Kirby v. Astrue, 731 F. Supp.2d 453, No. 7:09-CV-146-BO ( E.D. N.C., Aug 3, 2010)

Fourth Circuit District Court granted the appellant's motion for summary judgment, remanding the case to SSA for an award of SSDI benefits. The court held that substantial evidence did not support the ALJ's determination that the claimant retained RFC for sedentary work and that the ALJ committed a reversible legal error when he failed to give controlling weight to the professional medical opinion of the claimant's treating physician when the opinion was well supported by the record as a whole and grounded in objective medical evidence.  In addition, the ALJ incorrectly evaluated the claimant's credibility when he stated that the claimant's appearance during a video conference "detracted from her overall credibility" when she stood up more often during her hearing than every 15 minutes for reasons "that appeared not to be a reaction to pain."  

The court found as a matter of law that "an ALJ cannot impeach the credibility of a claimant, nothing else appearing, based on his or her personal impressions, such as how often a claimant shifts positions, or moves around during a hearing conducted via video conference. There could be any number of reasons for such movement by a claimant and there is no one valid interpretation as to why a claimant was sitting in a certain manner or continuously standing up that an ALJ can use to impeach the claimant's credibility."  The court emphasized that " the use of video conferences for hearings before an ALJ raises serious questions as to a claimants due process rights to receive a full and fair hearing.  While the Social Security Administration may allow any claimant to have an in-person hearing, this is undermined if a claimant has to wait substantially longer to receive an in-person hearing, or where the ability to attend the hearing is unreasonably difficult because the ALJ is located in another state.  The use of video conference hearings is highly suspect and should be approached with great caution and care by the ALJ conducting the hearing to ensure that a claimant receives all the benefits that he or she would receive in an in-person hearing."  See, 731 F. Supp. 2d 453, 457