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Post by Administrator ALJ on Jun 19, 2013 12:28:35 GMT -5
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Post by moopigsdad on Jun 19, 2013 15:13:37 GMT -5
I found it to be interesting reading. Thank you for sharing NRG ALJ. |
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Post by Administrator ALJ on Jun 19, 2013 15:41:01 GMT -5
I found it to be interesting reading. Thank you for sharing NRG ALJ. You're welcome. I had no idea that SSA has tried to solve this conundrum before and that those efforts were unsuccessful. |
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Post by moopigsdad on Jun 19, 2013 15:48:18 GMT -5
You're welcome. I had no idea that SSA has tried to solve this conundrum before and that those efforts were unsuccessful. The fact the Federal Government was unsuccessful in solving an issue shouldn't surprise anyone who has ever dealt with a bureaucracy. |
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Post by Administrator ALJ on Jun 19, 2013 16:49:25 GMT -5
You're welcome. I had no idea that SSA has tried to solve this conundrum before and that those efforts were unsuccessful. The fact the Federal Government was unsuccessful in solving an issue shouldn't surprise anyone who has ever dealt with a bureaucracy. Too true. I guess what is surprising is that the agency (or at least the SSAB) and the AALJ are sympatico on this issue (see waysandmeans.house.gov/uploadedfiles/randyfrye_ss_6_27_12.pdf), and there is still inaction. I mean, in a system where claimants can get representation from individuals who don't appear to have an affirmative duty to disclose unfavorable evidence and the government (i.e., the people) has billions of long-term dollars at stake, one would think the impetus for governmental representation would be a no-brainer. This is nothing new for state administrative agencies (at least transportation/environmental/utility agencies). Staff attorneys representing the government are employees of the consumers advocate/attorney general of their particular state. It makes my job as an ALJ much easier to know that I don't have to act as judge and advocate. |
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Post by JudgeRatty on Jun 22, 2013 19:22:58 GMT -5
What I find intriguing is that there is such a difference between representatives (and I say this respectfully as I was one prior to working at ODAR) who submit "everything under the sun" and those who submit exactly what is needed & relevant to the case. Some omit evidence that is detrimental but most submit all evidence within the relevant time period. I know this was an issue at one of the NOSSCR conferences that I attended and the few who did not submit everything relevant, the ones that withheld detrimental evidence, were in the very small minority. A good debate ensued. The vast majority were of the mind to submit all and let the chips fall where they may. And like any bell curve, there were those very few on the fringe who submit ALL the records including maternity etc. hoping that the overwhelming paperwork would stack up to equate to a favorable decision. Yes, there are reps that do this, but like I said, thankfully they are in the minority.
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Post by cafeta on Jun 22, 2013 22:54:46 GMT -5
What I find intriguing is that there is such a difference between representatives (and I say this respectfully as I was one prior to working at ODAR) who submit "everything under the sun" and those who submit exactly what is needed & relevant to the case. Some omit evidence that is detrimental but most submit all evidence within the relevant time period. I know this was an issue at one of the NOSSCR conferences that I attended and the few who did not submit everything relevant, the ones that withheld detrimental evidence, were in the very small minority. A good debate ensued. The vast majority were of the mind to submit all and let the chips fall where they may. And like any bell curve, there were those very few on the fringe who submit ALL the records including maternity etc. hoping that the overwhelming paperwork would stack up to equate to a favorable decision. Yes, there are reps that do this, but like I said, thankfully they are in the minority. Thank god they are in the minority, cuz there is nothing like reviewing transcripts with records in duplicate and triplicate!! |
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Post by JudgeRatty on Jun 23, 2013 21:41:34 GMT -5
Amen cafeta!
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Post by privateatty on Jun 24, 2013 15:54:15 GMT -5
Here's what the ABA Model Rules state:
"Advocate
Rule 3.3 Candor Toward The Tribunal
(a) A lawyer shall not knowingly:
(1) make a false statement of fact or law to a tribunal or fail to correct a false statement of material fact or law previously made to the tribunal by the lawyer;"
Is the omission a 'material fact'? Probably, maybe, but its a shade of gray to me. Are you zealously representing him or her by disclosing this? No--quite the contrary.
I think it becomes more of a duty if you KNOW that the Claimant can do work which is in fact available.
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Post by shadowyfigure on Jun 24, 2013 16:25:04 GMT -5
The representative does not get to decide what is "relevant". The representative is obligated to submit all medical records, whether those records help or hurt their client. However, as a practical matter, there is no consequence for the representative who is caught withholding evidence because the ALJs and ODAR attorneys are prohibited from informing the state bar of unethical conduct by claimant's representatives (even though that prohibition is contrary to the ethical duties of the ALJ and attorneys), but rather have to tell local management, who will tell another level of management, and where the complaint will likely die.
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Post by JudgeRatty on Jun 24, 2013 16:35:56 GMT -5
This was always frequently a topic at NOSSCR. Very interesting! Sure is a gray area.... but I would be afraid that withholding anything that may impact the decision would come back to bite in some way. I would rather err on the side of putting it all out there and argue the case the best way possible. I would not want a reputation for withholding evidence either, even if it falls into being a zealous advocate. Too close to the "omission" part for me! But I don't have to worry about that now working for the agency.  |
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Post by Legal Beagle on Jun 25, 2013 20:44:12 GMT -5
I had a hearing last week, where I asked the attorney if "there is anything pertinent to this case that is not contained in the record." He said "No." The client testified that she had gone to Vocational Rehab a couple of months earlier, and they told her she was not employable. I asked if she had any documentation of this, and she said she sent it to her attorney. We both looked at the lawyer, he looked through his file and guess what? There it was! And amazingly, it found that she was capable of working! Oversight? I don't think so.
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Post by JudgeRatty on Jun 25, 2013 21:08:43 GMT -5
I had a hearing last week, where I asked the attorney if "there is anything pertinent to this case that is not contained in the record." He said "No." The client testified that she had gone to Vocational Rehab a couple of months earlier, and they told her she was not employable. I asked if she had any documentation of this, and she said she sent it to her attorney. We both looked at the lawyer, he looked through his file and guess what? There it was! And amazingly, it found that she was capable of working! Oversight? I don't think so. Cringe! Not good. Not good at all. |
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Post by cafeta on Jun 25, 2013 21:15:09 GMT -5
I had a hearing last week, where I asked the attorney if "there is anything pertinent to this case that is not contained in the record." He said "No." The client testified that she had gone to Vocational Rehab a couple of months earlier, and they told her she was not employable. I asked if she had any documentation of this, and she said she sent it to her attorney. We both looked at the lawyer, he looked through his file and guess what? There it was! And amazingly, it found that she was capable of working! Oversight? I don't think so. Cringe! Not good. Not good at all. Sadly, I am not at all surprised at all! In fact, the other option would surprise me more - full disclosure! |
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Post by JudgeRatty on Jun 25, 2013 21:29:35 GMT -5
I just don't understand why any attorney would put him/herself in a position that jeopardizes their reputation, or worse, potential complaints to the bar by the claimant! Out of all the hearings I have listened to as an ODAR attorney, I hear of very few reps that are purposefully doing things like this though, thank goodness. Most are ethical. But there are a scattered few that do questionable things. Yes of course there are circumstances, late representation, errors, forgetfulness, it was a bad day, etc. But if someone consistently does something like this.....not good. Too risky! We work too hard to get our law licenses, not worth doing anything that may cause a problem with the bar!
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Post by southeastalj on Jun 26, 2013 15:23:13 GMT -5
The representative does not get to decide what is "relevant". The representative is obligated to submit all medical records, whether those records help or hurt their client. However, as a practical matter, there is no consequence for the representative who is caught withholding evidence because the ALJs and ODAR attorneys are prohibited from informing the state bar of unethical conduct by claimant's representatives (even though that prohibition is contrary to the ethical duties of the ALJ and attorneys), but rather have to tell local management, who will tell another level of management, and where the complaint will likely die. Where in the regs is there a requirement to submit "all medical records"? The regs make it abundantly clear that at the end of the day it is always the Agency's duty to develop the Record on the claimant's behalf even when represented. For many attorneys in many states, including the one I am licensed in, it would be a Bar violation to submit evidence that the attorney knows is adverse to their clients position absent an affirmative duty to do so. Our regs have no affirmative duty, hence the moves in the past to create one. Now if the ALJ directly asks the attorney if all medical records of the claimant from the last 2 years have been obtained and submitted and the attorney knowingly lies that is a completely different circumstance and an ethical violation. However, if that type of question is not asked (one of our many hats again) then the attorney has done nothing ethically wrong in many if not most jurisdictions. |
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