Recently the Wall Street Journal ran an article about an Administrative Law Judge who grants nearly 100% of the claims before him. There was also an implication that he was able to steer cases from one particular lawyer to himself. Predictably, this has led to calls from Republicans for Congressional investigations into the entire disability program.
This is the area of the law in which I do most of my work, so it hits a bit close to home. I don’t agree with Tristero, over at Hullabaloo, who believes the judge in questions is a hero who Tristero compares, half seriously, to Oskar Schindler. Any lawyer worth his or her salt believes in the rule of law. There are rules under which these judges operate, and it is the judge’s job, if the legal system is to work, to apply those rules. Excusing a judge that grants everyone implicitly okays a judge who grants nobody, as, almost by definition, they are both being arbitrary. There is simply no way that all those applicants qualify for benefits.
In addition to the bad odor it gives off to any lawyer who believes in the rule of law, this behavior inevitably leads just where it has led here: to calls to “investigate” the system, which can lead only if they lead anywhere, to further restrictions on benefits. The right will use this judge to call the disability system itself into question.
And here’s where the asymmetry mentioned in the title to this post comes in. This judge will be investigated, and others like him will be sought out. But no attempt will be made to hold the judges who groundlessly deny claims to account. Two examples from my own experience. A New Haven ALJ found that my client lacked credibility because she refused to acknowledge that she was an alcoholic. The judge’s proof that she was an alcoholic? The fact that she filled out an intake sheet at a doctor’s office and stated that she drank three times a month. Not to excess mind you, but three times a month. I had to go to federal court with that case and recently won the right to get another hearing before the same judge, because the federal judge wouldn’t grant my request to have another judge hear the case. I don’t quarrel overly much with the federal judge, but I know that when I get back before that ALJ she will find some way to either deny the client, or limit her benefits to an unreasonable period. Example two: An ALJ in New Haven denied my client benefits on the grounds that he had failed to undergo prescribed treatment. I went to federal court and the US Attorney agreed with my claim that there had been no treatment prescribed since the man wasn’t getting treatment, which he couldn’t afford, and anyway, the doctors that had treated him before his insurance lapsed said his condition was permanent. So, back to that judge we went. By this time my guy had to use a walker. His own doctors (he is now on Medicaid) said he couldn’t work. This time the judge said my client had been disabled, but magically stopped being disabled when his medical insurance ran out. The judge didn’t believe he had no insurance, though he didn’t say why, and he felt that right up to the date of the hearing the guy could perform light work, which requires standing at least 6 hours a day. This despite the fact that he needs to use a walker to get around and was using it at the hearing. So back to federal court we will go, and when it gets remanded again we will finally get a different judge. In the meantime, my guy has gone three years without benefits to which he is clearly entitled and will probably go another year or more before he finally gets benefits, assuming of course that the new judge is not the judge who decided the three drinks a month lady was an alcoholic. Oh, by the way, to add insult to injury, the period during which the latter client was found to be disabled was so long before he applied that the law bars him from getting paid for that period, so despite the “partially favorable” award, he won’t get a red cent.
Nationwide, stories like this are far more common than the wrongly granted claims, but don’t hold your breath waiting for the Wall Street Journal to report on them, or for Congress to investigate them. These judges are just as lawless as the judge who was written up in the Journal, but you’ll never read about them or the lives they ruin.
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