Video Hearings Are A Denial Of Due Process At Social Security

Social Security Disability Video Hearings Increase In 2013

 

More people than ever before attended a video hearing in 2013 while seeking Social Security disability benefits.
The number of video hearings increased to 179,308 in fiscal year 2013, more than double the 86,320 video hearings in FY 2009, according to data released by the Social Security Administration (SSA) in its Annual Performance Plan for Fiscal Year 2015. This was an increase of nearly 17 percent from 153,592 video hearings the previous year (FY 2012).
Video hearings are one of the methods SSA uses to reduce the backlog of SSDI claims.
 The use of video-conferencing technology to exclude the Claimant from being physically present in the same Hearing Room as the ALJ and other witnesses violates the Claimant’s due process rights. 
A Claimant who can only observe witnesses on a television screen will not be able to observe
the demeanor  of the witnesses and properly ascertain the accuracy and reliability of their proffered evidence.
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The primary  reason, among others, for the use of video hearings is to reduce travel costs and conserve the time of its ALJs and hearing support staff without diminishing the Claimant’s ability to effectively participate in the hearing.

A Claimant could argue that the SSA ALJ must give the Claimant an “opportunity to appear,” as provided in the U S Constitution which requires the defendant and the judge to be physically present in the same courtroom.

 Most reasonable people would agree with this contention, referring to the meaning of appear and to the traditional understanding of a Claimant’s appearance before a court empowered to deprive him of his property, that is to say, his Disability Benefits.

It is noted that both the Webster’s Dictionary and the Black’s Law Dictionary define appear and

appearance so as to suggest that an appearance can only occur if the person comes into the physical presence of the judge. To appear means to be physically present.

The form and substantive quality of a hearing is altered when either the defendant or

the judge is absent from the hearing room, even if he or she is participating by video-conference.

SSDI is a federal insurance program that provides monthly income to people under full retirement age (65-67) with a severe disability lasting at least 12 months or a terminal condition.To apply for SSDI benefits, someone must be unable to work. 

SSDI is funded by FICA payroll taxes paid by workers and their employers.

Individuals reach the hearing level after their initial application has been denied two times by the State Disability Determination Service (DDS).
Most hearings are still held in person before administrative law judges (ALJs). But Social Security is increasing its ability to perform hearings through video conferencing, including using video at National Hearing Centers. The SSA has five of these centers in Albuquerque, N.M., Baltimore, Chicago, Falls Church, Va., and St. Louis. (Statistics provided by ALLSUP)
A claimant will give up important due process rights if he or she opts for a video hearing.
During a video hearing, the ALJ, claimant and representative interact with each other using videoconferencing equipment, very similar to a large television. The judge usually remains at his location and connects by video with the claimant at his or her location.
Video conferencing can be more convenient for the claimant, if he or she lives in a remote area. And it saves travel time for the judge.
Consider the following information when preparing for an SSDI hearing.

•     How should I dress? A hearing is not a time to dress casually. A business suit isnt required, but jeans, shorts and flip flops arent a good idea, even for a video hearing.
•     What happens when I get there? The process typically is the same for hearings, video or in-person. The judge leads the hearing, and he or she asks questions of the claimant and the representative.
•     Whats different with a video hearing? It can be important for someone to provide technical support, to make sure the video and sound quality are good, and to ensure the sound recording is working properly. The sound recording is kept for the records.
•     Who else is there? There also can be vocational experts, medical experts and other witnesses at the hearing to provide testimony.
•     How does the hearing end? The entire hearing may last about an hour as the ALJ evaluates the information being provided by the person who is seeking SSDI benefits and other testimony. When the judge has all the information he or she needs, the hearing is ended. Its rare that the judge announces the decision (to award or approve) at the conclusion of the hearing.

 Some people become very frustrated at video hearings.

• MADISON, Wisconsin — A Wisconsin Rapids woman will spend three years on probation for threatening to kill a federal administrative law judge (ALJ).
  Fifty-one-year-old Norma Prince was sentenced Thursday March 6, 2014. Prince pleaded guilty in December.
  Prosecutors say the incident happened Jan. 31, 2013, when Prince appeared at a Social Security disability benefits hearing in Wausau.
  Administrative Law Judge Thomas Sanzi was presiding over the hearing by video teleconference from Madison. Prosecutors say Prince became upset and threatened to shoot Judge Sanzi and cut off his head. The hearing was halted and Prince was escorted from the courtroom.
  Prince's husband told a federal agent that his wife had bought two .22-caliber rifles about a month before the disability hearing.
  At sentencing, U.S. District Judge Lynn Adelman said Prince's mental health issues can be controlled through medication and supervision.
  
    A video-conference hearing is one  at which all parties were physically present except for the judge and the court reporter, who participate by video-conference from a remote location.
  SSDI claimants should challenge the judge’s decision to conduct a hearing by
  

  video-conference.

  I present here the question of first impression for SSA SSDI appeals: "whether the

  use of video-conferencing to conduct a hearing violates  the Fifth Amendment’s Due Process Clause.

   Although the SSA and no SSA ALJ has previously confronted this exact
  

  issue, the question of the constitutional and statutory validity of the use

  of videoconferencing technology by the Federal Administrative Agencies is far from

  novel. As technology has advanced rapidly, the SSA has been faced with a surge of new, unforeseen issues that it has had to resolve without legislative direction.

  The invention of video-conferencing appeared to be a perfect solution to the SSA; so, it  has encouraged the use of video-conferencing systems in the Hearing Rooms.
  

  Courts and government agencies have implemented the use of

  video-conferencing technology in post-conviction proceedings, including

  probation, parole, and supervised release revocation hearings.

  The courts of appeals are beginning to strike down the practice, but only on
  

  statutory grounds. This trend appears to rest on the general principle

  of judicial restraint that requires courts to avoid constitutional questions

  if statutory analysis is sufficient.

  However, in the absence of legislation or a decision from the United

  States Supreme Court, there remains the potential that SSA ALJ Hearings and other federal courts,  could find that video-conferencing violate a Claimant's Due Process rights.

  Therefore, the due process rights undermined by the use of video-conferencing technology
  

  deserve the judiciary’s attention, particularly the right to be present at your Hearing, and to effective assistance of counsel and the right to confront adverse witnesses, such as, SSA's Consultative Medical Examiners (ME) and Vocational Experts (VE). 

   Videoconferencing at Rule 43 Criminal Proceedings
  

  In the 1990s and early 2000s, circuit courts first considered whether

  the use of videoconferencing at a criminal proceeding governed by Rule 43

  satisfies the statutory requirement that a defendant be “present.”

  Since that time, the Fourth, Fifth, Ninth, and Tenth Circuits have held

  that the use of videoconferencing at Rule 43 proceedings violates a

  defendant’s statutory rights. For example, the Tenth Circuit confronted this issue in 2002 in

  United States v. Torres-Palma. In Torres-Palma, the defendant appeared by videoconference at his

  sentencing, which took place in a different state than where the judge presided. In determining that Rule 43 required a defendant to be physically present at sentencing, the court concluded that the content and the plain reading of the text of Rule 43, along with the Webster’s Dictionary and Black’s Law Dictionary definitions of presence and present, mandated that physical presence

  was required.

   Fifth Circuit noted that the rights protected by Rule 43 include not only due process rights and the common law right to be present, but also the right of a defendant to meet face-to-face with witnesses appearing before the trier of fact, as governed by the Confrontation Clause.
  

  After the Tenth Circuit’s decision and the decisions of its sister circuits, it was clear that, even though the use of videoconferencing could increase productivity and save money, the technology was not appropriate for Rule 43 proceedings because it violated both common law and statutory rights to be present.

  The reason for the use of video hearings is to reduce travel costs and conserve the time of its ALJs and hearing support staff without diminishing the Claimant’s ability to effectively participate in the

  hearing.”

  Violates his statutory  and constitutional rights when it denied his request for an in-person
  

  hearing. Specifically,  the use of videoconferencing violated his due process rights and 18 U.S.C. § 4208(e), which requires that a prisoner “be allowed to appear and testify on his own behalf.

  
  

  A Claimant could argue that the SSA ALJ must give the Claimant an “opportunity to appear,” as provided in the U S Constitution which requires the defendant and the judge to be physically present in the same courtroom.

   Most reasonable people would agree with this contention, referring to the meaning of appear and to the traditional understanding of a Claimant’s appearance before a court

  empowered to deprive him of his property, that is to say, his Disability Benefits.

  It is noted that both the Webster’s Dictionary and the Black’s Law Dictionary define appear and

  appearance so as to suggest that an appearance can only occur if the person comes into the physical presence of the judge. To appear means to be physically present.

  The form and substantive quality of a hearing is altered when either the defendant or
  

  the judge is absent from the hearing room, even if he or she is participating by video-conference.

  
  

  The Seventh Circuit of Appeals referred to the Supreme Court’s decision in

  Escoe v. Zerbst, in which the Supreme Court determined that a lower

  court’s decision to revoke a defendant’s probation without a hearing

  violated the requirement that he be “brought before the court.” Although Escoe

  predated video-conferencing technology, and the Internet for that matter, the case provided the traditional legal understanding of a person’s appearance. In Escoe, the Court held that

  “‘the end and aim of an appearance before the court’ under the statute was to ‘enable an accused [parolee] to explain away the accusation,’ and this required ‘bringing the [parolee]

  into the presence of his judge.’” Additionally, the Seventh Circuit referenced the statutory language of other Federal Rules of Criminal Procedure that explicitly allow for the use of videoconferencing.

  The court reasoned that, since video-conferencing is permitted only with stated exceptions in the rules, the use of the technology “is the exception to the rule, not the default rule itself,” and that Rule 32.1’s “opportunity to appear,” therefore, excludes appearance by video-conference.

  During its interpretation of the opportunity to appear, the court also examined the statutory rights owed to a defendant at a revocation hearing. Rule 32.1 provides, in pertinent part, that:

  The person is entitled to: . . . (C) an opportunity to appear, present

  evidence, and question any adverse witness . . . ; [and] (D) notice of the

  person’s right to retain counsel or to request that counsel be appointed if

  the person cannot obtain counsel . . . .

  After determining that the opportunity to appear requires a parolee to come into the physical presence of the judge, the court furthered its statutory analysis by noting that this right is not isolated, but instead exists in conjunction with the right to “present evidence,” to “question

  any adverse witness,” and to “make a statement and present any evidence in mitigation. Appearance in court is “the means by which the petitioner effectuates the other rights conferred” by Rule 32.1.

  
  

  The conjunctive force of a defendant’s opportunity to appear is particularly important to the defendant’s right to “make a statement and present any information in mitigation” because “appearing before the court allows the [parolee] to plead his case personally to the [deciding]

  judge.”

  This right, known as the right of allocution, “ensures that the defendant has the opportunity to ‘personally address the court’ before punishment is imposed.” Without the physical meeting, the court reasoned, the judge could not experience the impressions of any personal confrontation wherein he or she attempts to assess the parolee’s credibility or to evaluate the defendant’s true moral fiber. Consequently, without the personal, physical interaction between a judge and a parolee, the force of the parolee’s other rights guaranteed by Rule 32.1 is diminished.

  Finally, after determining that the judge’s participation by videoconferencing in Thompson’s revocation hearing violated Rule 32.1, the court vacated Thompson’s term of re-imprisonment and

  remanded. The court resolved the second issue, whether video-conferencing violated Thompson’s due process rights, in a one-sentence footnote: “Because we hold that the judge’s participation by

  video-conference violated Rule 32.1, we need not address Thompson’s argument that holding the hearing by video-conference violated the Fifth Amendment’s Due Process Clause.”

  
  

  The Court then turned its analysis to the nature of the process that is due a parolee at a revocation hearing, wherein it laid out the minimum requirements of due process. Accordingly, a parolee must have an opportunity to be heard and to show either that he or she did not violate the conditions of release or, alternatively, that there are mitigating circumstances.

  Further, the Court held that the minimum requirements of due process include, in pertinent part, the “(c) opportunity to be heard in person and to present witnesses and documentary evidence; [and] (d) the right to confront and cross-examine adverse witnesses (unless the hearing officer specifically finds good cause for not allowing confrontation).

  
  

  Defense counsel suffers a multitude of communication challenges when not in the presence of the judge or the courtroom. Anne Bowen Poulin, a law professor at the Villanova University School of Law, stressed in her discussion of the use of videoconferencing technology that “[t]he attorney will be unable to gauge the emotional interactions and mood of the courtroom as effectively to determine when and how to intervene on the client’s behalf.”She also examined various studies

  that suggest that alliances form among those who are in the same physical location—alliances against those who appear via video-conference.In the case where neither the parolee nor counsel is physically present at the revocation hearing, the effectiveness of counsel is even more imperiled. The court in Thompson, although faced with the opposite situation in which the judge appeared by video-conference, foresaw this consequence and determined that “[t]he important point is that the

  form and substantive quality of the hearing is altered when a key participant is absent from the hearing room, even if he is participating by virtue of a cable or satellite link.” The physical separation of a parolee from counsel inevitably takes its toll on the effectiveness of the counsel, and this effect is most strongly felt by the communication between them. Some courts have tried to curb this problem by providing telephone lines that allow for privileged communication.

  However, this practice still cannot replace the quality of the attorney–client relationship created by in-person interaction.
  According to Poulin, the human interactions that foster the relationship are muted by the technology, which detracts from the defendant’s experience. Likewise, counsel cannot gauge the defendant’s mental and emotional state, and neither party can use nonverbal cues to communicate with each other during a proceeding, both of which are necessary to effective communication. Despite the surplus of communication problems caused by the use of
  

  video-conferencing technology, Poulin believes that these adversities will not rise to the level of ineffective assistance of counsel in the eyes of the courts.

  However, effective communication is so integral to the role of counsel, and counsel’s ability to effectively assist a client, that it is likely to be a key consideration when a court determines whether the right to effective assistance of counsel has been violated by the use of videoconferencing technology at a revocation hearing. In fact, at least one court has recognized that the use of technology to physically exclude a parolee from the courtroom, as well as from counsel, violates the right to counsel because of the detrimental effect it has on communication.

  In Schiffer v. State, the District Court of Appeal of Florida heard an appeal from a revocation hearing and a subsequent sentencing hearing in which the parolee participated via

  video/audio arrangement. The court found that, because the parolee had no means by which to access and to communicate privately with his counsel, his right to counsel was “obliterated.” The court held that “[w]e can imagine no more fettered and ineffective consultation and communication between an accused and his lawyer than to do so by television in front of a crowded courtroom with the prosecutor and judge able to hear the exchange.

  The use of videoconferencing technology in revocation hearings also violates the parolee’s due process right to confront adverse witnesses.

  As with the right to effective assistance of counsel, the parolee’s due process right “to be heard in person”works in conjunction with the due process right to confront adverse witnesses. Without the parolee’s physical presence, there is no effective right to confront adverse witnesses that satisfies the minimum requirements of due process. The Ninth Circuit addressed this issue in

  White v. White when it considered whether a bar to the presence of an adverse witness at a

  parole revocation hearing violated due process.

  The court held that “[w]here the facts are contested, the presence of adverse witnesses, absent good cause for their nonappearance, is necessary to enable the parole board to make accurate
  

  findings.” Therefore, without good cause, the appearance or the presence of adverse witnesses is necessary. 

  
  

  A parolee has a strong interest in the right to confront adverse witnesses at a revocation hearing, a proceeding at which the parolee’s liberty is at stake. The parolee, who will either want to argue innocence or prove factors in mitigation, cannot effectively exercise a right of confrontation when appearing via vide-oconference, away from the physical presence of the adverse witnesses. Like in Wilkinson, a parolee who can observe witnesses only on screen will not be able to observe

  their demeanor and properly ascertain the accuracy and reliability of their proffered evidence, evidence that is often determinative of the parolee’s fate.

  
  

  Therefore, given the strength of a Claimant’s due process right of confrontation, and the insufficiency, or even the complete absence of good cause by the government, a Claimant should be able to successfully demonstrate that the use of vide-oconferencing technology

  to exclude the Claimant from being physically present in the same Hearing Room as the ALJ and other witnesses violates the Claimant’s due process right to confront adverse witnesses.