Roberts v. Commissioner of SSA

Today the Ninth Circuit decided Roberts v. Commissioner.  Another disability claim by a person claiming disability that went before an Administrative Law Judge without the benefit of counsel.  Once a person gets to the hearing stage, the default should be to hire an attorney to handle the job.  See Why Hire and SSDI Attorney. 

The big deal is that the Social Security Administration tells its ALJs that they must get a waiver signed by the claimant for benefits if that person wants to proceed without an attorney.  The form is:

I understand my right to representation at the hearing. I voluntarily waive this right, and I request to proceed without a representative. I also acknowledge that I received a list of organizations that provide legal services prior to receiving the Notice of Hearing.

As the Court framed it:

ALJ “should ensure on the record” that an unrepresented claimant “has been properly advised of the right to representation and . . . is capable of making an informed choice about representation,” and goes on to list several questions that an ALJ may wish to ask the claimant in order to accomplish this. HALLEX I-2-6-52.

If the ALJ didn't do what SSA told the ALJ to do, why should the Court simply let the agency off the hook?  Reverse and send the case back for a hearing with the Roberts represented by an attorney. 

But this is why Lockwood was so important.  Either the agency is bound by its own rules and procedures or SSA can simply disregard what it tells the agency and the world how it handles the largest adjudicative body in the world.  The statute (42 USC sec. 406(c)) is pretty clear:

The Commissioner of Social Security shall notify each claimant in writing, together with the notice to such claimant of an adverse determination, of the options for obtaining attorneys to represent individuals in presenting their cases before the Commissioner of Social Security. Such notification shall also advise the claimant of the availability to qualifying claimants of legal services organizations which provide legal services free of charge.

The government assumes that we read every piece of paper that slides across the inbox of life.  More importantly, the government assumes that we understand every piece of paper.  Except SSA recognizes that this is not necessarily true.  SSA knows that claimants for disablity either do not read or do not understand every piece of paper that they are charged with reading.  Fusing together that recognition of reality with the literal words of the statute, the Court should have found that the ALJ in this case violated the spirit of the statutory text even if he complied with the letter of the law. 

That seems to have been lost on this generation.  The intent of the statute seems to have gone away to be replaced by the requirement that Congress imagine every consequence and every problem.  I won't hold my breath waiting for Congress to gain that kind of prescience.  The regulation (20 CFR sec. 404.1706) tells us that:

We will also tell you that a legal services organization may provide you with legal representation free of charge if you satisfy the qualifying requirements applicable to that organization.

And there it is.  A promise to tell us more than the written word contained in a notice with a raft of other papers.  What does "we will also tell you" mean?  According to HALLEX I-2-6-52, it means that an ALJ will tell "us" before starting an administrative hearing.