LETTERS.

Evils of arbitration

The article on mandatory arbitration was excellent. [Jeffrey Robert White, Mandatory Arbitration: A Growing Threat, July 1999, at 32.]

The best thing that can be said about arbitration is that it is a good idea that does not work. Before anyone waives the right to a jury trial, the law should require the same kinds of warnings that a federal judge gives to a criminal defendant who chooses to waive a jury trial.

On behalf of United Policyholders, a nonprofit advocacy group, my firm filed an amicus brief in Engalla v. Permanente Medical Group, Inc., in which the Supreme Court of California shed light on some of the evils of arbitration. (938 P.2d 903 (Cal. 1997).)

The civil justice system may have flaws, but they pale into insignificance when compared to arbitration.

Eugene R. Anderson

New York, New York

Medically determinable impairments

I have been following the correspondence on the matter of the administrative law judge's duty to develop the record. [Kevin F. Foley, Establishing Medically Determinable Impairments, Apr. 1999, at 66.] 1 find that each of the writers misses the point completely.

I have been an administrative law judge since 1981, and I have lectured extensively on this subject. I have also testified before both the Senate and House Judiciary Committees concerning this issue.

Kevin Foley states in his response to Andrea Sasala's letter [Letters, June 1999, at 12] that "it is not clear whether an ALJ must go beyond the existing record. For example, if there are no objective clinical findings noted, an ALJ might be justified in concluding they do not exist, and the appeals council or district court might find such a conclusion to be appropriate."

This is not correct. For example, a claimant may allege a symptom that has not been adequately evaluated by his or her treating sources. It is incumbent on the AU to order the appropriate testing. Failure to do so will result in a remand at some point in the appellate chain.

Whether a claimant is represented by counsel or not, the U.S. Supreme Court has clearly stated that the duty is that of the judge. If an attorney fails to develop the record, the ALJ must. The following is a portion of a decision I recently wrote:

   The law is well settled that an administrative law judge has the duty to
   develop the record in order to accord all parties a full and fair hearing.
   This responsibility derives both from 5 U.S.C. [sections] 556 and the
   Social Security Act [sections] 205(a) and (b). In the leading case
   outlining the duties of the judge in a Social Security claim, the U.S.
   Supreme Court held that when presented with conflicting medical evidence,
   "the trier of fact has the duty to resolve that conflict." [Richardson v.
   Perales, 402 U.S. 389 (1971).]

      Although the Court refused to rule on whether the Administrative
   Procedure Act must be applied to the Social Security Act, it held that
   "Social Security administrative procedure does not vary from that
   prescribed by the APA. Indeed, the latter is modeled upon the Social
   Security Act."

      With respect to the ALJ's duty to develop the record, Mr. Justice
   Brennan stated in Heckler v. Campbell, 461 U.S. 458, 471 (1983): "[There]
   is a `basic obligation' on the ALJ in these nonadversarial proceedings to
   develop a full and fair record...."

Federal appellate cases on this issue include Thompson v. Sullivan (1993 F.2d 581,585-88 (7th Cir. 1991)); Henrie v. Department of Health and Human Services (13 E3d 359, 360-61 (10th Cir. 1993)); and Carter v. Chater (73 F.3d 1019, 1021-22 (10th Cir. 1996)). There are a host of others I have not listed. For readers who want to learn more, the appropriate Key Number in the West system is Social Security and Public Welfare 142.5.

Whether an attorney's failure to develop the record constitutes malpractice is yet another issue. But the bottom line is this: The judge must rescue the claimant from his attorney's failures. Due process demands it, and the case law requires it.

Joyce Krutick Barlow
Social Security Administration
Newark, New Jersey