How Social Security Disability Hearings Work: The Judge Who Investigates Your Case

If you've been denied Social Security disability benefits and you appeal, you'll eventually sit in front of an administrative law judge. Most people walk into that hearing expecting something that looks like a courtroom — two sides presenting their case, a neutral judge listening, and a decision based on who made the better argument. That's not what happens. In a Social Security disability hearing, the ALJ isn't just the judge. The ALJ is also the investigator. They develop the evidence, order medical examinations, call expert witnesses, and build the factual record that their own decision will be based on. There is no opposing counsel. The government doesn't send a lawyer to argue against you. The ALJ does both jobs.

This is called the inquisitorial model, and it's fundamentally different from the adversarial system most people picture when they think of a legal proceeding. In an adversarial hearing, a neutral judge sits between two sides and each side is responsible for making its case. In an inquisitorial hearing, the decision-maker takes an active role in gathering the facts. The ALJ isn't waiting for you to prove your case — they're supposed to be independently investigating whether you qualify. In theory, this protects unrepresented claimants who don't have a lawyer and wouldn't know how to build a record on their own. In practice, it raises a question that cuts to the heart of procedural fairness: can the same person who investigated your case also be trusted to decide it neutrally?

This isn't a hypothetical concern. Social Security disability hearings affect millions of Americans every year. The ALJ who reviews your medical records, decides which experts to consult, and determines what evidence makes it into the file is the same person who ultimately decides whether you get benefits. If they develop the record in a way that points toward denial, there's no opposing side to push back. The inquisitorial model can work well when the ALJ is thorough and genuinely neutral. But when it doesn't work, the person affected has very little recourse.

In this episode, we explain how the inquisitorial model works in Social Security disability hearings specifically — not the general combination-of-functions problem in administrative law, but the particular role ALJs play when they're responsible for both building the case and deciding it. We walk through what actually happens at a hearing, why the system is designed this way, and what the tradeoffs are for the people whose lives depend on the outcome.

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What We Cover

• What the inquisitorial model is and how it differs from the adversarial system most people expect
• How a Social Security disability hearing actually works — what happens before, during, and after the hearing
• The ALJ's dual role: developing the evidence and then deciding the case based on the record they built
• Why the system was designed this way — the rationale for protecting unrepresented claimants who can't build a case on their own
• Why there's no government lawyer arguing against you at the hearing and what that means for how the proceeding works
• The fairness problem: what happens when the person investigating your claim is the same person deciding it
• How the inquisitorial model compares to agency proceedings where the adversarial system is used
• What this means for the millions of people who go through Social Security disability hearings every year

Full Transcript

Rough S2E4 Transcript — When the Judge Is Also the Investigator

Gwen: Hello, and welcome to Administrative Remedies, because you can’t fix what you don’t understand. Brought to you in part by the University of Tulsa College of Law. I’m Gwendolyn Savitz, an associate professor here at TU and the associate dean of research and intellectual life.

Marc: And I’m Marc Roark. I’m the dean of the College of Law.

Gwen: We’ll be breaking down complex doctrines with real-life analogies and examples to demystify the world of administrative law for everyone trying to understand how government actually works.

Marc: Agencies are the main way the federal government gets things done. It’s not through Congress for reasons we’ll be addressing over the course of this series.

Gwen: We are going to continue our discussion of adjudication. So, Marc, let’s imagine you are in a legal dispute. You walk into a courtroom. In this courtroom, each side has its own lawyer. Your lawyer gathered evidence and built your case. The other side’s lawyer did the same thing. You have a judge sitting at the bench. The judge didn’t investigate anything. It’s just going to listen to both sides and decide.

Marc: Yeah, that’s how it’s supposed to work. I mean, we teach that in law school. That’s law school 101. That’s how the court process works.

Gwen: OK, so let’s imagine a different courtroom. So this time you walk in. There’s no opposing counsel. There’s just a judge. And that judge spent the last six months reviewing your records, ordering examinations, gathering evidence, forming opinions about your credibility.

Marc: Well, I mean. That’s not as unusual as you’re making it sound. I mean, judges review extensive filings before trial all the time. They read depositions. They look at exhibits. They rule on pretrial motions. By the time the arguments start, a judge has already absorbed a ton of evidence. It’s natural they might have opinions.

Gwen: OK, yeah, fair point. But there really is an important distinction. In a normal case, the judge is reading what the parties chose to put in front of them. Each side decided what to file, what to emphasize, what to leave out. The judge is absorbing the party’s evidence. In the other courtroom, the judge is deciding what evidence to gather. Like, the judge might have ordered medical exams or requested specific records. It’s the judge in this courtroom that shaped the universe of evidence before the hearing even started. And then that same judge sits down, questions you, and decides your case.

Marc: But the difference isn’t just that they’ve seen the evidence, it’s that they built the evidence.

Gwen: Yes, they built it and then they judge it. That is Social Security disability. That’s how the largest adjudication system in the U.S. actually works.

Marc: How large are we talking?

Gwen: Over half a million hearings a year. That’s more cases than the entire federal court system combined. And in every one of those hearings, the judge who decides the case is the same person who helped build the record the case is resting on.

Marc: OK, that cannot be how it was designed to work, though.

Gwen: It is absolutely how it was designed to work. But before anyone panics, this wasn’t an accident. It wasn’t a power grab. It was a deliberate choice that was made for reasons that make sense when you understand the history.

Marc: So why does this feel so wrong?

Gwen: Because it violates every instinct that people develop in law school about what a fair hearing should actually look like. And today we’re going to sit with that discomfort and try and understand where it comes from and what the law has done to try and answer it.

Gwen: Before we go further, we should lay out some basics for the listeners. You know civil law. What are the two main models for how courtrooms work?

Marc: Okay. In the United States and most common law countries, we use the adversarial system, two sides, each with their own lawyer. Each side investigates independently, gathers their own evidence. They interview their own witnesses. They build their own case. We put all of the costs on the litigants for hiring their own attorney. And so then they present this to a judge or jury who decides based on what they’ve heard. And the judge basically serves as a referee. They enforce the rules of evidence. They manage the proceedings. They rule on objections. But the judge doesn’t really go out and gather evidence. The judge works with what the parties bring.

Gwen: Okay. So what’s the other model?

Marc: It’s called the inquisitorial model. It’s used across Europe. Most of Latin America, parts of Asia, very different philosophically. The judge is very active. The judge investigates. He gathers evidence, questions witnesses. He develops the record.

Gwen: So in this version, it’s the judge running the investigation.

Marc: Yeah. The idea is that the judge is searching for truth, not just refereeing a contest between two sides. And in some ways, it’s arguably fair. The outcome doesn’t depend as heavily on who can afford better lawyers, right? This is the whole premise of Crime and Punishment from Fyodor Dostoevsky. The judge has resources to investigate that a poor party might not have. If you can’t afford to hire an expert or track down a witness, the investigating judge can do that.

Gwen: OK, what safeguards are built into this system?

Marc: Oh, significant ones, right? In many civil law systems, the investigating judge and the deciding judge are different people. There are multiple judges reviewing cases at each stage. There are strict procedural rules governing what the investigation looks like. And the investigation function is checked by institutional design.

Gwen: That’s where the American borrowing gets interesting and problematic. We selectively imported some of these inquisitorial features for specific problems, but we didn’t bring over the safeguards.

Marc: What did we take?

Gwen: We took the active judge, a judge who’s developing the record, who’s ordering examinations, who’s gathering evidence. Social Security disability is the clearest example. That’s what we were talking about. But then we grafted that onto the American framework with a single ALJ who’s supposed to be neutral, but who’s also developing the evidence. There’s no separate investigating judge. There’s no panel review at the hearing stage. It’s a hybrid, and hybrids can inherit the risk of both parents.

Marc: Let’s walk through a little more detail about what happens in a Social Security disability case. Since this is where most people are going to encounter this type of system.

Gwen: And because the gap between what they expect and what actually happens can be enormous.

Marc: Okay. Lay it on me.

Gwen: All right. You apply for disability benefits. You’re claiming you can’t work. You’ve had a back injury or mental illness or chronic pain, whatever it is. Social Security denies your claim at the initial level. You appeal. It’s denied again at reconsideration. We talked about this earlier. And then you request a hearing before an administrative law judge.

Marc: OK. So far, that sounds like a normal appeals process.

Gwen: It is. And this is where it changes. Before that hearing ever happens, the ALJ gets your entire file, the medical records, the agency evaluations from before, the prior denials, the consultative exam reports, everything. We’re not talking a summary. We’re talking the whole thing, which can be hundreds or even thousands of pages.

Marc: So the judge walks in having already read the whole case.

Gwen: More than just read it. The ALJ isn’t just passively absorbing what’s there. They can order additional medical exams. They can request more records. They can ask for opinions from medical or vocational experts. They’re actively shaping what evidence exists. And then the hearing happens.

Marc: Yeah. You show up. Maybe you have a lawyer. Maybe you don’t.

Gwen: About half of claimants at the hearing are unrepresented.

Marc: You testify. The ALJ asks you some questions, not as a blank slate, but with views that are already formed about what the evidence says that they helped assemble.

Gwen: I want to push back on that for a second. Judges form preliminary views in every single case. An appellate judge reads the briefs, has a tentative view before oral argument. We like to say sometimes that it seems like a judge makes decisions based on what’s in a cereal bowl, right? But a trial judge reads pretrial motions. He knows what’s coming. Is this really that different?

Marc: We mentioned it a little, but it’s really worth repeating. This is different in a really critical way. In a traditional case, the judge is forming their views based on evidence that the parties have chosen to present. Here, the Social Security ALJ is forming opinions based at least partly on the evidence that they chose to develop. That is not the same thing. When you’re the one who decides what evidence to gather, your preliminary views aren’t just shaped by the record. They are baked into it.

Gwen: Okay, that is a real distinction.

Gwen: Why exactly did we set this up this way?

Marc: The system was intentionally built like this at a time when the primary concern was the opposite problem. When Social Security disability was taking shape in the 1950s and then expanding through the 60s and 70s, the worry wasn’t that judges would investigate claimants too aggressively. It was that legitimate claims would be denied because the claimants, most of whom would be poor and unsophisticated and unrepresented, wouldn’t be able to navigate the system well enough to prove their case.

Gwen: So the judge stepping in was meant to level the playing field.

Marc: Exactly. The ALJ has an affirmative duty to make sure the record is complete. They’re supposed to gather all the evidence needed to decide the case fairly, even if the claimant doesn’t know to ask for that evidence.

Gwen: This duty is codified. Marc, let’s read 20 CFR 404.944.

Marc: When the evidence in your case record is not sufficient for us to make a determination or decision, we will take the following actions. One, we will ask you to submit additional existing evidence. Two, we will seek additional existing evidence from your medical sources, employers, or other persons or organizations. Three, we may ask you to undergo a consultative examination at our expense. Four, we will develop your complete medical history for at least 12 months preceding the month in which you file your application unless there is a reason to believe that development of an earlier period is necessary.

Gwen: All right. So it says "we will take the following actions," not may, not can. Also notice how this is written. A lot of regulations are written in pretty formal, dense legalese. This is designed as much as possible to be accessible to the people it’s affecting. But it also says that the ALJ has an affirmative duty to develop a full and fair record. If there are gaps in the medical evidence, they’re supposed to get the records. If your file is incomplete, they’re supposed to have you undergo whatever exams are needed at the government’s expense.

Marc: So the claimant who can’t afford a specialist evaluation gets one anyway because the ALJ orders it.

Gwen: Yeah, so that’s the design. And for a lot of people, it works. The ALJ obtains the records that the claimant might not have known existed or were needed. They order an exam that the claimant couldn’t afford. They’re developing evidence to prove the disability.

Marc: But that same process can also go the other way.

Gwen: It absolutely can. And this is where I want to slow down because how this actually feels to the people in it matters.

Gwen: So we’re going to try and work through a specific example. So we have Maria, and Maria has applied for disability based on chronic pain and depression. She’s been seeing her primary care doctor, but there’s no specialist documentation in the file. There’s no psychiatric evaluation. There’s no pain management records. There’s been limited objective testing. So there’s gaps in the evidence. The ALJ reviews the file before the hearing and sees those gaps. So the ALJ orders a consultative examination with a psychiatrist.

Marc: OK, that sounds helpful. She couldn’t afford to see the psychiatrist on her own.

Gwen: So maybe. Let’s say she meets with the psychiatrist once. It might be 30 minutes. The doctor does a mental status exam, reviews her history, writes a report. That report goes in the file.

Marc: And what if the report says her symptoms are mild?

Gwen: So then the ALJ, this exact same person who decided to order the exam, now has evidence that undermines her claim. Evidence that she never asked for. Evidence that was generated by a doctor she didn’t choose. Evidence that was created in a 30-minute appointment that was never going to capture what her own personal doctor had been seeing for years. And she’s sitting in the hearing room, and this is the evidence the judge is looking at.

Marc: Yes. Really try and think about this. You’re Maria. You’ve been in pain for years. You’ve already been denied twice because that’s what you need to do before you’re even getting to the hearing. You finally have your hearing. You walk into the judge. This person who is supposed to be giving you a fair shot has already read everything. They ordered this exam you didn’t want. And now they have a report in front of them that says you are not as bad off as you claim. The judge is going to question you about the inconsistencies between your testimony and this report that they ordered.

Gwen: That doesn’t feel like a fair hearing. That feels like a cross-examination where the other side is also the judge.

Marc: And here’s the thing. This is absolutely not a legal violation. The ALJ is doing exactly what the regulations require, developing a full and fair record. That consultative exam is a standard tool. This questioning is part of the ALJ’s role. Everything that happened to Maria is the system working as designed.

Gwen: Which is kind of the problem, right?

Marc: Yeah.

Gwen: This isn’t about bad actors. It’s about a system where the structural incentives can create risks, even if everyone is trying to do their job as conscientiously as possible. What we’re talking about here aren’t legal violations. These are design risks. And they’re the kind that emerge from how human cognition interacts with institutional structure.

Marc: What exactly is the core risk here?

Gwen: So the biggest problem is confirmation bias. Once you’ve formed a hypothesis, you tend to seek out and weigh evidence that confirms it and to discount evidence that contradicts it. This isn’t a character flaw. It’s just how people’s brains work. And we’ve got decades of cognitive science research saying this.

Marc: Right. This is Fyodor Dostoevsky’s problem in Crime and Punishment, right? Is the inspector inherently biased against the defendant, right? And this kind of affects everyone, scientists, doctors, judges.

Gwen: Yeah. Imagine an ALJ who reviews Maria’s files before the hearing. The prior denials are in there. The limited medical evidence is in there. The ALJ starts forming an impression. Maybe this person’s condition isn’t well supported. They don’t have a conclusion yet. This is just an impression. And then the ALJ has to decide what additional evidence they want to develop.

Marc: Exactly. Do they order a consultative exam to try and catch inconsistencies? Or one designed to explore the full extent of the disability? The regulation says develop a full and fair record, but full and fair in which direction?

Gwen: And the ALJ might not even be aware of the bias it’s operating under.

Marc: Right. That’s the whole point of implicit bias. It is absolutely invisible to the person experiencing it. The ALJ might sincerely believe they’re being neutral while unconsciously steering this investigation towards confirming their preliminary view.

Gwen: And here’s what I keep thinking. In the adversarial system, we have a check for this. If the prosecutor’s theory is wrong, the defense attorney is there to expose it. If one side’s evidence is weak, the other side tears it apart. The adversarial system has a built-in error correction mechanism.

Marc: Right. And the inquisitorial model in Social Security doesn’t have that same mechanism. There’s no opposing counsel in the hearing room. The government doesn’t send in a lawyer to argue against the claimant. It’s the ALJ and the claimant. So if the ALJ’s investigation goes sideways, there’s nobody there to catch it in real time.

Gwen: Right. Assuming that this person isn’t represented, there’s nobody there who has the sophistication to understand what’s actually happening. The claimant can object to what’s going on, but they’re objecting to the person who made that decision, who is also the person deciding their case. That is definitely not the same as having an independent advocate pushing back on it.

Marc: And once you’ve built the record, it’s hard not to believe it.

Gwen: Right. So this is again related to the ownership effect or endowment effect, but I like ownership. When you’ve invested effort in developing something like a theory, an argument, a body of evidence, a case file, you tend to value it more highly than if someone else had handed it to you. An ALJ who spent weeks building this record has a psychological investment in that record being right. It’s not just confirmation bias. It’s that the act of investigating creates its own momentum.

Marc: And it can compound. Preliminary impressions shape the investigation. The investigation produces evidence. The evidence can then reinforce that impression. By the time you get to the hearing, the trajectory can be set. Not because anyone’s intentionally doing anything wrong, but because that’s how the cognitive loop works.

Gwen: There’s also an appearance problem, right? Because separate from whether actual bias exists. Even if ALJs are perfectly fair in every single case, how does it feel to sit in that hearing room knowing that the judge has already reviewed everything and gathered more evidence and formed impressions?

Marc: For a lot of claimants, it feels like the decision was made before they walked in the door.

Gwen: And perception of fairness matters for legitimacy.

Marc: It does. If people don’t trust the process, they don’t trust the outcomes, even if the outcomes are correct. So this erosion of trust has real consequences for a system that’s processing hundreds of thousands of cases a year.

Gwen: We can also ask, is this constitutional? Does combining this investigation and adjudication in the same person violate due process?

Marc: I mean, based on everything we’ve talked about, it seems like it should.

Gwen: Right. And obviously, since this is in place, we’re not going to be talking about courts that have said it does. Instead, the Supreme Court directly addressed this with Withrow v. Larkin in 1975. And here the case was talking about a Wisconsin medical licensing board that had acted as both investigator and then a decider on whether to suspend a doctor’s license. Here’s the key passage.

Marc: The contention that the combination of investigative and adjudicative functions necessarily creates an unconstitutional risk of bias in administrative adjudication has a much more difficult burden of persuasion to carry. It must overcome a presumption of honesty and integrity in those serving as adjudicators. And it must convince that under a realistic appraisal of psychological tendencies and human weakness, conferring investigative and adjudicative powers on the same individuals poses such a risk of actual bias or prejudgment that the practice must be forbidden if the guarantee of due process is to be adequately implemented.

Gwen: Must overcome a presumption of honesty and integrity. The court here is starting from the assumption that adjudicators are fair. And it’s up to the challenger to try and show that combining these functions in this particular case poses such a risk of actual bias or prejudgment that the practice must be forbidden. That is a really high bar.

Marc: Yeah, especially when we’ve just spent 10 minutes talking about how the bias is implicit, invisible even to the person experiencing it. How would you even establish that? If the bias operates through investigation choices and evidence weighing rather than through overt statements of prejudice. How does the claimant actually prove this?

Gwen: That’s the central tension. The court has set up this standard that requires proof of actual bias, but the whole nature of the problem is that the bias is generally structural, not individual. You’re not going to find an ALJ who says, I decided against you because I investigated you and I didn’t like it.

Marc: I sided against you because I don’t like you and I was in charge of the investigation. This bias is operating beneath the surface. The constitutional standard essentially requires you to prove something that by its nature can’t be proven except for in the most extreme cases.

Gwen: Yes. So that’s a fair characterization of the critics’ view. Defenders would say that this is pragmatic, that we can’t restructure every government adjudication system based on theoretical risks. The question is whether the specific combination in a specific context creates an unacceptable risk of actual bias. And no one has successfully made that showing for Social Security.

Marc: Okay. What would cross the line?

Gwen: The court suggested a few things. If somebody had a direct financial interest in the outcome, or if there was personal involvement that went beyond a standard investigation, or if there’s situations where the adjudicator had essentially already committed to the outcome. But the structure itself, investigating and judging, that’s permissible.

Marc: So courts have consistently upheld the system. And the standard argument is that, again, the reason this was created, the ALJ’s duty to develop the record helps the claimants more than it hurts them. And any alternative would be worse.

Gwen: Do you buy that?

Marc: So I think it’s pretty complicated. For some claimants who are unsophisticated, unrepresented and unable to navigate the system, having the ALJ develop evidence probably really does help. The ALJ really is ordering exams the claimant couldn’t have afforded that proves whatever they were trying to argue. It gets the records that the claimant didn’t know existed. That’s real.

Gwen: OK, but what about in situations like with the current administration? Most of what we’re trying to talk about is neutral before things started being attacked.

Marc: The administrative state is absolutely under attack right now. That’s kind of the reason for the podcast.

Gwen: But if the system is designed to work as intended when people have resources, and even then we’re talking about problems with the system, which is what we’ve been talking about this whole time, is the system working as it was intended to work. When you take away those resources, we have a complete and utter failure.

Marc: We’re going to be talking about the importance of due process in the next episode, and due process is critical. Because that is how we ensure that the actual right decision is reached. The mere fact that somebody has been picked up doesn’t mean that they were correctly picked up. And if they don’t have the opportunity to demonstrate that, everybody is at risk.

Gwen: So it is absolutely a huge problem right now. But even if we’re not talking about the current administration, we’re talking about before things started to get really crazy, in general, just the investigation itself can become a way that the ALJ develops evidence undermining the claim and for which the claimant has no meaningful way to push back.

Marc: So the structure cuts both ways. Again, when it’s fully funded, when it’s operating as intended, when we’re dealing with a normal caseload.

Gwen: And the particular way it’s going to cut in any given case depends on factors that the claimant can’t control. And the constitutional standard says that’s fine as long as you can’t prove actual bias in your specific case.

Marc: Yes, which is pretty much impossible to prove if the bias is structural.

Gwen: Okay. I want to make sure we’re being fair to the system here because there’s a version of this story where the inquisitorial model is actually the more humane option.

Marc: All right. Okay.

Gwen: Picture the alternative. Fully adversarial system. The government sends a lawyer to argue against every disability claimant. You’re already sick, already struggling financially, and now there’s a government attorney whose job is to defeat your claim.

Marc: That’s what the adversarial system would look like in practice for someone applying for disability.

Gwen: Right, and that’s not hypothetical. A lot of other benefit systems work closer to that model, and claimants often do fare worse in those kinds of systems without representation.

Marc: So the people who designed Social Security Disability looked at both options and said the inquisitorial model where the judge helps build your case is actually kinder to claimants than forcing them into a fight that they can’t win.

Gwen: Yeah, it certainly seems like that’s why things have been structured the way they have. And it is definitely important to take that seriously. The alternative isn’t some platonic ideal of perfect fairness. The alternative has a different set of problems. An adversarial system where government always has better lawyers.

Marc: Or almost always. So, yeah, you’re choosing between a system where the judge investigates you with all the cognitive risks we talked about there and a system where a government attorney argues against you with all the resource imbalance that entails. Neither is perfect. The question is which kind of imperfections you want to live with.

Gwen: And Congress chose the investigative judge. For this particular context. But, again, it’s worth noting that they made different choices for different systems. For immigration proceedings, they are adversarial. There’s a government attorney. For SEC enforcement, those actions are also adversarial. Tax court’s adversarial. Social Security disability really is the outlier here, and it’s the outlier because the claimant population was seen as especially vulnerable.

Marc: So the design reflects a judgment about who the claimants are.

Gwen: Yes, it does, and about the best way to help them.

Marc: Okay, Gwen, you know what keeps sticking with me? The word hearing. When a claimant gets a letter saying you have a right to a hearing, they think that means someone’s going to sit down and listen to their side. They don’t expect the person listening to have already ordered exams, formed impressions, based on the record they helped build.

Gwen: Yeah, people can feel blindsided here. Not because the system is trying to trick them, but because nobody explained what they were walking into.

Marc: Okay, then so what comes next? Because so far, we’ve been talking about what agencies choose to do. At some point, the Constitution has to start telling them what they must do.

Gwen: And that’s exactly where we’re heading. As I mentioned earlier, next episode, we’re talking about why the Constitution requires the government to hear from you before it takes something away and why that requirement is thinner than most people think.

Marc: So that does it for today’s episode on Administrative Remedies. Thank you for joining us today. Please, if you enjoy this podcast and enjoy this episode, give us a like on Spotify, iTunes, or whatever platform you’re listening on. And be sure to tune in next time where we’ll continue to dive into the contours of administrative law. Because remember, you can’t fix what you don’t understand.

Related Guides

• ALJs vs. Non-ALJ Adjudicators: Who Decides Your Federal Case? — Social Security disability hearings are decided by ALJs, but most federal adjudications aren't. This guide maps the full landscape of agency decision-makers and explains why the protections they have — or don't have — matter.
• The Adjudication Spectrum Explained — Social Security hearings sit at a specific point on the broader spectrum of agency adjudication. This guide shows the full range, from formal trial-type proceedings to paper reviews with minimal process.
• Due Process Explained — The inquisitorial model raises fundamental questions about what the government owes you before it makes a decision that affects your rights. This guide explains the constitutional foundation for procedural fairness in agency proceedings.