                                                                                                                           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Precedential or Non-Precedential: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


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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.
