Credibility Determinations by ALJs

by Gene Doyle, LMSW

In a December 11, 1996 memorandum to ALJs, Deputy General Counsel for Administrative Hearings Russell J. Hanks set forth OAH policy with respect to the development of an adequate Fair Hearing record and related matters. Under the heading, "Credibility" (at p. 3), Mr. Hanks stated that:

     "When a decision turns on the credibility of the appellant, the basis for the determination should be included in the decision as specifically as possible. For example, if the appellant's testimony is found to be vague and inconsistent, some explanation should be included to explain why it is so found. Please note that the lack of documentary evidence is not a per se basis for finding an appellant's testimony incredible. A hearing officer may find uncorroborated testimony to be uncontradicted or internally consistent."

As part of the Stipulation and Order of Settlement in Meachem v Wing, 99 Civ. 4630 (S.D.N.Y. April 20, 2005), Mr. Hanks issued an April 13, 2005 memorandum on "Fair Hearing Training; Meachem v Wing." Under the heading, "Credibility" (at p. 3), Mr. Hanks repeated that:

"When a decision adverse to the appellant turns on the credibility of the appellant, the basis for the determination should be included in the decision. Please note that the lack of documentary evidence is not a per se basis for finding an appellant's testimony incredible. A hearing officer may find uncorroborated testimony to be credible, especially when it is found to be uncontradicted or internally consistent."

ALJs attended a three-hour Continuing Legal Education (CLE) course on April 15, 2005 in accordance with the Meachem Stipulation and Order of Settlement.

The CLE materials included a part entitled "Proof of Mailing: Discussion of the Issue and Its Disposition" (pp. 10-14). Under § D ["Evaluating the evidence"] (at p. 13), the following instructions were provided on the assessment of credibility at a Fair Hearing:

"Credibility calls are not just applicable to hearing appellants. Witnesses or written statements must also be examined for credibility. For example, agency representatives may make unclear assertions related to the (sic) their interactions with the appellant. Conflicting information may surface within agency documentation. In any instance in which the credibility of an account arises as a concern, the ALJ has the responsibility to develop the record sufficiently in order to make a well-reasoned judgment as to what are the supported facts of the case.

"After allowing the witness to provide her/his account, consider its believability and compare it to other independent evidence presented. Be a proactive fact finder. If something does not make sense to you, say so and seek clarification. If conflicting statements have been made or inconsistent accounts exist, actively seek an explanation from hearing participants. If a party says it needs additional time to provide the information you seek, afford that additional time to the party."

In § E ["'Discussion' section of the decision"] (at p. 14), ALJs were directed as follows:

"1. In all cases, summarize the proof presented. What has been proven and what has not been proven. What has been rebutted and what has not been rebutted.

"2. When credibility is in issue, the basis for the determination should be included in the decision as specifically as possible. For example, if the appellant's testimony is found to be vague and inconsistent, some explanation should be included to explain why it is so found Please note that the lack of documentary evidence is not a per se basis for finding an appellant's testimony incredible. A hearing officer may find uncorroborated testimony to be credible, especially where it is found to be uncontradicted or internally consistent. See Russ Hanks' memo dated December 11, 1996.

"If you believe a witness or a given account, explain why. If the reverse is true, explain why. Rely only on facts supported by the record. Be able to point to a statement made, a document submitted, a fact corroborated - or, in the instance of an account that is not believable, refer to matters not corroborated. You may also rely on your subjective impression of the appellant's believability, for instance, based upon you observation and response to the appellant's demeanor.

"Note: Do not find an appellant not credible simply because the testimony presented was self-serving. Most testimony is self-serving and is not inherently unreliable. Probing of the testimony and development of the record should produce a sound basis for making a credibility determination.

"3. Find the balance. Without being unnecessarily verbose, err on the side of thoroughness" (emphasis in the original).

In the part entitled "Drafting the Best Possible Proposed Hearing Decisions" (pp. 15-16), ALJs were directed in § E ["Discussion"] to:

"1. Summarize any issues waived or otherwise resolved and address their resolution,

"2. Restate the issue presented and summarize the evidence presented.

"3. Assess any explanations presented in the context of evidence presented.

"4. Clearly evaluate and assess credibility. Do not make conclusory statements. Credibility determinations must be supported.

"5. Do not draw a conclusion without fully presenting the "why" and "how" of it.

"a. If something is found to be not reliable or believable, articulate why.

"b. Do not state that an appellant's testimony is unreliable because it is self-serving.That is an illogical statement and a court may find it to be reversible error. Most testimony is self-serving but that does not make it inherently unreliable. Probing of the testimony and development of the record should produce a sound basis for making a credibility determination.

"c. Examine your own analysis for its logic and reasonable qualities.

"6. Seek to be comprehensive in evidence assessment."

In a July 19, 2011 memorandum by Daniel Bloodstein, an OAH attorney, ALJs were reminded

"of the requirements concerning mailing issues that resulted from the settlement in the case of Meachem v. Wing. Recent circumstances indicate there may be a lack of clarity on the part of some hearing officers concerning how to proceed with proof of mailing issues, including the analysis of affidavits and supporting evidence presented by the Agency."

Select pages (pp. 10-13) of the April 15, 2005 "Meachem Overview" CLE materials were attached to the July 19, 2011 memorandum.

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