When I first started practicing Social Security Disability law, it seemed strange to me that the Social Security Administration (“SSA”) was not represented by an attorney at the hearing. The process is meant to be non-adversarial, although it does not seem that way sometimes. The Judge, who is paid by the Social Security Administration, has two roles: fact-finder and adjudicator. After going to a few hearings, I realized that the hearings really were a search for the truth and that the process worked better being non-adversarial.
Today I read an article online, “Recession is exacerbating Social Security claims, panelists say.” The article discusses the backlog that Social Security faces due to an increase in filing of retirement claims and is based on a discussion that took place at a forum of Administrative Law Judges (“ALJs”) held recently in Washington, D.C. One of the ALJs who spoke, Marilyn Zahm, suggested that Social Security re-think its position about the non-adversarial nature of the disability hearing. She stated that if, “attorneys for the government and claimants could discuss cases before a hearing, then they would be able to avoid the hearing all together.”
Well it is certainly a nice thought that hearings would be avoided, but in reality that would not occur. If the process is made adversarial, it will be adversarial. My belief is that attorneys hired by the SSA would not wish to discuss cases and resolve them in favor of the claimant. I am sure that once in a while, the process could work as Ms. Zahm suggests, but more often than not, the case would proceed to a hearing. I base my opinion on what I experience in the Immigration Court. Removal proceedings are adversarial proceedings. The government’s position is that the person in proceedings should be removed from the United States. The government’s attorneys rarely are willing or able to discuss issues in advance and rarely if ever will come into court and state that the individual should be permitted to stay in the United Stares. It just does not happen in an adversarial proceeding.
Adversarial proceedings would not benefit claimants who are already nervous about the hearing and who have been waiting for years for their benefits. Finally, unrepresented individuals will not fare well in adversarial proceedings. I want Social Security to reduce its backlog but I do not think making the proceedings adversarial will resolve the problem.