An administrative law judge wound up on the business end of a stern rebuke from a federal judge after he pulled aside an expert witness for a private conversation after the record in the case had been closed and browbeat the witness into modifying her testimony.
Samuel Green sought judicial review after the Social Security Administration denied his claim for disability insurance benefits and supplemental security income. Green had not worked since a March 2005 motorcycle injury left him with irreversible “profound paralysis of the left upper extremity,” with no functional use of his left shoulder, arm and hand.
In May 2008, Green testified in an administrative hearing concerning his injuries and Mary Cornelius, a vocational expert, testified that there were no available jobs that Green would be able to perform given his work experience and injuries.
According to the district court’s order, the ALJ, was surprised by Cornelius’ testimony. He asked for an explanation and inquired about jobs such as a TV monitoring position or a highway flagger. Cornelius testified Green’s injuries would preclude him even from those jobs, which would require the use of both hands.
The hearing then closed and Green and his representative left the room. The ALJ then engaged Cornelius in discussion indicating he was surprised by her answers. After this discussion, the ALJ reopened the record and began questioning Cornelius again in the presence of Green and his representative.
According to U.S. District Court Judge Richard Gergel, who wrote the opinion admonishing the ALJ for his conduct, the subsequent questions and responses were “a picture of confusion.”
“It was not clear from her answers whether she was merely providing national and local numbers for positions she already indicated Plaintiff could not perform or had altered her previously firmly held opinions after the ex parte discussion with the ALJ,” Gergel wrote.
The ALJ ruled that Cornelius has testified that there were numerous positions that Green was capable of filling and, in light of those opportunities, concluded that Green was not disabled or entitled to Social Security benefits.
Gergel reversed that decision and remanded the case for further action, finding that the confusing and inconsistent testimony could not support a finding that there were a significant number of jobs available to Green in light of his injuries. Gergel added that “more needs to be said about the conduct of the ALJ in this matter,” who is supposed to serve as a neutral fact-finder.
“The communications between the ALJ and the vocational expert in this matter are deeply troubling,” Gergel wrote. “The ALJ’s ex parte communication that followed demonstrated a lack of neutrality and converted the ALJ into an advocate of the agency position rather than an impartial adjudicator.”
Calling ex parte discussions an “anathema in our system of justice,” Gergel said judges are supposed to take evidence from testimony and exhibits, “not private chats.”
Green’s attorney, W. Daniel Mayes of Smith, Massey, Brodie, Guynn & Mayes in Aiken, said that while quite uncommon, he has seen judges at the administrative level “attempt to guide the testimony of an expert to say what the ALJ wants to hear.” He applauded Gergel’s decision to address the ALJ’s conduct in his order.
“I think it is important that the court lets the Social Security Administration know that deviation from basic principles of fairness and due process in the non-adversarial proceedings will not be tolerated,” Mayes said.
The 8-page decision is Green v. Colvin (Lawyers Weekly No. 002-109-15). The full text of the opinion is available online at sclawyersweekly.com.
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