Let's say you're an attorney and you have evidence that a particular Administrative Law Judge (ALJ) is prejudiced against a certain group of people. I'm not talking about suspicion or an opinion or belief. I'm talking about specific evidence. I'm not talking about a specific case but let's say you make a Freedom of Information Act request for statistics on the rate at which an ALJ is approving claims depending upon the race of the claimant. You fight the agency for months, if not years, but eventually get the statistics showing a huge disparity. You get a hearing scheduled before this ALJ with a person whose disability claims the agency rarely approves. You file a motion asking for the ALJ to recuse himself or herself attaching the evidence showing the pattern of discrimination. The ALJ refuses. The ALJ goes on to deny the claim but makes sure to remove from the file all the evidence that you submitted showing the pattern of discrimination so the Appeals Council and a federal court can't see it. Can an ALJ do this? Sure, under a recent change to Social Security's HALLEX manual, the ALJ is supposed to remove from the file any evidence you submit concerning the ALJ. If the attorney submits an affidavit to the Appeals Council concerning the ALJ's behavior in the case, that must also be removed from the file.
12 comments:
Why would the affidavit be removed? Submit it to the AC with a 13-1p allegation. Do not include SSNs or other PII from unrelated cases.
When SSA gets to make up the rules of the game, they can pretty much assure that they will be the victor. Its a ridiculous system.
That is why making this an adversarial system is the only way to go if you ever want to level the playing field. Otherwise the claimants/reps will continue to get sucker punched all day long and never even know it.
Does anyone actually have data on decisions by ALJs by race of claimant or is this just a hypothetical?
Send a letter with the information to every single member of the Congressional Black Congress. Contact NYT Sam Dolnick , who wrote about the Queens ALJ bias cases and has since been promoted.
In other words, contact outsiders with power.
Forget the AC. ODAR management (from appointees on down) is driven by paranoia of public embarrassment. How many of them are similarly biased and abusive themselves?
Here is a reality check: As long as an ALJ or any other employee is meeting his or her numerical quota of widgets (which is what some some sadly call the claimant's cases in the current factory line production environment), then what incentive do you think ODAR management has to go out of its way to deal with biased bullies? No incentive at all except the threat of public embarrassment.
The management culture is to do whatever they can to look good and preserve their positions. They have a new slogan about "timeliness" (i.e. high widget production ) equaling "quality." It's an impossible task. If management had any integrity at all, it would acknowledge that the widget quotas are impossible to meet under any reasonable "quality" standard. But instead they force the lie down employees' throats and harass those who don't or can't swallow it.
ODAR is not a compassion driven culture. It's not a culture of honesty and integrity because employees are forced to participate in an egregious lie about invalid case/widget quota production. ODAR is fundamentally a fear driven culture. So is it any surprise that a biased ALJ would do well there? you need to instill fear in management of public exposure if you want to solve the problem.
The other option (if you have evidence) is to file a complaint with SSA OIG or DQS
ALJs have done what is described in the hypo, ditching evidence of bias. If one really means it in such a recusal motion, actually has facts, and has a ton of time (which no one does), then a plenary action to challenge the lack of a fair forum can be addressed to federal court rather than a simple 405g based action (limited to the administrative record) can address a fundamental deprivation of due process. 13-1p is not a remedy for the violation of a fundamental constitutional right, which gives rise to use of extraordinary writs such as mandamus. The complaint procedures, Ofc of General Counsel and like are not a remedy. Notably, the HALLEX does not cite any legal authority for the removal of relevant evidence, and it will not stand much judicial scrutiny without more justification than 'cause we say so.
@1:48
BRAVO! I could not have said it better, as the 30+ year ODAR employee who has been in communication with Congress about the Eanes' confirmation, Colvin's wish to maintain her Acting Commissioner status and the real reason behind these shenanigans.
The bias allegations do not belong in the claimant's file because they have nothing to do with the claimant's disability status.
If you think an ALJ is biased, file your complaint with the relevant ODAR office, the relevant Regional Office, and other appropriate SSA entities.
"If you think an ALJ is biased, file your complaint with the relevant ODAR office, the relevant Regional Office, and other appropriate SSA entities."
Yeah. Do not put it in the file. Why would you want your motion and evidence in the file and part of the record? Oh, so you can bring it up in federal court? Well, we don't exactly want to deal that our stupidity outside of our bubble of complacency. Understand?
What's next, you are going to tell me that cigarettes are bad for me? I guess if you call peer-reviewed and replicated longitudinal studies "evidence." Here at SSA, evidence is what we make up to deny a case.
@7:09, bias evidence needs to be in the file because it's part of the basis upon which an appeal would be filed. The claimant did not receive a fair hearing or decision because of the bias. If SSA can keep that out of the file, they are depriving the claimant of the ability to make an appropriate record for appeal.
It would be no different than SSA removing a treating source opinion from the record. If the claimant wants to argue that the ALJ failed to consider the treating source opinion, but suddenly there is no opinion in the record because it was removed, where does that leave the claimant?
I think 8:06 is right, SSA is simply trying to prevent its dirty laundry from being aired out in federal court.
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