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SSDI Judge illuminates the Disability Claims Process | Interview by Laurie Robbins, Esq., Part 1

Laurie Robbins, Esq. Interviews Retired Social Security Adminstrative Law Judge Charles Stark:

Attorney Laurie Robbins of Atlanta, Georgia interviews 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. 

When a person suffers from injuries or illnesses which prevent working, getting approved for Social Security Disability benefits can be a long and frustrating process.  Take note of the insight provided by this retired Social Security Administrative Law Judge and discover the one thing you can do to ensure your client's best chance of success.

Retired SSDI Judge Shares Insider's Insights:

Transcript of Interview Provided by Robbins & Associates, PC

Q.  I understand that you are now retired after serving 17 years as an Administrative Law Judge for the Social Security Administration in Connecticut and then Baltimore.  Judge Stark, could you please give me an introduction and a summary of your background?

A.  First of all I would like to say that because I am retired my remarks are based on my individual capacity, not as an official of the United States government. I was admitted to the Maryland bar in 1975. I did a year as a personal injury lawyer working for a personal injury law firm.

From there I went to work for the old interstate commerce commission starting there in the early 1977 and for around 17 and half years I did appellate litigation for the interstate commerce commission. Now they are known as the Surface Transportation Board, so most of my work was in the US Courts of Appeals. Interstate Commerce Commission operated under federal statute, the Hobbs Act, that gave aggrieved parties a direct appeal from the interstate Commerce Commission to one of the US Circuit Court of Appeals or US Court of Appeals for the District of Columbia.

In that capacity I handled one court brief and had one oral argument every month. It was a very exciting time, and it was very specialized administrative law work. I actually got to see a lot of Judges in action and what they were doing. In fact, I tried to pattern my demeanor off of the pattern Abner Mikvah set. He was a former congressman from Illinois who sat in the US court of appeals from the District of Columbia circuit, and of all the judges that I argued before it was his demeanor that I liked the best.

I am proud to say that I got to argue many cases before Justices Scalia, Ginsberg, and Kennedy when they sat in the various courts of appeals: Justice Kennedy in the 9th circuit and Justices Scalia and Ginsberg in the DC Circuit. I had many examples to follow but Abner Mikvah was the one who actually captured my heart as the way a judge should demean himself on the bench. A couple of my cases went to Supreme Court on the merits.

My first case was in 1980 when I was a fairly junior lawyer and it just happened that my case turned out to be self-worthy and the Supreme Court took it and Thurgood Marshall authored the opinion that was United States v. Kalo Brick and Tile;that was a federal preemption case which is cited often times today for federal preemption issues.

A year so before I became an administrative law judge, one of my last cases also went to the Supreme Court, that was National Railroad Passenger Corp. v. Boston & Maine, 503 U.S. 407 (1992). Interestingly enough, at the time the acting solicitor general was Chief Justice John Roberts. Chief justice Roberts argued my case. I didn't have the rank in the government to argue cases in the Supreme Court. But it was my legal work in the brief and so I have had a very exciting time.

In 1994 I was appointed as an administrative law judge. I was living in the Baltimore area at the time, but my appointment was in New Haven, Connecticut.  My family allowed me to go up there and I actually came home on weekends for 2 1/2 years before I could get a transfer back to Baltimore. The only reason the Social Security Administration was willing to transfer me at all was the fact that they got word that the old Interstate Commerce Commission was moving papers to make me their administrative law judge. So, the Social Security Administration made me an offer for me to move to Baltimore so I would remain one their judges. Since 1994 until the fall of 2011, I served as administrative law judge with Social Security, and obviously it was the first 2 years in New Haven and the rest in Baltimore.

Q.  I am sure that you saw many changes in the Social Security System in your years as a judge. Can you tell me about some of the changes?

A.  I think the most commonly known is the rise in case backlogs over the years and the tremendous pressure put on the administrative law judges to decide more and more cases. I would say that's paramount as far as changes. There were marginal changes in the rules that we applied a series of Social Security rulings in 1996 that I think sharpened the standards the judges applied, but mostly it's the rising case backlogs and pressures that come from them.

Q.  What do you attribute the backlog to?

A.  I think it's aging baby boomers and the nature of the economy. The backlog always increases in economic downturns, but now we are also faced with the demographics of more and more people turning 50 and above. Once you are over 50, between the economic conditions facing all the workers plus the natural course of the aging process and illness, more and more people are applying for disability.

Q.  Georgia is notorious for the delay in the claimant getting to a Social Security hearings in front of a judge. There have been many national articles about the delay in Georgia and Georgia is the worst in the entire country. Now cases are now being heard by judges in other jurisdictions by videoconference. Do you think that there's going to be an improvement in the case backlog and the delay?

A.  I think video conferencing has helped ease the backlog because you can have judges from all over the country helping out an extreme problem. Overall it's just one incremental tool that has helped the government tread water or lose ground, but it hasn't turned the tide.

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.  Do you see any trends in the Social Security claims process that will affect the claimants in the future?

A.  Well, there is an overall trend right now and that is in the personnel turnover.  It's not just Social Security, it's other agencies as well. The government is going through a cycle where older workers are retiring and turning over the reins to younger workers, and that includes staff people, staff attorneys, clerical people and that also includes the judges.

In the case of judges, when you walk through the door from another agency or another type of legal practice, it takes a while to learn what you need to learn to be efficient as an administrative law judge and that slows the production up. Not only does it slow the production, but I think that as time goes on and the judge becomes more seasoned, his judicial outlook changes. Most of my colleagues have always strived to treat the claimants fairly across claimants from one claimant to another.

It might be 3 or 4 years before some lawyer makes an argument to a particular judge about a particular type of case that makes the judge think, "Oh, you know, you are right there. I should consider this fact when I weigh this type of cases from then on." Now going forward, when he's trying to consistently decide one case to the next that principle follows him.

When you are first appointed you don't have all that information.  So, to give you an example:  all lawyers are familiar with the concept of official notice. Well, if you were practicing before the administrative contacts you would say, "Well, judges aren't supposed to take into account official notice.  Everything has to be on the record."  Actually, that's not totally accurate because what a judge should be doing, if a judge knows about a medical fact that may be relevant to the case, that might drive the judge to order a consultative exam in order to get a just result.  

So, let me give you an example: I will have a case where a lawyer will come and say,"Your honor, my client has a heart condition and he only has an injection fraction of 70% an injection fraction is the amount of blood that's pumped out through the heart and obviously that has to count in his ability to work."

An experienced judge would say, "Counsel, I think you should talk to some of your doctor friends. I think they'll tell you that 70% of an injection fraction is a normal reading I am prepared to take official notice that 70% of an injection fraction is a normal reading. If you still feel that that's not the case then I'll order a consultative exam but get back to me in a week or so."

Later on the lawyer will write in and say, "I talked to my friends and that is a normal reading, so I withdraw that argument." But that's where the experience of time and learning and learning about anatomy and physiology comes in and all the judges get it over time.

I remember when I was first appointed one of the old senior judges who mentored me said, "Charlie, as time goes on you'll grant more cases because you just have more experience and you end up granting more cases."

So, if in you are in a period where judge corps is turning over and older judges are retiring you may have find human nature favorable disposition rating is lowered until the judge corps completes the learning curve and matures. I think that's just an inevitable result of where the agency is right now.  There is nothing wrong with this -- it is just that too many seasoned judges are leaving the bench.

Q.  Along those lines do you think Social Security needs to have more judges?

A.  That's a consistent position that the association of administrative law judges have taken over the years that there is not enough judges to do the work. I certainly felt it in my case, and it's one of the reasons I why I decided to retire. I had a certain standard that I wanted to meet in every case, and I was given only so much time on the job to meet the standard. I felt it was time for me to retire and other judges made the same decision.

Q.  According to the statistics that I found, you approved approximately 75% of the claims that you heard.  In an average year there were probably 800 or so claims you heard?

A.  I never heard competed 800 dispositions; in my highest year I think I completed 450 cases.

Q.  With that in mind, do you think that some of these cases that came in front of you should have been approved earlier in the process without the need for a hearing?

A.  That's hard to say. The problem always is that is as time goes on claimants were getting sicker or getting worse and more medical records are developed. A few minutes ago I was complaining of reading repetitive medical records. Nonetheless, many new records came in before me that were simply not before the state agency fact-finders before they reached the judge. I think something need to be said about credibility. A lot of cases turn pink and the testimony... I think sometimes the state agency will say, "Let it go to the hearing; let the judge hear what the claimant has to say before the case is granted or denied."

Remember the state agency decision makers don't have the benefit of vocational experts sitting there to define the parameters of what the claimants' limitations are. No, I can't say that cases should have been decided earlier because pain is involved sometimes you have to decide these cases at the trial level.

Q.  Do you see a trend towards Social Security benefits for disability getting harder to obtain?

A.  I think I touched on that earlier. As more seasoned judges retire and newer judges come on board, initially it may be that more cases are denied, but gradually as the newer judges get more seasoned and experienced I think the trend will reverse itself again.

To answer the question before this, when you were asking the amount of cases granted and denied, I found in my case that a lot of the members of the bar trusted me. When I told them that I was having trouble on a certain part of the case, a lot of times it turned on onset date. When did the claimant really become disabled? The state agency might end up denying because the onset date wasn't clear enough.

A lot of times cases were decided and appeared to be a favorable decision because the claimant amended the alleged onset date, so the disposition for statistical purposes appeared to be a fully favorable decision. But, really wasn't it was picking an onset date that was more recent than was originally claimed, and that was when counsels validly tried to get older evidence to justify an earlier date and lots of successes.

Q.  As we know in Social Security disability, a claimant must not be able to do any substantial gainful activity for a period lasting longer than 12 months. What is substantial gainful activity? Did you hear many cases that were on that issue alone?

A.  The key here is the standard is substantial and gainful, so you will hear someone who did unskilled work and then found a job who will meet the income standard. I think it's about $13,000 a year.

So you will have a worker who went back to work and was at the numeric number that was close to filing disability. There were a small fraction of cases where a self-employed person was putting a lot of effort into a particular job and they weren't earning $13,000 a year yet.

In those type of circumstances, you could not be found disabled because the work you were doing is substantial. Another instance which I found interesting and troubling at the same time: cases where a family business will employ a child who has physical impairments and the child will be drawing a salary of $15,000.00 to $20,000.00 and actually qualify for Social Security Title 2 benefits, having enough quarters. The child will come in and claim disability benefits and say, "Really, I wasn't doing anything for the business. I just come in and sit at the desk. That work, my work, was not substantial or gainful. Even though my parents paid me it wasn't substantial and gainful, and I have to be found disabled.

I then request the business tax returns, parents' tax returns, and the parents must sign a form stating what's on there is true and accurate. They never come back for supplemental hearing, and they will withdraw the claim because the parents may go to jail for tax fraud and there'll be a lot of screaming in the court room. So they never return for a supplemental hearing and that's the end of it. But that's were substantial and gainful come into play.

Q.  Did you see any cases from the list of serious illnesses that should automatically qualify the claimant for Social Security disability? And why would they qualify in your court?

A.  Because often times the evidence didn't crystallize ahead of time the government just didn't have that evidence. That's particularly true in the medical listings of impairment because the medical listings is a matter of subjective signs and symptoms that in the aggregate rise to the level of objective findings. The DSM list a number of mental subjective findings that if you have a cluster of them then the law will see that the cluster as a pattern of setting an objective finding. Then the severities, concentration, persistence, social functioning, activities of daily living versus certain subjective factors in all that and you need a much more extensive development of the record before you can determine whether those listings are met.

It is very common for pulmonary listings to only have the pulmonary function test coming at the ALJ level if it is not in the record before they reach the ALJ or the pulmonary test were performed during the acute stage of the illness when the listing states you are not to use an acute phase of the listing to use a pulmonary function test. When you are sick in the hospital with pneumonia everyone will meet the pulmonary listing but that's where I saw that.

Q.  You mentioned mental illness. Did you, during your 17 years, see an increase in the number of claimant's with mental illness applying for Social Security?

A.  I can't say that. I think I saw mental illness from day one. I think I saw increases in drug related mental illnesses as time went on but not mental illness in general.

Q.  How about alcohol related issues?

A.  I can say that that was increased over time. It was present from day one. New Haven, Connecticut is a very poor area with a lot of drugs and alcohol problems and so is Baltimore. They are both big areas where you have lots of drugs and alcohol. At different times, from reading the literature, certain drugs like recreational drugs swept the country at different times like the surge on OxyContin use. In the old days judges were sent on hearing trips in other cities, so I went to upstate New York and Florida, but for the most part mental illness and drug abuse were prevalent in all the jurisdictions in which I worked.

Q.  What percentage of the claimants that came in front of you for a hearing do you think had mental illness or alcohol or drug problems in addition to their physical illness?

A.  I think you have to rephrase your question as to what percentage is drugs and what percentage is mental illness. Because I think you will get different answers. You want an overall percentage I would say that 25% of the cases I heard involved mental illness. If you talk about drugs I would say 10%. I've never qualified this I'm just giving you numbers of the top of my head.

Q.  Of the claimants that were in front of you, what percentage had lawsuits for the injuries that brought them in front of Social Security? Lawsuits for auto accidents, workers' compensation claims, products liability claims, and medical malpractice?

A.  Often times I couldn't tell from the record whether there were third party cases going on. It wasn't enough information for me to tell and I certainly couldn't draw a percentage.

Click here to read the rest of the interview:

Laurie Robbins:  Judge Stark, thank you so much for your time to answer my questions.

_________________________________________________________________

Featured Attorney:

Thumbnail image for Laurie Robbins.jpgLaurie 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 community service.

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