Patricia Reynolds v. Social Security Administration, Commissioner

Case: 16-12826 Date Filed: 02/10/2017 Page: 1 of 4

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT
________________________

No. 16-12826
Non-Argument Calendar
________________________

D.C. Docket No. 4:14-cv-02038-RDP

PATRICIA REYNOLDS,

Plaintiff-Appellant,

versus

SOCIAL SECURITY ADMINISTRATION, COMMISSIONER,

Defendant-Appellee.

________________________

Appeal from the United States District Court
for the Northern District of Alabama
________________________

(February 10, 2017)

Before TJOFLAT, WILLIAM PRYOR, and EDMONDSON, Circuit Judges.
 Case: 16-12826 Date Filed: 02/10/2017 Page: 2 of 4

PER CURIAM:

Patricia Reynolds appeals the district court’s order affirming the Social

Security Commissioner’s denial of her application for disability benefits, pursuant

to 42 U.S.C. § 405(g). Reynolds -- who was unrepresented at her hearing before

the administrative law judge (“ALJ”) -- contends she made no knowing and

informed waiver of her right to representation. Her contention is based on her

limited education, anxiety, medication, and the ALJ’s failure to notify her orally at

her hearing that her lawyer’s fee would be capped. No reversible error has been

shown; we affirm.

Our review of a Commissioner’s decision is limited to whether substantial

evidence supports the decision and whether the correct legal standards were

applied. Crawford v. Comm’r of Soc. Sec., 363 F.3d 1155, 1158 (11th Cir. 2004).

We have recognized that “[a] Social Security claimant has a statutory right,

which may be waived, to be represented by counsel at a hearing before an ALJ.”

Graham v. Apfel, 129 F.3d 1420, 1422 (11th Cir. 1997). The Commissioner has a

duty to notify a claimant in writing about “the options for obtaining” a lawyer,

including “the availability to qualifying claimants of legal service organizations

which provide legal services free of charge.” 42 U.S.C. § 406(c). If a claimant is

not informed adequately of her right -- either in a prehearing notice or at the

2
 Case: 16-12826 Date Filed: 02/10/2017 Page: 3 of 4

hearing -- “a claimant cannot knowingly and intelligently waive [her] statutory

right to counsel.” Smith v. Schweiker, 677 F.2d 826, 828 (11th Cir. 1982). An

adequate explanation of the right to counsel includes information about the

“possibility of free counsel and limitations on attorney fees to 25% of any eventual

award.” Id. at 829.

We first address whether Reynolds received adequate notice of her right to

representation. Together with a letter explaining the ALJ hearing process,

Reynolds was sent a written notice of her right to representation at the ALJ

hearing. In pertinent part, the notice explained that (1) Reynolds had a right to

have a lawyer represent her at the ALJ hearing; (2) for her protection, a lawyer’s

fee amount needed the ALJ’s approval; and (3) the ALJ usually approved fee

amounts up to the lesser of 25% of an eventual award or $6,000. The notice also

provided Reynolds with a list of organizations that could help her find a lawyer or

that could provide free legal services if she qualified.

Reynolds then signed a written waiver of her right to representation. The

waiver form explained again that Reynolds had a right to be represented at the ALJ

hearing, that the ALJ must approve a lawyer’s fee, and that the fee could not

exceed 25% of a past-due-benefits award. Reynolds checked boxes on the waiver

form noting that she was able to read and understand the information in the waiver,

had no questions, understood her right to representation, understood the benefits

3
 Case: 16-12826 Date Filed: 02/10/2017 Page: 4 of 4

and disadvantages of representation, understood how a representative would be

paid, and wished to proceed without representation.

At the hearing, the ALJ again notified Reynolds of her right to

representation. Then, Reynolds testified that she understood her rights and that she

wished to waive her right to representation. Although the ALJ failed to explain

expressly that a lawyer’s fee would be capped at 25% of a past-due-benefits award,

Reynolds had already twice been notified in writing about the limitations placed on

a lawyer’s fee. On this record, Reynolds received adequate notice of her right to

representation.

Reynolds also contends that her 11th-grade education, anxiety, and Xanax

usage rendered her waiver ineffective. Nothing evidences, however, that Reynolds

was unable to understand or read English, or that she otherwise lacked the mental

capacity to understand the significance of the waiver. Because substantial

evidence supports the ALJ’s determination that Reynolds waived “knowingly and

intelligently” her right to representation at the ALJ hearing, we affirm.

AFFIRMED.

4