The Delaware News Journal has published another article in the series focusing on high denial rates by Delaware Administrative Law Judges. The most recent article focuses on the Chief Judge of the Dover Delaware Office of Disability Adjudication and Review (“ODAR”). I previously wrote a post last month detailing the impact that the high Administrative Law Judge denial rate has on individuals pursuing Social Security Disability Insurance (SSDI)/Supplemental Security Income (SSI) payments in Delaware, Eastern Shore Maryland, and Eastern Shore Virginia.
Despite the title of the new article (“Social Security disability denials stir up questions“), there has been no real response from the Social Security Administration or government officials of how this problem will be resolved. The sad fact is that individuals served by the Dover ODAR currently have no choice but to live with the problem until the Administrative Law Judge cited decides to retire, transfer to different hearing office, or pursue different job opportunities.
Unfair Treatment Complaint
Although the Social Security Administration has a process for filing an unfair treatment complaint, there is no proof that the system is effective. The process instructs claimants to provide a written complaint and to send it to the Chief Administrative Law Judge of the Office of Disability Adjudication Review. The Social Security Administration will confirm receipt of the complaint, and is supposed to advise you when the matter is closed. However, the Social Security Administration will not provide you details of any responses taken because of the complaint.
I have filed several unfair treatment complaints on behalf of my clients. The Social Security Administration never advised me of the receipt of the complaints, and no information was provided that the matters were closed. The only evidence I ever saw that a complaint was addressed, was mention of my complaints in a report produced by the Inspector General’s Office and the discovery of a copy of a complaint in my client’s file during a remand hearing. (When I obtained an updated copy of the administrative file, I found a copy of the complaint with all of the unfair treatment allegations highlighted.)
What is troubling is that Administrative Law Judge complaints are handled behind closed doors. There is no openness to the review process, and although it appears that Administrative Law Judges are advised of the complaint, the claimant has no right to know how the matter was handled. There is no official process in place to publicly address offensive Administrative Law Judges. Even when an Administrative Law Judge has their hand slapped by a United States District Court Judge, they often continue the same offensive practices. There is no review process available if it is determined that the Administrative Law Judge’s actions were fair.
Responses to Complaints
Since the Dover ODAR opened in 2004, multiple meetings have taken place to discuss concerns regarding the high denial rates. Chief Administrative Law Judge Frank Cristaudo convened a meeting at the Dover Delaware ODAR while he was still Regional Chief Judge for the Third Circuit. He provided attorneys an opportunity to address their concerns. His successor participated in a similar meeting after United States Representative Wayne Gilchrest lodged complaints on behalf of his constituents. No meaningful response was provided at either of these meetings.
I have personally asked for assistance from the National Organization of Social Security Claimants’ Representatives (“NOSSCR”) on several occasions in dealing with these issues. Although I am a sustaining member of this organization, NOSSCR has also failed to take any action to address the problems. NOSSCR leadership has expressed concern that if the Social Security Administration is provided power to regulate Administrative Law Judges that unfairly denied claims, they would also have the same authority to regulate Administrative Law Judges that approved too many claims. (See, “Paying out billions, one judge attracts criticism“).
Many of my clients have also solicited the help of their local Congressional offices. Although Congress has appropriation oversights, they have no direct means of addressing the reported abuses. I have found that a Congressional inquiry often will speed the process of receiving a decision, but will not result in a better decision being made.
Why the Problem is Worse than it Seems
The result of the high Social Security disability denial rates by the Delaware Administrative Law Judges is that individuals scheduled for hearings with the Dover ODAR office often face a higher standard of proof for disability. What is sufficient to prove your case according to the law, may not be sufficient to prove your case based on the Administrative Law Judge assigned to your claim. The Social Security disability system is a non-adversarial system. The Administrative Law Judge is not a representative of the Social Security Administration during your hearing, and is supposed to be impartial.
When pursuing disability benefits, an individual is required to prove by a “preponderance of evidence” that they are unable to work because of their medical condition. (This officially became the standard of proof by amendment to the Social Security Regulations on January 20, 2009). According to 20 CFR Sec. 405.5, this means that the evidence shows “that the existence of the fact to be proven is more likely than not.” Any benefit of doubt should be resolved in the favor of the claimant, and a special role is reserved for treating physicians (see SSR 96-2p).
In a hearing in front of the Chief ALJ of the Dover ODAR, though, it instead feels that the ALJ is a representative for the government, and that you must be able to prove “beyond a reasonable doubt” that your medical condition will prevent you from working. Although a portion of the public may support claims being resolved in this fashion, the law does not.
The News Journal noted that the Dover ODAR Chief ALJ denies disability claims for 70% of individuals between 18-49. The national average for this same group is 32%. However, as I previously indicated these numbers do not tell the whole story. Of the 30% of 18-49 year old individuals that were approved for benefits, partially-favorable decisions were issued 20% of the time. Only 10% of people 18-49 were actually approved for all benefits requested. (Normally a partially-favorable decision awarded individuals only a brief period of disability benefits, but found that the individual had regained the ability to return to work). Even some of the individuals that were approved with fully-favorable decisions had actually voluntarily requested closed periods of disability in order to increase their chance of obtaining any benefits.
Not only do you face a higher standard of disability if appearing before the Administrative Law Judge discussed, there is a higher probability that if you are approved, you will receive less benefits than you deserve. If you file a complaint about the Administrative Law Judge, you are not permitted to know how the matter is resolved, and if it is determined that another hearing is required, you will most likely be forced to face the same Administrative Law Judge again, and this time the Administrative Law Judge will likely be aware of your complaint.
The Next Step.
If you are scheduled for an Administrative Law Judge hearing at the Dover ODAR, first remember that there are some Judges that will fairly consider your disability, but it is important that you know your rights. You have the right to be represented by an attorney, and in my experience, it is in your best interest to seek legal assistance as soon as possible. I recommend seeking the help of an attorney when you initially file for disability to increase your chance of being approved before you ever need to have an Administrative Law Judge hearing.
I encourage my clients to continue to address their concerns about the denial rates of the Dover Administrative Law Judges. My hope is that public acknowledgment of the problem will result in a more open system to handle complaints. These are Judges that are employed and paid by the public, and there is no reason that discipline should not be a matter of public record. I hope that the Congressional delegation will respond by drafting legislation that allows for a fair complaint system that is open to the public, and punishes Judges that knowingly misapply the law.
Contact your Congressman in Delaware:
This article was written by Steven Butler. Steven is a partner at Linarducci & Butler, PA and his practice is limited to Social Security Disability/SSI claims. Steven offers free initial consultations for Social Security Disability/SSI claims to residents of Delaware, Maryland, New Jersey and Pennsylvania. To schedule a consultation with Steven, please use the Linarducci & Butler Contact Form or call 302-613-0707 to schedule an appointment.