Harris v. Apfel

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 99-20097

PAMELA ANN HARRIS, on behalf
of Dominisha S. Harris,
Plaintiff-Appellant,

versus

KENNETH S. APFEL, COMMISSIONER
OF SOCIAL SECURITY,
Defendant-Appellee.

Appeal from the United States District Court
for the Southern District of Texas

April 24, 2000
Before POLITZ, JOLLY, and BARKSDALE, Circuit Judges
POLITZ, Circuit Judge:
Pamela Ann Harris, on behalf of her minor daughter Dominisha S. Harris,
appeals the judgment affirming a final decision of the Commissioner of the Social
Security Administration. For the reasons assigned, we affirm.
BACKGROUND
In October 1991, Harris filed, on behalf of Dominisha, an application for
supplemental security income (“SSI”) benefits under Title XVI of the Social
Security Act, asserting that Dominisha was disabled as a result of hyperactivity,
poor vision, herpes simplex, and asthma. The application was denied initially and
on reconsideration. Harris then filed a second application for SSI benefits which
also was denied initially and on reconsideration.
Harris sought and secured a hearing before an administrative law judge
which resulted in a finding that Dominisha was not disabled within the meaning of
42 U.S.C. § 1382c. Harris sought review of that decision by the Appeals Council
which found no basis for review. The findings of the ALJ thus became the final
decision of the Commissioner.
Acting pro se, Harris invoked § 205(g) of the Act, 42 U.S.C. § 405(g),
seeking judicial review of the Commissioner’s ruling, alleging that the ALJ erred
in concluding that Dominisha was not disabled under § 1382c.
The Commissioner moved for summary judgment, contending that there is
substantial evidence in the record to support the determination that Dominisha is
not disabled. The magistrate judge recommended that the motion be granted.
Harris filed a cross-motion for summary judgment, attaching medical records
which she claims were neither presented to, nor considered by, the ALJ.
The district court concluded that the ALJ’s determination was supported by
substantial evidence, noting that the evidence attached to Harris’ cross-motion did
not alter its conclusion. The court granted the Commissioner’s motion and denied
the cross-motion by Harris. Harris timely appealed.

ANALYSIS

2
 On appeal, Harris contends that the ALJ failed to evaluate Dominisha’s claim
under the proper standard and failed to obtain additional medical records pertaining
to her daughter’s treatment, as he promised to do. The Commissioner maintains
that the ALJ’s conclusion on Dominisha’s lack of disability is proper and supported
by substantial evidence. The Commissioner also claims, for the first time, that
Harris cannot maintain a pro se action on behalf of her daughter in federal court.

The ability of Harris to sustain the present action must be first addressed. We
begin our analysis by examining whether a non-attorney parent can appear pro se
on behalf of a minor child in a social security case, an issue not previously directly
considered by this court.
I.
In support of his contention that Harris lacks the requisite ability herein, the
Commissioner relies on two Second Circuit opinions holding that a non-attorney
parent may not appear pro se on behalf of a child.1 The Commissioner notes that
the Second Circuit has concluded that courts have a duty to enforce this rule sua
sponte, as it is designed to protect the legal interests of children.2
The Commissioner does not discuss the reasoning that led to these two

1
Wenger v. Canastota Cent. Sch. Dist., 146 F.3d 123 (2nd Cir. 1998), cert.
denied, 526 U.S. 1025 (1999); Cheung v. Youth Orchestra Found. of Buffalo, Inc.,
906 F.2d 59 (2nd Cir. 1990).
2
Wenger, 146 F.3d at 125.

3
decisions and somewhat similar decisions by other courts.3
The right to proceed pro se in civil actions in federal court is guaranteed by
28 U.S.C. § 1654, which provides: “[i]n all courts of the United States the parties
may plead and conduct their own cases personally or by counsel as, by the rules of
such courts, respectively, are permitted to manage and conduct causes therein.”4
Our colleagues in the Second Circuit noted that “the choice to appear pro se is not
a true choice for minors who under state law . . . cannot determine their own legal
actions.”5 Because there is no individual choice to proceed pro se, they concluded
that “the sole policy at stake concerns the exclusion of non-licensed persons to
appear as attorneys on behalf of others.”6 Our colleagues conclude that it is not in
the interests of minors to be represented by non-attorneys; rather, minors are
entitled to trained legal assistance to fully protect their rights.7 As a consequence,
they held that a non-attorney parent must be represented by counsel to sustain an

3
In addition to the Second Circuit, other federal courts have held, albeit outside
the social security context, that a non-attorney parent cannot appear pro se on
behalf of a minor child. See, e.g., Devine v. Indian River County Sch. Bd., 121
F.3d 576 (11th Cir. 1997), cert. denied, 522 U.S. 1110 (1998); Johns v.
County of San Diego, 114 F.3d 874 (9th Cir. 1997); Osei-Afriyie v. Medical College
of Pa., 937 F.2d 876 (3rd Cir. 1991); Meeker v. Kercher, 782 F.2d 153 (10th Cir.
1986).
4
28 U.S.C. § 1654.
5
Cheung, 906 F.2d at 61 (referring to Fed. R. Civ. P. 17(b), which provides that
the capacity of an individual to sue is determined by state law).
6
Id.
7
Id.

4
action on behalf of a child in a racial discrimination case 8 and in a case alleging
violations of the Individuals with Disabilities Education Act and Rehabilitation
Act.9
As noted, the present appeal seeks review of an administrative decision that
Dominisha is not disabled within the meaning of § 1382c. Section 406(a)(1)
authorizes the Commissioner to draft rules and regulations allowing non-attorneys
to represent claimants in administrative proceedings. The only circuit decision of
which we are aware addressing whether a non-attorney representative may proceed
pro se in federal court in the context of a social security case is Innaccone v. Law,10
wherein the court held that a non-attorney representative of a decedent’s estate may
not appear pro se in federal court on behalf of the estate unless the representative
was litigating claims or interests in which he, as opposed to the estate, had a
personal stake. In reaching this conclusion the court noted that the lack of a
provision parallel to § 406(a)(1), authorizing non-attorney representation of
claimants in federal court, evinced Congress’ intent that non-attorneys would be
permitted to represent claimants only in administrative proceedings before the
Commissioner. Further, the court commented that § 405(g) does not address the

8
Id.
9
Wenger, 146 F.3d 123. Other courts have reached similar conclusions, see note
3, supra. For example, the Tenth Circuit held that a non-attorney parent could not
represent, pro se, his minor daughters in a civil rights action brought under 42
U.S.C. § 1983. Meeker, 782 F.2d 153.
10
142 F.3d 553 (2nd Cir. 1998).

5
specific procedural issue whether a claimant may proceed pro se but, rather, grants
the claimant the right to appeal a final decision of the Commissioner.11 Because
the non-attorney plaintiff in Innaccone was purporting to represent the estate in
litigating an interest specific to the estate, rather than claims that were personal to
him, the court concluded that he could not maintain his pro se federal court action
on behalf of the estate.
In Maldonando v. Apfel,12 the district court concluded that non-attorney
parents may appear pro se on behalf of their minor children in SSI cases. The court
opined that the Second Circuit’s general rule prohibiting non-attorney parents from
representing their children in litigation is inapplicable in the context of appeals
from administrative denials of SSI benefits because the reasons for the general rule
do not apply to such appeals. First, in SSI cases, a minor child living in a low-
income family usually cannot exercise the right to appeal except through a parent
or guardian. Second, the minor’s rights can be fully protected in SSI cases without
legal counsel, as the reviewing court must examine the record to determine if “all
of the relevant facts [were] sufficiently developed and considered.”13 Third, SSI
appeals are not subject to abuse because the proceeding only involves the appeal

11
“Any individual, after any final decision of the Commissioner of Social
Security made after a hearing to which he was a party . . . may obtain a review of
such decision by a civil action commenced within sixty days after the mailing
to him of notice . . . .” 42 U.S.C. § 405(g).
12
55 F.Supp.2d 296 (S.D.N.Y. 1999).
13
Id. at 303 (citation omitted).

6
from the denial of monetary benefits and the review of an administrative record.
Thus, the court concluded these proceedings “do not involve the subjective criteria
and range of fact-finding that are characteristic of the . . . cases that led to the rule
discussed in Wenger and Cheung.”14 Additionally, the statute requires payment to
the parent or guardian, “the very person who seeks to sue.”15 The court further
factually distinguished SSI cases from the previous circuit decisions.
The Maldonando court also found that important legal and policy
considerations existed which justified allowing parents to represent their children
in SSI cases, including:
(1) the parents represented their children throughout the administrative
proceedings and they should be permitted to do so on appeal; (2) an
appeal from the denial of SSI benefits is a common and fairly simple
proceeding that is often prosecuted without the assistance of counsel;
(3) plaintiffs in these cases are often unable to obtain counsel; and (4)
child SSI benefits are intended to aid disabled children while they are
children and therefore those rights must be vindicated in a timely
manner.16

The court noted that “the Second Circuit as well as district courts within this circuit
have routinely permitted parents in SSI cases to represent minor claimants without
an attorney. . . . The interests of justice require that the courts be permitted to

14
Id.
15
Id.
16
Id. at 305.

7
continue doing so.”17
Unlike the representative of the decedent’s estate in Innaccone, we find that
the appellant in the present case has a personal stake in the litigation. As
Dominisha’s custodial parent, Harris is responsible for expenses associated with the
minor’s maintenance. Should Dominisha be found disabled within the meaning of
§ 1382c, Harris likely would serve as the representative payee of SSI benefits.18 As
a representative payee, Harris could use the SSI payments for Dominisha’s “current
maintenance.”19 Absent SSI benefits, however, Harris must pay for such expenses.
Harris obviously has a personal financial stake in the present action.
We find persuasive the district court’s analysis in Maldonado. We agree that
the rights of minors in SSI appeals can be adequately protected without legal
counsel -- the proceedings essentially involve the review of an administrative
record. We are persuaded that prohibiting non-attorney parents from proceeding
pro se in appeals from administrative SSI decisions, on behalf of a minor child,
would jeopardize seriously the child’s statutory right to judicial review under §
405(g). We conclude that policy considerations, such as those articulated in
Maldonado, compel our holding that a non-attorney parent be permitted to sustain
a pro se action on behalf of a minor child in SSI appeals. Accordingly, Harris is

17
Id. at 302-03, 308. But see Ortiz v. Secretary, DHHS, No. 98-CV-490E(H),
1999 WL 605707 (W.D.N.Y. Aug. 5, 1999); Rosario v. Apfel, No.
96CIV.1227(PKL)(SEG), 1998 WL 685173 (S.D.N.Y. Sep. 30, 1998).
18
20 C.F.R. §§ 416.621(b)(1), 416.635, 416.640.
19
Id.

8
properly before the court in her pro se appeal on behalf of Dominisha under §
405(g).

II.
Harris maintains on appeal that her daughter suffers from hyperactivity,
behavioral problems, asthma, poor vision, and chronic outbreaks of herpes simplex
lesions. Based on these conditions, Harris claims that the ALJ erred in determining
that Dominisha was not disabled.
Our review of the Commissioner’s decision “is limited to determining
whether that decision is supported by substantial evidence and whether the proper
legal standards are applied.”20 “Substantial evidence is such relevant evidence as
a responsible mind might accept to support a conclusion. It is more than a mere
scintilla and less than a preponderance.”21 A finding of no substantial evidence is
appropriate only if no credible evidentiary choices or medical findings support the
decision.22 In applying this standard, we may not re-weigh the evidence or
substitute our judgment for that of the Commissioner.23
Harris does not contend that the ALJ’s decision lacked substantial evidence.
Rather, she points to a change in the law regarding child SSI eligibility and claims

20
Ripley v. Chater, 67 F.3d 552, 555 (5th Cir. 1995).
21
Id. (internal quotation marks and citation omitted).
22
Johnson v. Bowen, 864 F.2d 340, 343-44 (5th Cir. 1988).
23
Ripley, 67 F.3d at 555.

9
that Dominisha’s case should have been evaluated under the “Zebleck Act.” Harris
apparently is referring to the Supreme Court’s decision in Sullivan v. Zebley,24
wherein the Court invalidated regulations requiring a medical “listings-only”
approach to child SSI disability claims and held that, in addition to evaluating
claims based on listed impairments, the Commissioner must adopt a functional
approach to child disability claims, much like the system already in place to
evaluate adult claims.25
When the ALJ evaluated Dominisha’s claim, a child was considered disabled
if she suffered from “any medically determinable physical or mental impairment”
of “comparable severity” to an impairment that would disable an adult.26 After
Zebley, the Commissioner adopted a four-step sequential evaluation process for
determining whether a child was disabled pursuant to that statutory definition.27
Under the four-step process, the ALJ had to determine (1) whether the child was
engaging in substantial gainful activity; (2) if not, whether the child had a severe
impairment; (3) if so, whether the child had an impairment which met or equaled
the severity of a listed impairment; and (4) if not, whether the impairment was of
comparable severity to an impairment that would disable an adult. 28

24
493 U.S. 521 (1990).
25
Id. at 530-32, 539-41.
26
42 U.S.C. § 1382c(a)(3)(A) (West 1992).
27
20 C.F.R. § 416.924 (1996).
28
Id.

10
 The fourth and final step required an individualized functional assessment
to determine whether the alleged impairments limited the child’s ability to function
physically or mentally in an age-appropriate manner.29 The individualized
functional assessment examined the child’s impairment in specified functional
domains, such as cognitive, communicative, motor, social, personal/behavioral,
concentration, persistence, and pace.30 If the child exhibited either (1) a marked
limitation in one domain and a moderate limitation in at least one other domain or
(2) a moderate limitation in at least three domains, the child was considered
disabled for purposes of SSI eligibility.31
On August 22, 1996, while Dominisha’s case was pending before the
Appeals Council, the Personal Responsibility and Work Opportunity Reconciliation
Act of 1996 (“PRAWORA”) was enacted. PRAWORA changed the definition of
disability for purposes of SSI eligibility as it pertains to individuals under the age
of eighteen.32 It eliminated the “comparable severity” standards and provided that:
An individual under the age of 18 shall be considered disabled . . . if
that individual has a medically determinable physical or mental
impairment, which results in marked and severe functional limitations,
and which can be expected to result in death or which has lasted or can
be expected to last for a continuous period of not less than 12

29
20 C.F.R. §§ 416.924(a)-(b); 416.924d(a) (1996).
30
20 C.F.R. §§ 416.924d(h), 416.924e(c)(2) (1996).
31
20 C.F.R. § 416.924e(c)(2)(i)-(ii) (1996).
32
Pub. L. No. 104-193, 110 Stat. 2105, 2188 (1996).

11
 months.33

PRAWORA also changed SSI regulations by discontinuing use of the
individualized functional assessment.34
Because Dominisha’s claim was then pending before the Appeals Council,
the PRAWORA amendments, including the amended disability standard, apply.35
The decision by the Appeals Council does not reflect whether it evaluated the claim
under the amended disability standard established by PRAWORA.
Harris maintains that Dominisha’s claim should have been, but was not,
evaluated under Zebley. She correctly recognizes that Zebley was the proper
disability standard when the ALJ rendered his decision on December 13, 1995,
before PRAWORA was enacted. She incorrectly asserts, however, that the ALJ
failed to apply the Zebley standard. Our review of the record persuades that the
ALJ did apply the four-step sequential evaluation process that was created in
response to the Supreme Court’s decision in Zebley. After evaluating various
individualized functional assessments of Dominisha, the ALJ concluded that she
was not disabled at the fourth and final step of the sequential evaluation process.

33
PRAWORA § 211(a)(1)-(4); 42 U.S.C. § 1382c(a)(3)(C)(i) (West Supp. 1999).
34
PRAWORA § 211(b)(2).
35
Because the request for Appeals Council review was pending as of August 22,
1996, there had been no final adjudication for the purposes of the act. PRAWORA
states that its provisions apply to claimants whose claims are subject
to final adjudication on or after the date of enactment. 42 U.S.C. § 1382c,
Historical Notes, Effective Dates.

12
Specifically, the ALJ concluded that Dominisha’s impairments did not limit her
ability to function in an age appropriate manner and, consequently, that she did not
suffer from an impairment of “comparable severity” to that which would disable
an adult. Although not specifically disputed by Harris, we conclude that the ALJ’s
decision under the Zebley standard is supported by substantial evidence.
Were we to construe Harris’ contention on appeal to be that Dominisha’s
case should have been evaluated under the current disability standard established
by PRAWORA, we remain unpersuaded that the challenged decision was
erroneous. The “comparable severity” standard under which Dominisha’s case was
evaluated is more lenient than the disability standard established by PRAWORA.36
As there is substantial evidence in support of the ALJ’s decision under the
“comparable severity” standard, we must conclude and hold that the ALJ’s decision
is consistent with the sterner PRAWORA standard, and Dominisha’s case need not

36
The Commissioner was vested with exclusive authority to prescribe
regulations implementing the SSI amendments made by PRAWORA. PRAWORA
§ 215. Based on this statutory authority, the Social Security Administration
interprets the new standard to permit the denial of claims that were already
evaluated under the prior standard and were denied under that standard. Social
Security Administration Teletype No. EM-96-131 § III(a)(5) (Aug. 29, 1996) (“Any
case that would have been denied under the prior standard would also be denied
under the new standard.”). See also 62 Fed. Reg. 6408, 6409 (1997) (interim final
rules which became effective on April 14, 1997); Briggs v. Callahan, 139 F.3d
606 (8th Cir. 1998); Nelson v. Apfel, 131 F.3d 1228 (7th Cir. 1997); Jamerson v.
Chater, 112 F.3d 1064 (9th Cir. 1997).

13
be remanded to the Commissioner for reevaluation thereunder. 37
Harris insists that the ALJ erred when he rendered his decision without first
obtaining additional medical records pertaining to Dominisha’s treatment, which
he promised to do. The record belies this complaint. The record reflects that the
ALJ did, in fact, order and obtain additional records from the health care providers.
Before rendering a written decision, the ALJ sent the new records to the medical
expert who testified at Dominisha’s hearing and requested that she reassess the
child’s condition in light of the new medical evidence. The ALJ’s decision relies,
in part, on the expert’s updated assessment. The ALJ did that which he said he
would do.
The trial court declined to consider purportedly new medical evidence which
Harris attached to her motion for summary judgment. We do likewise.
III.
Harris has filed a motion to strike the order of the clerk of court granting the
Commissioner’s motion for leave to file an appellate brief out of time. The
Commissioner was forced to file this motion as a result of Harris’ failure to serve
either the United States Attorney or counsel for the Commissioner with a copy of
her appellate brief. The motion to strike is DENIED.
The judgment appealed is AFFIRMED.

37
Warncke v. Harris, 619 F.2d 412 (5th Cir. 1980) (concluding that remand to
Secretary for rehearing in light of new regulations was unnecessary because the
ALJ’s findings were consistent with criteria in new regulations).

14