Administrative Law Judges ("ALJ") are prohibited from making medical judgments because they are not doctors or medical experts. ALJs must give treating physicians controlling weight but many do not. Instead, ALJs use personal bias or prejudices to write unfavorable decisions. ALJs improperly use the concept of credibility as the single most cited reason to deny disability cases. The Judge can determine that not only is the claimant not credible, but neither are the claimant’s treating doctors.
We have two problems. First, doctors write abbreviated notes that focus predominately on positive results. Doctors do not elaborate about how poorly a patient feels. If the doctor is good, the patient should get results. Second, evidence law does not apply to disability hearings. In a regular hearing, the evidence is subject to strict rules. You get to examine and cross-examine the doctor and their notes. There are dozens of legitimate reasons why a patient has a great week followed by a disabling month. Evidence law protects the claimant from arbitrary systems.
Poor judges take advantage of the fact the claimant is not bringing his doctor into the hearing to explain the claimant's signs, symptoms and laboratory findings, or the claimant's functional limitations. Administrative Law Judges distort abbreviated notes and statements to their advantage. It's unfortunate that the ALJs do not police their ranks. Bad ALJs tarnish the good ALJs and the entire Office of Adjudication and Review ("ODAR"), formerly the Office of Hearings and Appeals ("OHA"). Bad ALJs have a narrow focus: this hearing is about whether or not I like you
(1) Create a Social Security Court with pre-hearing conferences, disclosures, discovery, depositions, witnesses and application of the rules of evidence. This is the only way to police runaway ALJs, unclog the federal courts with disability cases, control agency costs, and restore public confidence is the social security disability program.
(2) Legislation that requires Social Security to make two decisions instead of one:
- the disability decision when a claimant has an impairment that can be expected to result in death or to last for a continuous period of not less than 12 months; this decision has two components - the severity and duration - and the claimant must satisfy both components for an award of benefits.
- the Medicare decision based strictly on severity and not duration. Many claimants fight for the Medicare health care benefits and not the monthly benefits award. Receiving medical treatment quickly is a significant component to the reduction of impairment severity.
Good ALJs understand that indeed they have the power to make a claimant miserable for a year or two, but eventually most of those claimants go on to win - the eventual total cost is all of the claimant’s past-due benefits, SSA's litigation costs, the burden on the federal judiciary, and the destruction of public confidence in the system. Many clients arrive at my office from the start of the initial application process stating that the system is complex, unpredictable, unfair and bias.