Today’s post will be the second installment of a series exploring alternative causes for the disability hearing backlog. Rather than focusing only on the lack of funding at the Social Security Administration as the sole culprit for the backlog, I intend to explore ways that the practices of disability representatives unfortunately contribute to this problem, and ways we can help fix it. Today, I’ll discuss how the overly-pedantic approach that many attorneys and representatives take with their cases contributes to the backlog.
At its core, a disability judgment is a fairly simple analysis. An individual claims to be disabled based on any number of reasons. The judge considers the legal sufficiency of those reasons, the credibility of the claimant, and the extent to which those claims are supported by medical evidence.
The degree to which the Social Security Administration has dispensed with much formality in its hearing process really demonstrates the fairly simple nature of the process. Hearings are held in small conference rooms without the typical trappings of the courtroom setting. The rules of evidence (particularly hearsay) simply don’t apply. All proceedings are non-adversarial, as the government has no attorney arguing against the claimant.
Still, there are many representatives who in my opinion take a very complicated, if not pedantic, approach to arguing their cases. Specifically, I’m referring to the consistent use of “job numbers” arguments along with amorphous debates with vocational experts at Step Five of the sequential process. I don’t intend to discuss the legal sufficiency of these types of “hailmary” or “kitchen sink” arguments, except to point out that the Social Security Act and all its regulatory descendents have never defined numerically what constitutes a “significant number of jobs”, thus essentially rendering any argument thereof to the realm of the academic or theoretical. Nor will I comment on the effectiveness of this strategy, beyond mentioning that I’ve never known an ALJ to be receptive to a generalized vocational argument, and have only seen the Appeals Council remand cases on this basis very inconsistently. Instead, I’m focusing today on the aggregate effect that these types of diaphanous, yet highly involved and complex arguments can have on a system that is already backlogged just with straightforward cases.
My main problem with a “job numbers” or otherwise aggressive yet unfocused cross-examination of vocational witnesses is not that it makes each hearing last significantly longer than normal and diverts its focus away from the claimant’s impairments (though it does). Rather, I take exception with any case theory that is designed entirely with a second hearing (remand) in mind when there is already an enormous backlog of worthy claimants waiting for their first hearing. In my experience, the Appeals Council (and federal courts) can be very unforgiving of even the slightest judicial error, and will sometimes remand cases even when that error constitutes a minor technicality tangential to the matter at hand. Since “job numbers” data and vocational questions are by far the most complicated and least understood aspects of disability law, these often serve as the bases for such remands despite the infrequency in which they are actually relevant to a case. In fact, my understanding is that at least one of the largest disability advocacy groups in the country have a policy where they will appeal literally every unfavorable hearing decision they receive, and base their appeals on any technicality they can possibly conceive. Such practices put in enormous strain on the wheels of bureaucracy, as the adjudicatory process provided by the Social Security Administration is essentially a resource that all firms and advocacy groups, along with disabled individuals themselves, must share. Simply put, there are only so many judges that can only hear so many cases (and remands).
I’m not saying that advocates should refrain from preserving important issues on the record at the hearing in anticipation of potential appeals. This is, in fact, one of the most important roles of the claimant’s representative. But in my opinion, if a hearing devolves into a pedantic argument with the vocational expert over the precise number of jobs in the national economy in each field, or the precise job requirements of individual positions without any direct purpose in mind, it likely means one of two things: 1) The representative did an inadequate job of preparing better medical evidence to present at the hearing. 2) the claimant’s case is so weak that it should not have been brought at all. In either case, the thousands of claimants who are currently waiting for a hearing in the system’s backlog could be making much better use of the judge’s time.
Whatever your thoughts on the opinions expressed above, I’d love to hear them and open up a dialogue in the comments section below.