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Here's a very strong argument for representation that you may not have heard before and it's based on the experience of someone with over fifteen years in claimant representation. This particular representative received a call from a person who had been denied by a judge. To determine whether or not to pursue this claim to the next appeal level (the appeals council), the rep obtained a copy of the hearing tape (all disability hearings are taped live for this purpose). Upon listening to the tape, several aspects of the claimant's hearing stood out distinctly. First, the hearing lasted no longer than ten minutes (hearings usually last about thirty minutes and when a hearing takes less than twenty minutes, this throws up red flags). Second, the judge did not advise the claimant of her right to representation. Third, the judge did not ask the claimant about recent medical treatment, nor did he attempt to gather updated medical information for the purpose of "developing the claimant's record". In listening to the audio tape, what had transpired at the claimant's hearing became fairly obvious to the representative: The claimant, who arrived at her hearing unrepresented, simply had no clue that she should have reviewed her file before her hearing to learn the basis of her past denials. Likewise, she did not know the importance of obtaining and submitting updated medical records to the ALJ assigned to her case (if a representative is not involved in a case, the last records to enter a claimant's file will typically be the records gathered by DDS at the reconsideration stage many months prior to the hearing ). Disability Advocates Help with Claims Free Case Evaluation The administrative law judge, upon seeing this claimant and her lack of preparedness, probably decided the following: her case could be dispensed with quickly, with little effort, and with little fear of "reprisal" (in the form of an appeal). Essentially, the claimant's case had been torpedoed from the moment she stepped into the hearing room. What did the judge hearing this case not do that he probably should have done? To begin with, he could have advised the claimant to get representation and could have offered to reschedule her hearing for the purpose of accommodating this need. But he didn't, possibly because doing so might have involved more work on his part. He also could have added "development" to her case by obtaining additional medical records on her behalf or by sending her to a consultative examination to be performed by an independent physician (generally, these are worthless, but in some instances they help substantially). Again, he chose not to. Why did the judge not do these simple things for the benefit of the claimant? It may be that he was biased from the moment she showed up, simply because she was not represented. Is such an attitude toward non-represented claimants fair? Obviously not, but many judges will fail to give non-represented claimants the same degree of respect that they would casually accord to a claimant's representative. Secondly, the judge--especially if he was already leaning toward a denial--may have decided that the claimant's case was not one that might come back to "haunt" him, so to speak. 
To explain what we mean by "haunt", basically, every ALJ (administrative law judge) decision is potentially subject to review by a body known as the Appeals Council. If the AC finds fault with a judge's decision, the case will be remanded, or sent back, to the judge for a second hearing. Of course, judges do not like remands since they imply that a decisional error was made. Remands also mean more work for an ALJ because a subsequent hearing has to be held. The ten-minute judge in this case, however, had little reason to fear that the appeals council might overturn his ruling, and for a couple of reasons.
Unfortunately, the reality for this claimant was this: not only was her case denied, her ability to successfully appeal to the next appeal level was also impaired, simply because the judge hearing her case had failed to act responsibly.
However, both these unfortunate outcomes had much to do with the fact that she was not represented at her disability hearing. Had she been represented, her case, most likely, would have received more deference. At the very least, her hearing would have lasted longer than ten minutes. Furthermore, her representative, had he or she been competent, would have gathered and distributed to the judge all of her recent medical records, and possibly detailed statements from her treating physicians as well. Lastly, and most importantly, the representative would have advocated her claim from the vantage point of a professional who was both knowledgeable and experienced with regard to the social security administration's disability framework. Now, claimants who read this account and who have not gone to a hearing yet may be amazed that this kind of thing happens. And, to be sure, it happens in a small percentage of cases. However, it does happen. And it tends to happen strictly to claimants who show up at hearings without representation. |
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