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Post by onepingonly on Jun 26, 2013 10:11:15 GMT -5
I've not experienced automatic AC remand on this point, and at the District Court level, OGC has gone to bat for the ALJ's authority to reject untimely evidence, and has won. Consider: "The administrative law judge committed no error in declining, at the hearing, to admit Dr. Fine’s PRTF. At that time, plaintiff’s counsel made no attempt to argue that the belated admission of that PRTF was warranted on the basis of either exception that he now maintains obtained, that (i) 'our action misled you' or 'some other unusual, unexpected, or unavoidable circumstance beyond your control prevented you from submitting the evidence earlier.' 20 C.F.R. 405.331(b)(1) & (3)." Black v. Astrue, USDC, Dist. Of Maine, No. 1:10-cv-175-JAW, March 29, 2011. The ALJ rejected the untimely evidence and issued an unfavorable decision. Interesting reading.
Has anyone tried invoking the reg explicitly and been remanded despite a specific finding under the reg with a proper foundation?
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Post by lurker/dibs on Jun 26, 2013 10:53:49 GMT -5
As an attorney in a small firm, I typically handle approx 20 social security hearings per month (in addition to the other cases I handle). The vast majority of my clients come from referrals and word of mouth. If I was consistently unprepared and "shamed" in front of my clients on a regular basis, I believe I would not get as many clients. Also, it is extremely important for me to maintain a good working relationship with my regular judges that I appear before. I always strive to be prepared, know my clients prior to the date of the hearing, and submit all evidence timely. On complicated cases or cases with voluminous amounts of medical records, I also submit prehearing briefs. Speaking as someone who would like to be on the other side of the bench, and as someone who puts a lot of time and effort into my cases, there should be a specific cut off as to when no more evidence should be considered. Submitting evidence for the sole purpose of getting a remand should be bar-complaint worthy. And any rep who practices in that fashion should be sanctioned--IMHO.
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Post by hod on Jun 26, 2013 10:56:03 GMT -5
As for attorneys submitting evidence at the last minute-there was a time, right after the electronic process was put into place where I routinely had the support staff return "unwieldy" evidence to the reps so that it could be appropriately divided into different providers, set up by date and edited for duplicates. It worked wonders until someone complained and I was told that we could not return evidence any more.
The problem is that in leaning so far in to protect the claimant, SSA has completely lost its mind with regard to claimants who are represented. I don't mind helping the claimant who is not represented, but a rep should have the ethical obligation to present his/her case in a reasonable manner and should not be allowed to rely on the agency to do the work of the rep's support staff.
What tribunal other than us would accept some of the unedited fertilizer that is sent into the file? Can you imagine, as an attorney, providing evidence to a judge in any other court that is completely illegible? Doctor's handwritten notes not transcribed? Copies that are too blurred to read? Evidence that is totally unorganized as to date or duplicates? Evidence clearly belonging to individuals other than the claimant? The stuff comes in a letter or fax to the rep and often it is just forwarded without so much as a glance. Day after day, ALJ's receive these type documents and there is very little that can be done. The good representatives, of course, do not do this. But to some extent our lack of professional expectation is like trash on the ground. Most of us would not litter, but if you are standing in a place where there is a pile of litter-you might not care if you happen to drop some trash. So it is with the representatives. There is a lot to do in any practice-and if you can short cut without consequence, well... And the newbies who are hired by the big cowboy hat types probably do not even know that the lack of preparation is unprofessional. It is what they are taught to do and we accept it, even if begrudgingly.
My favorite part is after the agency does all the work of cleaning things up, getting the file organized (such as it is) and reviewing the case- the rep can claim the "25 or not to exceed 6000" payoff. Woe be the ALJ who tries to cut the fee of a representative who did little more than show up at the hearing. I do not think that it would be too difficult to demand that people who "represent the claimant and intend to collect a fee for doing so, be held to a minimal standard of work product. But so far that does not seem to be an issue that gets much traction. I would never hold the poor representative against the claimant-but I would like to see that the person who does poor or incomplete work not receive payment for sloppy service.
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Post by cafeta on Jun 26, 2013 10:56:32 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. That is my experience as well - sole/local practitioners who indeed make a fine living plastering the wall!
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Post by JudgeRatty on Jun 26, 2013 13:35:31 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. That is my experience as well - sole/local practitioners who indeed make a fine living plastering the wall! This is so frustrating and it makes our profession look bad. I am sure this contributes to why some ALJs are frustrated with the process and the job. At least it is refreshing to see those that DO take an ethical approach!
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Post by JudgeRatty on Jun 26, 2013 13:38:35 GMT -5
What tribunal other than us would accept some of the unedited fertilizer that is sent into the file? Can you imagine, as an attorney, providing evidence to a judge in any other court that is completely illegible? Doctor's handwritten notes not transcribed? Copies that are too blurred to read? Evidence that is totally unorganized as to date or duplicates? Evidence clearly belonging to individuals other than the claimant? The stuff comes in a letter or fax to the rep and often it is just forwarded without so much as a glance. Day after day, ALJ's receive these type documents and there is very little that can be done. The good representatives, of course, do not do this. I do not think that it would be too difficult to demand that people who "represent the claimant and intend to collect a fee for doing so, be held to a minimal standard of work product. But so far that does not seem to be an issue that gets much traction. I would never hold the poor representative against the claimant-but I would like to see that the person who does poor or incomplete work not receive payment for sloppy service. This brings up an interesting topic....has anyone denied the fee on these cases and made the reps who do this regularly file a fee petition?
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Post by valkyrie on Jun 26, 2013 15:34:27 GMT -5
Who says you have to look at the newly submitted 450 page of evidence? If you've done a thorough case review, you have a pretty good idea what impairment/limitation/PRW the case is going to hinge on. You take care of shaming the rep and making him do his job at the same time.
"All right counsel, at this point I've read everything in the record except the 450 pages of evidence in 28F that you submitted into the electronic folder last night. The claimant is under 50, doesn't have any diagnosed mental impairments other than BIF, and all of the rest of the MER, even with a generous reading, probably wouldn't drop the claimant below limited light, certainly no less than sedentary. So first of all counsel, tell me where the relevant evidence resides in those 450 pages, and secondly, tell me how any such evidence would pertain to the 5 step process."
What's he/she going to say, "I don't know? I forgot? Look for it yourself?"
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Post by JudgeRatty on Jun 26, 2013 16:03:13 GMT -5
Who says you have to look at the newly submitted 450 page of evidence? If you've done a thorough case review, you have a pretty good idea what impairment/limitation/PRW the case is going to hinge on. You take care of shaming the rep and making him do his job at the same time. "All right counsel, at this point I've read everything in the record except the 450 pages of evidence in 28F that you submitted into the electronic folder last night. The claimant is under 50, doesn't have any diagnosed mental impairments other than BIF, and all of the rest of the MER, even with a generous reading, probably wouldn't drop the claimant below limited light, certainly no less than sedentary. So first of all counsel, tell me where the relevant evidence resides in those 450 pages, and secondly, tell me how any such evidence would pertain to the 5 step process." What's he/she going to say, "I don't know? I forgot? Look for it yourself?" I am stealing this for future (I hope) use! Thanks Valkyrie!
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Post by philliesfan on Jun 26, 2013 17:31:16 GMT -5
Besides the last minute evidence dump, the other thing that drives me crazy are reps who, when I am admitting the exhibits, will tell me that the record is complete, but 15 minutes into the hearing, I am able to find out that the claimant has been seeing Dr. X once a month regularly, even though the most recent evidence from that doctor is six months old or will testify to other treatment or testing, none of which the rep appears to be aware of. That is probably because the first time the rep ever met the claimant was in the hearing office lobby. Of course, this results in the case going into POST to wait for the rep to supply this evidence. BTW, I have never had a rep decline to obtain this evidence because they know they will probably have other cases before me. However, I have had instances when the evidence was not submitted. Therefore, I close the record and issue a decision.
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Post by decadealj on Jun 26, 2013 19:44:11 GMT -5
HOD- disapproving or reducing the reps fee for incompetence or unprofessionalism is the best and last weapon the ALJ has to improve the process. Sure the RCJ will cave and pay the fee but at least you force him/her to review the crap you have to put up with him/her. Be a pain in the backside- force the cowards at the RO to do some work to reward the unworthy reps to receive their unearned fees.
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Post by JudgeRatty on Jun 26, 2013 20:19:27 GMT -5
HOD- disapproving or reducing the reps fee for incompetence or unprofessionalism is the best and last weapon the ALJ has to improve the process. Sure the RCJ will cave and pay the fee but at least you force him/her to review the crap you have to put up with him/her. Be a pain in the backside- force the cowards at the RO to do some work to reward the unworthy reps to receive their unearned fees. Of course, the case techs will hate everyone who does this since they have to keep up with all the fee petition processes. But I love this idea! Really, it seems like a good common sense approach. After all, if the reps who do this over and over with no change and total disrespect for the claimant's needs (submitting evidence at the last minute is NOT helpful--what if an OTR could have been written with the evidence if it had been submitted timely?), then something has to get their attention. Um, $$$$? I think so. With ALL of that said, I would of course only do this with the worst offenders.
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Post by notafed on Jun 26, 2013 20:25:08 GMT -5
.
ONEPINGONLY: § 405.331. Submitting evidence to an administrative law judge
BEWARE: This regulation in the "405" section applies only to Region 1. In fact, I am not even sure that it still applies in Region 1. In any event, it has never applied anywhere OUTSIDE Region 1.
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Post by JudgeRatty on Jun 26, 2013 21:20:44 GMT -5
. ONEPINGONLY: § 405.331. Submitting evidence to an administrative law judge BEWARE: This regulation in the "405" section applies only to Region 1. In fact, I am not even sure that it still applies in Region 1. In any event, it has never applied anywhere OUTSIDE Region 1. Good point! Thanks notafed!
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Post by onepingonly on Jun 26, 2013 21:59:22 GMT -5
Yes, correct. It's discussed in the HALLEX. My question is whether anyone has tried applying the principle. There seem to be few tools in the box to address this point. Other agency judges can enforce some deadlines with some sanctions, like exclusion. Thanks for clarifying.
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Post by cafeta on Jun 26, 2013 23:10:15 GMT -5
. ONEPINGONLY: § 405.331. Submitting evidence to an administrative law judge BEWARE: This regulation in the "405" section applies only to Region 1. In fact, I am not even sure that it still applies in Region 1. In any event, it has never applied anywhere OUTSIDE Region 1. Well I feel better about never having heard of this reg; but I like it and it should be nation-wide. Any idea of the history. What brought it about in region 1?
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Post by moopigsdad on Jun 27, 2013 5:49:40 GMT -5
. ONEPINGONLY: § 405.331. Submitting evidence to an administrative law judge BEWARE: This regulation in the "405" section applies only to Region 1. In fact, I am not even sure that it still applies in Region 1. In any event, it has never applied anywhere OUTSIDE Region 1. Well I feel better about never having heard of this reg; but I like it and it should be nation-wide. Any idea of the history. What brought it about in region 1? It is just a prototype or test project for SSA to see if it works and should be rolled out nationwide. However, so was the removal of the Reconsideration stage in ten states which hasn't gone anywhere other than remain the same in those ten states. So, who knows if it will ever be anything more.
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Post by bowser on Jun 27, 2013 6:52:43 GMT -5
What's he/she going to say, "I don't know? I forgot? Look for it yourself?" Most of us have heard reps say all of the above. Which doen't absolve us of the responsibility of providing the claimant a full and fair hearing whether they are represented or not, and issuing a decision based on all of the relevant evidence. Definitely ask the questions valkyrie identifies, but if the attorney is the type who creates a sloppy record, don't expect him/her to provide satisfactory answers. And denying fees could be a useful tool - if we could count on regional to back us up, and if we didn't have enough to do already without putting extra work on ourselves. Heck, once I've put the time into reaching what I consider to be the correct decision, the LAST thing I want is for the case to hang around so that I can put additional time and work into it. Also, this may sound paranoid, but the AALJ recently circulated some materials regarding bias complaints. It is extremely easy for a rep or a claimant to allege bias for any or no reason. And when such a complaint is raised, ANY aspect of how you conducted the hearing could be fair game. I would not be at all surprised if an ALJ tried to "rehabilitate" a particular rep's practices, and in response found themself the subject of bias complaints. And whatever the outcome of those complaints, I suspect most ALJs' lives and jobs would be better without being the subject of such complaints.
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Post by Deleted on Jun 27, 2013 7:12:54 GMT -5
For another take on how last minute records are handled, please see the e-mail I recieved this morning from my group supervisor....
"Attorney ________called this afternoon. You have him scheduled tomorrow at 8:30 in the above case. He said he had rec’ records from the VA for the period after the prior ALJ decision thru the present that are very extensive. He said the records were about 2 ½” thick. I told him not to send them to the electronic file today. I told him to bring them to the hearing and that you would review post-hearing."
Okay, I guess we'll do that.
R
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Post by decadealj on Jun 27, 2013 9:29:00 GMT -5
May I suggest you consider having him sit outside with his client until he has reviewed the records and select those relevant to the alleged disability (medical opinions, exam findings and test results. When he and his client are ready, allowe him to offer as one exhibit, hopefully with a summary of why he or she believes the documents to be relevant. Drop the hearing down to after your last hearing of the day. He or she will scream but I was never reversed using this process and you will be amazed at what happens next time. Do it on the record explaining how necessary it is to ensure the client due process.
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Post by moopigsdad on Jun 27, 2013 10:16:20 GMT -5
May I suggest you consider having him sit outside with his client until he has reviewed the records and select those relevant to the alleged disability (medical opinions, exam findings and test results. When he and his client are ready, allowe him to offer as one exhibit, hopefully with a summary of why he or she believes the documents to be relevant. Drop the hearing down to after your last hearing of the day. He or she will scream but I was never reversed using this process and you will be amazed at what happens next time. Do it on the record explaining how necessary it is to ensure the client due process. Not a bad way to handle the issue at all decadealj. It certainly gets across the point of having the material there earlier and gives the attorney pause from doing it next time.
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