(dissenting).
I would affirm the decision of the Department to terminate benefits that Gomez had been receiving under the welfare category of AFDC (Aid for Dependent Children). These benefits had been provided on the basis that the children had been deprived of parental support because of the physical or mental incapacity of Gomez. 1 Dept. of Human Services, Income Support Division Program Manual, § 221.71.
The Program Manual, supra, § 221.-723, defines physical or mental incapacity to be
physiological, mental or psychological impairment of the person that, when considered in connection with the pertinent socio-economic conditions, results in a substantial lack of or reduction in the ability of the person to fulfill his normal function of parental support * * *. Determination of the existence of incapacity requires proof of the impairment plus an evaluation of the effect of the impairment upon the person’s ability to function.
Under § 221.723, for benefits to be paid on the basis of a parent’s disability, there must first be an impairment on the part of the parent. Absent an impairment, there is no need to consider socio-economic conditions.
Gomez, at one time, apparently was impaired; he has been receiving AFDC benefits for a number of years. This case involves the decision that Gomez is no longer disabled. The decision was based on medical reports from an orthopedic surgeon, an internist and a psychologist. Each of these persons had examined Gomez; each had concluded that Gomez was not disabled. Their reports are substantial evidence supporting the decision to terminate benefits. Richardson v. Perales, 402 U.S. 389, 28 L.Ed.2d 842, 91 S.Ct. 1420 (1971). The medical report submitted by Gomez does not substantially contradict the reports of the three specialists.
Gomez’ brief on appeal makes three arguments.
One argument is that the hearing officer seemed to proceed on the assumption that Gomez’ subjective complaints were insufficient to show that he was disabled. This is speculative. The hearing officer’s findings were based on the medical and psychological evidence, but these findings do not show that the hearing officer considered subjective complaints to be legally insufficient for a determination of disability. Gomez’ argument, in effect, is that his subjective complaints should have been believed, regardless of the opinions of the specialists who examined him. The decision was based on all of the evidence presented. Gomez’ complaints were not to be considered in disregard of the views of the three specialists. See § 27-3-3(C), N.M.S. A.1978 (1982 Repl.Pamph.); Program Manual, supra, § 275.472.
A second argument is that the hearing officer considered evidence that was not available to Gomez. This argument is factually correct. After the hearing was concluded, the hearing officer received and considered a report of the “Incapacity Review Unit”. This report reviewed the various medical evaluations that had been admitted as evidence. Such a report would have been proper evidence if the report had been available to Gomez before the hearing was concluded and had been admitted as evidence. Richardson v. Perales, supra. Because the report was not available to Gomez before the hearing concluded, and was not properly admitted into evidence, consideration of this report by the hearing officer violated Program Manual, supra, § 275.472.
The Department claims the hearing officer’s consideration of the report of the “Incapacity Review Unit” was not legal error because Gomez either waived any such contention or is estopped to make this contention. These contentions are frivolous; there is no factual basis for either waiver or estoppel.
The majority opinion holds that the hearing officer’s consideration of the report of the Incapacity Review Unit was error. I agree. The majority opinion apparently considers this violation of the rules to be reversible error. I disagree. The report did no more than agree with the reports of the three specialists, which were properly in evidence. The reports of the three specialists are substantial support for the decision. Consideration of the report of the Incapacity Review Unit, because of its contents, could not have prejudiced Gomez, and was harmless error.
Gomez’ third argument is that he was deprived of due process because the termination hearing was conducted by telephone. He does not claim a violation of the due process requisites for terminating welfare benefits stated in Goldberg v. Kelly, 397 U.S. 254, 25 L.Ed.2d 287, 90 S.Ct. 1011 (1970). Those requisites are summarized in Mathews v. Eldridge, 424 U.S. 319, 47 L.Ed.2d 18, 96 S.Ct. 893 (1976), Footnote 4:
4. In Goldberg the Court held that the pretermination hearing must include the following elements: (1) “timely and adequate notice detailing the reasons for a proposed termination”; (2) “an effective opportunity [for the recipient] to defend by confronting any adverse witnesses and by presenting his own arguments and evidence orally”; (3) retained counsel, if desired; (4) an “impartial” decisionmaker; (5)a decision resting “solely on the legal rules and evidence adduced at the hearing”; (6) a statement of reasons for the decision and the evidence relied on.
Goldberg, supra, states that these requirements are “procedural safeguards, adapted to the particular characteristics of welfare recipients, and to the limited nature of the controversies to be resolved.” Goldberg, supra, disclaims any intention to impose requirements other than those above quoted. The requirements appear to have been imposed in Goldberg, supra, because of the impact an improper eligibility determination would have on the welfare recipient: “termination of aid pending resolution of a controversy over eligibility may deprive an eligible recipient of the very means by which to live while he waits.” (Emphasis in original.)
Although the due process requirements stated in Goldberg; v. Kelly, supra, were met, Gomez asserts that even though he presented argument and evidence orally, due process was violated because he was not seen. He points out that § 27-3-3(C), supra, provides that the hearing is to be conducted so that his contentions are “fairly presented.” He also points out that Program Manual, supra, § 275.472, provides that he may present his case “in any way he desires”. Neither the statute nor the rule confer authority upon the welfare recipient to dictate the format of the termination hearing; the recipient cannot require, for example, a videotaped hearing. Nor may he dictate the place of the hearing. Neither the statute nor the rule support his due process argument.
Gomez’ argument, essentially, is that due process is violated if the hearing officer does not observe his demeanor. Some cases hold that demeanor is an aspect of the constitutional right to confrontation in criminal cases and an aspect of due process in non-criminal cases. This view, however, is not supported by New Mexico case law or federal constitutional law.
New Mexico holds that “demeanor” is not an aspect of the constitutional right of confrontation. State v. Jackson, 30 N.M. 309, 233 P. 49 (1924); Opinion of Hernandez, J. in State v. Tijerina, 84 N.M. 432, 504 P.2d 642 (Ct.App.1972), aff’d 86 N.M. 31, 519 P.2d 127 (1973); see State v. Lunn, 82 N.M. 526, 484 P.2d 368 (Ct.App.1971). The United States Supreme Court has never held that “demeanor” is an aspect of the constitutional right of confrontation. Ohio v. Roberts, 448 U.S. 56, 65 L.Ed.2d 597, 100 S.Ct. 2531 (1980); California v. Green, 399 U.S. 149, 26 L.Ed.2d 489, 90 S.Ct. 1930 (1970).
Whether Gomez was deprived of due process because the hearing officer could not see Gomez in a telephonic hearing depends on whether the hearing was not conducted in a “meaningful manner”. See Goldberg v. Kelly, supra. Gomez contends the telephonic hearing was not meaningful because his efforts to remain on welfare depend upon his credibility, and the hearing officer could not judge his credibility without seeing him. This is incorrect.
Gomez testified that he was unable to work. The psychologist pointed out that Gomez “feels” he is unable to work, but concluded there was no evidence that he was unable to work because of a psychiatric problem. The psychologist reported that he (the psychologist) found “evidence that he [Gomez] would be unable, as far as he [Gomez] is concerned, to perform any kind of physical labor or employment which would require effort on his part.” The orthopedic surgeon reported that Gomez “has a large functional deficit which is not supported by physical examination * * The internist reported “from a medical standpoint, I cannot find any reason why he should not be able to work due to his back pain.” Concerning Gomez’ diabetes, the internist reported that the diabetes, in itself, would not be disabling if Gomez would take “some personal interest in the control,” but that Gomez would not buy insulin needles, and was not taking his medication because he had not been supplied with free needles. The internist pointed out that Gomez was purchasing cigarettes and the needles could have been purchased with the money spent on cigarettes.
The foregoing shows that the eligibility issue in this case is far different than in Goldberg v. Kelly, supra. In Goldberg, supra, one of the welfare recipients alleged that she was in danger of having AFDC benefits terminated “for failure to cooperate * * * in suing her estranged husband.” Another welfare recipient alleged his “Home Relief” benefits “were terminated because he refused to accept counseling and rehabilitation for drug addiction.” The factual questions of eligibility in Goldberg, supra, involved far more than the question of eligibility in this case; here, the question was whether Gomez was disabled from working and this was essentially a medical question. Mathews v. Eldridge, supra, points out that a medical assessment of a person’s physical or mental condition “is a more sharply focused and easily documented decision than the typical determination of welfare entitlement.” Mathews v. Eldridge, supra, is the applicable law, not Goldberg v. Kelly, supra.
Mathews v. Eldridge, supra, points out that the decision to discontinue disability benefits depends, in most cases, on medical reports of physician specialists, that only in a few cases will credibility or veracity be a factor in the ultimate disability assessment. That credibility may be a minimal factor in disability determination is illustrated in this case; Gomez says he cannot work, the specialists agree that Gomez believes he cannot work. The hearing officer heard Gomez testifying that he could not work; a requirement that the hearing officer also see Gomez testify that he cannot work would impose the rigidities of judicial procedure on what is supposed to be an informal proceeding.
Even Goldberg, supra, agreed “that the pre-termination hearing need not take the form of a judicial or quasi-judicial trial”, and Goldberg, supra, stands alone in regard to pre-termination due process. See Mathews v. Eldridge, supra.
Mathews, supra, points out that “procedural due process rules are shaped by the risk of error inherent in the truthfinding process as applied to the generality of cases, not the rare exceptions. The potential value of an evidentiary hearing, or even oral presentation to the decisionmaker, is substantially less in this context [of a disability determination] than in Goldberg.” Here, however, Gomez had an evidentiary hearing at which he made an oral presentation to the hearing officer; Gomez received more than Mathews, supra, requires. Gomez was not deprived of due process because the termination hearing was conducted by telephone. The majority reach a contrary result, relying on cases only marginally supportive. Most of the cases relied on by the majority: (a) were concerned with a change in the hearing officer during the course of the hearing, and (b) consider demeanor as a part of the constitutional right to confrontation.
Thus, I dissent.