What Happens If I Waive My Right to Counsel at a Disability Hearing?

 Posted on May 16,2019 in Social Security Disability

By law, you have the right to counsel when applying for Social Security disability benefits. This means you can–and should–work with a qualified disability benefits lawyer. And while you can waive your right to counsel and represent yourself before Social Security, this is generally not in your best interests.

Court Holds Social Security Gave Disability Applicant Adequate Warnings Regarding Waiver of Counsel

A recent decision from the U.S. Seventh Circuit Court of Appeals here in Chicago illustrates the problems with attempting to represent yourself in a disability case. The plaintiff in this lawsuit, Jozefyk v. Berryhill, initially sought disability benefits citing a number of physical and mental impairments, including depression, generalized anxiety disorder, and avoidant personality disorder.

Prior to a hearing on his disability claim before a Social Security administrative law judge (ALJ), the agency sent the plaintiff several notices explaining his right to counsel. Social Security does not provide representation itself, but it does refer applicants to services that assist in finding a qualified attorney.

For some reason, the plaintiff chose not to hire an attorney. When requesting his hearing, he certified to Social Security that he did not have a representative, but that he understood his right to representation. And on the date of the hearing, the plaintiff told the ALJ he had “decided to proceed by himself.” The ALJ offered the plaintiff more time to locate an attorney, but he declined.

The ALJ ultimately denied the plaintiff's application for disability benefits. After appealing that decision unsuccessfully within Social Security, and later before a federal district court, the plaintiff (now represented by counsel) appealed to the Seventh Circuit. One of the plaintiff's arguments on appeal was that the ALJ “did not obtain a valid waiver” of the plaintiff's right to counsel.

The Seventh Circuit rejected that argument out of hand. It noted Social Security sent the plaintiff “several written notices” before the hearing explaining his right to counsel. Additionally, the plaintiff acknowledged his right to seek counsel when he initially requested the hearing before the ALJ. The plaintiff argued the ALJ should have explained these rights explicitly at the hearing, but the Seventh Circuit said that was unnecessary and not required by law. Indeed, the Court observed the ALJ “was not silent” on this issue and confirmed the plaintiff “was appearing without an attorney and that he was aware of his right to counsel.”

Finally, the Seventh Circuit said the plaintiff could not show how the ALJ failed to adequately develop the record in this case despite the plaintiff's lack of counsel.

Speak with an Illinois Social Security Disability Lawyer Today

The reality is that Social Security applicants are more likely to succeed if they are represented by an experienced Chicago disability benefits attorney who has experience with presenting a case to an ALJ. And if you are worried about the potential expense of hiring a lawyer, keep in mind that Pearson Disability Law, LLC, only works on a contingency basis. This means we do not charge any upfront fees and only get paid if we recover benefits for you. Call us today at 312-999-0999 to schedule a free, no-obligation consultation.

Source:

https://scholar.google.com/scholar_case?case=5676986530388210453