SSR 71-23c: Rescinded

Rescinded September 14, 2018 by FR Vol. 83, No. 179, page 46771

20 CFR 404.971

SSR 71-23c

Granger v. Finch , 425 F.2d 206 (7th Cir., 1970) Cert. Denied

October 12, 1970, 400 U.S. 824

Where, after hearing and denial of her claim for disability benefits,

claimant on appeal to the court contended that she was deprived of her

right to a fair hearing because she was not represented by counsel at the

hearing, held , section 206 of the Act (42 U.S.C. 406) does not

require legal representation at evidentiary hearings and, further

held , there was a fair and impartial hearing even though the claimant

had no legal representation.

Before KNOCH, Senior Circuit Judge and CUMMINGS and KERNER, Circuit Judges.

KNOCH, Senior Circuit Judge. This appeal is taken from grant of a

motion for summary judgment in favor of defendant-appellee, the Secretary

of Health, Education and Welfare. The Secretary sought summary judgment on

the ground that the pleadings and transcript of hearings held on the

application of plaintiff-appellant, Mary Granger, for disability benefits

under the Social Security Act showed that the Secretary was entitled to

judgment as a matter of law.

Plaintiff sets out the issue for review as follows:

The only issue presented for review is whether or not:

(1) Appellant was effectively denied her right to counsel as guaranteed

by the Due Process Clause of the United States Constitution.

(2) was deprived of her right to a fair hearing as required by the Due

Process Clause of the United States Constitution, and

udgment as a matter of law.

Plaintiff sets out the issue for review as follows:

The only issue presented for review is whether or not:

(1) Appellant was effectively denied her right to counsel as guaranteed

by the Due Process Clause of the United States Constitution.

(2) was deprived of her right to a fair hearing as required by the Due

Process Clause of the United States Constitution, and

(3) was effectively misinformed as to the statute's scheme designed by

Congress to secure counsel for indigent Social Security claimants and thus

deprived of the benefits of said scheme.

Plaintiff is described in her brief as illiterate, mentally retarded and

unemployable for several years because of alleged permanent physical

impairment. Her application of October 5, 1966, for disability benefits

under Title 42 U.S.C. §§ 416(i) and 423, was denied under date of June 8,

1967. After a hearing on her appeal September 21, 1967, the hearing

examiner sustained the denial after evaluation of the evidence of several

physicians and disability examiners, on the ground that plaintiff was not

disabled within the meaning of the Act at any time prior to the expiration

of her insured status on June 30, 1962.

Plaintiff then engaged legal counsel who sought review in the District

Court, under Title 42 U.S.C. § 405(g), asserting primarily that plaintiff

was not adequately advised on her right to have counsel at the hearing

held on September 21, 1967.

Plaintiff's counsel argues that the Secretary has a duty to inform

applicants not only of their right to representation by counsel at the

evidentiary hearing but also to advise them (as plaintiff was not advised

by the hearing officer) that there is a possibility of securing legal

representation on a contingency fee basis, subject, of course, to the

restrictions on fees outlined in the Act.

intiff's counsel argues that the Secretary has a duty to inform

applicants not only of their right to representation by counsel at the

evidentiary hearing but also to advise them (as plaintiff was not advised

by the hearing officer) that there is a possibility of securing legal

representation on a contingency fee basis, subject, of course, to the

restrictions on fees outlined in the Act.

Because of plaintiff's retardation, illiteracy and emotional instability,

counsel asserts that extra and substantial care was required to ensure

that plaintiff understood her rights and realized that she had a real (as

well as a theoretical) opportunity to put those rights into effect.

The District Court entered an Order which included extensive analysis of

the record, the arguments of counsel and the applicable law. He found the

decision of the Secretary was clearly supported by substantial evidence,

of which he obviously made a detailed study. We agree.

As the District Judge noted, Title 42 U.S.C. § 406 permits but does not

require legal representation at evidentiary hearings.

Our own reading of the transcript satisfies us that the hearing examiner

did make every effort to explain the nature and purpose of the proceedings

to plaintiff, whose answers indicate that she did understand the

examiner's statements and questions.

After the hearing the hearing examiner reopened the record to receive

further reports from a physician and a psychologist. Actually there had

been little showing of serious mental deficiency until after the hearing.

Plaintiff mentioned her limited education and employed colloquial,

ungrammatical expressions but she made clear and responsive statements.

She also presented considerable documentary evidence to support her claim,

although her counsel now sees those efforts as very feeble and inept.

psychologist. Actually there had

been little showing of serious mental deficiency until after the hearing.

Plaintiff mentioned her limited education and employed colloquial,

ungrammatical expressions but she made clear and responsive statements.

She also presented considerable documentary evidence to support her claim,

although her counsel now sees those efforts as very feeble and inept.

The psychologist's report, on which plaintiff's counsel largely relies,

was based on tests in October 1967, more than five years after the

critical date when disability must have existed to entitle plaintiff to

disability benefits. The description of the plaintiff in that report is

sharply at variance with the pictures that emerges from a reading of the

testimony. Further, although the report suggests that these conditions

have existed for many years, the hearing examiner noted that plaintiff was

nevertheless able to function and was employed. Her vocational history

showed that from about 1930 to 1942 she had seasonal employment with Ace

Canning Factory, and did babysitting and odd jobs during the off-season

part of the year. From about 1942 until November 1956, she had worked as

an "inspector" for General Motors Guide Lamp Division, after which she

again worked at canning during many of the seasons from 1957 to 1965.

When asked at the outset whether she had a lawyer, plaintiff said that

took money and she had so many bills she could not afford anything like

that. The impression was that she was unwilling to pay any fee. There are

no provisions for supplying counsel at government expense.

l Motors Guide Lamp Division, after which she

again worked at canning during many of the seasons from 1957 to 1965.

When asked at the outset whether she had a lawyer, plaintiff said that

took money and she had so many bills she could not afford anything like

that. The impression was that she was unwilling to pay any fee. There are

no provisions for supplying counsel at government expense.

The District Judge found it would be sheer unfounded speculation to

insist that legal representation was necessary to ensure a fair and

impartial hearing for plaintiff. Her counsel now conjectures that an

attorney might have presented as witnesses plaintiff's relatives, friends,

or physicians who examined her at various pertinent times, whose names she

had since forgotten. We agree with the District Court that this is mere

speculation. We cannot accept the plaintiff's view of the scope of the

Secretary's duty to advise claimants. The judgment of the District Court

is affirmed.