ALJ Linda Haack~cannot cherry pick medical expert

I don’t why you’ve taken this approach with my clients at hearings but it is troubling. They have waited for years to bring this to a head and see a real person to prove their disability and you spent twenty minutes or more agonizing over whether some records were already filed. I was handed those records a few months ago and faxed them to SSA using the bar code. I did that believing that they were new records because they all said 2007 on them. Upon closer inspection that is the date that they were printing, not created. (Appeals counsel informs me that with another attorney you questioned witnesses for 3 hours. The attorney for claimant then attempted to question witnesses in the limited time that you permitted. He asked leading questions to save time but you stopped him. He had another hearing in Salem that he would miss if he didn't question hastily and you said "I'll call the Salem office and tell them you'll be late.")

Furthermore the records I handed you also included the new x ray showing my client’s degenerating back. If there was any discrepancy between the number of papers faxed to SSA a few months ago and the number of papers I handed you on the date of the hearing (because the recent faxing did not appear on SSA’s disk) was because of the new papers. But again, you wrongfully accused me of lying to you.

The entire matter could have been resolved by you saying “Mr. Bernath, these have already been submitted as Exhibit FXX but the X ray is new and is exhibit FXXX.” That would have taken less than a minute. Instead, you went beyond your authority as an administrative law judge and said, “you may go into the lobby to put these papers in order.” Simple statutory construction says “may” means that your words were not mandatory. In any case, you have no authority to order me, a 90% disabled veteran using crutches and my client with DEGENERATIVE DISK DISEASE using a cane to march from room to room for you to punish us for whatever infraction you believed we needed punishing for. I therefore sat in the courtroom and you left and I put a few papers in a different order. Of course, as I said, you have a support staff of 50 or more employees and a paralegal to rearrange your papers but you wanted to embarrass and humiliate me in front of my client, the VE, contract court reporter and ME.

(I do not see how you can meet the expectations of the Chief Judge of Social Security to have 500 to 700 defensible hearings a year to work through the tragic backlog of cases at the Portland ODAR (which is causing untold suffering to thousands of Oregon and Washington disabled citizens), if you take 3 hours per hearing, reschedule hearings for no good reason and cut off claimant's attorney from questioning witnesses as that will cause an automatic remand from the Appeals Council and cause Social Security to use all of its labored machinery to schedule and hold ANOTHER hearing six to 12 months later)

When you returned to the hearing room you insisted that I leave so that Dr. Rullman could “read” the papers out of my presence. Again, obviously merely to attempt to humiliate me and embarrass me in front of my client and others. (again you wanted to 'punish' me, a wounded 90% disabled veteran by having me march from room to room. I am sure that Dr. Rullman could read the papers with me in the room as he read the papers with the contract Vocation Witness and contract court reporter there. But then, you didn't want to punish them.)

At other hearings you have asked me what the alleged onset date is and when I attempted to ask my client when she or he last worked you insisted that I leave the hearing room and with my crutches go into the lobby, the file and my client and find the AOD even though it is written down and in front of you. Now to keep the peace with you I simply read off what the AOD is from your records in the file and then YOU ask the claimant when he or she last worked and why she or he picked that date. Again, you did this merely trying to embarrass and humiliate me and you are out of line and acting improperly in doing so.

You have cut me off repeatedly as I question witnesses even though this clearly is in violation of HALLEX which requires that you afford me BROAD LATTITUDE in cross examining witnesses. I would suggest that you follow HALLEX I-2-6 60 in the future so that my client’s due process rights are not violated

The claimant and the representative have the right to question witnesses. A claimant or representative is entitled to conduct such questioning as may be needed to inquire fully into the matters at issue. The ALJ should provide the claimant or representative broad latitude in questioning witnesses.

I have been conducting social security hearings for three years and in my memory Dr. Rullman has never found a claimant disabled. When you gave notice of this hearing for August you had Dr. Rullman set to testify even though you did not give Notice. When you reset the hearing you had Dr. Rullman testify even though you state that the MEs are hired a strictly rotational basis. Again, as a journalist and as an attorney I have been informed that you will not permit Dr. McBaron to testify at your hearings. This also is a violation of HALLEX. If you serve me with a subpoena I will determine whether I can give you the name of my source. Alan Graf, Esq. writes about a Portland area ME who never finds claimants disabled no matter how severe their really are. Rather than call him Dr. Rullman, I have him heard him called “Dr. No.”

There is one ME that appears regularly at the Portland OHA branch that has a reputation for rating everyone as having moderate limitations. I remember one client who had undergone shock treatment on a regular basis because no other therapy or medication would work. When the ME testified that the claimant had moderate limitations, even the ALJ wanted to know what it would take for the ME to testify that the claimant had marked mental health limitations–a lobotomy? Alan Graf, Esq.

(You may not cherry pick your medical experts so that you always have a doctor testify who will always say that claimant is NOT disabled.

HALLEX I-2-536 D. Selection of ME from RO Roster

Each RO maintains a roster of MEs who have agreed to provide impartial expert opinion pursuant to a BPA with the Office of Hearings and Appeals (OHA). (See I-2-5-31, Blanket Purchase Agreements.) An ALJ must select an ME who is maintained on any RO's roster to the extent possible. The ALJ or designee must select an ME from the roster in rotation to the extent possible; i.e., when an ALJ selects an ME with a particular medical specialty from the roster to provide expert opinion in a case, that ME will go to the bottom of the roster and will not be called again by that ALJ or any other ALJ in the HO until all other MEs on the roster with that medical specialty are called. If an ME in the specialty needed by the ALJ is not available on the RO roster of the HO's region, then the ALJ should look to other RO rosters to obtain the services of an ME.)

You asked me several question about my preparation for the hearing. Obviously that question is beyond your authority and as you ask me for my theory of the case, the evidence supporting it, etc., your inquiry is a violation of the attorney work-product privilege. I am there to question my witness and to lay out her inability to perform substantial gainful activity in the relevant period. If you wish to ask me questions you must serve a subpoena on me and permit me to hire legal counsel to determine if I have to answer your questions. You have sent out Notice to my client and said that you wanted to obtain facts to determine if she was disabled. You did not send Notice to me that you wanted to inquiry into my attorney work-product and therefore my rights of Due Process of Law have been violated.)

You have demanded that I give you the listings and evidence in an opening statement when you have no authority to do so. In contrast, you have a stable of attorneys who take two days to write an opinion citing the record and the listings. You were again attempting to embarrass me and intimidate me in front of my client. As I said, I have had 12 clients die while waiting for a hearing before you. The backlog has gotten so bad that the national press is writing articles about it and SSA has had to open an office in the Southwest USA to handle you and the other Portland ALJ’s backlog of cases. In contrast, I have had 19 approvals in September. Whether you endorse the way I practice law or not I am highly successful at it, I do not have a backlog and I haven’t had 12 clients die waiting for me to do my job.

You have questioned my advertising. You are out of line there as well. Alan Graf questioned my advertising and I have been in contact repeatedly with the Office of General Counsel. After a minor adjustment (an award was handed to me by the Regional Chief Judge but it is not a Regional Chief Judge award) my advertising is found to violate no law, statute, regulation or ethical consideration. It is accurate.

When I worked at ODAR we were friends and enjoyed talking about our mutual love of Detroit, Michigan. You invited me to a party at your house and you attended our Chinese New Year Celebration at my home. Now that I have become a private attorney you seem to be angry with me and this emotion appears to have clouded your performance to the detriment of these helpless and desperate claimants. I would hope you could look within yourself and we can have hearings without the emotion on your part. If you can’t contain your emotions then I request you recuse yourself from my cases.

footnote: other violations, Linda Haack does not conduct non-adversarial, informal hearings:

We have long required ALJs in Social Security cases "to scrupulously and conscientiously probe into, inquire of, and explore for all the relevant facts," regardless of whether the applicant is represented by counsel. Thompson, 665 F.2d at 941; Brown v. Heckler, 713 F.2d 441, 443 (9th Cir.1983).

Carl L. WIENKE, Plaintiff-Appellant,
v.
Shirley S. CHATER, Commissioner, of the Social Security
Administration, Defendant-Appellee 110 F.3d 72 (1997 9th Cir.)