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Marin v. Commissioner of Social Security

United States District Court, M.D. Florida
Feb 28, 2008
535 F. Supp. 2d 1263 (M.D. Fla. 2008)

Summary

finding prejudice where the ALJ prohibited the claimant from asking the VE any questions other than hypotheticals

Summary of this case from Nadile v. Saul

Opinion

Case No. 6:07-cv-461-Orl-31GJK.

February 28, 2008.

Richard A. Culbertson, Law Office of Richard A. Culbertson, Orlando, FL, for Plaintiff.

Mary Ann Sloan, General Counsel's Office, Social Security Administration, Atlanta, GA, Susan R. Waldron, U.S. Attorney's Office, Tampa, FL, for Defendant.


ORDER


On January 23, 2008, Magistrate Judge Dietrich entered a Report and Recommendation (Doc. 14), recommending that the Decision by the Commissioner of Social Security denying Plaintiff's application for disability benefits be AFFIRMED. Plaintiff filed timely objections to the Report (Doc. 17) and the Government responded (Doc. 18). Upon de novo review of the above, this Court declines to adopt the recommendation of the Magistrate Judge, for the reasons set forth below.

This Court adopts by reference the factual and procedural histories as stated in the Report and Recommendation, as well as the Standard of Review described therein.

On August 2, 2006, a hearing was held before an Administrative Law Judge ("the ALJ") on Plaintiff Leonardo Marin's ("Marin") claim for disability insurance benefits. Marin argues that he was prejudiced at that hearing by the decision of the ALJ to prohibit Marin's attorney from asking the vocational expert, Ms. Jane Beougher, anything other than hypothetical questions. In particular, Marin's attorney attempted to cross-examine Ms. Beougher regarding the factual basis of the statistics she was testifying about and the ALJ told him to "[a]sk a hypothetical question if you are going to ask. If not, the hearing is over." (Rec. at 1053). When Marin's attorney indicated that he could not get the information he sought through hypothetical questions, the ALJ abruptly concluded the hearing.

This expert was apparently selected and called by the Social Security Administration, pursuant to 20 C.F.R. § 404.1566(e).

The Government argues that the ALJ had the authority to limit cross examination, essentially in anyway he wished, pursuant to "The Hearings, Appeals and Litigation Law Manual (HALLEX)". (Doc. 18 at 2, 3). This manual is available through the Social Security Administration's website (www.ssa.gov) and appears to have been created by the agency. This Court is unaware of HALLEX's authoritative value, but in any event, it clearly does not trump the due process rights guaranteed by the United States Constitution.

The Government also cites numerous cases in support of the principal that the ALJ's questioning of a vocational expert is limited to hypothetical questions (Doc. 18 at 3). These cases, however, are irrelevant here. The issue before this Court is not whether the ALJ was permitted to ask the vocational expert non-hypothetical questions, but whether Marin's attorney should have been permitted to ask direct questions when cross-examining that expert. This Court finds that the answer to that question is, unquestionably, "Yes."

While the ALJ may interrogate an expert witness by use of hypothetical questions, he is not obliged to do so. HALLEX I-2-6-74(D), available at http://www.ssa.gov/OP-home/hallex/I-02/I-2-6-74.html. The use of hypothetical questions is an arcane procedure. The modern practice is to ask experts direct questions after establishing an appropriate foundation.

It is indisputable that the ability to cross-examine witnesses is fundamental to due process. See, e.g., Goldberg v. Kelly, 397 U.S. 254, 269 (1969).

For two centuries past, the policy of the Anglo-American system of Evidence has been to regard the necessity of testing by cross-examination as a vital feature of the law. The belief that no safeguard for testing the value of human statements is comparable to that furnished by cross-examination, and the conviction that no statement (unless by special exception) should be used as testimony until it has been probed and sublimated by that test, has found increasing strength in lengthening experience.
Greene v. McElroy, 360 U.S. 474, 497 (1959) (internal citations and quotation marks omitted). The right to cross-examination, however, is a hollow one if it can be limited to asking only those questions that are consistent with those posed on direct examination.

The Administrative Procedures Act specifically provides for the right to cross examination as well. 5 U.S.C. § 556(d) (2007) ("A party is entitled to present his case or defense by oral or documentary evidence, to submit rebuttal evidence, and to conduct such cross-examination as may be required for a full and true disclosure of the facts.").

The ALJ's decision to restrict cross-examination of the vocational expert witness to hypothetical questions was arbitrary and prevented Marin's counsel from conducting a meaningful cross-examination. The decision issued by the ALJ clearly relied on Ms. Beougher's testimony, and the credibility of that testimony was untested. (See Rec. at 26). Thus, the limitations placed on Marin's cross-examination was prejudicial. Even if, as the Government argues, further direct questioning would not have retrieved any additional information from Ms. Beougher, her inability to provide answers to counsel's questions would have brought her reliability into question. As any attorney knows, a witness' inability to answer a direct question is often valuable and probative evidence. It is, therefore ORDERED that:

1. The Report and Recommendation of the Magistrate Judge is REJECTED;

2. The Decision by the Commissioner of Social Security regarding Plaintiff's entitlement to disability benefits is REVERSED;

3. This matter is REMANDED to the Social Security Administration, pursuant to sentence four of 42 U.S.C. § 405(g), for re-hearing in light of this Order; and

4. The Clerk is directed to close the file.

DONE and ORDERED.


Summaries of

Marin v. Commissioner of Social Security

United States District Court, M.D. Florida
Feb 28, 2008
535 F. Supp. 2d 1263 (M.D. Fla. 2008)

finding prejudice where the ALJ prohibited the claimant from asking the VE any questions other than hypotheticals

Summary of this case from Nadile v. Saul

finding prejudice where ALJ's restriction of claimant's cross-examination of VE prevented claimant from meaningful cross-examination

Summary of this case from Bogan v. Comm'r of Soc. Sec.

finding ALJ's restriction of claimant's cross-examination of VE prevented claimant from meaningful cross-examination

Summary of this case from Hunter v. Comm'r of Soc. Sec.

In Marin, the Court held that the ALJ's decision to restrict the claimant's attorney to posing only hypothetical questions to the VE was "arbitrary and prevented Marin's counsel from conducting a meaningful cross examination."

Summary of this case from Contreras v. Comm'r of Soc. Sec.

In Marin v. Commissioner of Social Security, 535 F.Supp.2d 1263 (M.D. Fla. 2008), the ALJ prohibited Plaintiff's counsel from asking the vocational expert any questions that were not hypothetical. Plaintiff's counsel attempted to question the vocational expert regarding the factual basis for the statistics she had cited.

Summary of this case from Hankins v. Astrue

In Marin, the plaintiff's attorney attempted to cross-examine the VE regarding the factual basis of the statistics she testified about, and was limited to hypothetical questions by the ALJ.

Summary of this case from Carter v. Astrue

In Marin, 535 F.Supp.2d at 1264, the ALJ prohibited a claimant from asking any questions other than hypothetical questions to the VE.

Summary of this case from Delker v. Commissioner of Social Security

In Marin, the claimant attempted to question the VE about the basis for the statistics upon which she was relying, but the ALJ prevented the claimant from asking anything but hypothetical questions.

Summary of this case from Delker v. Commissioner of Social Security

In Marin, the claimant sought to challenge the credibility of the VE's testimony by questioning the basis of the statistics used by the VE in forming his opinion.

Summary of this case from Delker v. Commissioner of Social Security

In Marin, 535 F.Supp.2d at 1264, the ALJ prohibited a claimant from asking any questions other than hypothetical questions to the VE.

Summary of this case from Delker v. Commissioner of Social Security

In Marin, the claimant attempted to question the VE about the basis for the statistics upon which she was relying, but the ALJ prevented the claimant from asking anything but hypothetical questions.

Summary of this case from Delker v. Commissioner of Social Security

In Marin, the claimant sought to challenge the credibility of the VE's testimony by questioning the basis of the statistics used by the VE in forming his opinion.

Summary of this case from Delker v. Commissioner of Social Security
Case details for

Marin v. Commissioner of Social Security

Case Details

Full title:LEONARDO MARIN, Plaintiff, v. COMMISSIONER OF SOCIAL SECURITY, Defendant

Court:United States District Court, M.D. Florida

Date published: Feb 28, 2008

Citations

535 F. Supp. 2d 1263 (M.D. Fla. 2008)

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