Daniel A. Bernath
Attorney at Law
Member United States Supreme Court Bar. Member California Bar
13500 SW Pacific PMB #202
Tigard, Oregon 97223
(503) 639 6666 ussyorktown@comcast.net
Monday, March 17, 2008

ALJ                                                                             filed by US Mail and Fax to show proof
Office of Disability Adjudication and Review                         that received by ODAR
17th Floor ODS Tower
601 SW Second Avenue
Portland OR 97204-9701

Re: Ella J

Objection to Consultative Examination that excludes examiners that “will find claimant disabled”,
Motion to Disqualify ALJ Dan R. Hyatt for bias and violation of law;

During the hearing of claimant on February 25, 2008 ALJ Dan R. Hyatt stated that he was going to order a mental consultative examination of claimant. By this memorandum, demand is made that ALJ not disregard HALLEX and claimant’s rights to Due Process of Law and intentionally not send claimant to a examiner who will might claimant disabled.

There is probable cause to believe that ALJ Dan R. Hyatt , as his habit, will order the Washington Department of Disability Determination that Caleb Burns and another medical analyst or analysts not be given this assignment.

 

 

The procedure to exclude specific medical analysts is mandated in HALLEX and this procedure has historically not been followed by ALJ Dan R. Hyatt and is thus a violation of Due Process of Law.

C. Selecting the Medical Source Who Is to Conduct the CE or Test(s)

The ALJ usually will not need to specify a particular medical source to conduct a CE or test. Because SSA considers a claimant's treating source(s) to be the primary source of medical information about a claimant's impairment, the State agency will, if possible, select a treating source who is qualified, equipped, and willing to perform the CE or test for the amount allowed under its fee payment schedule.

An ALJ may request that the State agency use a particular nontreating medical source or other medical source to conduct a CE or test only if the Appeals Council or a court has so ordered. (emphasis in original)

An ALJ may request that the State agency not use a particular treating, nontreating, or other medical source to conduct a CE or test if he or she has a good reason.

If an ALJ requests a State agency to use or not use a particular treating or nontreating medical source to conduct a CE or test, the ALJ must:

(some good reasons) the medical source has a history of not providing timely or complete reports.

When the State Agency declines to use a particular treating, nontreating or other medical source, the reason should be provided in writing to the ALJ or HO.

Therefore, ALJ Dan R. Hyatt ordering DDS to exclude any nontreating medical source is an illegal order as such an order can only come from the United States District Court or the Social Security Appeals Council. Furthermore, the proper procedure to exclude medical analyst is not secret, something that only the Agency or the ALJ knows about but requires due process of law for the excluded medical source and also who will suffer from a channeled, predetermined result by the exclusion of what ALJ believes to be a medical source who might actually find a disabled claimant, disabled.

The language here is mandatory; the Appeals Council, by and through HALLEX is telling ALJ Dan R. Hyatt that he has no authority to exclude a certain nontreating medical source and therefore his order is illegal. A United States District Judge or the Appeals Council has the exclusive authority to do and cannot do it behind closed doors as has been done in the past by ALJ Dan R. Hyatt .

 

20 C.F.R. Sec. 404.940 provides that an administrative law judge “shall not conduct a hearing if he or she is prejudiced or partial with respect to any party or ha any interest in the matter pending for decision.”

The Manual on the Social Security Administrative Hearings, Appeals and Litigation Law aka HALLEX, Sec. I-2-160 mandates that an ALJ must recuse himself if he believes his “participation in the case would give an appearance of impropriety.”

Claimant’s attorney, Daniel Alan Bernath, was an employee of the Office of Hearings and Appeals of Social Security until October 2005. As an employee of the Social Security Administration, I was a legal assistant/clerk to Judge Dan R. Hyatt and the other judges and worked under a lead, supervisor and Hearing Office Director. As an employee of Social Security and as ALJ Dan R. Hyatt ’s legal assistant it was my duty to photocopy medical records to the State Agencies of the State of Oregon and State of Washington as well as generate the orders to those agencies by ALJ Dan R. Hyatt to hire a nontreating medical source to examine claimants.

I noticed that on each such package I photocopies and order I was to generate from ALJ Ralph Jones and for administrative law judge Dan R. Hyatt that there was a note. On the orders from Dan R. Hyatt the note stated to DDS that they must not hire Caleb Burns PhD and listed at least one other name. There was no notation as to why Caleb Burns PhD and others were excluded. I estimate that 12 times I was ordered to draft orders to the Oregon Department and Washington Department of Disability Determination Services and others and was given that order to include that exclusion in ALJ Dan R. Hyatt ’s orders.

(following Note "blackballing" Leslie Pitchford, Caleb Burns, Ph.D., Linda Conaway, Ph.D., and Stephen Meharg, Ph.D. was supplied by an anonymous source to Oregon State Bar Reporter on or about June 2008)

 

Therefore, for each mental evaluation by a nontreating medical source, at the order of ALJ Dan R. Hyatt I wrote this, “Do not send to Caleb Burns or xxx xxxxx I don’t recall the other names of the wrongfully excluded mental health examiners but recall the name Caleb Burns because it is so unusual. I never heard the name Caleb before in my 58 years on the planet.

At a time before October 2005, I asked ALJ Dan R. Hyatt why he excluded Caleb Burns and the others from being nontreating mental medical sources and Dan R. Hyatt said to me, “because they find claimant’s disabled.” ALJ Dan R. Hyatt also told me that even though I and other legal assistant’s told DDS to NOT use Caleb Burns and others that they sometimes still did so and I could see that disturbed him greatly. As I did not want to witness his displeasure again, I thereafter made ALJ Dan R. Hyatt ’s order to DDS quite prominent on the order sheet by using the Lucinda console type and making it 18 point. I then would highlight that order in yellow as per this example:

“Do Not Send This to Caleb Burns or XXX XXXX”

 

Caleb Burns, however, is a qualified Social Security mental health examiner. (Enclosed, his curriculum vita and a letter outlining his lack of bias)

There was never a time when I did not follow ALJ Dan R. Hyatt ’s order to me. I also trained less experience legal assistants/clerks at the ODAR office. I showed them how to send a referral order for mental exam and medical file to DDS when ALJ Dan R. Hyatt is the administrative law judge. I showed these other legal assistants how I did it and they thereafter did it the same way. Therefore we all unknowingly assisted ALJ Dan R. Hyatt in his illegal actions. (I didn’t know about the HALLEX regulation but said to other assistants to Judge , “THAT doesn’t seem fair. Maybe the doctor finds them disabled BECAUSE THEY ARE DISABLED!”

In the order from ALJ Dan R. Hyatt , there was never any written reason given as to why certain nontreating medical sources must be excluded from examining claimants and testifying.

As such, the evidence herein reveals that ALJ Dan R. Hyatt has actual bias against my client, as he has ordered that she undergo a mental health examination and as is his habit has ordered that Caleb Burns and other nontreating medical sources that MIGHT find claimant disabled not be hired. As such, ALJ Dan R. Hyatt has tainted the evidence and created a bias against my client. He has done this by violating the law, HALLEX, my client’s Constitutional Right to Due Process of Law and just plain fairness.

If ALJ Dan R. Hyatt did not violate the law and blackball certain examiners, might be faced with a nontreating medical source who actually found a claimant disabled for mental reasons and thus be forced to issue a Favorable decision for claimant when his inclination is to deny the disabled claimant benefits for some other reason personal to ALJ .

What makes ALJ Dan R. Hyatt ’s actions so despicable is that he has done it in such a way as to make it undetectable. Rather than exhibit overt bias against claimants and this claimant in particular, ALJ Dan R. Hyatt has manifested his bias in a way that would not be detected to the Appeals Council or the United States District Court who sits in review of the many appeals from ALJ Dan R. Hyatt ’s decisions.

ALJ Dan R. Hyatt is not a prosecutor or litigant and cannot hire only expert witnesses who will view the facts to a pre-determine a particular outcome that ALJ wishes (claimant is not disabled).

At no time when I was his assistant was I told by ALJ Dan R. Hyatt or any supervisor or co-worker at Social Security that ALJ ’s blackballing of nontreating medical sources who found claimants disabled was “secret” or “confidential” or protected information. Indeed, such information was sent to the State of Oregon and the State of Washington Departments of Disability Determination repeatedly and has been do so for many years.

I am an attorney at law and was sworn in as such nearly 25 years ago in December 1984. I am a member of the California Bar Association. As such, I am bound by the rules of ethics which state that I am to be a competent, vigorous and zealous advocate on behalf of my client. California Rules of Professional Conduct Sec. 3-110. The requirements of the Social Security Administration for representatives is in accord.

As a legal assistant/case technician/clerk of ALJ Dan R. Hyatt , I took an oath to support and defend the United States Constitution, which contains the principles of Due Process of Law and Equal Protection. I have asked the California State Bar, “Ethics Hotline” staff to research my duties regarding the instant issue. The representative of the California Bar told me to look to the California Code of Civil Procedure Sec. 170 which outlines grounds for disqualifying a judge and that I should use this section for analogy as there are similar sections for ALJs and federal judges following Canon Three of the Code of Judicial Conduct.

I was told by the representative of the California State Bar that another attorney in California had reported ethics breaches by a judge when she was a clerk for said judge. The judge was disciplined and he filed an ethics violation complaint with the California State Bar against the whistle blowing attorney, making a claim that confidences were violated. The California State Bar stated that under those circumstances, (on all four with the instant motion), that the California State Bar “declined to prosecute” the whistle blowing attorney/clerk of the judge.

 

Indeed, I was told by the California Bar representative that if I did not fulfill my duty to make a complaint and seek to block all bias against my client by an administrative law judge that I could be seen to not be acting competently as an attorney at law and I would be subject to discipline.

I have also consulted with a California attorney who has been in practice for nearly 25 years and also with an member of the New York and Oregon Bars who has had government attorney service; both have stated that it is my ethical duty to make the motion to point out the unacceptable bias of ALJ Dan R. Hyatt to funnel the evidence so that it can only come to one conclusion. As such, Dan R. Hyatt must recuse himself from this case, and he must provide any exclusionary orders in the Claimant’s File as per the orders from the Appeals Council by way of HALLEX.

Objection to ALJ ordering claimant by and through her attorney Daniel Bernath to not ask questions regarding claimant’s impairment;

Objection to ALJ ordering claimant by and through her attorney Daniel Bernath to not ask questions of the Social Security hired vocational expert;

During the hearing, ALJ Dan R. Hyatt asked if claimant’s attorney had any questions of claimant. Attorney for claimant, Daniel Bernath stated he had questions, said relevant questions include but are not limited to:

Do you need to lay down 2 hours a day. (her answer is YES)

Will you miss two days of work each month, (her answer is YES)

Do you need to elevate your legs during the day level with your body for a significant period (her answer is YES)

Can your hands be used to punch the keys on a computer and/or cash register (Her answer is NO)

These questions would of course be asked in a proper non-leading fashion but ALJ Dan R. Hyatt repeatedly stated, “Don’t ask questions or you’ll mess this up.” (or words to that effect. There is no tape at this time)

From that, Dan R. Hyatt Bernath believed that ALJ Dan R. Hyatt was going to grant a Fully Favorable and therefore it would be unnecessary to ask these questions. But that is NOT what ALJ Dan R. Hyatt did. After Bernath stated that based on what ALJ said he had no questions, Dan R. Hyatt then ordered a consultative examination of claimant. Therefore, ALJ Dan R. Hyatt has denied claimant her right to cross examine witnesses and of course did not afford her the “wide/broad latitude” granted to the claimant by HALLEX.

ALJ then asked the vocation expert a few questions regarding claimant’s past relevant work-a convenience store clerk. ALJ asked if claimant’s attorney had any questions but then stated, “You’ll mess it up.” (or words to that effect) Again, it was before ALJ ordered the Consultative Exam. So Bernath did not ask the questions. If not blocked by ALJ Dan R. Hyatt he would have asked these questions and more.

Could a person who needs to lay down 2 hours a day do claimant’s past relevant work or any job in significant numbers in the local or national economy?

Could a person who will miss two days of work each month do claimant’s past relevant work or any job in significant numbers in the local or national economy?

Could a person who elevates her legs during the day level with her body for a significant period do claimant’s past relevant work or any job in significant numbers in the local or national economy?

Could a person who has hands that are all balled up and inoperative operate the punch keys on a computer and/or cash register?

Supplement to Medical Records of claimant by
Open Advanced MRI of Gresham Oregon.

Open Advanced MRI erred in reviewing an MRI of claimant and the error is in the medical records. Ella J’s Statement of Disagreement has been placed into her official medical records now to correct that error of Open Advanced MRI. (attached letter from attorney for Open Advanced MRI and exhibits)

 

Respectfully,

 

Daniel A. Bernath

Daniel A. Bernath

Attorney at Law

 

 

 

Cc: Social Security Office of General Counsel

Footnotes:

# Interestingly and inexplicable, ALJ Dan R. Hyatt continues to deny that I was ever his legal assistant. We were also friends but his friendship for me turned sour when I decided to practice law again instead of either stay on with Social Security as his assistant or to become an ALJ myself, something he counseled me on. was a mentor of mine, counseling me on how I could become an administrative law judge (ALJ) myself, giving me a phone number to call to get news on upcoming selections and telling me of the ALJ exam and praising my experience as a judge in California saying, “they’ll eat that up!” Dan R. Hyatt and Dan R. Hyatt Bernath were also in the US Navy together at the same time and at South Vietnam and used to reminisce about their Navy and war experiences. “I’ll bet you had ice cream and a movie every night,” said Dan R. Hyatt .

# Ralph Jones retired as an ALJ in early 2008 or late 2007

# Caleb Burns finds approximately half of the people sent to him by DDS to be not disabled and half are disabled.

# ALJ likes to state in front of each of my clients that he has “never seen such a bad lawyer in my 11 years as a judge.” He also says this to attorney Lowry and others which suggests he has an enemies list of attorneys who have a large clientele of Social Security claimants. This outrageous statement by Dan R. Hyatt is an obvious attempt to drive a wedge between claimant and her attorney to the detriment of the claimant. As such, ALJ Dan R. Hyatt is acting contrary to Social Security regulation that takes no position on representation and Dan R. Hyatt ’s conduct is unethical as he is urging claimant to give up her Constitutional right to legal counsel.

# ALJ Dan R. Hyatt has also denied claimant’s subpoena duces tecum for the facts, studies, learned treatises, etc, upon which the vocational expert bases his expert opinion.

 

The Four medical professionals blackballed by ALJ Dan R. Hyatt
because they "might" find a claimant disabled. 

After Ph.D. Burns was told that he had been "blackballed" by Hyatt because he "finds claimants disabled", Dr. Burns wrote this letter to point out that on average he finds more claimants NOT DISABLED than disabled.  
Apparently, Dan Hyatt wants a consultative examiner to ONLY find that claimants are not disabled.  
Dan R. Hyatt blackballs psychologists who might find a claimant disabled from doing an examination for Social Security. click here
Read Dr. Burn's defense of his profession and himself, BELOW.

Caleb Burns, Ph.D
 

Psychologist, Portland-Gresham, 1987 to present.

EDUCATIONAL BACKGROUND: B.A., Claremont Men's College, 1972; Ph.D. in Psychology, University of Hawaii, 1984

BLACKBALLED BY
SOCIAL SECURITY JUDGE
DAN R. HYATT
FORBIDDEN FROM SERVING CLAIMANTS AND THE GOVERNMENT TO ASSESS MENTAL IMPAIRMENTS

Leslie Pitchford, Ph.D
Leslie Pitchford is a licensed Psychologist with over 25 years experience.

Leslie received her doctorate in Psychology from the State University of New York at Stony Brook in 1980. She has worked in hospital settings, private industry and private practice. She was first licensed in New York and then in California

BLACKBALLED BY
SOCIAL SECURITY JUDGE
DAN R. HYATT
FORBIDDEN FROM SERVING CLAIMANTS AND THE GOVERNMENT TO ASSESS MENTAL IMPAIRMENTS

Meharg

Stephen Meharg, Ph.D

A Longview-Kelso native, Dr. Meharg completed his doctorate in clinical psychology from Fuller Graduate School of Psychology in 1990. After a final year of training in medical psychology at the Portland VA Medical Center, Dr. Meharg joined Dr. deVidal in private practice. Dr. Meharg has varied interests. In addition to a general practice in child and adult psychotherapy, he holds specialty practices in the evaluation and treatment of ADHD, child behavior disorders, parent training, clinical neuropsychology, and behavior therapy of anxiety disorders. He consults extensively with area medical providers.

Dr. Meharg has also served as adjunct faculty at George Fox College and Lower Columbia College, and is a consulting psychologist at St John Medical Center and is board certified by the American College of Forensic Examiners.

BLACKBALLED BY
SOCIAL SECURITY JUDGE
DAN R. HYATT
FORBIDDEN FROM SERVING CLAIMANTS AND THE GOVERNMENT TO ASSESS MENTAL IMPAIRMENTS

Linda Conaway, Ph.D

has many years of experience helping individuals who are facing challenges in their lives due to medical problems.
She has the skills to assess patients who may be having cognitive problems subsequent to strokes, heart attacks, head injuries and dementia.

BLACKBALLED BY
SOCIAL SECURITY JUDGE
DAN R. HYATT
FORBIDDEN FROM SERVING CLAIMANTS AND THE GOVERNMENT TO ASSESS MENTAL IMPAIRMENTS

actual Order from ALJ Dan R. Hyatt blackballing

This standard order from ALJ Dan R. Hyatt was received by Oregon State Bar Reporter anonymously but it comports with the several identical orders that a reporter for Oregon State Bar Reporter has seen and handled.

Other

Caleb Burns statement after learning that he was being blackballed by ALJ Dan R. Hyatt

OCCUPATION: Clinical Psychologist

OCCUPATIONAL BACKGROUND: Psychologist, Portland-Gresham, 1987 to present.

EDUCATIONAL BACKGROUND: B.A., Claremont Men's College, 1972; Ph.D. in Psychology, University of Hawaii, 1984.

Dear Attorney Daniel A. Bernath:

I have been told by a variety of agency representatives that they prefer my reports to others, and WOU has said my reports are unsurpassed in terms of background information, activities of daily living, and other important factors they consider. WOU has also said that my report information helps with setting the record for Social Security considerations and they have encouraged me to continue to be complete in my reports.
 

I sent out feedback letters fairly often to referral sources to ask how my reports meet their needs and the comments have been uniformly positive.

My reports are considerably longer than the average report but I endeavor to include all important relevant information. As an ethical psychologist, I can do no less.  For example, if I am asked to comment on the cognitive functioning on an individual, then unless I have performed at least some simple screening (perhaps the Reading subtest of the WRAT-3, or several subtests of the WAIS-III) I will not conclude that the person is presenting without cognitive impairment.  To do so would be to reach a conclusion not based on data and that certainly could result in mistreatment of the claimant.  (It is often the case that impaired people present superficially as very intact.  Similarly, people who may present as impaired are oftentimes quite high-functioning.)

Though continued education, reading, and ongoing consultation with others, I keep current on the important matters related to my specialty.  (For example, last Friday I attended a seminar on diagnosing via the DSM-IV-TR and on Saturday I attended a conference on brain injury hosted by the Brain Injury Association of Oregon.)

I noted to you that I had performed previously an examination of a number of claimants to determine how many of them I had found disabled.

As a result of a phone inquiry, on May 25, 1999, I examined on my computer all of the reports that I had written since January 1999 in which my views regarding disability from work was asked of me.  As of May 25, there were 147 reports, these performed for Disability Services of Oregon, AFS.  Of those, 68 led me to state that the claimant was disabled for 12 months because of psychological problems and 79 were found by me to be not disabled from a psychological perspective,.

Therefore, the total rate at which I found people to be disabled from this population for that five month period was 46 percent or less than half.

Further, I examined the rate at which I found people to have a GAF scale of 49 or lower and a review of my reports over the five months ending May 25, 1999 showed that I have found 68 people to have GAF's 49 or lower and 76 to have GAF's above 49.  (I was unable to estimate GAF's on several claimants.)  Therefore, 53 percent of the claimants for whom I could determine a GAF had GAFs of 50 or higher. This is more than half of those who were sent to me for an evaluation.

So in general summary, more than half of those evaluated by me that five month period (and I have reason to think that that five month period was nonrepresentative of my usual evaluation outcomes) were not found to be disabled by me, and more than half of that group of claimants had GAF scores of 50 or higher.

I certainly subscribe to the ethical guidelines of my profession and am motivate to do the very best that I can in terms of providing accurate an complete evaluations of those clients sent to me.  I very often seek corollary information from family members and others, seek the input of physicians and others, etc.  Further, I often make home visits or see claimants in a wide variety of locates outside my office.

I close each report with the following general words: "Thank you for this very interesting evaluation.  If you have any questions or comments (or if you have any information which may cause me to modify my diagnoses of this client), please do not hesitate to contact me."  I mean that paragraph fully and am please3d when people do contact me with additional information, some of which certainly can change my diagnostic impressions.

Feel free to share this information with whomever you wish. 

I certainly would be willing to discuss this matters more completely in any venue at all.  Just set the time and place and I will be happy to attend. 

(I am a proponent of the view that exposure is the best antiseptic).

Yours,

Caleb Burns, Ph.D.
Licensed Psychologist

 

 

Dan R.Hyatt
is a member of the Oregon Bar. 
He must be a member of the bar to be eligible to be an administrative law judge. 
He currently is employed by the Social Security Administration as an administrative law judge out of the Portland Oregon ODAR.

Official Documents--Dan Hyatt takes "government property, has a problem with interracial couples", exposes secret social security numbers to strangers of claimants, calls an attorney "an asshole", calls another attorney "a moron", Dan Hyatt is a "bald faced liar", misrepresents that he is a US District Court judge, uses intimidation, anger and verbal abuse against helpless Social Security disabled claimants, threatens disabled US veteran with assault, say privileged documents.


The following are complaints to the Oregon State Bar
or other privileged documents: