Ventura v. Shalala

• Court: Court of Appeals for the Third Circuit
• Decided: June 5, 1995
• Docket: 94-7673
• Status: Unknown

Opinion

Opinions of the United 1995 Decisions States Court of Appeals for the Third Circuit

6-5-1995

Ventura v Shalala Precedential or Non-Precedential:

Docket 94-7673

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Recommended Citation "Ventura v Shalala" (1995). 1995 Decisions. Paper 154. http://digitalcommons.law.villanova.edu/thirdcircuit_1995/154

This decision is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova University School of Law Digital Repository. It has been accepted for inclusion in 1995 Decisions by an authorized administrator of Villanova University School of Law Digital Repository. For more information, please contact Benjamin.Carlson@law.villanova.edu. UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT

No. 94-7673

STEPHEN R. VENTURA

v.

DONNA E. SHALALA, Secretary of Health and Human Services.

Stephen Ventura,

Appellant

Appeal from the United States District Court for the District of Delaware (D.C. Civil No. 94-00111)

Submitted Under Third Circuit LAR 34.1(a) May 19, 1995

BEFORE: COWEN, LEWIS, and SAROKIN, Circuit Judges

(Filed June 5, 1995)

Michael A. Comisky Singleton & Associates P.O. Box 9341 Shawnee Mission, Kansas 66201-2041 Attorney for Appellant Charlotte Hardnett Chief Counsel, Region III Patricia M. Smith Assistant Regional Counsel Office of General Counsel Department of Health and Human Services 3535 Market Street, Rm. 9100 Philadelphia, Pennsylvania 19101

Gregory M. Sleet United States Attorney Nina A. Pala Assistant United States Attorney District of Delaware Chemical Bank Plaza 1201 Market Street, Suite 1100 Wilmington, Delaware 19899-2046 Attorneys for Appellee

OPINION OF THE COURT

SAROKIN, Circuit Judge:

Applicants for social security disability payments, most of

whom are truly ill or disabled, are entitled to be treated with

respect and dignity no matter what the merits of their respective

claims. This is especially so at a time they are most vulnerable

when representing themselves or being represented by lay-persons.

Notwithstanding and recognizing the time pressures imposed upon

those hearing the huge volume of such claims, rudeness,

impatience, or outright bias cannot be tolerated. We hold that claimant in the instant case did not receive the full and fair

hearing to which he was entitled. Accordingly, we remand the

case for a new hearing before another administrative law judge.

I.

Stephen Ventura ("claimant") applied for disability

insurance benefits under Title II of the Social Security Act, 42

U.S.C.A. §§ 401-433 (West 1991), alleging disability because of

back injuries. The state agency handling claimant's application

denied his claim initially and upon reconsideration. Claimant

requested a hearing before an administrative law judge ("ALJ").

The ALJ issued a decision finding claimant able to work. The

Appeals Council, however, vacated the decision of the ALJ and

remanded the case for a new hearing because the ALJ had taken the

testimony of a medical expert and a vocational expert outside the

presence of claimant. After holding a new hearing, the ALJ found

that although the medical evidence established that claimant had

musculoskeletal difficulty with situational anxiety and

depression, the evidence did not demonstrate that claimant had

either a physical or mental impairment which would prevent him

from performing the light work identified by the vocational

expert. The Appeals Council denied claimant's request for review

of the ALJ's decision. Claimant sought judicial review of the

Secretary's final administrative decision in district court

pursuant to 42 U.S.C.A. § 405(g) (West 1991). The district court

granted the Secretary's motion for summary judgment. Claimant filed a timely notice of appeal, and we have jurisdiction

pursuant to 28 U.S.C.A. § 1291 (West 1993).

II.

Congress provided for judicial review of the Secretary's

decisions adverse to a claimant for social security benefits. 42

U.S.C.A. § 405(g) (West 1991). "'Our standard of review, as was

the district court's, is whether the Secretary's decision is

supported by substantial evidence in the record.'" Adorno v.

Shalala, 40 F.3d 43, 46 (3d Cir. 1994) (quoting Allen v. Bowen,

881 F.2d 37, 39 (3d Cir. 1989)). Substantial evidence is "more

than a mere scintilla. It means such relevant evidence as a

reasonable mind might accept as adequate." Richardson v.

Perales, 402 U.S. 389, 401 (1971) (quoting Consolidated Edison

Co. v. N.L.R.B., 305 U.S. 197, 229 (1938)). However, it is the

conduct of the hearing, not the content of the evidence, which is

the subject of our focus here.

In the instant appeal, claimant contends that he did not

receive a full and fair hearing because of the ALJ's bias or

prejudice. In Hummel v. Heckler, 736 F.2d 91 (3d Cir. 1984), we held that the administrative regulation providing for

disqualification of administrative law judges contemplates that

judicial review of bias claims take place in review proceedings

under § 405(g). 736 F.2d at 94. Therefore, we will consider

claimant's bias claim, and, for reasons to be discussed, remand

the case for a new hearing. In light of our decision to grant a new hearing, we need not address the question of whether the

Secretary's decision on the merits of the disability claim is

supported by substantial evidence in the record. See Hummel, 736

F.2d at 95 (holding that although Secretary's decision was

supported by substantial evidence in record, claimant was

entitled to have evidence evaluated by unbiased adjudicator).

III.

The Social Security Act gives those claiming disability

benefits a right to a hearing in which witnesses may testify and

evidence may be received. See 42 U.S.C.A. § 405(b)(1) (West

1991). The hearing should be "understandable to the layman

claimant, should not necessarily be stiff and comfortable only

for the trained attorney, and should be liberal and not strict in

tone and operation." Richardson, 402 U.S. at 400-01. Although

the hearing is informal in nature, due process requires that any

hearing afforded claimant be full and fair. Id. at 401-02.

Additionally, the Social Security Act and its corresponding

regulations provide for fair procedures. See Hess v. Secretary of Health, Education and Welfare, 497 F.2d 837, 840-841 (3d Cir.

1974); Rosa v. Bowen, 677 F. Supp. 782, 783 (D.N.J. 1988).

Essential to a fair hearing is the right to an unbiased

judge. Hummel, 736 F.2d at 93. The due process requirement of

an impartial decisionmaker is applied more strictly in

administrative proceedings than in court proceedings because of

the absence of procedural safeguards normally available in judicial proceedings. Id. at 93. With respect to the

disqualification of an ALJ, the Secretary has enacted regulations

which provide that: An administrative law judge shall not conduct a hearing if he or she is prejudiced or partial with respect to any party or has any interest in the matter pending for decision.

20 C.F.R. § 404.940, 416.1440 (1994). The claimant must bring

any objections to the attention of the ALJ, and the ALJ shall

decide whether to continue the hearing or withdraw. Id. The

regulations provide that if the ALJ does not withdraw, the

claimant may present objections to the Appeals Council as reasons

why the hearing decision should be revised or a new hearing held

before another ALJ. Id.

The right to an unbiased ALJ is particularly important

because of the active role played by ALJs in social security

cases. See Hess, 497 F.2d at 840-841. ALJs have a duty to

develop a full and fair record in social security cases. See

Brown v. Shalala, 44 F.3d 931, 934 (11th Cir. 1995); Smith v.

Harris, 644 F.2d 985, 989 (3d Cir. 1981). Accordingly, an ALJ

must secure relevant information regarding a claimant's

entitlement to social security benefits. Hess, 497 F.2d at 841.

In Hess we reasoned that "[a]lthough the burden is upon the

claimant to prove his disability, due regard for the beneficent

purposes of the legislation requires that a more tolerant

standard be used in this administrative proceeding than is

applicable in a typical suit in a court of record where the

adversary system prevails." Id. at 840. The claimant in the instant case has abided by the

procedures set forth in the regulations regarding

disqualification of ALJs. At the hearing held on February 23,

1994, claimant's lay representative alleged that the ALJ was

prejudiced and requested that he disqualify himself. Tr. at

135.1 The ALJ refused without explanation. Id. The Appeals

Council also rejected claimant's bias charge, similarly without

explanation. Tr. at 7. Finally, the district court devoted one

sentence to this issue stating that: "After a careful review of

the record there is simply no evidence to support [claimant's]

allegations of bias or interference." Ventura v. Shalala, No.

94-111-JLL, slip op. at 13 (D. Del. Sept. 13, 1994).

We too have carefully examined the record and conclude that

the ALJ's treatment of claimant and his lay representative was

unacceptable and violated claimant's right to a full and fair

hearing. The following are revealing excerpts from the

transcript of the hearing.

The ALJ demonstrated early on in the hearing his impatience

and hostility towards claimant's lay representative. ALJ: I thought you weren't going to ask leading questions?

Representative ("Rep."): Well, your Honor, I --

ALJ: Well what?

Rep.: I guess I, I, I --

ALJ: I guess you did, didn't you? Why don't you try another way of doing it.

1 "Tr." refers to the Administrative Transcript. Rep.: All right, sir. Your Honor, it's obvious my client is in severe discomfort, and his, his ability to concentrate and respond, sometimes he needs a little edging.

ALJ: That's what you call a leading statement. Why don't you just ask the questions.

Rep.: Do you ever have a discomfort --

ALJ: Now I think I'll address your characterization of your client being in significant discomfort. I don't see it's -- go ahead. And you put that on the record to see if you could establish that on the record he was in severe discomfort at the hearing. I don't see it. So you see it. Go ahead. We see different things.

Tr. at 142.

The ALJ subsequently interrupted claimant's description of

his back pain in order to question claimant concerning his lack

of representation at an earlier hearing. The following colloquy

ensued: Claimant: There have been four days in the last six years when I haven't had pain.

ALJ: How come you didn't tell me the truth about the attorneys?

Claimant: I told you every -- I answered every question.

ALJ: But what I asked you about the attorneys, you didn't tell me the truth. You didn't tell me the truth about why they didn't want her sanctioned.

Claimant: Your -- I --

ALJ: Why didn't you? That's what I'm asking.

Rep.: Answer the question.

Claimant: You know, I -- you know. Are you the doctor?

ALJ: Answer my question.

Claimant: I will. ALJ: Now. Answer my question, sir.

Claimant: You think I'm going to be -- truly I'm sorry, but I'm not afraid. I'm just not afraid.

ALJ: I don't care if your afraid or not. Answer my question. Why didn't you tell me the truth about the attorneys.

Tr. at 143. The ALJ finally gave claimant a chance to respond,

and claimant simply repeated what he had told the ALJ at the last

hearing--that he had no representative because the attorney he

had contacted did not want to come to Philadelphia for the

hearing. Tr. at 144. The ALJ's questioning of the claimant was

coercive and intimidating, and totally irrelevant to the question

of whether claimant was disabled. Moreover, the ALJ appeared

disinterested in claimant's description of his pain in violation

of the duty to "give serious consideration to a claimant's

subjective complaints of pain, even where those complaints are

not supported by objective evidence." Mason v. Shalala, 994 F.2d 1058, 1067 (3d Cir. 1993).

Furthermore, it is apparent from the ALJ's comments that as soon as an expert witness mentioned that claimant had attended a

psychiatric clinic at a veterans' hospital, the ALJ hastily

concluded that claimant's back pain was caused by a mental

impairment. Tr. at 170. The ALJ then proceeded to interfere

with the admission of evidence concerning the physical causes for

claimant's pain, i.e. the opinion of claimant's treating

physician. The ALJ stubbornly focused on obtaining information

from the veterans' hospital. When claimant's representative attempted to redirect the ALJ's attention to the opinion of

claimant's treating physician, he was censured by the ALJ who

stated: ALJ: Tell you what, if I throw him out, he has nothing. How does that grab you? I want to see what the VA Center says. Obviously, they've sent it to some type of physician or psychologist if he's had testing. It's only going to help him. It's not going to hurt him. What's the matter with you?

Tr. at 172. The ALJ continued to intimidate claimant's

representative: ALJ: . . . I'm not trying to hurt Mr. Ventura, but you're not doing one damn thing to help him. So why don't you sit back and listen for a second.

Tr. at 172. The representative agreed to provide the ALJ with

whatever information he wanted from the veterans' hospital and

presented the ALJ with detailed information concerning claimant's

visits to the veterans' hospital. Tr. at 172-73. However, the

ALJ further reprimanded claimant's representative when he

attempted to question the medical expert on the stand.

ALJ: First of all, you're trying to knock out evidence

that's favorable to Mr. Ventura. So wake up and smell

the roses on this case. His problem lies in the

emotional area. . . .

Tr. at 174. Claimant's representative again attempted to

question the expert concerning the physical causes of claimant's

back pain and again the ALJ reprimanded the representative

preventing this line of questioning. ALJ: Why are you reading this to death when I said that primarily if he's got this emotional condition as the VA Center seems to think he has, it's going to be beneficial to him? Why are you trying to kill this thing on the physical when it's not going to matter to him?

Tr. at 180. The ALJ's continuous interference with the

representative's introduction of evidence of the physical causes

of claimant's back pain violated the ALJ's duty to develop the

record fully and fairly and to consider seriously the findings of

a treating physician. See Mason, 994 F.2d at 1067. Importantly,

the representative had already provided the ALJ with information

concerning claimant's visits to the veterans' hospital and had

agreed to provide any additional information requested by the

ALJ.

IV.

We now turn to the question of whether claimant is entitled

to a new hearing because of the ALJ's conduct. We hold that the

ALJ's offensive conduct prevented claimant from receiving a full

and fair hearing and, therefore, a new hearing must be held

before another ALJ to determine whether claimant is entitled to

disability benefits.

In Hummel, supra, a disability claimant appealed the

district court's grant of summary judgment in favor of the

Secretary. Claimant argued that the Secretary's decision was not

supported by substantial evidence and, alternatively, that the

district court erred in ruling on the Secretary's motion for summary judgment while her motions to compel discovery remained

outstanding. Hummel, 736 F.2d at 92. These discovery requests

sought information concerning the possible bias of the ALJ who

presided at claimant's hearing. Id. We held that although the

Secretary's decision was supported by substantial evidence in the

record, claimant was entitled to have the evidence evaluated by

an unbiased adjudicator. Id. at 95. We stressed that even if

the record was totally devoid of evidence supporting a finding of

disability, "the bias of the adjudicator might still be a ground

for setting aside a determination adverse to the claimant, for we

have repeatedly held that in Social Security disability claim

hearings the administrative law judge has an affirmative

obligation to assist the claimant in developing the facts." Id.

(citations omitted). Furthermore, we stated that: "It is

difficult to conceive of how a judge biased against disability

claims or claimants could conscientiously perform that duty."

Id.

In Hummel, we reversed the district court and instructed it

to consider whether a remand to the Secretary for the taking of

new evidence on the alleged bias of the ALJ was appropriate. 736

F.2d at 95. We noted that "[i]n the event that a finding of bias

is made on remand, a new hearing must be held before an

administrative law judge to determine the merits of Hummel's

claim." Id. Additional discovery was necessary in Hummel

because the alleged bias of the ALJ, which was discovered after

the Secretary had entered its decision, arose from an

extrajudicial source which required further investigation. In contrast, the taking of new evidence is not necessary in the

instant case because the ALJ's conduct at the hearing can be

evaluated using the hearing transcript.

The district court's decision in Rosa v. Bowen, 677 F. Supp.

782 (D.N.J. 1988), is instructive. There, the district court

addressed the issue of whether a disability claimant was accorded

a full and fair hearing. Id. at 783. Upon reviewing the

transcript of the hearing, the court found that claimant's

hearing "was shameful in its atmosphere of alternating

indifference, personal musings, impatience and condescension."

Id. The district court emphasized the importance of fair

procedures: This court has previously criticized this agency's heartlessness in the repeated and unfounded rejection of a multitude of clearly valid claims. However, even in those cases, the unjust results followed seemingly adequate procedures. In this matter there was not even the pretense of a full and fair hearing. Once we foresake [sic] fairness and due process because of the pressure of heavy caseloads, then our system of justice will end. Although administrative hearings are not formal trials, nor should they be so informal or limited that their fairness is destroyed.

Id. at 785. Accordingly, the district court vacated the decision

of the Secretary and remanded the case for a full and fair

hearing. Id. In this case, we do the same.

Because of the ALJ's offensive and unprofessional conduct,

claimant in the instant case did not receive the full and fair hearing to which he was entitled. We hold, therefore, that

claimant is entitled to a new hearing before another ALJ. In

light of our disposition of this case, we need not reach the

merits of the other issues raised on appeal. Accordingly, we

reverse the district court's grant of summary judgment in favor

of the Secretary and remand the case for further proceedings

consistent with this opinion.