58 Pages Posted: 9 Aug 2012 Last revised: 1 Dec 2012
Date Written: August 8, 2012
Commentators have recently suggested that the Social Security Administration (SSA) abandon its non-adversarial model of adjudication utilized in the disability hearings process in favor of an adversarial system, where the United States would be represented by an attorney. This Article will argue that such measures are not necessary to provide the claimant with a full and fair hearing, and will not lead to more consistent or accurate outcomes. Rather, this Article will argue that adoption of an adversarial model of adjudication will radically transform the nature of the disability adjudication process. This potential shift in the character of the hearings process is problematic given claimants may experience shame and embarrassment about the nature of their impairments. Individuals with stigmatized disorders such as obesity may be reluctant to discuss their obesity with either physicians or the Administrative Law Judge (ALJ). A shift to the adversarial model may only serve to intensify barriers to open communication about stigmatized disorders.
This Article will argue that while conversion to an adversarial system is not necessary, some reform of the inquisitorial model is needed as evidenced by the SSA’s inability to consistently decide claims filed by similarly situated obese individuals. This conclusion is necessitated by research concerning the impact of negative halos on decision making. In other words, decision makers may make choices and judgments based initial impressions of claimants.
However, positive reform of the inquisitorial model can be achieved by further definition of the contours of the ALJ’s duty to develop the record. The first point will consider coping mechanisms utilized by individuals with stigmatized impairments, such as obesity, in applications for benefits. The Article’s second major point will explore how these coping mechanisms effectively limit a claimant’s ability to communicate about the limiting nature of her obesity. The inability to communicate about weight will, in turn, have a profound impact on her chances of being successful in the disability adjudication process because the testimony and records may not adequately document the claimant’s weight as a limiting factor. Thus, there is a need for standardized protocols to be developed to ensure that the ALJ properly considers stigmatized disorders such as obesity, even in instances where the claimant does not allege her obesity as a disabling factor. This reform will improve ALJ decision making in the context of a non-adversarial hearings process.
Keywords: administrative law, health communication, stigma, administrative law judge, obesity, inconsistency, SSR 02-01p, Medical Listing 9.09, halo theory
Suggested Citation: Suggested Citation
Pashler, Chris, Mirror, Mirror on the Wall: Stigma and Denial in Social Security Disability Hearings (August 8, 2012). 44 Memphis L. Review, 2013, Forthcoming; SUNY Buffalo Legal Studies Research Paper No. 2013-007. Available at SSRN: https://ssrn.com/abstract=2127282 or http://dx.doi.org/10.2139/ssrn.2127282