Filed: Jun. 05, 1995
Latest Update: Mar. 02, 2020
Summary: 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of the United 1995 Decisions States Court of Appeals for the Third Circuit 6-5-1995 Ventura v Shalala Precedential or Non-Precedential: Docket 94-7673 Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_1995 Recommended Citation "Ventura v Shalala" (1995).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 Appe
Summary: 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of the United 1995 Decisions States Court of Appeals for the Third Circuit 6-5-1995 Ventura v Shalala Precedential or Non-Precedential: Docket 94-7673 Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_1995 Recommended Citation "Ventura v Shalala" (1995).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 Appea..
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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Precedential or Non-Precedential: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
Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_1995
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
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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.
V.
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.
