dissenting with separate opinion.
I respectfully dissent from the majority's opinion reversing the trial court's grant of summary judgment in favor of the Class. While I join the majority with respect to the Class' waiver and law of the case argument, I part ways with the majority's conclusion that an ALJ's refusal to consider evidence of conditions not disclosed on a Medicaid disability application does not violate federal Medicaid law and the Due Process Clause of the Fourteenth Amendment.
The fundamental requisite of due process of law is the opportunity to be heard. Goldberg v. Kelly, 397 U.S. 254, 267, 90 S.Ct. 1011, 25 L.Ed.2d 287 (1970). This opportunity to be heard must be conducted at a meaningful time and in a meaningful manner. See id.
There is a basic obligation on the ALJ in these nonadversarial proceedings to develop a full and fair record, which obligation rises to a special duty ... to serupulously and conscientiously explore for all relevant facts....
The [ALJ's] duty to inquire takes on special urgency where ... the claimant has little education and limited fluency in English, and, given that the claimant already has a right to a hearing, the additional cost of pursuing relevant issues at the hearing is minimal.
Heckler v. Campbell, 461 U.S. 458, 471, 103 S.Ct. 1952, 76 L.Ed.2d 66 (1983) (Brennan, J., concurring). Thus, the duty of the ALJ is not one of advocacy but "one of inquiry, ensuring that the ALJ is informed about facts relevant to his decision and learns the claimant's own version of those facts." Henrie v. U.S. Dep't. of Health and Human Serv., 13 F.3d 359, 361 (10th Cir.1993). Moreover, the opportunity to be heard must be tailored to the capacities and circumstances of those who are to be heard. Goldberg, 397 U.S. at 268-69, 90 S.Ct. 1011.
I believe that the current policy used by the ALJ to exclude any evidence not alleged in the original application but which could establish that the applicant is nevertheless entitled to benefits not only violates our basic notions of due process but also an ALJ's duty to inquire, The very purpose of the Medicaid administrative hearing is to determine an applicant's eligibility to receive assistance. See, e.g., Curtis v. Roob, 891 N.E.2d 577, 581 (Ind.Ct.App.2008); Albert S. v. Dep't. of Health & Mental Hygiene, 891 A.2d 402, 415 (Md.Ct.Spec.App.2006). This duty increases in *1238urgency where, as here, the applicant often possesses limited means, little education, and-in some instances-reduced mental capabilities. This duty becomes even more strenuous when the ALJ is considering information collected by the applicant's caseworker. As explained by Justice Brennan in Goldberg:
It is not enough that a welfare recipient may present his position to the decision maker in writing or second-hand through his caseworker. Written submissions are an unrealistic option for most recipients, who lack the educational attainment necessary to write effectively and who cannot obtain professional assistance. Moreover, written submissions do not afford the flexibility of oral presentations; they do not permit the recipient to mold his argument to the issues the decision maker appears to regard as important....
The second-hand presentation to the decision maker by the caseworker has its own deficiencies; since the caseworker usually gathers the facts upon which the charge of ineligibility rests, the presentation of the recipient's side of the controversy cannot safely be left to him.
See Goldberg, 397 U.S. at 269, 90 S.Ct. 1011.
Moreover, the State's refusal to permit the introduction of additional evidence at the administrative Medicaid hearing forces an applicant to diagnose his or her own conditions at the time he or she first applies for assistance. This results in further hurdles as at the time the application for Medicaid assistance is submitted, an applicant may not consider his or her condition to constitute a disability-regardless if they were previously aware of these conditions. In the documented cases before us, Steward was not diagnosed with morbid obesity until after his initial application even though obesity is recognized as a disabling condition that may warrant Medicaid assistance. See, eg., Clifford v. Apfel, 227 F.3d 863, 873 (7th Cir.2000).
In a disability hearing, the goals of the agency and the advocates should be the same: that deserving applicants who apply for benefits receive justice. Cunningham v. Apfel, 222 F.3d 496, 501 n. 6 (8th Cir.2000). In light of this overarching objective, I conclude that the ALJ's duty of inquiry is not suspended when the applicant fails to list a particular disability in his or her application or raises it for the first time during the administrative hearing; rather, an ALJ is obligated to investigate the disabling effects of each possible impairment suggested by the record and which may be relevant in order to reach an informative conclusion as to whether the applicant is eligible to receive assistance. Today's majority decision falls well short of this goal. I would affirm the trial court's decision.