From: Attorney Daniel Alan Bernath

Dear ALJ Terrill:

We had a hearing this morning and you scolded me for saying “yeah” instead of yes and because I didn’t end my sentence with “Your Honor.” As you can surmise from the many hearings I have conducted in front of you, I strive to put the very frightened claimant at ease so that I may get his most accurate testimony. Occasionally I will use a leading question because the claimant at times becomes frightened and I need to put him or her back on track. Using a leading question is appropriate during direct examination in such circumstances in Federal Court and of course, as we are at an agency hearing without the restrains of the FRE leading questions are even more appropriate.

I believe that I should continue to strive to place claimants at ease with my relaxed mannerisms and speech. Without an exception, claimants are very simple people, uneducated and fearful as they believe a man in a black robe, called “judge” and speaking loudly can place them in jail for infractions real or imagined. Of course, you have no such authority but my client’s believe that to be so even though I repeatedly prepare them for the hearing and tell them if the ALJ makes a mistake then eventually I sue the Commissioner of Social Security because he did not follow the rules and do not really appeal the Decision.

I of course will continue to show you all the respect that you are due as a semi independent hearing officer. I note that the CFR requires that you, as an ALJ be non-adversarial. I can find nothing in the CFR, HALLEX, POMS or any other authority for you to demand that I call you “Your Honor”. Nor do I see where you are authorized to wear a black robe. These two things are contrary to the CFR, which again, requires you to be non-adversarial.

I have also found no authority to cancel a claimant’s hearing after he has waited 3 years, and lives in a storage box or on the street, because his attorney wants to put him at ease to obtain his best testimony as you threatened to do in front of my client who has been diagnosed with severe depression, sees aliens and hears a guardian angel and the messenger of the devil speaking to him.

Many claimants are frightened by the black robe and the words “Your Honor”. I prefer to refer to the ALJ as “The Court”. Also, I would prefer in the future for you to not don your black robe but instead wear a business suit as Judge *, Judge * and other ALJs do when I conduct hearings throughout Washington and Oregon.

I would also respectfully request that the Social Security Administration, by and through yourself,

not attempt to scold me in front of my client.

In the past you have told me to “stand in the corner” and you have called me “incompetent” to my face and the face of my trembling clients. I would request that you refrain from this in future hearings,

You sometimes show a very angry look when speaking to me. This frightens claimants as well.

This above surely does not fall under the definition of “non-adversarial” as the CFR demands.

Respectfully,

Daniel A. Bernath

Attorney at Law

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In my modest research into how Social Security Administration hearings are to be conducted it is clear that the letter and the spirit of the law is that they be “informal.” You however are attempting to make them “formal” in violation of that regulation and to the detriment of obtaining an full record as I solicit testimony from lay witnesses and claimants.

Referring to you as Your Honor. , not using colloquialisms such as “yeah” from time to time, and having the Social Security representative ALJ scold claimant’s chosen attorney, wearing a black robe when none is authorized, surely does not fall under the definition of “informal.” I have spent months and sometimes years convincing the desperate claimant that he has no need to fear the Social Security hearing and intentionally correct them when they call me “Mr. Bernath” or “Sir.” I tell them that they should think of me as “your brother” who is just trying to help him and please from now on, “Call me Dan.”

Then they confront their biggest fear, a man in black robe with an angry face yelling at Dan-their brother-who is there to help him in his most desperate hour.

Indeed, I have been to Veterans Administration hearings on my own service connected disability. There, the hearing officer was wearing a print sports short. He met me at the door and led me to my chair. He sat across from me at an oval conference table (not at the head of the table) and did not insist I call him by any special title that the CFR or VA had not conferred on him.

Of course veterans at the VA veterans are just as scared and desperate as SSA claimants and the hearing officers there appear to have found a good way to be “informal” and still conduct the government’s business with its citizens.

Respectfully,

Daniel A. Bernath

Attorney at Law