ("SSR") 79-19 specifies conditions necessary to "ensure . . . waivers are made voluntarily and knowingly; i.e., with knowledge of the advantage of personal appearance and the consequences of a waiver of the right to appear at the hearing." 79 S.S.R. 19. Invalid waivers warrant remand for a new hearing only if the plaintiff suffered prejudice. See, e.g., Valera v. Schweiker, No. 81 Civ. 2928, 1982 U.S. Dist. LEXIS 14896, at *15 (S.D.N.Y. Aug. 24, 1982)
The Ruling provides that a claimant must sign a written notification that:
1. a thorough explanation of the hearing procedure has been given;
2. the right to personal appearance at the hearing to testify and present evidence has been explained;
3. an explanation has been given of the right to representation at the hearing by an attorney or other person of the [claimant's] choice;
4. it has been explained that, in some cases, additional evidence obtained through oral testimony and personal presence before the presiding officer may be of value in evaluating the issues;
5. the [claimant] has been advised that, if he or she does not appear, the claim will be decided solely on the written evidence then in [the] file plus any additional evidence submitted by the [claimant] or the representative or obtained by the hearing officer;
6. the [claimant] has been advised that he or she may withdraw the waiver of the right to appear at the hearing at any time prior to mailing of the notice of the decision.
79 S.S.R. 19 (Cum. ed. 1979).
2. Duty to Develop the Record
Plaintiff correctly notes that the ALJ has an expanded duty to "scrupulously and conscientiously probe into, inquire of, and explore all the relevant facts" when faced with a pro se claimant. See Hankerson v. Harris, 636 F.2d 893, 895 (2d Cir. 1980); see also Cotis v. Massanari, No. 00 Civ. 4693, 2001 WL 527471, at *4 (S.D.N.Y. May 17, 2001); Valera, 1982 U.S. Dist. LEXIS 14896, at *14 ("In a case in which the claimant is handicapped by lack of counsel, ill health, and inability to speak English well the courts have a duty to . . . determine whether the hearing officer protected the pro se claimant's rights." (quotation and citation omitted)).
B. Plaintiff's Waiver Was Not Knowing and Voluntary
The Commissioner argues plaintiff's waiver satisfied the conditions of SSR 79-19; therefore her waiver was knowing and voluntary. However, technical compliance with SSR 79-19 will not constitute a valid waiver if the surrounding circumstances suggest another interpretation of the facts. See Valera, 1982 U.S. Dist. LEXIS 14896, at *11; accord Binzen v. Barnhart, No. 01 Civ. 2716, 2002 WL 31324061, at *7 (N.D. Ill. Oct. 16, 2002) McCarthy v. Comm'r of Soc. Sec., No. 95 Civ. 4534, 1999 WL 325017, at *12 (D.N.J. May 19, 1999); Stiver v. Shalala, 879 F. Supp. 1021, 1024 (D. Neb. 1995). While plaintiff's waiver technically satisfied SSR 79-19, additional circumstances suggest plaintiff's waiver was neither knowing nor voluntary.
1. The Language Barrier and the Hearing Process Letters
Plaintiff claims the SSA's failure to furnish a Spanish translation of the waiver form and to provide consistent information about the hearing process precluded her from validly waiving her appearance. Plaintiff cannot read, speak, or write English. It would be difficult for plaintiff to knowingly waive rights she did not understand. Additionally, because OHA sent contradictory letters concerning the hearing to plaintiff and her representative — he received a hearing process description while plaintiff received acknowledgment of her request to waive the hearing — he had no reason to contact her concerning the terms of the waiver.
A waiver will not be overturned solely because the plaintiff's primary language is not English. See Poulin v. Heckler, 591 F. Supp. 1577, 1580-81 (D.D.C. 1984) ("[I]t appears unlikely that the plaintiff, able to understand and fill out the medical and claims forms, and to compose a detailed letter in English, was unable to understand the notice of his right to counsel.")
The SSA can make the waiver knowing and voluntary by providing a thorough explanation of the hearing process to the claimant. See Binzen, 2002 WL 31324061, at *7-8. In Binzen, the SSA remedied the plaintiff's confusion about scheduling the hearing and traveling to it by sending a letter explaining the hearing process and attaching a document detailing circumstances in which the government would pay a claimant's travel expenses. See id. at *8. Here, OHA failed to reconcile the discrepancy between the letters received by Francisco and her representative, thereby perpetuating her confusion and preventing her from making a knowing waiver.
2. Postponement
Plaintiff further argues that the ALJ failed to inform her of the possibility of a postponement and the supplementary waiver form lacked such an explanation. See Pl. Mem. at 7. SSA's regulations explain that the ALJ "will find good cause for changing the time . . . of your scheduled hearing and will reschedule your hearing" if the claimant is "unable to attend or to travel to the scheduled hearing because of a serious physical . . . condition". 20 C.F.R. § 416.1436(c)(1). The regulations provide examples of circumstances establishing "good cause," which include "[y]ou are unrepresented, and you are unable to respond to the notice of hearing because of a physical, mental . . . or linguistic limitation (including any lack of facility with the English language) which you may have." 20 C.F.R. § 416.1436(d).
Plaintiffs must notify the ALJ in writing of any objection to the hearing schedule, explain the reason for the objection, and request an alternate time for the hearing. See 20 C.F.R. § 416.1436(b).
Plaintiff waived her hearing "[b]ecause I just have a surgery [sic] at Lincoln Hospital. As a result I don't feel in good health." Tr. at 57 (emphasis added). This statement expressed plaintiff's desire to delay the hearing until she recuperated from surgery, not to waive her right to appear at a hearing. Francisco's waiver indicates ignorance of the postponement option. If a plaintiff "did not know the true facts and therefore could not intelligently assess the risks and rewards of waiving a hearing," the waiver is "neither knowing nor intelligent." Stiver, 879 F. Supp. at 1024-25 (finding an invalid waiver where the plaintiff erroneously believed he had to endure a painful 200-mile trip to attend his hearing). Francisco did not know she could postpone her hearing; accordingly, her waiver could not have been knowing and intelligent.
This case is easily distinguished from McCarthy, where the court found the claimant's waiver valid in part because he previously obtained a postponement and knew how to obtain another postponement if needed. See McCarthy, 1999 WL 325017, at *12.
C. Prejudice
Even invalid waivers warrant remand only if the plaintiff suffered prejudice. This Court previously found prejudice when a plaintiff was "deprived of the right to give personal testimony regarding . . . alleged physical impairments" and the inability to work, and "the opportunity to exercise [the] statutory right to counsel during these proceedings." Valera, 1982 U.S. Dist. LEXIS, at *1516 In fact, "a personal appearance is considered to be of sufficient importance that an ALJ can insist upon a claimant being present even when there has been a prior valid waiver." Stoner v. Sec. of Health and Human Svcs., 837 F.2d 759, 761 (6th Cir. 1988). As plaintiff points out, losing the opportunity to convince the ALJ that her mental and physical impairments prohibit her from engaging in any gainful occupation prejudiced her.
IV. CONCLUSION
In conclusion: (1) Plaintiff did not knowingly and voluntarily waive her appearance at the hearing; and (2) the invalid waiver was prejudicial to the plaintiff. Because the Commissioner's decision is reversed and the matter is remanded pursuant to "sentence four" of 42 U.S.C. § 405(g) for proceedings consistent with this Opinion, the remaining issues raised on appeal are not addressed. The Clerk of the Count is directed to close this case.
"Sentence four" states "[t]he court shall have power to enter, upon pleadings and transcript of the record, a judgment affirming, modifying, or reversing the decision of the Commissioner of Social Security, with or without remanding the cause for a rehearing." 42 U.S.C. § 405(g). As noted above this Court is reversing the Commissioner's decision denying benefits and remanding for the purpose of holding an evidentiary hearing.