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February 13, 1992

CLAUDIA KENDRICK and LOURDES ALMONTE, individually and on behalf of all others similarly situated, Plaintiffs, against LOUIS W. SULLIVAN, M.D., Secretary of Health and Human Services, Defendant.

The opinion of the court was delivered by: ROBERT J. WARD

 WARD, District Judge.

 Plaintiffs move, pursuant to Rule 23, Fed. R. Civ. P. for an order certifying this case as a class action on behalf of all claimants whose claims have been or will be assigned to Administrative Law Judge Helen Anyel ("ALJ Anyel") for decision, and all claimants who have received an adverse decision from ALJ Anyel, not reversed on any subsequent appeal. Defendant Louis W. Sullivan, Secretary of Health and Human Services (the "Secretary") moves, pursuant to Rules 12(b)(1) and 12(b)(6), Fed. R. Civ. P., to dismiss the complaint. Defendant further moves for an order, pursuant to 42 U.S.C. §§ 405(g) and 1383(c)(3), remanding the claim of named plaintiff Lourdes Almonte ("Almonte") to the Secretary. Plaintiffs cross-move for judgment on the pleadings, reversing the decision of the Secretary denying Almonte's claim for disability benefits, or, in the alternative, granting Almonte interim benefits until the issuance of a new administrative decision upon remand.


 Disabled persons who are unable to work to support themselves are eligible for government benefits through the Social Security Disability Insurance Program ("Social Security") and the Supplemental Security Income Program ("SSI"). 42 U.S.C. §§ 423, 1382. In order to obtain benefits, a claimant must first file an application documenting his claim with the Secretary. 20 C.F.R. § 404.610. If the Secretary denies the claim initially and on reconsideration, the claimant may then request a hearing before an administrative law judge. Id. at § 404.930. ALJ Anyel is an administrative law judge employed by the Secretary to adjudicate claims for benefits under the Social Security Act.

 Facts Relating to the Claims of the Proposed Class

 In the instant action, plaintiffs, on behalf of all claimants for Social Security or SSI benefits whose claims were denied by ALJ Anyel, allege that ALJ Anyel is biased against claimants generally. Plaintiffs claim that ALJ Anyel's bias and refusal to apply applicable law deprives claimants of fair hearings on their claims, in violation of the Social Security Act and the due process clause of the Fifth Amendment to the United States Constitution.

 In support of their claim that ALJ Anyel is generally biased, plaintiffs allege numerous deficiencies in the manner in which ALJ Anyel conducts hearings. Among the flaws alleged by plaintiffs are that ALJ Anyel sometimes fails to give claimants adequate prior notice of hearings; that she routinely fails to explain to unrepresented claimants the advisability of obtaining counsel; that she forces unrepresented claimants to proceed without an attorney, even if they indicate they wish to obtain counsel; and that she routinely fails to obtain the services of interpreters in cases where it is apparent that the claimant has difficulty speaking or understanding English. Plaintiffs further claim that ALJ Anyel routinely fails to elicit information at hearings about the claimant's medical condition and the restrictions such condition imposes on the claimant's activities, and that she fails to obtain medical reports from claimants' treating sources or to advise claimants to do so.

 In addition to ALJ Anyel's alleged failure to conduct adequate hearings, plaintiffs also claim that her decisions are marked by certain characteristic errors. According to plaintiffs, ALJ Anyel routinely determines that the claimant's complaints of pain are not credible, based on her alleged failure to observe signs of discomfort during hearings lasting fewer than 15 minutes. Plaintiffs claim that ALJ Anyel often omits from her decisions important information favorable to the claimant's case, such as findings of disability by treating sources. In addition, plaintiffs allege that ALJ Anyel routinely ignores the law, including both applicable statutes and court decisions, in order to deny valid claims. Finally, plaintiffs claim that ALJ Anyel fails to follow specific directions to her by courts and the Appeals Council when they remand cases, and although repeatedly criticized by the courts and the Appeals Council, she has failed to modify her abusive conduct towards claimants.

 Facts Relating to Almonte's Individual Claim for Benefits

 Almonte is a 54 year-old widow who attended school through the 8th grade in Santo Domingo. She is able to read and write in Spanish but is unable to communicate in English. She suffers from multiple medical conditions, including low back syndrome due to osteoarthritis, glaucoma, ulcer and heart disease. Almonte was last employed in 1975, performing unskilled work in a garment factory.

 Almonte first applied for disability benefits on December 11, 1985, stating that she was unable to work due to lower back pain and an ulcer. Her application was denied initially and on reconsideration, and she requested a hearing which was conducted before Administrative Law Judge Lawrence P. Ashley ("ALJ Ashley").

 At the hearing, Almonte presented evidence that she suffered from glaucoma, an ulcer and chronic lower back syndrome. On February 5, 1987, ALJ Ashley issued a decision denying benefits on the ground that Almonte could perform a full range of light work, and therefore under the applicable medical-vocational regulations she was not disabled.

 Almonte did not appeal ALJ Ashley's decision. Instead, on July 13, 1987, she filed another application for SSI benefits. This application was denied, and Almonte subsequently filed another application on September 21, 1988, which was again denied. After the denial of benefits was affirmed on reconsideration, Almonte requested a hearing which was held on August 15, 1989 before ALJ Anyel. Almonte was not represented by counsel at the hearing.

 On December 20, 1989, ALJ Anyel issued a decision denying benefits. In the decision, ALJ Anyel stated that ALJ Ashley's previous decision was "rese [sic] judicata" because Almonte had not appealed that decision. Tr. 11. *fn1" The decision explicitly adopts the factual findings made by ALJ Ashley in his earlier decision. ALJ Anyel found that while Almonte had low back syndrome, open angle glaucoma and left cardiac atrial hypertrophy, she did not have an impairment or combination of impairments that significantly limited her ability to perform work-related tasks, and was therefore not disabled. Tr. 14.

 By decision dated August 3, 1990, the Appeals Council denied Almonte's request for review. Almonte, proceeding pro se, then commenced a federal court action, seeking review of the Appeals Council's decision.

 Procedural History

 Plaintiffs initiated this lawsuit on June 4, 1990, and subsequently moved for class certification, and for an order permitting the intervention of two additional claimants for disability benefits whose claims had been adversely decided by ALJ Anyel and granting all named plaintiffs interim payments of disability benefits pending a readjudication of their administrative claims. Before the plaintiffs' motion was fully submitted, the Secretary awarded benefits to the proposed intervenors. The Secretary then settled the individual claim of named plaintiff Claudia Kendrick ("Kendrick") pursuant to a stipulation so ordered on November 27, 1990. On April 18, 1991, the Court denied plaintiffs' application for intervention and interim benefits and reserved decision on the remainder of the motion.

 On December 12, 1990, plaintiffs moved to consolidate this case with Almonte v. Sullivan, 90 Civ. 6662, in which Almonte appeals from the adverse decision by ALJ Anyel described above. On April 18, 1991, the Court granted plaintiffs' motion for consolidation. On May 3, 1991, the Secretary moved to dismiss the complaint, and filed a second motion seeking an order remanding Almonte's claim to the Secretary for readjudication, Plaintiffs then cross-moved for judgment on the pleadings regarding Almonte's claim for benefits.

 In or about May 1991, defendant commenced an administrative removal action before the Merit Systems Protection Board ("MSPB"), seeking permanent removal of ALJ Anyel. The grounds of the action, as stated in a preliminary notice supplied by the Secretary to this Court are "(1) unacceptable performance of her judicial functions, and (2) frequent violation of agency policy and denial of due process of law with respect to pro se claimants." Notice and Order, dated May 22, 1991, attached to letter dated June 3, 1991 from Sapna V. Raj. On February 7, 1992, the Secretary informed the Court that the Appeals Council has identified and given expedited consideration to all pending requests for review of cases decided by ALJ Anyel. Letter dated February 7, 1992 from Sapna V. Raj.

 Following the initiation of the removal proceedings against ALJ Anyel, the parties entered into negotiations in an attempt to settle this lawsuit. Unfortunately, these negotiations proved unsuccessful. The Court now has before it defendant's motion to dismiss, plaintiffs' motion for class certification and the cross-motions concerning Almonte's individual claim, which it will address in turn.


 I. Waiver of the Bias Claim

 The Secretary initially contends that the Court lacks jurisdiction to hear plaintiffs' claim regarding ALJ Anyel's alleged bias, because plaintiffs failed to present this claim to the Social Security Administration. Neither of the named plaintiffs raised the issue of ALJ Anyel's alleged predisposition to deny claims at their hearings or in their requests for administrative review of her decisions. Nor do the allegations concerning the claims of the proposed class contain any mention of an administrative determination regarding ALJ Anyel's alleged bias.

 The Secretary points to Social Security regulations which provide claimants with a means for challenging an administrative law judge's impartiality, and which require the claimant to raise the issue of bias at the "earliest opportunity" prior to the administrative hearing. 20 C.F.R. §§ 404.940 and 416.1440. The Secretary also points to a provision of the Administrative Procedure Act, which, he contends, requires that the question of bias be determined initially at the administrative level:

 On the filing in good faith of a timely and sufficient affidavit of personal bias or other disqualification of a presiding or participating employee, the agency shall determine the matter as a part of the record and decision in the case.

 5 U.S.C. § 556(b). The Secretary argues that plaintiffs waived the issue of bias by failing to raise it during the administrative proceedings in the ...

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