I posted quite some time ago about Social Security's customer service policy. It had its good and bad points. However, as is the way with some agencies, when we take a step forward we often take two steps back.
The Office of Disability Adjudication and Review has instituted a new policy that the identity of a person's judge will be a secret until the hearing actually takes place. While many reasons have been given as to the reasoning behind this move, the main reasoning is that some disability attorneys were withdrawing applications and request for hearings based on who the assigned ALJ happened to be. While I have never subscribed to this practice, I can see why some would. When there are ALJs with 2% approval ratings it would be almost unethical to not entertain the notion of withdrawing an application. Here are the problems I see in the new rule.
It is in violation of the current regulations.
20 C.F.R. 404.940 and 416.1440 allows a claimant to object to the qualifications of the ALJ. If the claimant has no chance to make such an objection then it renders the regulations moot. Arguably, the claimant could raise the objection at the hearing, but then is the ALJ scheduled to hear the case able to make a ruling on the very same objection? This is problematic.
It does not allow counsel to prepare effectively.
In a perfect world every case should be prepared the same and should be decided on its merits. However, each ALJ has different tastes, they look at the cases differently. Some prefer opening statements some do not. Some like briefs some do not. Arguably in a perfect world I could prepare as if my judge would be "all of the above" but the added time could detract from preparation in one aspect of the case over another. I could spend extra time developing an opening statement when I should have spent more time on a brief. When evidence on a case can sometimes be updated just weeks before the hearing, time is of the essence and knowing how to prepare effectively can make or break the case.
The "solution" fixes a symptom not the problem
Why do reps withdraw claims? Because there is such a disparity sometimes in winning percentages. Ultimately there should not be. Statistically each ALJ should have roughly the same award rate. So rather than fixing the symptom lets fix the problem.
I am not advocating an oversight in the judicial process other than the mechanisms that are already in place. If the percentages are out of wack there should be more meaningful review of cases at the Appeals Level. If an ALJ has an influx of more remanded cases, this should fill his or her docket fixing the problem. Of course the claimant loses out as this delays his or her case longer. But eventually if an ALJ's remand rate is higher, he or she might rethink his or her lopsided approach to applying the law.
The solution is a little overboard
Finally, the solution is out of proportion to the problem. I would like to see the statistics on how many cases were withdrawn once the ALJ on the case was announced. It was likely small. It has been my experience that most Administrative Law Judges, even the tough ones, really do want to make a fair ruling on a person's case. So throwing the baby out with the bath water is really a disservice to the people who have paid into Social Security and who really do need a fair hearing with a well prepared attorney.
