1995 Decisions

Opinions of the United

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Precedential or Non-Precedential: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
 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.