Inflammatory and Antagonistic Language in an ALJ Denial, Part 2

After some initial research, it seems that an appeal based on ALJ language in a decision is adequate and sufficient. In the HALLEX, which is the Social Security Administration Office of Disability Adjudication and Review's Hearings, Appeals and Litigation Law Manual, section I-2-8-25, discusses the format and content of ALJ decisions. For most representative and attorneys, the HALLEX section is pretty mundane. However, the section states that the ALJ "must not use emotionally charged words; e.g., “malingerer,” “hypochondriac,” etc."

Further, section I-2-8-35, states that the ALJ must give the claimant a clear and complete explanation of the reasons for reaching the ultimate conclusion regarding entitlement, the ALJ must write the decision so as to avoid, as much as possible, harming the claimant. For example, when writing the decision, the ALJ must:

1. Avoid using emotionally charged words, pejorative terms, and personal judgments or opinions, even if the harmful language appears in evidence or testimony. If the ALJ wishes to cite such evidence, it should be paraphrased.

2. Exercise discretion in delicate situations. For example, the evidence indicates that the claimant may be suicidal, denies the presence of a mental impairment, or has a terminal illness but has not been informed of that fact.

If there is information in the decision which might be harmful, and the claimant is represented, the ALJ will:

1. send a copy of the decision to the representative only;

2. send an abbreviated/short-form decision to the claimant; and

3. enter the following or similar language on the bottom right side of the form transmitting the decision to the representative:

   I have furnished an abbreviated copy of this decision to the claimant because the complete decision contains information which may be harmful to the claimant's health. Therefore, I suggest that you discuss only the general content of the decision with the claimant.

As for our immediate appeal, the ALJ used language that was provocative in nature and cited part of a treating source's opinion concerning the cliamant's motivation. The end result is, if the ALJ fails to follow the rules and regulations as promulgated, including following the procedures in the HALLEX, then the case must be remanded. In our current case we are asking for a new ALJ, new hearing, and new decision.

Inflammatory and Antagonistic Language in an ALJ Denial

In our local Office of Disability Adjudication & Review, we have a new Judge that has taken the initiative to write part of the ALJ decision. More and more, we come across language in the denial that has no right being there. With permission from the client I write one of many examples, "The claimant is obviously unmotivated. It is readily apparent that the claimant has chosen a lifestyle where we wants governmental entities to pay for his every need. He lives in rent free housing, unduly receives food stamps, and clearly wants the Administration to fill in the gaps."

I find this kind of language inflammatory, antagonistic, and uncalled for. I know that appealing the case to the Appeals Council solely on that basis is not enough. Any suggestions?

School Records and Social Security

Recently I was in a casual conversation with a Senior Staff Attorney about using school records as evidence in Social Security cases. His comment to me was that more and more Social Security representatives do not submit school records as evidence of intellectual deficiencies.

As a matter of course, any time I have a client that is alleging a mental disorder of any nature, I always request and submit the school records as evidence. More importantly, if a client is alleging borderline intellectual functioning or even mild retardation, school records become imperative. I feel that the most important aspect of school records, besides the obvious part about grades, are if the claimant repeated certain grades in school, was the claimant in mainstream classed or special education or resource classes, did the claimant graduate from an alternative school because of behavioral problems, and if the claimant left school because of age-related decisions.

A claimants school history can be very important evidence when it comes to his/her residual functional capacity. It becomes especially important when trying to prove 12.05C cases, in particular.