D. Randall Frye, President of the Association of Administrative Law Judges, penned an opinion piece published in The New York Times entitled Fixing Disability Courts. In it, Judge Frye makes his case for changing the adjudicatory process for Social Security disability hearings from a non-adversarial process to an adversarial one, so that, as he puts it, “the courtrooms look more like those in Law and Order and The Good Wife,” and so that “each side” has an advocate.
Judge Frye also covered other ground: he expressed discontent that judges are constrained from reviewing claimants’ created online presence on social networking sites such as Facebook and Twitter. He asserted that judges should be able to submit claimants to psychological testing designed to ferret out malingering. And, Judge Frye admonished President Obama to replace acting Commissioner, Carolyn W. Colvin with a “permanent leader with recognized professional experience in the field of social insurance.”
In support of the idea that disability hearings should be adversarial, Judge Frye wrote, “[in hearings] taxpayers have no advocate on their behalf to ask questions, challenge medical evidence or review the 500 – 700 pages of materials that make up a typical case file.”
Au contraire, mon frère! These tasks are under the purview of the Administrative Law Judges themselves! These, in fact, are essential functions of the Administrative Law Judges’ job.
I would encourage informed taxpayers to know that Administrative Law Judges:
- are able to ask questions,
- can challenge medical evidence, and indeed,
- must review the case files assigned to them – no matter the number of pages.
These are essential functions of their jobs. Most Administrative Law Judges do them. And do them well.
Moreover, Social Security and its Administrative Law Judges are:
- permitted to request medical evidence,
- permitted to contact claimants’ physicians for more information or for clarification,
- permitted even to send claimants to consultative physicians of its own choosing – at will – to assess claimants. (Failure to attend such an appointment can be grounds for denial.)
Administrative Law Judges are hardly constrained or knee-capped in any way to perform the duties of their jobs.
In fairness to Judge Frye, he seems to be at expressing frustration at the tensions that exist in performing the competing tasks required of Administrative Law Judges. It is said that Administrative Law Judges in non-adversarial proceedings wear two hats: they are advocates and decision-makers. Perhaps it is a bit like playing chess with yourself?
But, many jobs require tasks that seem diametrically opposed. For example, parents nurture and discipline. Pizza delivery drivers need to be fast, and yet drive safely. I would grant that it is challenging to figure out where the contours of one task ends and the other begins – but it is doable. And, what’s more, it’s what is required. For highly skilled and well-remunerated Administrative Law Judges, we should expect they can manage these dichotomies. Most Administrative Law Judges can, and most do.
While it is reasonable to argue that it is a challenge to carry out competing tasks simultaneously, it is not reasonable to argue that being a decision-maker in a tribunal is a disadvantage.
I know a mother of three who wears a t-shirt that says, “because I’m the mom, that’s why.” If I were an Administrative Law Judge, I might embellish my robe with, “because I’m the judge, that’s why” just for fun!
As an attorney practicing before Administrative Law Judges in the non-adversarial Social Security court, I understand myself to be at a technical disadvantage because the judge deciding the case, is also my “opposing counsel.”
Enlightenment philosopher, John Locke, whose writings influenced the American revolutionaries, wrote in Two Treatises of Government that “it is unreasonable for men to be judges in their own cases, that self-love will make men partial to themselves and their friends.”
But, Judge Frye seems not to appreciate that claimants and their attorneys might be disadvantaged in non-adversarial proceedings where opposing counsel is also the judge. To my utter amazement, Judge Frye assesses this circumstance to be an advantage to … the claimant. Wow.
An attorney friend recently called me to commiserate about his experience in a hearing before a Social Security judge. Although my friend had never handled a Social Security case, he is a litigator with decades of courtroom experience in administrative, state, and federal courts. He called extremely upset because he had encountered an Administrative Law Judge whose behavior was so out of control, and abusive that he was sputtering with anger, saying, “I have never encountered such unprofessional behavior from a judge – ever! She wouldn’t allow me to question my client … she kept accusing him of lying whenever he tried to speak – even just to answer her questions!”
He complained that there was no one to turn to in the courtroom … no neutral arbiter … no one to rein in a tyrant.
“Yes,” I said, “this is the counter-intuitive downside of ‘non-adversarial’ proceedings.”
On December 14, 2010, oral argument was heard on three cases whose appeals were consolidated for the purpose of efficiency at the Seventh Circuit, Court of Appeals. A three-judge panel was convened including Richard Posner, Ilana Rovner, and Kenneth Ripple.
It was almost painful to hear the federal judges excoriate the poor quality of the work produced by Social Security’s Administrative Law Judges. The Court of Appeals’ judges’ frustration was palpable. It was clear they were exhausted by the quality of the Social Security decisions they were repeatedly hearing on appeal.
Catherine Seagle, the attorney from the Office of General Counsel who had the unenviable job of defending one Social Security judge’s decision, characterized the decision by saying, “… while the decision is very streamlined …” but she was interrupted mid-sentence by Judge Posner retorting:
It is not ‘very streamlined!’ It is very inadequate!
How much do we have to put up with this?
The Social Security Administration doesn’t seem to pay any attention to our decisions. We’re still seeing this ridiculous bit of boilerplate about ‘not entirely credible.’ What exactly did [the Administrative Law Judge] find to be not credible?
Later, Judge Posner asked, “does the Social Security Administration and the Justice Department automatically defend every single case in which there’s a petition for review filed in a court?”
Ms. Seagle: “No, your Honor, we go on a case by case basis.”
Judge Posner: “Do you use judgment?”
Ms. Seagle: “We do.”
Judge Posner: “Well you do it very badly because you keep getting reversed …. And nothing seems to have trickled down to the Administrative Law Judges….”
Ms Seagle admirably hung in there trying to defend the abominable decision, replying, “the [Administrative Law Judge] did assess some limitations …”
But Judge Posner was having none of it. He said, “that is not responsive to my question. Is there any communication between your level and the Administrative Law Judges?”
Ms. Seagle: “Certainly. Certainly. We have trainings.”
Judge Posner: “Could you get back to them that there is dissatisfaction with the way these ALJ opinions are prepared and this boilerplate about ‘not entirely credible’ is extremely unhelpful to a reviewing court because it doesn’t say anything.”
Judge Rovner added, “and their lack of doing their job makes our job a lot harder. And it makes your job impossible. My heart really goes out to you today to have to come here and try to defend this utterly shocking piece of … garbage.”
I bring this oral argument up to make the point that Social Security’s Administrative Law Judges should be at improving their decisions, making sure they are supported by substantive and substantial evidence. Administrative Law Judges should not be arguing that they should be able to use Facebook – of all things – to make their decisions.
It is an embarrassment that an Administrative Law Judge, and especially the President of the Association of Administrative Law Judges, would publicly argue that judges should be able to use one of the most unreliable, unverifiable sources of gossip known to humankind – social networking sites – to make legally binding decisions.
While Judge Frye may be able successfully to rabble-rouse laypersons who read his op-ed in the New York Times, I can only imagine the tongue-lashing he would receive by arguing to knowledgeable legal thinkers like the Judges Posner, Rovner, and Ripple that Administrative Law Judges should be able routinely to use Facebook posts in their decision-making.
Might Judge Rovner say Judge Frye’s argument, and his trotting it out publicly in the New York Times, is an utterly shocking piece of … unprofessional … garbage?
On the one hand, Judge Frye argues that Social Security’s “courtrooms ought to look more like what you see on Law and Order or The Good Wife,” but on the other hand, Judge Frye seems not to consider that in a real courtroom, with adversarial proceedings, the Federal Rules of Evidence would bar as inadmissible, absent an exception, hearsay evidence like Facebook posts. Judge Frye seems to want it both ways.
Judge Frye put his name to the following untruthful and disingenuous paragraph in his op-ed:
Neither the staff members of the Social Security Administration, who review initial claims, nor judges like myself, who hear disputed cases, are allowed to look at Facebook in the context of a case. Even if something in the case file suggests a claimant is not telling the whole truth, Social Security Administration policy prevents us from looking at social media, for fear that we cannot be trusted to properly assess the information gathered there. No Facebook, no Pinterest, no Twitter, no Tumblr. None of the sources that most employers routinely use to check the credibility of potential employees are available to us. (Emphasis added.)
Social Security’s reasons for barring its employees from clicking around on social networking sites are sound. Policy instruction AM-12053 articulated an inhibition of adjudicators and reviewers from using social media for two important, and well-considered, reasons:
1) it is impossible for adjudicators and reviewers to determine the accuracy of uncorroborated information found on the Internet and social networking sites, and
2) “entering claimants’ ‘personally identifiable information’ on an internet search engine or social media network may compromise the confidentiality of [that information’].”
Social Security has an enormous concern that their judges make correct decisions, using proper information. Proper information is dominantly the difficult to read, voluminous, and mind-numbingly dull medical records of claimants. It would be easier – and a helluva lot more fun – for Judge Frye, and other Social Security judges to clickety-click around on Facebook … read a bit of gossip … view the uploaded photos there to decide cases! But those decisions would not be supportable on review.
Just ask the poor, beleaguered Catherine Seagle, and other Office of General Counsel attorneys, who would try, and likely fail, to defend those decisions in federal court.
Furthermore, the Social Security Administration, and the American public, has an enormous and legitimate concern that Social Security workers do not compromise the confidential, private information they hold. Allowing Social Security workers to enter personally identifying information into non-secure search engines and social networking sites should strike fear into the hearts of anyone in this country whose Social Security number Social Security has.
Policy Instruction AM-12053 allows adjudicators and reviewers to obtain information from social networking sites when there is a suspicion of fraud. They must, however, request the information through the fraud investigating unit of the Social Security Administration called the “Cooperative Disability Investigative Unit.”
When Judge Frye complains that Social Security Administrative Law Judges are not even permitted to look at any “of the sources that most employers routinely use to check the credibility of potential employees” someone should point out to Judge Frye that Social Security’s Administrative Law Judges are not potential employers, they are employees of the U.S. federal government who are bound by constitutional, statutory and regulatory rules and considerations far above “most employers.”
Despite my vehement disagreements with Judge Frye in his reasoning, in an odd way … I find myself in agreement with him.
The adversarial process is tried and true. Claimants of Social Security disability benefits have high-stakes claims, and they should arguably be granted the gold-standard of processes. The American public has an interest in these decisions being made well, and properly. To follow the argument to its logical end, Judge Frye’s complaints beg the question:
Why should Social Security not do away with the hearing level of the administrative process, allowing claimants to exhaust their administrative remedies after reconsideration, allowing them to proceed directly to federal court?
Federal courts are established, adversarial courts, like the ones seen in Law and Order and The Good Wife that lack the flaws Judge Frye claims exist in Social Security’s non-adversarial administrative courts. Social Security need not reinvent that wheel.
Judge Frye seems inadvertently to have made an argument for doing just that.