Tuesday, June 14, 2011

The "Brick Wall of Bias": A Look at the Subjective Nature of SSDI Claim Adjudication


In light of the one-sided media scrutiny on ALJs who award too many claims, this Newsletter zeros in on the more problematic issue - those judges who arbitrarily deny claims and demonstrate general bias and animosity toward SSDI claimants.

The Office of Disability Adjudication and Review (ODAR) is responsible for holding administrative hearings and issuing decisions as part of the Social Security Administration's (SSA) process for determining whether a claimant is eligible to receive Social Security Disability Insurance (SSDI) benefits.  In carrying out this responsibility, approximately 1,500 administrative law judges (ALJ) each issue 2 to 3 decisions per day, for a total of 500 to 700 decisions per ALJ, per year.  However, despite the aggressive production level, ODAR maintains a backlog of hundreds of thousands of disability cases nationally.

Given the rigorous caseloads required of Social Security ALJs, the quality of the decisions rendered has been highly scrutinized over the past several years.  A recent series of articles published in the Wall Street Journal drew attention to the near-perfect approval record of an ALJ who adjudicates SSDI appeals in an "impoverished intersection of West Virginia, Kentucky and Ohio."  According to the article (and confirmed by the Social Security Administration's Public Use Files), the ALJ has awarded benefits "in every one of his 729 decisions" rendered in fiscal year 2011. 

While the articles pointed out that there are ALJs with similar records across the country, it glossed over the fact that there are also ALJs who arbitrarily deny the vast majority of cases that they hear.  These ALJs arguably pose more significant issues from both a moral and cost standpoint, as they seem to exhibit a general bias toward disability claimants, leading to arbitrary denials and overturned decisions at federal court.  In fact, a class action filed in New York on April 12, 2011, alleges "that five named ALJs, including the Hearing Office Chief ALJ, violated the plaintiffs' constitutional and statutory right to a full and fair hearing before an impartial adjudicator."
Class Action Suit: Padro, et al. v. Astrue


As stated in NOSSCR's April 2011 Social Security Forum, "[c]laimants' representatives have been frustrated over the years with ALJs who seem to exhibit a general bias toward disability claimants and the inadequate procedures to address that bias."  Recognizing the lack of a systemic process to combat the issue, the class plaintiffs in Padro, et al. v. Astrue allege that as a result of the ALJs' bias and their "failure to follow applicable law and applicable instructions from the Appeals Council and the federal district courts," the plaintiffs "have been denied fair hearings before an impartial adjudicator in violation of the Social Security Act, the Administrative Procedure Act, and the Due Process Clause of the Fifth Amendment to the U.S. Constitution."  The class "consists of all claimants whose claims have been or will be assigned to the Named ALJs for a hearing and/or decision and all SSI and SSD claimants who, since January 1, 2005, have received an unfavorable or partially favorable decision, not reversed on any subsequent appeal, from the Named ALJs."

The complaint alleges that the ALJs have routinely engaged in adversarial and unprofessional conduct, including "ignoring well-established law and regulations, selective and misleading use of facts, subverting the weight of the evidence rules, abusing medical expert testimony, and ignoring specific orders of the Appeals Council and federal courts."  While some of these allegations are strictly anecdotal, the data seems to support the allegations.  The ALJs at the ODAR in question (Queens, NY) have the third-highest benefits-denial rate in the country, with almost all of the named ALJs ranking high on the list of top claims deniers.  Additionally, the ODAR "suffers from one of the highest remand rates in the country."

In support of its allegation that the conduct of the Named ALJs represents a violation of the Social Security Act, the complaint cites a 1969 Second Circuit case, where the court opined that the Social Security Act "was intended to aid beneficiaries rather than ease the lot of administrators," and was "to be broadly construed and liberally applied," with its intent to include, rather than exclude, potential beneficiaries.  Additionally, the Supreme Court more recently confirmed that Social Security hearings are to be "non-adversarial [in] nature" and that ALJs have a duty to conduct inquisitorial hearings, developing facts and arguments both for and against the granting of benefits.

The complaint ultimately alleges that "the Named ALJs are systematically violating these core principles and depriving disability claimants of the right to a fair and impartial non-adversarial hearing."  However, "the lack of public accountability for ALJs" means that without intervention from the courts, "there is no practical means for the public generally, and the plaintiffs and class members particularly, to hold the Named ALJs accountable for their actions and to obtain the necessary relief from unfair hearings and decisions based on bias."

In a legal environment where the vast majority of claimants lack professional representation, the importance that ALJs are fair and impartial is heightened.  While the outcome of the class action lawsuit is far from determined, the allegations are representative of a broader challenge - the subjective nature of the SSDI claim adjudication process.

Advocator's First Hand Experience

At The Advocator Group, our clients and Hearing Advocates areexperiencing much of the aggressive and biased behavior indicated in the complaint.  Below are two actual examples:

-  A Hearing Advocate represented a 58 year old client alleging disability due to various circulatory and respiratory impairments.  This client's hearing had been rescheduled and thus, the Vocational Expert (VE) had no notice of the hearing and arrived an hour and a half late.  The ALJ (one of the Named ALJs) was extremely angry that the VE was late and his anger was reflected in his treatment of our client.  Throughout the hearing, the ALJ showed animosity toward our client, mumbling under his breath after each testimonial statement.  Additionally, he was angry that our Hearing Advocate submitted recent medical evidence to supplement the record, stating that the submission was "absurd."  At the conclusion of the hearing, the ALJ reprimanded our Hearing Advocate for submitting a pre-hearing on-the-record (OTR) brief, something that we do for every client we represent at the hearing level.  The ALJ stated that our hearing advocate was "trying to pull a fast one on him" by submitting the brief.  Our Hearing Advocate explained to the ALJ that we were simply advocating for our client.

  
-   A Hearing Advocate represented a 32 year old client in Jamaica, NY, suffering from various musculoskeletal impairments.  Our client was fairly fluent in English, but much more comfortable speaking Spanish.  For this reason, our Hearing Advocate ensured that an interpreter was present at the hearing so that our client could communicate his testimony as effectively as possible.  To begin the hearing, the ALJ (one the Named ALJs in the complaint) stated that he did not want the interpreter present because he did not think the interpreter was needed.  He then went on to ask our Hearing Advocate why he should believe that certain treatment notes were in fact authentic.  While finally conceding that the notes were actually from the medical facility cited, the ALJ was annoyed and dismissive of our client throughout the hearing.  To conclude, the judge questioned our client's work history as a delivery employee, demanding that we submit documentation that our client did "legitimate delivery work."
Conclusion

The impact of the increased initial application levels began to be felt at ODAR last year.  While some ODARs have been able to successfully keep up with the increased levels of disability claims over the past couple of years, others have struggled, leading to undue delays and notable variations in allowance rates from one region to the next.  This means that where a claimant lives or which particular ALJ hears a case has an enormous impact on the outcome of the case.  In this system, ALJs play key roles in determining the future economic security of each disability claimant that comes before them. 

The recent media focus reflects poorly on a group of ALJs that for the most part is comprised of dedicated, hard working legal professionals.  While the headlines and litigation focus on the outlying ALJs whose bias clearly inhibits their ability to fairly adjudicate claims, there is no doubt that the vast majority of ALJs nationally make their best effort to adhere to legal principles and ensure that claimants before them are afforded full, fair and non-adversarial hearings.  However, the subjective nature of the SSDI claim adjudication process opens the door to bias and abuse at all levels of the process.


 

Sources
Padro, et al. v. Astrue, Case No. CV11-1788 (E.D.N.Y., filed Apr. 12,2011).
Damian Paletta.  May 19, 2011.  Disability-Claim Judge Has Trouble Saying 'No.' Wall Street Journal.
SSA Public Use Files, ALJ Disposition Data (http://www.ssa.gov/appeals/DataSets/03_ALJ_Disposition_Data.html)
NOSSCR, Social Security Form.  Volume 33, Number 4.  April, 2011.
Haberman v. Finch, 418 F.2d 664, 667 (2d Cir. 1969).
Sims v. Apfel, 530 U.S. 103, 110-111 (2000).