When a person suffers from injuries or illnesses which prevent gainful employment, getting approved for Social Security Disability benefits can be a long and frustrating process. The following article contains highlights, insights, and a personal spin on the difference between a "claimant-friendly judge" and a "mean judge" as disclosed by a retired Social Security Administrative Law Judge.
Read the article to discover the one thing you can do to ensure your client's best chance of success.
Laurie Robbins, Esq. Interviews Retired Social Security Judge Charles Stark, Part 2:
Attorney Laurie Robbins of Atlanta, Georgia interviews retired Administrative Law Judge Charles Stark regarding his insights concerning the Social Security Disability claims process, problems and changes within the system, the benefits of retaining a Georgia Social Security Disability lawyer, and advice to those attorneys as they navigate through the SSDI approval process. From her office in Sandy Springs, GA, Mrs. Robbins handles social security disability claims and personal injury matters.
Excerpt from the interview conducted by Laurie Robbins of Robbins & Associates, PC:
Q. I know that you have had many attorneys arguing cases in front of you. What are the benefits for the claimant to be represented by an attorney?
A. Well there is vast gap in skill level and the quality of the case between the case that is presented by an attorney versus a case presented by the paralegal or just the claimant coming before the Judge. A lot has to do with the development of the record, and then a lot has to do with the attorney's knowledge of what the focus is of the hearing so that the hearings can be expeditiously decided.
Q. Is there anything that claimants' attorneys can do to help speed along the process of their cases?
A. Yes. I would say so. My major complaints with claimant's attorney is twofold. First of all many attorneys do not read the medical evidence ahead of time, and second of all, because the attorneys are not doing that they send in redundant evidence. It's particularly acute in the case of VA records. Often times I would see and have to read through voluminous, duplicative, triple copies of the same VA records because there is no effort on the part of attorneys to go through it and just resubmit what's new and not already in the file.
In my own practice I would make it a habit to arrive at my desk between 6:00 and 6:30 in the morning every day. If my hearings were scheduled to start at 8:30 am I would have another 200 pages of documents from somebody that came in, either in paper or in the last 2 years on the bench it was sent electronically. A lot of it might be redundant, but I had to go through it at the last minute and there was only a limited time.
When lawyers are sending same evidence over and over again it uses up the time. I get compensated for long hours, but even when I decide to work long hours, those hours can go further if I am not trying to sort through hundreds of pages of redundant documents.
Q. In the cases that were heard in your courtroom, were the claimants and their representatives civil in your court room?
A. For the most part. I think in my case they were more civil to me than, I heard from word of mouth, than they were to some of the other judges because I was considered a more claimant friendly judge. I take issue with that, with the characterization, but I found out that that was the case and that set the tenor at the hearing because counsels were also telling the claimants that.
Q. That's the end of my questions is there anything you would like to add based on your experience and your years on the bench?
A. First I want to elaborate on the last point: the claimant friendly judge and the mean judge. I think that's a misapprehension among the bar and among administrative law judges themselves as to what's going on here, so I have a slightly different spin on it.
I'm an old transportation lawyer as I explained earlier in that regard one Supreme Court case that I came across and that was United States v. Bowman Transportation. In that case, the Interstate Commerce Commission was operating in the regime and they had to decide whether to grant a motor carrier license or deny it, and it turned on the ICC's understanding of the economic harm that will take place if a new entry came into the market.
We don't have any laws like that now, but the Supreme Court said that in the context of administrative law the fact-finder can look at the same set of evidence either optimistically or pessimistically, and depending on which way you look at one result will be optimistic and if you look at it pessimistically the opposite result will follow.
So, how does that translate to what happens to administrative law judges? Some judges are optimists. "Oh, I know he has a back condition, but it won't be that bad and he'll be back at work. He may miss one day of work a month but not three days of work a month," and that judge will look at the case optimistically. The other judge looking at the same evidence will look at the case pessimistically.
A judge who passed away many years ago, Sam Kennel, was in the New Haven office with me. I believe Sam never felt a day of pain in his life. He was a Jack LaLanne type of figure. He looked at every case optimistically and he couldn't believe the horrors of pain described in his court room. So, he tended to deny more case than other judges. That was part of his outlook of life, and so in his hearings he had a very difficult time. The lawyers representing their clients were very aggressive in the prosecution of the cases before this judge, but he was looking at the same evidence optimistically. Same case will come before me and I'll look at the case pessimistically. So, coming before this judge, the claimant might say that they are going to get a fair shot, but it's really not true.
I looked at the combined impact of multiple impairments, that this poor claimant will be missing too much time from work. I will pose a hypothetical to a vocational expert and say "Assuming a random and unpredictable basis, this [hypothetical individual] will miss 3 days of work per month." The vocational expert will say that there are no jobs that the individual can do. Why was I willing to arrive at that hypothetical? Because in many cases after reading the entire record I was a pessimist on that persons prospects, and so that's one thing I'd like to add.
The other thing I'd like to add is that he [this judge] was a great disappointment to me. How many lawyers didn't read the records? They'll figure, "Well, we'll just see what happens at this hearing, and if the Judge rules against my client then I'll really get into the record with you."
And I'll leave you with an example. I had a case and it was 5 years before I retired. This case was ordinary: a man from federal court another judge read the case before I got the case. The Judge denied the back case because the MRI was negative the CT scan was negative, X-ray was negative and because all those exams were negative, he didn't believe the Clamant even though the Claimant underwent 2 back surgeries and was complaining about excruciating pain. So when the case came back from federal district court there was no additional findings questioning or mentioning that the judge overlooked some of the medical records.
No lawyer at any stage before the prior ALJ or in the court proceedings pointed out any particular piece of evidence that might really require another look at this case. I get the case, I'm reading the case, I read the MRI, CT scan but I read the operative report. The second operative report said he opened this man up and there was so much scar tissue developing in the spinal canal. He could not dissect out the scar tissue to solve this man's problem, so he had to close the man back up.
Now nobody read that, even the lawyer that appeared. Why is the not lawyer saving the judge a little time by saying "You know, your Honor, I think when you decide this case you have to look at this record or such and such..." Some lawyers do it, but there are so many of them that don't. What happened before me, there was a cursory hearing; I saw the report I helped the claimant out a little bit. The case was over, but nobody did their job, and I'm afraid it happens too often. With the load of cases and the pressure on the administrative judiciary to move the cases out, that's what we see.
The best break on the whole system to make it work is a lawyer carefully studying the case and gathering all the relative non-duplicative evidence to present it to the judge; that's how justice can be served.
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Laurie Robbins is an Atlanta area attorney based in Sandy Springs, Georgia. With over 30 years experience as an attorney, Mrs. Robbins has focused her practice on helping individuals in the areas of personal injury, product liability, Social Security disability, legal and medical malpractice and Worker's Compensation claims.
Mrs. Robbins is a member of the Atlanta Bar Association and the State Bar of Georgia and remains active in legal and safety education and service to her community.