Don’t Be Misled By A Biased Judge

Friday, May 4th, 2007

Many of the Administrative Law Judges (“ALJs”) at the Queens Office of Disability and Adjudication Review have reputations for disapproving strong disability claims. Statistics show that a higher percentage of cases from Queens are overturned compared to other hearing offices. The ALJs often go to extraordinary lengths to justify their denials.

Last week a Queens ALJ stated that because a claimant had not been terminated from her job she was not disabled. I explained that the issue is not whether the claimant was employed in name, but rather whether she was capable of engaging in substantial gainful activity. The ALJ obviously knew he was wrong because for decades the courts have ruled that, “The first step in the sequential process is a decision whether the claimant is engaged in ‘substantial gainful activity.’” Furthermore, the ALJ knows that the regulations state that, “At the first step, we consider your work activity, if any. If you are doing substantial gainful activity, we will find that you are not disabled.” In other words, in order to avoid approving the claimant’s application, the ALJ was intentionally misapplying the most basic issue at any Social Security Disability hearing.

A claimant unfamiliar with Social Security law would not have thought to question the ALJ’s assertion that because the claimant was not terminated from her job she was not entitled to disability benefits. Neither claimants nor their representatives should blindly accept an ALJ’s opinion of the law. In a situation such as this, I immediately request a copy of the hearing tape and submit a post-hearing memorandum explaining the correct recitation of the law.

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