On December 19, 2011, the Office of Disability Adjudication and Review (ODAR) instituted a new policy in which the identity of the Administrative Law Judge (ALJ) assigned to a claimant’s case will not be revealed until the day of the claimant’s actual hearing. It appears that the reason for this new policy is in response to representatives objecting to certain ALJ’s, specifically some of the ALJs at the National Hearing Offices, and some abuse by a particular national (1-800) law firm.
This policy is an attempt to deal with a very specific problem but now creates a new set of issues. Generally speaking, if a hearing is postponed, the same ALJ retains jurisdiction of the case and the hearing will be rescheduled with the same judge. However, if a person objects to a video hearing, which is to be held by the National Hearing Office, then the file will be transferred to the claimant’s local ODAR office and a local ALJ will be assigned the case. Most representatives, including our office, do not object to the ALJ or the video hearings by the National Hearing office because the goal is obtain a hearing as quickly as possible so claimants do not have to wait any longer than necessary for their hearings. However, because of the very questionable actions of a few, ODAR has responded with this sweeping new policy.
This policy, may prevent some abuse, but has caused great difficulties for the representatives the claimants, and even the Judges. A number of Judges (ALJs) require prehearing memos or briefs in a specific format. We welcome the opportunity to be able to clearly explain our client’s position and need for disability benefits. However, if you do not know which ALJ is assigned to the case, then you cannot provide that ALJ with the correctly formatted memo or brief. In addition, each ALJ has a particular way in which they conduct their hearing: some require more thorough testimony and some have a specific focus on the key issues. When you know who the ALJ will be, you are better able to prepare for each and every ALJ, including time considerations. Some ALJ’s hearings take longer than other’s hearings and more time is needed for those individuals assigned to those particular hearings.
From the claimant’s perspective, it is assuring for us to be able to tell our clients what to expect during the course of the hearing. But with the new policy, the representative can only provide the claimant with generalities. The more comfortable a client is, the more likely it is that the testimony will be candid, on point, and the hearing process will be more efficient. This is an especially important consideration for those claimants who are already anxious and nervous about their hearing, or have conditions which don’t respond well to pressure. A concern is that the new policy diffuses the twin goals of assuring fairness to the claimant, and the efficient administration of justice. In the interim, the ones who abused the system seem to have been forgotten.