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.
