Mar 18, 2013

The Consequences Of The "Secret ALJ" Policy

     For some months now Social Security has been trying to withhold the identity of the Administrative Law Judge (ALJ) scheduled to hold one of its hearings. This caused a raft of Freedom of Information Act (FOIA) lawsuits which the agency could not win. Social Security is now revealing the identity of an ALJ to those who make FOIA requests. I am hearing that the agency has a pending workload of 10,000 FOIA requests and that this is occupying the time of ten employees.
     A friend suggested to me that attorneys who represent Social Security claimants shouldn't wait until a hearing is scheduled to request the name of the ALJ. These cases are being assigned to ALJs long before they are scheduled. Why not make the request much earlier?

27 comments:

Anonymous said...

I received a call from the FOIA response unit and they indicated that FOIA requests with hearings already scheduled are given priority over other FOIA requests. Who knows if this is true or not.

Anonymous said...

Making us find out the ALJ by these ridiculous foia just shows how wasteful SSA really is. Why put the ALJ on the hearing notice when it takes ZERO extra work, when you can have dozens of governmental employees slogging through thousands of requests that are only necessary because SSA's own full employment policy? I'm sure those FOIA officers are low not at the bottom of the government pay scale either.

Anonymous said...

Why does it really matter who the ALJ is? Either you have a good case or you don't.

Anonymous said...

The policy of making the ALJ unknown until the hearing has justification beyond wanting to maintain employment levels. The idea is based on program integrity. A rep should prepare his/her case to the best of his/her ability regardless of who the ALJ is for the case. If the case is properly developed, supported, and well briefed, then the identity of the ALJ should not matter to the rep. Some reps try to avoid certain ALJs who have low pay rates by advising the claimant to withdraw the hearing request and file again, which creates a lot of duplicative work and slows down the process for other claimants. Other reps might not even take the claimant’s case at all based on the low probability of pay. However, these goals are thwarted if SSA providing the identity of the ALJs via a FOIA request, so the policy appears unsuccessful.

Anonymous said...

The Consequences Of The "Secret ALJ" Policy = fair hearings with lesser chance for reps to game the system.

Anonymous said...

seriously, Charles. Build a mental bridge and get over this. Unless you want to level charges that a or some ALJs are biased, etc., you have no objective reason whatsoever for needing to know the identity of the judge ahead of time. And if you have such a claim, file it.

We all know this is about weasely reps knowing (in order of importance): how likely they are to get their 25% up to $6k, how much they actually need to know about the file before walking into the hearing room, and preparing the client for the different questioning, etc. styles of the judges.

This is so transparently about pay rates and getting paid it sickens me. Again, unless there are just bad judges, in which case you should file complaints and not be a coward and deal with them by trying to get in front of a different judge.

John R. Heard said...

No one who posted here has ever represented a claimant. You need to know who the ALJ is to properly prepare your client, to prepare for that ALJ specific preferences re: prehearing briefs, etc., to arrange your schedule (some ALJs take MUCH longer than others), and for other perfectly legitimate reasons.

Anonymous said...

Explain to me how, with a secret ALJ policy, any ALJ can require specific pre-hearing stuff. And if they did, you'd know your ALJ, right?

Scheduling? You obviously haven't worked for SSA--we give so much leeway to reps for rescheduling it isn't funny (gee, your honor, that day really isn't very convenient for me). And scheduling conflicts/rescheduling seem to NEVER be concerned with the interests of the claimant (i.e. you guys have no problem making your clients wait another three months for a hearing and potentially payments because your kid has a baseball game), but rather the convenience of the rep.

You're right about different ALJs having different questioning practices. However, that seems to be about the only legitimate thing that actually concerns the claimants. But I argue that benefit is far, far outweighed by the benefits of hiding the identities of the ALJs.

Anonymous said...

I have to agree. If the ALJ requires a pre-Hearing brief, it is usually 10 days prior to the Hearing and you are notified at the time of scheduling. Some ALJs want you to complete a form they have created themselves (expressly forbidden) prior to the Hearing, if they do, they contact you and you do it. Sometimes it helps you know the ALJ prior to the Hearing, but makes no difference in the claim. The reasons to know the ALJ are rather lame. Some ALJs suck. They deny everything. Knowing that ahead of time does not, in any way, without exception change what is going to happen. You know when you walk in and see ALJ Hangem that you are playing for the AC and not a win.

Scheduling is a joke, get over that, lamest excuse ever. Preparing the Claimant, if you need to know the ALJ to prepare the Claimant, then you have some larger problems than just knowing the ALJ. "Claimant, in this office there are 3 good judges, two that would deny thier mother in an iron lung and two that are decent and do the prescribed 500 at 54%. It is medical evidence that wins a claim, not knowing the ALJ."

Other legitimate reasons...waiting to hear those.

Anonymous said...

Re scheduling: this conversation happens: Q: can you do the Jones hearing at 2:30? A: I have a hearing at 1:00 that same day. It it is with Judge Speedy Gonzalez, I can do the 2:30. If it is with Judge Wylie Coyote, I can't, as she always runs long.

Anonymous said...

ALJ Gonzalez, I have another Hearing in this office today, can you please advise the other ALJ that this Hearing is ongoing and I will not be able to start as scheduled. Would you please use the inter office message system. Thank you

Never had a problem with that approach.

Think outside of the box, you are supposedly a representative, prepared, knowing, and able to think on your feet.

MTB said...

I have to agree with J. Heard. The conclusion forced upon the reader of these comments is that few if any of those the support the 'Secret Squirrel' policy have ever actually tried a case. ALJs are just as idiosyncratic as anyone else. Knowing their habits and preferences makes me a better advocate.
And yes...some ALJs are baaad people. And I do deal with them differently.
In reading these comments, I'm reminded of an argument I once had with an ALJ over a video hearing (I routinely object to them.) this ALJ was mad I had messed up his scheduling by making him drive. I knew he was a criminal defense lawyer at one time so I asked "Judge, how many of your criminal clients would you have allowed to have their case heard by video?" End of discussion.
So, you Secret Squirrels, how would YOUR hearing be handled?? Would you want to know who the ALJ was? Would you want your lawyer to know?
End of discussion

Anonymous said...

No

Anonymous said...

2:44 is absolutely correct

Knowing who the ALJ is only serves 1 purpose -- to determine how much effort a rep is going to put into preparing for a case.

This has NOTHING to do with a claimant's due process rights.

Anonymous said...

Get over it already. My god. Someone above nailed it. Your transparency is showing.

Anonymous said...

SSA is not the only agency to use video Hearings. Imigration holds the vast majority of the Hearings they do by video. By the reconing here, all of those decisions should be voided as they are unfair.

Comparing SSDI to criminal precedings is flawed, to an extreme. ALJs are not real judges, they do not have the ability to even supoena. Precedings are non-adversarial. Evidence consists of medical records.

What is the biggest problem is the resistence to change. Change to video, change to no ALJ name. Its fear that it is no longer the way it used to be and you are going to have to work harder to stay up with the game. Eliminate Non-Atty Reps. Make it adversarial, add a representative for the government and I will grant knowledge before hand of the ALJ handle so you can better "prepare."

Anonymous said...

I like this thread. I'd also like to throw out a friendly reminder that all this arguing about how fair the process is and how little aspects of it aren't correct or fair or whatever--it's so irrelevant. The Constitution, as it has been interpreted thus far by SCOTUS, does not even require a hearing unless benefits are being TERMINATED. It is so funny that you reps argue about how fair this process is and this and that when the whole process--hearings for applications for benefits--is not even required!

inb4 "but since there are regs passed by Congress, they have to be followed." I get that, but my point remains--it's really cute to argue about the sufficiency of details of a system that doesn't even need to exist.

MTB said...

Really hard to respond when virtually everyone is "anonymous". 9:13 above iw waaay off. Of course ALJs are "real judges" in the most important respect...they are the finders of fact in these cases. The reason video is less desireable is simply because it is harder to see the claimant. No matter how good the quality, it is not the same and determining the client's credibility is a critical step.
I have to repeat the questions so artfully dodged by recent responders: Would you want YOUR hearing by video? Or your Mother's? Would you want your lawyer to know who the judge was?

Anonymous said...

Some reasons I want to know who the ALJ is: 1) ALJ #1 likes it fast and because I know ALJ #1 is relatively fair, I'm willing to play ball. I need to know whether to prepare my client for extensive cross-examination or for a 10 minute "in and out" hearing, 2) ALJ #2 hates mental impairment cases. If my client has a combination of physical and mental impairments, I'm going to prepare my client differently for ALJ #2, 3) ALJ #3 always uses a VE, and relies heavily on the VE testimony in making a decision. I need to extensively prepare to cross the VE, 4) ALJ #4, same s above, except substitute ME, 5)ALJ #5 wants a detailed pre-hearing brief, 6) ALJ #6 gets annoyed if I submit too much paper. Need i go on?

I have never, not once, heard of any representative suggest withdrawing a hearing request and filing a new application because of a bad ALJ. What sane client would even accede to that request by a representative. Even the "bad" ALJs approve claims once in a blue moon. No representative would seriously suggest to a client that the client get in line for another two years because of a bad draw.

Anonymous said...

@ 12:09

sure I would. I also want warm cookies and milk waiting for me on the kitchen table when I return from work. Doesn't mean it's important that it actually happen.

There's a logical fallacy in your proposition "would you want..." somewhere. I'm guessing it's "appeal to" some such, but alas, I am too lazy to google the name of it.

In any event, nobody is saying they don't understand Charles and others' desire to know the ALJ beforehand. I would want that if I were in their shoes. But since when does "I want it" without actual, reasonable justification, any basis for getting something?

Anonymous said...

The negative push back by the "representatives" will only result in SSA getting more annoyed with them and all the FOI requests. In the end you will know the name of the ALJ, "so you can prepare" and you will make SSA force video on the system with a no deny clause. Then you will be well prepared to loose and know who you are loosing too.

Flooding the system with FOI is silly. It does nothing but make work for people that, by all the representative accounts, are already unable to keep up in a timely manner. How does this help? Lawyers and Non Atty Reps have national organizations both with paid lobbyist to handle this. Why take it out on the agency we are all trying to defend?

Seems like cutting the nose off to spite the face, playground bullies trying to get thier way. Shameful.

Anonymous said...

Wow. I have worked as a atty rep and now work in ODAR. There are clearly a lot of people posting here who never tried a SS hearing (or any other hearing or trial). If these people are actually writers, then they are especially daft, as they should know that some Cs with the same evidence get different results even from the same judge. It is not all just "the medical evidence."

Lets just weight the pros and cons to the Secret ALJ policy.

Pros: Almost none. This policy was started only so that reps would not bail on NHC hearings once they found out the ALJ was a low payer. This did happen a lot. However, it would have easily been cured by just giving Cs a 30-60 day window to object to a video hearing.

There is no justification for this policy at normal ODAR offices, and especially so since FOIA requests will get this info anyway. I have never known a way to get out of a bad ALJ once assigned to the case. Yank your app for hearing? Never seen that. Rather take it to the AC then Fed court and refile. More money that way anyway. Basically, for a regular ODAR office, the secret ALJ policy addresses a problem that never existed.

CONS: Reps are unable to prepare adequately for hearing. True, one should always prepare for the worst case scenario, but some judges have issues that deserve special preparation (drug issues, certain impairments being auto "no pays," etc). Some ALJs take 15 minutes, some take an hour. Some ALJs ask all the questions, some ask none. In any court/hearing situation, knowing how the judge/ALJ/fact finder conducts the hearing and what his/her biases are essential, and you are probably conducting malpractice if you are not taking these things into account in prepping for the hearing. Not sure why an SSA hearing should be any different.

ALJs do not appear to like this, particularly ones who have prehearing requirements. No upside for them in this policy.

Takes extra time/money to process FOIA requests that the agency does not have.

So a simple pro/con analysis says this policy is not a good idea.

Lastly, As a ODAR employee, I apologize for those above (who I presume are SSA employees)that appear to think ALJ hearing, due process, and following regs and statutes are unimportant (I'm talking to you "the USSC does not require a hearing" guy!). I hope these folks are not attorneys or writers. None of the writers or attorneys I know in ODAR share these views (as far as I know!).

Anonymous said...

I applaud the insider @ anon 3:07PM. I always wondered why more reasonably insiders do not comment on this site.

Anonymous said...

The policy is counterproductive; it is classic SSA over reaction. It will not last.
I agree with Heard (Heard 3:01 PM, March 18, 2013,) most of the posters against this policy have not represented clients and likely have no idea what it is to represent claimants.
For ANON 2:19 PM, March 19, 2013
The Secret ALJ policy is “silly”. It was based on one high profile individual who took advantage of the system. Did some representative game the system. I am sure and equally convinced the vast majority has not.
For Anon 3:55 PM, March 18, 2013
I worked for SSA and now as a representative. One ODAR I work with has never called me about scheduling hearings. They simply schedule 2 months out and I can deal with that. When I do get a call from an ODAR, I will take what they offer unless there is a legitimate schedule conflict. Suspect majority of representatives who actually practice (again see Heard post) do the same.
Preparing the claimant for an ALJ is what advocacy is about and again, most of the posters against this policy have no idea what it is to represent claimants. If they did practice, they would probably know that most ALJs prefer the representatives know who they are because the bottom line is it is more effective for everyone involved - the claimant, the ALJ and the representative. This is simply not about a majority of representatives gaming the system, but about the system overreacting to a very small minority. There will always be bad apples in every endeavor. The whole Secret ALJ policy is indeed a waste of time. Ditch the secret policy. That would be the responsible move for SSA.

Anonymous said...

One dead horse, well beaten.

Anonymous said...

@2:44 PM, March 18, 2013 you think filing a complaint against a bad judge should do the trick to straighten him or her out.

Let's look to the data. Seven ALJs EVER have been removed from the position by the MSPB.

Anonymous said...

Apparently that horse is still breathing...