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Post by JudgeRatty on Jun 24, 2013 21:46:49 GMT -5
Bartleby commented on another thread (and I didn't want to hijack the thread by asking) about a last minute record dump of over 500 pages. It made me curious as to how the different ALJs here handle the situation with the rep. I have heard a variety of ways of dealing (or not dealing) with this from chastising the rep on the record, rescheduling the hearing, to just ignoring it and moving on. And I understand that there is no prohibition to this and we get remands on new & material evidence all the time when records are submitted to the AC that were not considered in the decisions as well. Essentially the record is never "closed" so to speak. So with large last minute submissions, what do you do? What has been the most effective way to "change" this practice (if possible)?
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Post by ssaer on Jun 24, 2013 22:13:42 GMT -5
When the last minute evidentiary dump on behalf of a represented claimant is too sizable to be read quickly, without throwing off the schedule in a manner detrimental to other claimants, I inform the claimant (with the rep present, and on the record) that his/her rep has submitted a large amount of evidence belatedly; that it would be unfair to him/her (the claimant) for me to hold a hearing without being fully knowledgeable concerning evidence that may be important to the claim; and that, as a result of the rep's action, this case will unfortunately have to be postponed. I have done this a number of times -- the reps are always apologetic and are quite diligent about submitting evidence in a timely fashion in future appearances before me.
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Post by moopigsdad on Jun 25, 2013 5:37:24 GMT -5
When the last minute evidentiary dump on behalf of a represented claimant is too sizable to be read quickly, without throwing off the schedule in a manner detrimental to other claimants, I inform the claimant (with the rep present, and on the record) that his/her rep has submitted a large amount of evidence belatedly; that it would be unfair to him/her (the claimant) for me to hold a hearing without being fully knowledgeable concerning evidence that may be important to the claim; and that, as a result of the rep's action, this case will unfortunately have to be postponed. I have done this a number of times -- the reps are always apologetic and are quite diligent about submitting evidence in a timely fashion in future appearances before me. I agree with your approach completely saaer. Nothing like a little shame before a claimant goes such a long way in correcting lawyering mistakes or missteps in the future. Attorneys do not like to look incompetent in front of their clients. |
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Post by christina on Jun 25, 2013 7:21:02 GMT -5
Great idea SSAER
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Post by lurker/dibs on Jun 25, 2013 11:41:55 GMT -5
The same holds true when the ALJ states, on the record, before the claimant and the lawyer, that the decision will be delayed to give the judge time to adequately review the records post hearing. Claimants become extremely upset when they think their money is being delayed--especially when it is the fault of the attorney. Both SSAER's response and mine occur in several ODARs in which I practice.
When I have requested records from a provider over and over to no avail, I have actually submitted my repeated requests into the electronic folder as evidence that I have been requesting a particular set of records for sometimes 6+ months to show that I am doing my job.
I think it really depends on the attorney/rep. If the attorney/rep is a regular who 99.9% of the time submit records timely, then I think that should be considered, as well.
To repeat what I stated in the other thread, several of my regular ALJs have said that some reps will wait until after the hearing to even request records. I'm not sure what the appropriate response to that would be, beyond explaining on the record to the claimant that his/her rep failed to properly request and submit evidence to support the claim and as a result the hearing will be continued until the rep informs the judge that all records have been submitted. Though, I'm not sure if indefinitely postponing a hearing for the records is within the acceptable rules of the judge.
This is a tricky topic, I think. The claimant deserves a fair shake, regardless of when the records are submitted and the number of pages; but if the attorney/rep intends on being paid then they should absolutely do their job and do it expeditiously.
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Post by JudgeRatty on Jun 25, 2013 20:38:03 GMT -5
Thanks for all the responses! Hopefully, maybe.... I will get to put some of this advice into action. Someday!  I know when I had this happen as a rep, it was VERY embarrassing and was a rare event. Usually just like some have said, recent representation etc. But I have seen some reps that do this more regularly and wondered how everyone handles it. Thanks again! |
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Post by Legal Beagle on Jun 25, 2013 20:39:42 GMT -5
The problem that we have, is that we have no choice under the current regulations but to accept the evidence and wade through it. If we don't, then they will just submit it after the hearing to the Appeals Council, and it is an automatic remand. Sometimes the reps have no choice - some doctors just do not want to cooperate - but others will intentionally sandbag the ALJ and the ME, if there is one scheduled to testify.
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Post by onepingonly on Jun 25, 2013 21:00:46 GMT -5
§ 405.331. Submitting evidence to an administrative law judge.
(a) You should submit with your request for hearing any evidence that you have available to you. Any written evidence that you wish to be considered at the hearing must be submitted no later than five business days before the date of the scheduled hearing. If you do not comply with this requirement, the administrative law judge may decline to consider the evidence unless the circumstances described in paragraphs (b) or (c) of this section apply.
(b) If you miss the deadline described in paragraph (a) of this section and you wish to submit evidence during the five business days before the hearing or at the hearing, the administrative law judge will accept the evidence if you show that:
(1) Our action misled you;
(2) You had a physical, mental, educational, or linguistic limitation(s) that prevented you from submitting the evidence earlier; or
(3) Some other unusual, unexpected, or unavoidable circumstance beyond your control prevented you from submitting the evidence earlier.
(c) If you miss the deadline described in paragraph (a) of this section and you wish to submit evidence after the hearing and before the hearing decision is issued, the administrative law judge will accept the evidence if you show that there is a reasonable possibility that the evidence, alone or when considered with the other evidence of record, would affect the outcome of your claim, and:
(1) Our action misled you;
(2) You had a physical, mental, educational, or linguistic limitation(s) that prevented you from submitting the evidence earlier; or
(3) Some other unusual, unexpected, or unavoidable circumstance beyond your control prevented you from submitting the evidence earlier.
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Post by JudgeRatty on Jun 25, 2013 21:18:09 GMT -5
Yeah onepingonly this is true, but the "practical" matter is that any evidence that is submitted needs to be considered, even if it is after the hearing and prior to the decision being issued. And on top of that, if it is submitted to the AC with the appeal, like Legal Beagle said above, it is an automatic AC remand!! Period. That is the whole problem. The record is never "complete" and this has been a real thorn for years.
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Post by cafeta on Jun 25, 2013 21:22:43 GMT -5
The problem that we have, is that we have no choice under the current regulations but to accept the evidence and wade through it. If we don't, then they will just submit it after the hearing to the Appeals Council, and it is an automatic remand. Sometimes the reps have no choice - some doctors just do not want to cooperate - but others will intentionally sandbag the ALJ and the ME, if there is one scheduled to testify. Not an automatic remand by the AC. I've seen a lot of cases where the AC rejects the evidence, or at least the materiality of that evidence, and refuses to remand. Even better is when they do not exhibit the evidence, but return it to the rep. Let them explain materiality and good cause to the courts! And yes, it is a crap shoot with the courts, especially in certain circuits, but still, it puts the burden on the untimely producers. And if they are the type reps that have this happen only occasionally, because of none responsive medical providers, well, everyone takes that into account. |
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Post by JudgeRatty on Jun 25, 2013 21:36:53 GMT -5
The problem that we have, is that we have no choice under the current regulations but to accept the evidence and wade through it. If we don't, then they will just submit it after the hearing to the Appeals Council, and it is an automatic remand. Sometimes the reps have no choice - some doctors just do not want to cooperate - but others will intentionally sandbag the ALJ and the ME, if there is one scheduled to testify. Not an automatic remand by the AC. I've seen a lot of cases where the AC rejects the evidence, or at least the materiality of that evidence, and refuses to remand. Even better is when they do not exhibit the evidence, but return it to the rep. Let them explain materiality and good cause to the courts! And yes, it is a crap shoot with the courts, especially in certain circuits, but still, it puts the burden on the untimely producers. And if they are the type reps that have this happen only occasionally, because of none responsive medical providers, well, everyone takes that into account. Really?  Now that is the first I have ever heard anyone say that the AC rejected new and material evidence. It would sure be nice if this was the norm. Now, I am not talking about the rep submitting OB/GYN records on a back pain case (irrelevant) and getting a remand. But every single one that has submitted records that pertain to the allegations in some way get remanded for further consideration. I didn't mean automatic remand on irrelevant records, and I bet Legal Beagle meant the relevant ones too. But I see your distinction |
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Post by cafeta on Jun 26, 2013 1:18:20 GMT -5
Not an automatic remand by the AC. I've seen a lot of cases where the AC rejects the evidence, or at least the materiality of that evidence, and refuses to remand. Even better is when they do not exhibit the evidence, but return it to the rep. Let them explain materiality and good cause to the courts! And yes, it is a crap shoot with the courts, especially in certain circuits, but still, it puts the burden on the untimely producers. And if they are the type reps that have this happen only occasionally, because of none responsive medical providers, well, everyone takes that into account. Really? Now that is the first I have ever heard anyone say that the AC rejected new and material evidence. It would sure be nice if this was the norm. Now, I am not talking about the rep submitting OB/GYN records on a back pain case (irrelevant) and getting a remand. But every single one that has submitted records that pertain to the allegations in some way get remanded for further consideration. I didn't mean automatic remand on irrelevant records, and I bet Legal Beagle meant the relevant ones too. But I see your distinction New and material? That is the key. I didn't say they would reject new and material, only that remand was not inevitable because often the untimely submissions are neither new nor material. Now obviously the OB/GYN records are obviously irrelevant, but there are many shades of gray (don't google that phrase, you will be irrecoverably distracted). I just meant to point out that all new evidence is not a guaranteed remand. Pertaining in some way to the allegations is not alone sufficient, at least not always. But the real scandal is when untimely submissions are a calculated tactic, which is not unheard of. I can't speak to percentages, but it is not rare. |
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Post by bowser on Jun 26, 2013 6:53:40 GMT -5
I have done this a number of times -- the reps are always apologetic and are quite diligent about submitting evidence in a timely fashion in future appearances before me. I agree with your approach completely saaer. Nothing like a little shame before a claimant goes such a long way in correcting lawyering mistakes or missteps in the future. Attorneys do not like to look incompetent in front of their clients. Wow! Attorneys who are apologetic about submiting last minute evidence and who change their practices? I want to transfer to wherever you work!  My experience has been that there is a small percentage of attorneys who consistently submit evidence at the last minute. Or who fail to submit evidence the existence of which becomes apparent at the hearing, necessitating POST. When I make any mention of the difficulties caused by last minute submissions or omissions, the majority of attorneys who do this regularly launch into statements of how their business practice prohibits anything else. Or they just offer some BS apology - and don't change a thing in future cases. And these attorneys do not impress me as overly concerned with how they appear in front of their clients. Heck, a good portion of them are hired guns for some big national firm. The other folk who do this impress me as local practitioners focussing on quantity over quality. Seems to me that the sole thing to result from any postponement is to mess up my schedule. I've already prepped the case once - not particularly interested in prepping it a second time. I'll ask the attorney what the new evidence contains (IF he knows), scan it as best I can, and try to incorporate appropriate limitations in my hypos. If you use MEs, I imagine a postponement would be necessary. Sometimes I'll ask the attorney to submit a post-hrg brief, explaining what is in the new evidence, but we have no authority to require that, and the worst offenders simply ignore my requests. I think it is a terrible situation that, once an attorney submits voluminous last minute or post-hrg garbage, we are unable to reject that mass dump and require that it be resubmitted with duplicates removed, the remaining material organized in some fashion, and accompanied by some brief writing explaining its significance. |
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Post by JudgeRatty on Jun 26, 2013 7:24:57 GMT -5
Sorry cafeta I wasn't clear. I should have said "new and material" in my original post. I agree with you. I think you are right about the tactic of submitting new and material evidence at a specific time to get that remand, and I have heard other discussions that this is a tactic used more readily with ALJs that have very low award rates that are on the far outside of the bell curve. I still think they are walking a very thin line in terms of omitting evidence until a later point after or near the hearing. Not a good gamble IMHO. Ok, off to work! Have a good one!
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Post by moopigsdad on Jun 26, 2013 7:38:21 GMT -5
I agree with your approach completely saaer. Nothing like a little shame before a claimant goes such a long way in correcting lawyering mistakes or missteps in the future. Attorneys do not like to look incompetent in front of their clients. Wow! Attorneys who are apologetic about submiting last minute evidence and who change their practices? I want to transfer to wherever you work! My experience has been that there is a small percentage of attorneys who consistently submit evidence at the last minute. Or who fail to submit evidence the existence of which becomes apparent at the hearing, necessitating POST. When I make any mention of the difficulties caused by last minute submissions or omissions, the majority of attorneys who do this regularly launch into statements of how their business practice prohibits anything else. Or they just offer some BS apology - and don't change a thing in future cases. And these attorneys do not impress me as overly concerned with how they appear in front of their clients. Heck, a good portion of them are hired guns for some big national firm. The other folk who do this impress me as local practitioners focussing on quantity over quality. Seems to me that the sole thing to result from any postponement is to mess up my schedule. I've already prepped the case once - not particularly interested in prepping it a second time. I'll ask the attorney what the new evidence contains (IF he knows), scan it as best I can, and try to incorporate appropriate limitations in my hypos. If you use MEs, I imagine a postponement would be necessary. Sometimes I'll ask the attorney to submit a post-hrg brief, explaining what is in the new evidence, but we have no authority to require that, and the worst offenders simply ignore my requests. I think it is a terrible situation that, once an attorney submits voluminous last minute or post-hrg garbage, we are unable to reject that mass dump and require that it be resubmitted with duplicates removed, the remaining material organized in some fashion, and accompanied by some brief writing explaining its significance. I probably should have qualified my post with "Good attorneys do not like to look incompetent in front of their clients". Yes, Bowser the large nationwide firms who have hired practitioners (many just out of law school or who have never practiced a SSA case in the past) do not care about when medical is submitted. I have seen the hearing chastisement work on good conscientious attorneys who hate to look incompetent and want referral business from their clients. |
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Post by JudgeRatty on Jun 26, 2013 8:33:13 GMT -5
Cafeta & Bowser, I think that cafeta just hit on a good point on all this..."some" of these instances are from the big national widely advertised (we all know who these are) firms who hire very green reps right out of law school and/or with little experience in general. I think they are unaware of the whole big picture of how records are submitted in the first place, and they don't have any control over this issue since that is done by the many work drones along the process. That is the flaw in how their business process is set up with the new rep getting involved in the case at the very end, just prior to the hearing. Now, I am not defending the big firm, but I am just saying I see how this happens in these cases. I do think that educating the new reps on how this affects the overall process is at least valuable for their growth. It won't change the big firm's process, but maybe it will influence the rep for their personal growth as most of these reps do not stay with these big firms for a long time....they get experience and move on (with exceptions of course). Ya'll have a good day!
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Post by bowser on Jun 26, 2013 9:25:09 GMT -5
In my opinion, the worst practitioners in our shop in terms of compiling sloppy or inadequate records with duplicative and/or last minute submissions, are a small number of sole practitioners/small local firms. These practitioners file A LOT, have been doing this for some time, are fully aware of what they are doing, and show no interest in changing. They are making a fine living simply throwing stuff up against the wall and collecting fees from whatever sticks.
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Post by slulawkid on Jun 26, 2013 9:42:39 GMT -5
For every time I submitted last minute records I have had an equal number of ALJs state "I could have saved us all a Hearing this morning counsel if there had been a brief on this claim." Which I respond, "5 F your honor."
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Post by hopefalj on Jun 26, 2013 9:51:48 GMT -5
In my opinion, the worst practitioners in our shop in terms of compiling sloppy or inadequate records with duplicative and/or last minute submissions, are a small number of sole practitioners/small local firms. These practitioners file A LOT, have been doing this for some time, are fully aware of what they are doing, and show no interest in changing. They are making a fine living simply throwing stuff up against the wall and collecting fees from whatever sticks. The worst offender in our office is one of the biggest firms. |
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Post by moopigsdad on Jun 26, 2013 10:04:52 GMT -5
My thought is you are likely to see the violators be a national firm in large, more urban ODAR offices and see the violators be sole practitioners or small firms in small, less urban ODAR offices.
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I know when I had this happen as a rep, it was VERY embarrassing and was a rare event. Usually just like some have said, recent representation etc. But I have seen some reps that do this more regularly and wondered how everyone handles it. Thanks again!
Now that is the first I have ever heard anyone say that the AC rejected new and material evidence. It would sure be nice if this was the norm. Now, I am not talking about the rep submitting OB/GYN records on a back pain case (irrelevant) and getting a remand. But every single one that has submitted records that pertain to the allegations in some way get remanded for further consideration. I didn't mean automatic remand on irrelevant records, and I bet Legal Beagle meant the relevant ones too. 
