Let me give a brief comment on Social Security's plan to withhold the identity of the Administrative Law Judge (ALJ) to whom an appeal is assigned until the day of the hearing. As a general matter it does not matter much to me. I do not prepare cases any different depending upon which ALJ the case is assigned to. Any differences in the way I present a case are minor. I can easily adjust on the day of the hearing since I know all of the local ALJs. Many others who practice Social Security law feel different.
The idea that this will prevent "judge shopping" is, for the most part, ridiculous. The only way that an attorney can "judge shop" at Social Security is to decline to do a video hearing with a particular ALJ if it is known that the ALJ will not schedule an in person hearing. That is only a small percentage of cases.
What I am hearing from my colleagues is that many will refuse to do any video hearings with out of area ALJs under this policy since they would have no way of knowing anything about the ALJ in advance of the hearing. I may do this myself since the danger with having to deal with an out of town ALJ with serious peculiarities with no advance warning is all too real.
My guess is that attorneys refusing to do hearings with the national hearing offices will become an even greater problem for Social Security under the new policy. Instead of trying to do one thing after another to keep the national hearing offices going, perhaps Social Security should revisit the entire idea of the national hearing offices. Was it really a good idea to create them?
"I can easily adjust on the day of the hearing since I know all of the local ALJs."
ReplyDeleteThen just as SSA does with MOD managers, ALJs should be rotated to different offices.
here's what SSA can do...just take away the option of declining a video hearing.
ReplyDelete"many will refuse to do any video hearings with out of area ALJs under this policy since they would have no way of knowing anything about the ALJ in advance"
ReplyDeleteMr hall that maybe the SSA's position. Although objective,the problem is the alj's strong desire to deny or approve a claim.
Signed,
the disabled
News Flash: The NHC judges, in general, don't have any of those "old school peculiarities" (more like weirdos and Napoleonic thinking) like the ALJs who came in before 2007...they are just "normal" people like you and I.
ReplyDeleteFrom what I have noticed, those ALJs who do the video conferences get their decisions out faster. Whereas I have seen decisions take months to actually be written up (probably by the paralegal staff) and make their way out to the various PSCs.
ReplyDeleteI do not know of any statistics that would point to a large difference between allowances or disallowances between in person and NHC hearings, but I would be interested in finding out.
Having known quite a few attorneys in OGC who now do the NHC hearings, I would be amazed if they deviate from prior rulings just because of any bias views they may have. Not as certain on those ALJs who have a longer service record.
I think keeping the ALJ identity secret until the hearing will be a bad move, a knee-jerk reaction that creates more problems than it solves.
ReplyDeleteHmm...could a rep or ALJ get around this by requesting a very brief telephone pre-hearing conference with the ALJ, as per 20 CFR 405.330? Or will those be done away with as well?
Since nobody at SSA was interested in our opinion about this, about the only way reps can send a message is to start routinely declining video hearings. I expect that is what is going to happen.
ReplyDeleteAs a poster above suggested, SSA can then adopt a rule forcing video hearings, and that will lead to litigation (does the Act mandate a right to a face-to-face hearing?).
The chess game will continue, and the unfortunate pawns are the disabled claimants.
All hearings should be video. really is no value to having in-person option
ReplyDeleteClaimants have an absolute right to an in-person hearing. I rarely refuse VTC hearings, but isn't withholding ALJ information strongarming claimants and reps into doing VTC hearings even if they don't want to?
ReplyDeleteWithholding ALJ assignment information may not change the way I present a case, but it certainly changes the way I manage client expectations about the result of a case.
Also, whenever the transparency of judicial process is made more opaque, it makes me think that there is more going on here than a desire to save the NHCs.
Lastly, the NHC is awful, almost all the ALJs there approve less than 50% of claims. SSA should fix the actual problem and not create an additional one.
anon @ 2:21...you prove your bias with this statement "the NHC is awful, almost all the ALJs there approve less than 50% of claims"
ReplyDeleteThe approval rate of an ALJ has nothing to do with his or her ability as a judge. You may not like the results, but they are likely applying the law correctly. Don't forget, the ALJ level is an appeal of a previous decision. Therefore, there is a pretty strong argument that the number of FF at the ALJ level should be pretty low.
Is there a lack of experience that causes more denials via VHC, or is it something extra that knowing your ALJ may influence. If the ALJs via VHC are consistently favoring state medical opinions over the claimant's long serving primary doctor, then it is a problem. Simply being denied does not mean you were wrongly denied a benefit.
ReplyDeleteAgain, how many of those denied via VHC are remanded by the appeals council? Even though the AC takes so few, if the majority of the remands are decisions by VHC, then there is a problem.
Not every claimant that appeals to the ALJ level is disabled according to the statute.
Clts and their reps should have no right to object (refuse) a VTC hearing. Period. Change the reg.
ReplyDeleteThis significantly erodes the good feeling many reps had towards the COSS when he arrived and began to repair the DSI debacle. Now it seems that these rules bespeak a level of mistrust of attorneys that I've never seen in 30 years of practice. I haven't seen any reference to any data that would support the view that attorneys routinely dump claimants once the ALJ is assigned. That's just not the done thing. VTC hearings are a different matter. But to burn down the house to kill a rat makes absolutely no sense and says a lot about the COSS's view of reps in general. Shame on him.
ReplyDeleteConfirmed this at our hearing office. The suprise? Only managment knew this was happening. On Monday. The next business day. Everyone else only learned of it when I called to confirm this, and they went and asked managment.
ReplyDeleteSounds like a great idea and sounds fair. Many a time I would receive inquiries from large law firms who wanted to know which judge was scheduled for a hearing and how they could change it to a judge they preferred. While it may not make a difference to the honest attorneys that prepare for cases.....perhaps this will actual require some other attorneys to prepare for their cases....
ReplyDeleteMerits of the case be damned! Give me the judge with the bias of my choice!
ReplyDeleteThere is definitely case dumping by some attorneys and non-attorneys in my area when they draw ALJ Denyemall -- an ALJ whose fully favorable percentage is in the lowest one percent nationally. In a way I don't blame them. I blame the outlier ALJ.
ReplyDeleteOne problem is that remands often go back to the original servicing ODAR, meaning the NHC ALJ does not learn from his or her mistakes.
ReplyDelete