Tuesday, July 18, 2017

disability - ALJ duty to develop record - right to full & fair hearing

Kane v. Berryhill – ED Pa. – July 17, 2017


Case remanded for “a proper evaluation of” the report of a physician who conducted a one-time mental health examination of claimant, who was absent from hearing.  ALJ refused to consider extensive mental health records that claimant’s counsel was able to procure after the hearing.

ALJ duty to develop facts
The Court of Appeals has repeatedly held that the ALJ has an affirmative obligation to assist the claimant in developing facts. Plummer v. Apfel, 186 F.3d 422, 433–34 (3d Cir. 1999); Taybron v. Harris, 667 F.2d 412, 414–15 (3d Cir. 1981); Kephart v. Richardson, 505 F.2d 1085, 10 1090 (3d Cir. 1974); Hess v. Sec’y of Health Educ. & Welfare, 497 F.2d 837, 840 (3d Cir. 1974). This affirmative obligation means that the ALJ’s duty to inquire is independent of plaintiff’s burden. Hippensteel v. Soc. Sec. Admin., 302 F. Supp. 2d 382, 390 (M.D. Pa. 2001).

Full and fair hearing
Prior to determining whether the ALJ’s decision is supported by substantial evidence, “the Court must first be satisfied that the plaintiff has had a full and fair hearing under the regulations of the Social Security Administration and in accordance with the beneficent purposes of the act.” Maniaci v. Apfel, 27 F. Supp. 2d 554, 557 (E.D. Pa. 1998), citing Echevarria v. Sec’y of Health and Human Servs., 685 F.2d 751, 755 (2d Cir.1982). Considering plaintiff’s objection, I find that he did not have a sufficient opportunity to testify at an administrative hearing regarding the severity of his impairments. At the initial hearing, counsel could not locate his client. Although the ALJ offered to hold a supplemental hearing if counsel could get in touch with plaintiff, the ALJ nonetheless proceeded with the initial hearing in plaintiff’s absence. During that hearing, plaintiff’s counsel explicitly noted that he believed plaintiff had undergone other psychological treatment since 2005, but, given his inability to contact his client, counsel did not have access to either those records or the medical records from plaintiff’s incarceration at the hearing. R. 42. Shortly after the hearing, the ALJ issued a request to show cause for plaintiff’s failure to appear, but, lacking a response from plaintiff, issued his decision deeming plaintiff “not disabled.” In that decision, the ALJ specifically cited to the lack of medical treatment as a basis for rejecting Dr. Orenstein’s opinion, despite knowing that plaintiff’s absence had an impact on the availability of treatment records. Plaintiff’s counsel finally located plaintiff a month and a half later and discovered he had been undergoing treatment at an inpatient psychiatric facility during the hearing. Counsel informed the ALJ and submitted extensive psychological and psychiatric records, many of which reflect a 11 mental disorder that may be as limiting as suggested by Dr. Orenstein. R. 721–94. Nonetheless, and despite counsel’s request, no supplemental hearing was held.


Case remanded to allow plaintiff to testify and for consideration of extensive further records.

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