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Secret Judges

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Effective December 19, 2011 the Social Security Administration's Office of Hearings and Adjudication (ODAR) instituted a new policy where the identity of the administrative law judge assigned to each claimant's case will not be disclosed until the time of the hearing. The abrupt adoption of this new policy has met with much criticism from claimant attorneys who feel the policy will negatively impact their claimants, adding additional uncertainty to the already long and cumbersome process of getting their day in court.

ODAR's rationale for the new policy is to prevent claimant representatives from "forum shopping" in trying to avoid certain judges. Claimant representatives critical of the change argue that no desirable purpose will be served by the new policy and, instead, the policy will serve to further hinder a claimant's ability to receive a fair and timely adjudication of their case.

The National Organization of Social Security Claimant Representatives (NOSSCR) has argued that "the very important due process right of claimants to prepare to present evidence supporting their claim is eroded by maintaining secrecy of the judge to whom their case has been assigned". Traditionally, preparation for hearing is often guided by the particular courtroom preferences of the judge assigned. Claimants rely on their representatives to provide legal and practical guidance and have the right to be fully informed as to how their hearing will proceed. Representatives argue that the new secret judge policy precludes them from adequately preparing their clients with respect to the needs and wants of the judge assigned to their case.

As a practical matter the new policy will cause disruption in the scheduling of hearings and increase the need for more supplemental hearings which will, in turn, cause additional delays and backlog. Addressing pre-hearing communication issues with respect to the submission of evidence, the ability to subpoena witnesses and the submission of on record decision requests will create additional work and confusion for ODAR staff, administrative judges and claimant representatives. Claimant advocates will continue to attempt to modify the new policy by effectively commenting and communicating the many practical and due process concerns with the Social Security Administration.

 

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