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Adler v. Commissioner of Social Security

United States District Court, D. New Jersey

August 9, 2019

FRAN ADLER, Plaintiff,




         This matter comes before the Court pursuant to 42 U.S.C. § 405(g) for review of the final decision of Defendant Commissioner of the Social Security Administration (hereinafter “Defendant”) denying the application of Plaintiff pro se Fran Adler, as legal guardian of and former representative payee for beneficiary Daniel B. Adler, (hereinafter “Plaintiff) to be reinstated as representative payee for Mr. Adler. (See Complaint [Docket Item 1 ]; Motion for Pro Bono Counsel [Docket Item 19].) For the reasons set forth below, the Court shall affirm the ALJ's decision in this case and shall deny Plaintiffs motion for appointment of pro bono counsel.


         Daniel B. Adler was found entitled to Childhood Disability Insurance, effective August 2005, based on a determination of disability beginning July 8, 1996. (R. at 16.) Plaintiff is Mr. Adler's mother and appointed legal guardian. (Id.) Plaintiff was initially appointed to be the representative payee for Mr. Adler; however, on September 23, 2015, Defendant informed Plaintiff that Defendant intended to name a different representative payee for Mr. Adler. (Id.) Plaintiff appealed this decision and Defendant denied Plaintiffs appeal on October 9, 2015 in favor of naming “Allies Inc., ” operator of the group home where Mr. Adler resides, as Mr. Adler's representative payee. (Id.) Plaintiff subsequently protested this determination and requested a hearing, which was held on May 26, 2016 before Administrative Law Judge Kenneth Bossong (hereinafter “ALJ Bossong” or “the ALJ”). (Id.) Plaintiff appeared and testified at that hearing without the assistance of counsel, though she had been informed of her right to representation. (Id.) ALJ Bossong ordered Defendant to provide additional evidence, permitted Plaintiff to respond to that new evidence, and then held a supplemental hearing on March 16, 2017. (Id. at 16-17.) Plaintiff again appeared and testified without counsel, though she had been informed of her right to representation. (Id. at 17.)

         On April 3, 2017, ALJ Bossong issued his opinion denying Plaintiff's appeal. (Id. at 16-27.) In that opinion, ALJ Bossong determined that Mr. Adler's interests would not be served by reinstating Plaintiff as his representative payee, because Plaintiff had previously “failed to meet the responsibilities of a representative payee.” (Id. at 25-26.) Furthermore, ALJ Bossong's opinion emphasized that Defendant was not required to select Plaintiff to serve as Mr. Adler's representative payee solely because Plaintiff was appointed by the State of New Jersey to serve as Mr. Adler's legal guardian. (Id. at 26.) Finally, ALJ Bossong held that “[t]here is no merit to [Plaintiff's] allegation that [Mr. Adler's] current representative payee . . ., Allies Inc., is not a suitable payee and is not using the received funds for [Mr. Adler's] care.” (Id.)

         Thereafter, Plaintiff filed the present appeal with the Court. (See Complaint [Docket Item 1].) Plaintiff later filed the present motion requesting the appointment of pro bono counsel. (See Motion for Pro Bono Counsel [Docket Item 19].)


         A. Social Security Appeal

         This Court reviews the Commissioner's decision pursuant to 42 U.S.C. § 405(g). The Court's review is deferential to the Commissioner's decision, and the Court must uphold the Commissioner's factual findings where they are supported by “substantial evidence.” 42 U.S.C. § 405(g); Fargnoli v. Massanari, 247 F.3d 34, 38 (3d Cir. 2001); Cunningham v. Comm'r of Soc. Sec., 507 Fed.Appx. 111, 114 (3d Cir. 2012). Substantial evidence is defined as “more than a mere scintilla, ” meaning “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Richardson v. Perales, 402 U.S. 389, 400 (1971); Hagans v. Comm'r of Soc. Sec, 694 F.3d 287, 292 (3d Cir. 2012) (using the same language as Richardson). Therefore, if the ALJ's findings of fact are supported by substantial evidence, the reviewing court is bound by those findings, whether or not it would have made the same determination. Fargnoli, 247 F.3d at 38. The Court may not weigh the evidence or substitute its own conclusions for those of the ALJ. Chandler v. Comm'r of Soc. Sec, 667 F.3d 356, 359 (3d Cir. 2011).

         Regarding the Social Security Administration's authority to name a “representative payee” to receive funds on behalf of a beneficiary of a Social Security program, the Supreme Court has stated that:

Although the Social Security Administration generally pays . . . benefits directly, it may distribute them “for [a beneficiary's] use and benefit” to another individual or entity as the beneficiary's “‘representative payee.'” 42 U.S.C. §§ 405(j)(1)(A), 1383(a)(2)(A)(ii)(I); see 20 CFR §§ 404.2001, 404.2010, 416.601, 416.610. In the exercise of its rulemaking authority, see 42 U.S.C. §§ 405(a), (j)(2)(A)(ii), the Administration has given priority to a child's parent, legal guardian, or relative when considering such an appointment. 20 CFR §§ 404.2021(b), 416.621(b). While the Act and regulations allow social service agencies and custodial institutions to serve in this capacity, such entities come last in order of preference. §§ 404.2021(b)(7), 416.621(b)(7); see also 42 U.S.C. §§ 405(j)(3)(F), 1383(a)(2)(D)(ii). Whoever the appointee may be, the Commissioner of Social Security must be satisfied that the particular appointment is “in the interest of” the beneficiary. §§ 405(j)(2)(A)(ii), 1383(a)(2)(B)(i)(II).

Washington State Dep't of Soc. & Health Servs. v. Guardianship Est. of Keffeler, 537 U.S. 371, 376 (2003). The Court went on to state that:

Prior to making an appointment, the Commissioner must verify the potential representative payee's identity, connection to the beneficiary, and lack of relevant criminal record or prior misuse of Social Security funds. §§ 405(j)(2)(B), 1383(a)(2)(B)(ii); see 20 CFR §§ 404.2025, 416.625. The Commissioner must also attempt to identify any other potential representative payee whose appointment may be preferred. 42 U.S.C. §§ 405(j)(2)(A)(ii), 1383(a)(2)(B)(i)(II); see 20 CFR §§ 404.2020, 416.620.
In addition, the Commissioner is required to notify the beneficiary or the beneficiary's legal guardian of her intention to appoint a representative payee. 42 U.S.C. §§ 405(j)(2)(E)(ii), 1383(a)(2)(B)(xii); see 20 CFR §§ 404.2030, 416.630. “Any individual who is dissatisfied . . . with the designation of a particular person to serve as representative payee shall be entitled to a hearing by the Commissioner, ...

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