Administrative Law Judge ALJ "Gone Wild"

From: Attorney Daniel Alan Bernath

Dear ALJ Tim 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 that you are merely a government lawyer working for SSA and that dipping into your own pocket bought yourself a choir robe and 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 inferior hearing officer" (to quote the US Supreme Court). 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” be elevated on a platform or that we rise when you enter the room.  Again, you are in-house SSA Disability Determination Service.  At the VA hearing I have attended the hearing officer (judge) wore a sports shirt, greeted me at the door with a handshake and sat across a table from me.  VA has as much or more responsibility as SSA ALJs but for some reason the SSA ALJs have gone wild on the idea. Nor do I see where you are authorized to wear a black robe.

These things are contrary to the CFR, which again, requires you to be non-adversarial. For you to be non-adversarial is in the law and in writing.  For you to buy a robe (I hope "on sale"), be elevated on a platform looking down at us all, insist that we rise when you enter a room, call you "Your Honor", etc. is something that you apparently came up with on your own.

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 (even though I am the most successful disability lawyer in Portland Oregon) . 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.

When I brought in new medical records to the hearing because the claimant had just handed them to me a few minutes earlier you angrily said, "DON'T BRING MEDICAL RECORDS TO THE HEARING. GET THEM TO ME BEFORE."

I took out the Notice you sent me where you wrote  "if you have new medical records you can bring them to the hearing."  I showed you your signature.  You fell silent but looked very angry at me. (as you are a graduate of a seminary in the 1960s at the same time I was opposing communists in Vietnam, I would hope that you would not have used such a angry expression with me-your religion teachers might disapprove.  Interesting that you were at the seminary when I was in Vietnam but after the war ended you didn't become a priest or pastor.)

You then told me that "Social Security is ALL ELECTRONIC NOW, you have to scan them in.  I can't accept them!"  I then took out the Notice that you sent me and showed you where you said in the Notice  "you may either scan medical records into our system OR YOU CAN BRING THEM IN."  Again I showed you your signature and you then stormed out of the room.

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