One of the “dirty little secrets” well known to Social Security lawyers relates to the importance of which judge is assigned to hear your case. The tendencies of the judge assigned to your case is perhaps the most important factor as to whether you will win or lose.
I have no doubt that I could present the same client and the same arguments to two different judges in the same hearing office and win an approval on one case but a denial in the other. Social Security actually publishes statistics setting out the number of approvals and denials by judge – some judges approve as few as 30% of the cases they hear, while others approve 65% to 70%.
While some variation in approval rates would be expected, I think that a system where your odds go from 30% to 70% depending on the judge suggests a significant problem. In my view, judges whose approval or denial rate exceeds the national or regional average by a certain percentage should be reviewed by their superiors.
This problem is compounded by the standards used by the Appeals Council (the level of appeal following a hearing denial). Generally the Appeals Council will not reverse a judge’s decision if that decision arose from the judge’s procedurally correct evaluation of the evidence. In other words, if the judge used the proper standard of law, the Appeals Council will not disturb that judge’s conclusions.
Often judges deny cases because they did not find a claimant to be “credible” or believeable. Credibility is a very subjective concept. How can an appeals judge decide that the trial judge made an improper conclusion about whether you were believeable.
Earlier this year, however, several lawyers and their clients filed a class action lawsuit against several Social Security Administrative Law Judges alleging systemic bias by those judges. The case, which was filed in Queens, New York, alleges that five judges intentionally and consistently maintained a hostile hearing environment designed to deny claims wrongfully. The suit seeks to bar these judges from hearing cases and to give claimants denied by these judges another chance to present their claims to different judges.
The Queens lawsuit is just beginning, but it will be interesting to see if the plaintiffs are successful, and if news of this lawsuit prompts changes in the attitudes of judges throughout the country who deny a higher than average number of cases.
Jonathan Ginsberg represents Social Security disability claimants in Georgia. In practice for over 29 years, Jonathan publishes a widely known disability blog, a podcast and several disability web sites. In 2004, Jonathan published a "how to" book about Social Security disability called the Disability Answer Guide. Jonathan lives with his wife and 2 children in Atlanta.