As part of its backlash to prevent abuses by Administrative Law Judges, the Social Security Administration has decided to withhold identifying the Judge handling a particular case until the date of the hearing. I received the following email from the Hearing Office Director of the Orlando Social Security Office of Disability Adjudication & Review today:
Beginning next week, December 19, 2011, SSA is making a change that affects you. All pre-hearing documents will no longer display the assigned Administrative Law Judge’s (ALJ’s) name. The ALJ’s name will not be provided to claimants or representatives before the date and time of the hearing.
This change does not abridge a claimant’s right to object to the ALJ who will conduct the hearing as stated in 20 CFR 404.940 and 416.1440. There is no statutory and/or regulatory requirement to inform an individual of who the assigned ALJ is. The Act simply requires us to provide claimants “reasonable notice and opportunity for a hearing.”
At this time, we do not have any more information available. We are providing you this notice so that you will know that no error or omission has been made in our correspondence with you. Please note that the ALJ’s name will also not be provided at the time we schedule your hearing. Since we are not able to provide the name of the ALJ prior to the hearing, please do not call and ask. Thank you.
I believe this is a knee jerk reaction to alleged abuses that occurred in other parts of the country where it is claimed that an ALJ colluded with a local attorney to fix cases. Unfortunately, it makes it very difficult to provide excellent advocacy as an attorney for the following reasons:
- Some judges like to receive a pre-hearing brief…some don’t. As attorneys, we have no idea whether the unknown ALJ wants a brief or not.
- Among the ALJ’s that prefer to receive a brief, some want a short summary of key points and others want a detailed memorandum. Again, we will have no idea what format to use.
- As an attorney, when I prepare a client for a hearing, I meet with them and go over the kind of information a particular judge will focus on. Not being able to do this will likely require us to go over more information with my clients in advance of a hearing. This is a problem since many disabled people have memory problems due to their impairments or side effects from medications.
- It may cause scheduling conflicts. Back-to-back hearings with one ALJ are not a problem….you do not have to worry about being in two places at one time. However, back-to-back hearings with two different ALJs whose identities you do not know may cause an attorney to be late or miss the second hearing. A procedure will have to be identified to fix this problem before it happens.
- Part of effective advocacy is helping the system run smoothly. As an officer of the court, knowing one’s Judge in advance can help an attorney to develop the case in a way that assists the ALJ to make a decision. Not knowing the ALJ’s identity may cause needless evidence or arguments to be developed. Whether SSA likes it or not, their ALJ’s do not all focus on the same things.
- Withholding the ALJ’s identity has the impact…or at least the appearance…of playing a game of “gotcha” with claimants. While SSA may be focusing on ALJs that pay a large percentage of claims, there is a large number of ALJs that pay a much smaller than average number of claims. This is reflected in SSA’s own statistics. Not knowing until the very last minute if a claimant has drawn one of these ALJs may further reinforce their ability to deny claims. Effectively, a claimant and their attorney will have to be prepared to battle the most adversarial ALJs in the system that look for ways to deny claims every time they go in for what should be a non-adversarial search for the truth.
Hopefully, the Commissioner will reconsider this decision. If not, he will hopefully require the ODARs to standardize their procedures so each ALJ will require the same pre-hearing material.
If you live in Florida and would like a free consultation about your Social Security Disability or SSI claim, call Attorney John Tucker at (866) 282-1560.