Administrative Law Judge (“ALJ”) Marilyn Hoppenfeld denied a fibromyalgia claimant’s application for the second time. The first time the Appeals Council rejected Hoppenfeld’s denial because there was no medical evidence contradicting the opinion of the five treating doctors, including the treating rheumatologist, who supported finding her disabled. This time, Hoppenfeld relied upon the opinion of a non-examining medical expert (“ME”) to deny the claimant’s application for lacking objective evidence, even though federal courts previously told Hoppenfeld that that she cannot reject the opinion of the physician treating the claimant’s fibromyalgia by “requir[ing] objective’ evidence for a disease that eludes such measurement, and that the opinions of two MEs who did not examine the claimant are not substantial evidence.”
Because Hoppenfeld claimed that there was no tape recording from the claimant’s remanded May 14, 2009 hearing, following the claimant’s the supplemental October 15, 2009 hearing, I requested a recording of that hearing, but was sent a copy of the claimant’s pre-remand January 10, 2008 hearing instead.
During the October 15, 2009 hearing, I stated on the record more than once that the claimant’s brother was waiting to testify. Hoppenfeld said there was not enough time that day for the brother’s testimony, or to cross examine the medical expert, but would schedule a supplemental hearing. One of the reasons why I wanted the hearing recording was to make sure that the recording clearly reflected the claimant’s invocation of her right to have a witness testify on her behalf and to cross examine an expert. Since I was not provided with a hearing recording, to ensure that Hoppenfeld could not claim that the claimant had not asserted her right for witness testimony and cross examination, I submitted a series of letters.
In response to a letter from Hoppenfeld dated November 2, 2009 that supposedly enclosed “Exhibit 27” for my review, I faxed and filed electronically a letter on November 7, 2009, where I asked Hoppenfeld when she was scheduling a hearing for the claimant’s brother to testify. I also advised Hoppenfeld that she had failed to enclose a copy of Exhibit 27F. Because I received no response, I reiterated my requests on November 17, 2009 by fax and electronic filing. Later that day, I received a response to my letter, but once again, while it acknowledged that Exhibit 27F was given to a medical expert, Hoppenfeld had failed to enclose a copy of that exhibit.
In response to interrogatories that Hoppenfeld sent a medical expert, in her letter dated December 11, 2009, Hoppenfeld stated:
You may also request a supplemental hearing at which you would have the opportunity to appear, testify, produce witnesses, and submit additional evidence and written or oral statements concerning the facts and law. If you request a supplemental hearing, I will grant the request unless I receive additional records that supports a fully favorable decision. In addition, you may request an opportunity to question witnesses, including the authors(s) of the enclosed report(s).
Immediately upon receipt of Hoppenfeld’s December 11, 2009 letter, by fax and electronic filing, I unambiguously stated:
Among other things, your letter states that I can request a supplemental hearing. I do request a supplemental hearing to cross examine Gerald Winkler, which I would prefer be scheduled at the same time that you schedule a time to take the testimony of the claimant’s brother.
Thus, not once, not twice, but three times I had now notified Hoppenfeld in writing, that I wanted a supplemental hearing to cross examine Gerald Winkler and to produce the claimant’s brother as a witness.
By letter faxed and filed electronically on April 21, 2010, I alerted Hoppenfeld that over half a year had elapsed since she held the claimant’s hearing, and agreed to schedule a supplemental hearing to take the testimony of the claimant’s brother, and to cross examine Gerald Winkler. This was the fourth time in writing that I had requested the supplemental hearing to take the testimony of the claimant’s brother, and to cross examine Gerald Winkler.
Finally, on May 20, 2010, by letter faxed and filed electronically, I submitted my fifth written request to schedule the supplemental hearing to take the testimony of the claimant’s brother and to cross examine Gerald Winkler.
Despite stating at the end of the hearing that she would schedule a supplemental hearing, and despite reiterating in writing that she would schedule the supplemental hearing to take the testimony of the claimant’s brother, and to cross examine Gerald Winkler, Hoppenfeld refused to do so, and instead issued her unfavorable decision. I cannot think of a more concrete example of an ALJ depriving a claimant of Due Process rights.
Hoppenfeld cannot claim that she is too dumb to understand her fundamental duty to develop the record because she admitted in writing that she had to schedule a supplemental hearing. Hoppenfeld cannot claim that she is incompetent and negligently failed to schedule a supplemental hearing because I invoked that right at the hearing, and then reminded her five times in writing that the claimant was invoking that right. Hoppenfeld’s deliberate, intentional, and gross misconduct clearly evinces her bias. Shockingly, Hoppenfeld’s failure to schedule the hearing is far from the most obvious evidence of bias in this particular case.
I have advised my client to file a complaint about Hoppenfeld’s pursuant to the “Administrative Law Judge/Public Alleged Misconduct Complaints System,” which is intended to track complaints about ALJ misconduct. The system will include information about bias complaints, investigations of complaints, and information about the claimants’ attorneys, which can facilitate collaborative action and evidence gathering. Any claimant or attorney filing bias complaint against ALJ Hoppenfeld should make clear that they want it incorporated into the Administrative Law Judge/Public Alleged Misconduct Complaints System