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Saturday, March 13th, 2010

Complaining About Biased ALJs

For years, claimants and their attorneys have complained about the inability to receive an impartial hearing on their Social Security Disability (“SSD”) claims from the Administrative Law Judges (the “ALJs”) at the Jamaica Queens hearing office. The statistics from the Social Security Administration (the “SSA”) provide evidence to support the complaints.

ALJs Strauss, Fier, Nisnewitz, Jordan, Hoppenfeld and Cofresi from the Queens hearing office denied about 55% of their cases. ALJ’s Cohen, Crawley, Faraguna, Firestone, Waldman, A. Weiss and Z. Weiss from the adjacent Jericho hearing office denied about 13% of their cases. In other words, the Queens ALJs are more than 400% likely to deny an SSD claim than their Jericho counterparts.

The SSA has argued that statistics alone cannot prove generalized bias. However, when a claimant alleges that an ALJ is generally biased the SSA argues that actions outside the particular case are irrelevant, and the SSA refuses to investigate a pattern of generalized bias. Only in a few exceedingly rare cases, where groups of attorneys have collaborated, has the SSA actually pursued generalized bias allegations. The SSA’s reluctance to investigate ALJ bias is evidenced by the fact that the SSA still has never finalized rules for addressing ALJ bias, and has relied on temporary procedures for nearly twenty years, which the SSA admitted are inadequate.

A minor step in the right direction to address ALJ bias takes effect tomorrow. Starting March 14, 2010, the SSA will maintain a new system called “Administrative Law Judge/Public Alleged Misconduct Complaints System,” which is intended to track complaints about ALJ misconduct. The system will include information about bias complaints, investigations of complaints, and information about the claimants’ attorneys, which can facilitate collaborative action and evidence gathering.

It needs to be seen if the SSA will properly collect and maintain the information in the new system, and whether the SSA will provide claimants and their attorneys reasonable access to the information. Hopefully, claimants will be able to access bias complaint information shortly after an ALJ denies a claim, in order to enable the claimant to make a generalized bias argument to the Appeals Council that is supported with evidence outside the claimant’s individual case. Unfortunately, it appears that a claimant would have to make a request through his or her Congressman for the information.

Any claimant or attorney who believes an SSD claim was denied due to ALJ bias should file their complaint with the SSA, and make clear that they want the complaint incorporated into the Administrative Law Judge/Public Alleged Misconduct Complaints System.

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Complaining About Biased ALJs