Petty v. Astrue, No. 1:2012cv01644 - Document 25 (S.D.N.Y. 2012)

Court Description: OPINION AND ORDER: re: denying 12 MOTION to Appoint Counsel. For the foregoing reasons, Petty's application for in forma pauperis is GRANTED, and her application requesting assistance of counsel is DENIED without prejudice to a renewed motion at a later date. filed by Alison L. Petty. (Signed by Magistrate Judge Ronald L. Ellis on 12/5/2012) (pl)

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UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK USDCSDNY DOCUMENT F.LECfRONICALLY FlUID . DOC I: ~I ~~ FILtiI);--_ -,-2.--S-~-~-r-z, MRS. ALISON L. PETTY, Plaintiff, OPINION AND ORDER - against12 Civ. 1644 (LTS) (RLE) MICHAEL J. ASTRUE, Commissioner ofSocial Security, Defendant. RONALD L. ELLIS, United States Magistrate Judge: 1. INTRODUCTION Pro se Plaintiff Alison Petty brings this action under § 205(g) of the Social Security Act, 42 U.S.c. § 405(g), seeking judicial review of a decision of the Commissioner of Social Security ("Commissioner") denying the plaintiff disability insurance and Supplemental Security Income ("SSI") beneiits. Before the Court are Petty's applications to proceed in forma pauperis and a request for the assignment of counseL For the reasons that follow, Petty's application to proceed informa pauperis is GRANTED and her application for counsel is DENIED without prejudice to a renewed motion at a later date. II. A. DISCUSSION Application to Proceed in forma pauperis. Under 28 U.S.c. § 1915, "any court ... may authorize the commencement, prosecution or defense of any suit, action or proceeding, civil or criminal, or appeal therein, without prepayment of fees or security therefor, by a person who submits an affidavit that includes a statement of all assets such prisoner possesses that the person is unable to pay such fees or give security therefor." Petty's application to proceed in forma pauperis indicates that she is unemployed and homeless. The Court finds that her application establishes an inability to pay for the prosecution of his case. B. Application Requesting Assistance of Counsel. The Court of Appeals for the Second Circuit has articulated the factors that a court should consider in deciding whether to appoint counsel for an indigent civil litigant under 28 U.S.C. § 1915(d). In making this determination, the court "exercises substantial discretion, subject to the requirement that it be guided by sound legal principle." Cooper v. A. Sargenti Co., 877 F.2d 170, 172 (2d Cir. 1989) (citing Jenkins v. Chemical Bank, 721 F.2d 876, 879 (2d Cir. 1983». The court must first ask whether plaintiff can afford to obtain counsel. See Terminate Control Corp. v. Horowitz, 28 F.3d 1335,1341 (2d Cir. 1994). If the court finds that a plaintiff cannot afford counsel, it must then examine the merits of the case and determine whether the indigent's position "seems likely to be of substance." Hodge v. Police Officers, 802 F .2d 58, 61-62 (2d Cir. 1986). If the claim meets this requirement, the court should then consider the indigent's ability to investigate the crucial facts, whether conf1icting evidence implicating the need for cross-examination will be the major proof presented to the fact finder, the indigent's ability to present the case, the complexity of the legal issues and any special reason in that case why appointment of counsel would be more likely to lead to ajust determination. Id. at 60-61. These requirements have been applied to appointment of counsel applications in actions seeking review of final determinations which have denied SSI or disability benefits. See, e.g., Fernandez v. Bowen, 676 F. Supp. 550, 551 (S.D.N. Y.1988); Cortez v. Secretary, Depf! of Health & Human Servs., No. 88 Civ. 8497 (SWK) (BAL), 1991 WL 2758 (S.D.N.Y. Jan. 9, 2 1991 ). Petty satisfies the threshold requirement insofar as her in forma pauperis status establishes her inability to afford counsel. The Commissioner has determined that Petty is not "disabled" as defined in 42 U.S.C. § 1382(a)(3). The Commissioner's finding is binding on this court ifit supported by "substantial evidence." 42 U.S.C. § 405(g). The Commissioner has filed the entire administrative record for judicial review. As a result, there is no need for cross examination in this matter. The controlling issue is not so overwhelmingly complex that Petty cannot be afforded a just determination without legal representation and this court is able to fully examine the record upon submission of the parties' papers. Fernandez, 676 F. Supp. at 551-552. After careful review of Petty's application in light of the aforementioned considerations, the Court finds that the appointment of counsel is not warranted in this case. III. CONCLUSION For the foregoing reasons, Petty's application for in forma pauperis is GRANTED, and her application requesting assistance of counsel is DENIED without prejudice to a renewed motion at a later date. SO ORDERED this 5th day of December 2012 New York, New York The Honorable Ronald L. Ellis United States Magistrate Judge 3

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