Legal Memorandum: Supersedure of Other Statutes Prohibited

Issue: WHETHER AN ERISA BENEFITS PLAN CAN CONTRAVENE A STATUTORY RIGHT GRANTED BY ANOTHER FEDERAL STATUTE.

Claimants for Social Security benefits may be represented by an attorney.  20 C.F.R. Sec. 404.1705 (1999).  This is a statutory right created Aunder 42 U.S.C. Sec. 406, effectuated by 20 C.F.R. Sec. 404.971."  Smith v. Schweiker, 677 F.2d 826, 828 (11th Cir. 1982) (current C.F.R. designation is Sec. 404.1705).  Smith concerned an appeal after the claimant, who was not represented by an attorney at the proceedings, was denied benefits.  Id.  In Smith, the court acknowledged the right to counsel, but did not find undue prejudice arising from the claimant’s lack of counsel.  See also Frank v. Chater, 924 F. Supp. 416 (E.D.N.Y. 1996); Mandziej v. Chater, 944 F. Supp. 121 (D.N.H. 1996); Clark v. Schweiker, 652 F.2d 399 (5th Cir. 1981).  

In Clark, the claimant was also appealing a denial of disability benefits.  652 F.2d at 403.  She had received notice that she was entitled to counsel and a portion of the court’s discussion focused on the adequacy of this notice.  Id.  According to the Clark court, the Supreme Court has not recognized a constitutional right to counsel at a Social Security hearing.  Id. at 403 (citing Goodman v. Richardson, 448 F.2d 388 (5th Cir. 1971)).

Although the right to counsel at a benefits hearing does not rise to the constitutional level, it is a right conferred by a federal statute and regulation.  The Employee Retirement Income Security Act of 1974 (ERISA) states: “Nothing in this title shall be construed to alter, amend, modify, invalidate, impair, or supersede any […]