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MIRTA ROSA v. BOWEN

January 19, 1988

Mirta Rosa, Plaintiff,
v.
Otis R. Bowen, M.D., Secretary of Health and Human Services, Defendant



The opinion of the court was delivered by: SAROKIN

 On December 5, 1985, this court remanded plaintiff's social security disability case to the Secretary of the Department of Health and Human Services ("the Secretary") for further administrative proceedings. The Appeals Council of the Department of Health and Human Services, in turn, vacated its prior denial of plaintiff's request for review and remanded the case to an administrative law judge ("ALJ") for a hearing. That hearing was an offense to the Social Security Act. The court therefore vacates the Secretary's decision a second time and remands the case for a fair hearing.

 Plaintiff is a fifty year old woman who was born in Puerto Rico and moved to New Jersey in 1958. Until August 12, 1982, she held a steady job. At that time, however, she entered the hospital with rectal bleeding, abdominal cramps, and weakness. She was diagnosed as suffering from ulcerative colits and uncontrolled diabetes mellitus. Since her hospitalization in 1982, plaintiff has not returned to work.

 She filed for disability insurance benefits and supplemental security income on December 20, 1982. The Secretary denied her application, but this court remanded the case for further administrative action on December 5, 1985. The Appeals Council of the Department of Health and Human Services, which had earlier denied plaintiff's request for review, then vacated that denial and remanded the case to an ALJ for a hearing.

 The ALJ convened the hearing on the morning of September 5, 1986. Plaintiff was represented by an attorney at that hearing, and also had a Spanish language interpreter. The hearing lasted slightly less than one hour.

 On October 27, 1986, the ALJ issued a recommended decision in which he found plaintiff not disabled and recommended that she be denied disability insurance benefits as well as supplemental security income. The Appeals Council adopted the findings and conclusions of the ALJ in a decision dated January 30, 1987.

 On her appeal from the adverse decision of the Secretary, plaintiff contends that the Secretary's decision was not supported by substantial evidence as 42 U.S.C. § 405(g) requires. Defendant, in response, argues that his decision was in fact so supported. Plaintiff, however, also argues that defendant denied her due process and her statutory right to a hearing. Because the transcript so vividly demonstrates an abject violation of plaintiff's statutory rights, the court does not reach the merits of plaintiff's disability claim.

 DISCUSSION

 Although a district court's most frequent task in disability cases is to determine whether the Secretary's decisions are supported by substantial evidence, see 42 U.S.C. § 405(g), a court may also ascertain whether a claimant was accorded a full and fair hearing. See, e.g., Arroyo v. Schweiker, 534 F. Supp. 150, 152 (S.D.N.Y. 1981); Thomas v. Schweiker, 573 F. Supp. 327 (W.D. Tex. 1983). When the Secretary fails or refuses to provide a disability claimant with the fair procedures to which the claimant is entitled, a court may remand the case to the Secretary with instructions to afford the claimant fair treatment. In the case before the court, plaintiff's entitlement to a fair hearing flowed from the Social Security Act itself, 42 U.S.C. § 405(b)(1), which provides that "upon request by any . . . individual [applying for disability benefits] . . ., [the Secretary] shall give such applicant . . . reasonable notice, an opportunity for a hearing with respect to such decision, and, if a hearing is held, shall, on the basis of evidence adduced at the hearing, affirm, modify, or reverse his findings of fact and such decision."

 The hearing that the Secretary actually provided for the plaintiff was shameful in its atmosphere of alternating indifference, personal musings, impatience and condescension. The court is confident that the hearing was not the sort of procedure which Congress intended in enacting 42 U.S.C. § 405(b)(1).

 As the transcript of the hearing speaks largely for itself, the court here recounts only the most offensive and egregious improprieties:

 The ALJ's most pressing concern at the hearing was expedience. His denials of all of the claimant's attorney's procedural requests were not merely perfunctory; they were impatient and irritated. Plaintiff's attorney began the hearing by requesting a subpoena for plaintiff's treating physician (Tr. 251). The ALJ ruled that "the motion is denied as usual, you know " (Tr. 252). The lawyer then asked for permission to make an opening statement (Tr. 252). The ALJ refused the request, asking rhetorically, "what are you going to say that won't come out in the hearing? . . . I'd prefer you to have a closing statement after we're fully aware of all of the facts, and you can put that in writing" (Tr. 254).

 Later in the hearing, the attorney again requested a subpoena for a physician (Tr. 257). The ALJ denied the ...


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