United States District Court, D. New Jersey
STANLEY R. CHESLER U.S. DISTRICT JUDGE.
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
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.)
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.)
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].)
STANDARD OF REVIEW
Social Security Appeal
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.
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),
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,