Authority Administrative Law Judge

If and when you get to a hearing before an administrative law judge (ALJ), you may wonder what to expect. You have seen TV trials. You have watched crime shows.  You may very well have developed an idea of what might be in your future.

When your disability claim reaches the hearing level, your case will be heard by one person, an administrative law judge. There will be no jury. There will be no opposing counsel.  There most likely will be a vocational expert and a medical expert present. The hearing will be conducted by an administrative law judge who will ask the majority of questions. What the administrative law judge misses, your attorney will most likely inquire.  On the conclusion of the hearing, the Judge will take your case under advisement and make a decision.

This process, how Social Security Administration determines disability claims, has been the subject of study, debate, and critical comment.

Many conservatives are critical of this structure, alleging that it is too generous, and too easy to obtain benefits.  Claimant’s attorneys complain about the process. Congress has investigated.  All of this has time and time again caused changes to be proposed. Some of the proposed changes include; not using administrative law judges to decide these cases rather the decisions be made not after "hearing," but after "examination" by a panel of experts; that a government attorney represent the interest of social security so that the hearing process become fully adversary; and of course, making changes to the substantive standard, or at least make the receipt of benefits more burdensome by the development of regulations or precedent decisions.

Notwithstanding the challenges to the existing procedure, there has not been a critical change in the process. So for the foreseeable future, the ALJ will be the person deciding the issue of whether or not you are disabled at the hearing level.

An administrative law judge, ALJs, are Article I judges under the U.S. Constitution.  Article I vest all legislative power in Congress.  Article I section 8 grants to Congress the power to “constitute Tribunals inferior to the Supreme Court”.  Under the U.S. Constitution, judicial power and authority is placed in Article III – “The judicial power of the United States, shall be vested in one supreme Court…”.  Since ALJ are not Article III judges they do not exercise full judicial power, they are limited in the scope of their work and authority.

 So although the ALJ is sort of a minor judge, the ALJ is “the judge” in your case at the hearing level.  At this level of review, you could not have a Article III judge, you are restricted to an ALJ. After a hearing an ALJ will review of your file, or review a senior attorney’s breakdown of your case.  There will be a review of questions ask of you at the hearing, and the questions asked or posed to the vocational expert and in many cases a medical expert.

In that respect what happens when your treating physician provides evidence that your impairment equals what the regulatory Listing of Impairments requires for a finding of disability?

You would think that the opinion given by your treating physician, the medical person must familiar with your case, would win the day and a finding of disability would issue. This is not always the case.

A reading of 20 CFR 404.1527(d) (1)-(3) lists issues reserved to the ALJ, i.e. the judge decides the issue even if another ‘expert’ has rendered an opinion on the same issue. One of such issues include: Opinions that you are disabled. The determination or decision about whether you meet the statutory definition of disability. Therefore a statement by a medical source that you are “disabled” or “unable to work” does not mean that the judge will be required to adopt that as a finding. The opinion of on whether or not your impairment equals or meets the Listing of Impairments is a decision reserved for the Judge to decide. The opinion if you have the residual functional capacity to return to competitive employment; and in reality the nature and severity of your impairment, reserved.

How does a Judge not accept the treating physician's opinion on your impairment?

Even if your doctor's opinion is well supported in the medical information, the Judge may not adopted it if he/she can articulate facts in the case that are inconsistent with the doctor's opinion. The Judge may find facts from your testimony that conflict with restrictions the doctor has placed on your activities. The Judge may find, conflicting statements made by you to other doctor's in the course of treatment that to the Judge appear to weaken the treating physician's opinion. In any case, such findings may very will be the basis for the Judge not giving controlling weight to your treating physician. (Consider Sparks v. Barnhart, 434 F. Supp. 2d 1128 (ND Ala. 2006))

Suppose that the claimant claims a physical impairment. In his file, a treating physician states that his impairment may include a conversion disorder, but he was not sure. He recommends that claimant be examined to determine if there is a mental component to his disability. The lack of medical insurance prevents the suggested examinations.

Based upon the doctor’s statement claimant's file does not provide adequate evidence for the judge to decide the case.

One difference from most litigation, social security disability adjudications are not adversarial in nature.  Social security administration has a responsibility to collect evidence: Before SSA makes a determination that a claimant is not disabled, it must develop a claimant’s complete medical history for at least 12 months preceding the month in which the application was filed. 20 CFR § 404.1512(a) & (d), 416.912(a).

The ALJ can send the claimant for a consulting examination or if a treating physician or psychologist provides inadequate information, the ALJ can contact the physician to determine whether additional information is readily available. 20 CFR 1512(e)(1-2).

In this arena the ALJ in some manner on your side, in some manner on the side of social security, and ultimately the judge and the jury.