                                                                                                                           Opinions of the United
2003 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


12-22-2003

Phifer v. Comm Social Security
Precedential or Non-Precedential: Non-Precedential

Docket No. 03-1002




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                                                     NOT PRECEDENTIAL

            UNITED STATES COURT OF APPEALS
                 FOR THE THIRD CIRCUIT


                           No. 03-1002




                     DOROTHEA PHIFER,
                   O/B/O JEREMY N. PHIFER

                                 v.

         THE COMM ISSIONER OF SOCIAL SECURITY

                      JEREMY N. PHIFER,

                                         Appellant


ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE
           WESTERN DISTRICT OF PENNSYLVANIA

                   (Dist. Court No. 01-cv-02086)
        District Court Judge: Honorable William L. Standish


            Submitted Under Third Circuit LAR 34.1(a)
                        October 21, 2003

      Before: ALITO, FUENTES, and ROSENN, Circuit Judges.

               (Opinion Filed: December 22, 2003)




                   OPINION OF THE COURT
PER CURIAM:

                                                I.

              As we write for the parties only, we do not extensively set out the

background of this case. Jeremy Phifer, through his mother Dorothea, brought this claim

for supplemental security income (hereinafter “SSI”). The ALJ denied the claim. The

District Court upheld this decision. Phifer appeals to this Court. Because there was a

proper waiver of counsel and because substantial evidence supported the Commissioner’s

decision, we find that none of Phifer’s grounds for appeal have merit, and so we affirm

the order of the District Court.

                                          II.

              This Court reviews the factual findings of the Social Security

Commissioner under the substantial evidence test. The review is “limited to determining

whether [the] decision is supported by substantial evidence.” Hartranft v. Apfel, 181 F.3d

358, 360 (3d Cir. 1999). Substantial evidence “does not mean a large or considerable

amount of evidence, but rather such relevant evidence as a reasonable mind might accept

as adequate to support a conclusion.” Id. (internal quotation marks and citation omitted).

This means that even if this Court would have made a different decision regarding the

original application, the Court must affirm if substantial evidence supports the

Commissioner’s decision. Id.



                                                2
                                              III.

                                              A.

              Phifer argues that his right to counsel was violated. First, Phifer claims that

he did not voluntarily and knowingly waive his right to counsel. Second, Phifer claims

that as a result of the waiver his claim was prejudiced.

              While there is no constitutional right to counsel at a social security

disability hearing, a claimant does have a statutory and regulatory right to counsel at such

a hearing. See Holland v. Heckler, 764 F.2d 1560, 1562 (11th Cir. 1985); 42 U.S.C. §

406; 20 C.F.R. §§ 404.1700-404.1707. The claimant must be provided with notice of his

right to counsel and can waive this right as long as such waiver is knowing and

intelligent. See, e.g., Smith v. Schweiker, 677 F.2d 826, 828 (11th Cir. 1982) (describing

how a claimant can“knowingly and intelligently waive his statutory right to counsel.”) A

waiver in and of itself is not a sufficient justification for remand. Rather, remand is

proper where the lack of counsel prejudices a claimant or where the lack of counsel leads

to an administrative proceeding marked by unfairness. Livingston v. Califano, 614 F.2d

342, 345 (3d Cir. 1980).

       Phifer was clearly informed of his right to counsel and made a knowing and

intelligent waiver of this right. First, the record shows that Phifer was given sufficient

notice of his right to legal representation. In a letter to Phifer dated July 25, 2000 the



                                               3
Social Security Administration (hereinafter “SSA”) states that he had a right to

representation. Tr. at 46. Another letter sent the same day by the SSA advised Phifer that

he has the “right to be represented by an attorney or other representative of [his] choice.”

Id. at 50. This alone shows that Phifer was given adequate notice of his right to counsel.

In addition, the ALJ, in his introductory remarks at the hearing, stated:

              In your notice of hearing, you were advised if you wanted to
              be, you could be represented by an attorney or some other
              qualified person of your choice, and, since you appeared
              without an attorney or a qualified representative, I assume you
              want to proceed with the hearing without an attorney or a
              qualified representative?

Id. at 25-26. Dorothea Phifer, Jeremy’s mother, answered, “Yes,” to this statement and

question of the ALJ. Id. at 26. There clearly was a voluntary waiver of counsel by Phifer.

       Second, assuming arguendo that Phifer did not give a knowing and intelligent

waiver, a remand would be appropriate only if Phifer was prejudiced by the lack of

counsel. Our review of the record, however, shows that this was clearly not the case. On

the contrary, the ALJ made efforts to develop the record fully.

                                              B.

       Phifer also argues that the ALJ erred in finding that his impairment did not

functionally equal in severity the criteria for an impairment listed in the regulations.1

       In evaluating whether a child is disabled and eligible for SSI, the Commissioner


       1
          Phifer concedes that his impairment does not meet requirements of a listing nor
that it medically equals the requirement of a listed impairment.

                                              4
applies a three-part sequential analysis. First, if the child is doing substantial gainful

activity, the Commissioner will determine that the child is not disabled. 20 C.F.R. §

416.924(a). Next, if the child is not working, the Commissioner will determine whether

the impairment of the child is severe. Id. Finally, if the impairment is severe, the

Commissioner must determine whether the impairment “meets, medically equals, or

functionally equals the listings.” Id. To determine whether an impairment is functionally

equivalent to a listing the Commissioner must determine that the impairment results in a

marked limitation in two domains of functioning or an extreme limitation in one domain.

20 C.F.R. § 416.926a (a). The domains which the Commissioner is to analyze are: 1)

acquiring and using information; 2) attending and completing tasks; 3) interacting and

relating with others; 4) moving about and manipulating objects; 5) caring for oneself; and

6) health and physical well-being. 20 C.F.R. § 416.926a (b)(1). A marked limitation is

present where the impairment interferes seriously with one’s ability to “independently

initiate, sustain, or complete activities.” 20 C.F.R. § 416.926a (e)(2)(I). An extreme

limitation is present where one’s impairment “interferes very seriously with [one’s] ability

to independently initiate, sustain, or complete activities.” 20 C.F.R. § 416.926a (e)(3)(I).

       The record indicates that the ALJ had substantial evidence to conclude that

Phifer’s impairments were not functionally equivalent to the listings. First, in the domain

of acquiring and using knowledge, school notes indicated that Phifer was “able to access

the general curriculum” while also requiring some “special language support.” Tr. at 107.



                                               5
His report card showed that his performance in all subjects except for Art was

satisfactory. Id. at 87.2 Other evidence supported the ALJ’s opinion as well. A doctor

noted that Phifer did not demonstrate any “significant articulation disorder” and that he

was able to “comprehensively and coherently repeat” the given sentence. Id. at 159. An

intelligence test administered in May 2000 showed that Phifer placed in the “high

average” level in vocabulary. Id. at 160. His full scale intelligence test also showed that

Phifer was in the low average range for his age group. Id. All of this constituted

substantial evidence upon which to determine that Phifer did not have a marked limitation

in this domain.

       In the domain of attending and completing tasks, the Commissioner also had

substantial evidence to conclude that Phifer’s limitation was mild. An examination by Dr.

Bernstein showed that Phifer was “highly cooperative,” “compliant and responsive” to

instructions, and showed no “signs of hyperactivity.” Id. at 159. An evaluator from the

Western Psychiatric Institute and Clinic reported that Phifer “played exceptionally well

during session and appeared to have no difficulty staying on task.” Id. at 181. This

evidence supports a determination that a mild rather than marked or extreme limitation

was present in this domain.

       Turning to the third domain, interacting and relating with others, the ALJ again


       2
         In Art the teacher indicated that Phifer needed improvement. Also, the mark for
homeroom indicated that improvement was needed but this seems to be because of
Phifer’s excessive number of absences. Tr. at 87.

                                             6
had substantial evidence upon which to base his determination of only a mild limitation.

The record indicates that Phifer related well with others. Though Phifer’s mother and

grandmother testified to problems in this domain, see Tr. 31-35, the observations of

others strongly support the ALJ’s determination. For instance Dr. Bernstein’s report

described Phifer as an “engaging child” who was “quite tractable and pleasant.” Id. at

158. Phifer’s teacher described him as “polite” and “respectful” and stated that he got

along well with others. Id. at 169. A report from the school also stated that Phifer did not

have temper tantrums, did not exhibit explosive or unpredictable behavior, was not

uncooperative, and was never defiant. Id. at 170.

       With regards to the fourth domain, there were no allegations of difficulty with

moving about or manipulating objects. In the fifth domain, caring for oneself, there is not

much evidence to consider. 3 There is simply less evidence in the record concerning

Phifer’s care of himself. However, even if we assume that a marked limitation was

present, this does not change the disposition of this case, as no marked limitation was

present in any other domain.

       In the sixth domain, health and physical well being, there was substantial evidence

that no marked or extreme limitation was present. When considering health and physical

well being, the ALJ looks at the “cumulative physical effects of physical or mental




       3
        The record certainly does not show any indication of an extreme limitation in
this domain.

                                             7
impairments and their associated treatments or therapies” upon the claimant’s ability to

function. 20 C.F.R. § 416.926a (l). Here, the objective evidence showed that despite the

claimed limitations, Phifer was able to function quite well. Dr. Bernstein described

Phifer as an “engaging child” who was “quite tractable and pleasant.” Tr. at 158. In

addition, Bernstein stated that Phifer exhibited no “signs of hyperactivity,” was

responsive to directions and “highly cooperative,” was within the low average range of

intelligence, and showed good fine and gross motor skills. Id. at 159-61. There was

evidence that Phifer was prescribed Ritalin and Paxil, see id. at 128, but this was not done

in response to deeply debilitating problems but to the mild symptoms reported in the

record. Given Dr. Bernstein’s objective evidence concerning Phifer, there was substantial

evidence upon which the ALJ could have determined that no marked or extreme

limitation was present in the sixth domain.

       Because at the most a marked limitation was present in only one domain, Phifer’s

impairments were not functionally equivalent to any of the listings. Therefore, Phifer’s

claim was rightly denied.

                                              IV.

       We have reviewed Phifer’s arguments and see no grounds for reversal. Therefore,

we affirm the order of the District Court.




                                              8
