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Post by moopigsdad on Oct 6, 2013 6:58:07 GMT -5
Supposedly "60 Minutes" is to do a piece on SSA/ODAR tonight. One of the issues supposedly to be brought up is should SSA (the government) have a representative/attorney representing it's interests at an ALJ ODAR hearing? Right now, the only person or side that can have a representative/attorney is the claimant. The ALJ is to review the Exhibit File and listen to the testimony at the hearing and make a full, fair and impartial decision. The ALJ is to weigh the rules, law and procedure of SSA law and regulations and make a determination. It is a non-adversarial hearing. Should SSA be able to have it's own representative/attorney to disprove the claimantt's disability? Should it become an adversarial hearing? What about those claimants who come in Pro Se without a representative/attorney, if SSA is allowed a representative/attorney? Should we change it from non-adversarial to adversarial?
My simple answer is leave the system as it is now. Do you stop some people from acquiring benefits that shouldn't if you change the system? Yes, but then you make it much harder for those who really do deserve the benefits. Do we punish everyone for the actions of some? I feel it is the ALJ's job to be able to ferret out the truth and make a decision. We need to come up with the funding to hire more ALJs, so cases can be reviewed and worked up better, so it is less likely a "bad" decision might slip by in the process. Do we give SSA a representative/attorney, a prosecutor per se, to disprove someone's disability case? Will the SSA "prosecutor" depose the claimantt's physicians, family and friends to disprove disability? Are we treating the claimant as a criminal? Do we force the Pro Se claimant who has Stage IV cancer to undergo prosecution by SSAs representative/attorney? I think this would be moving the process down a slippery slope, which could lead to many deserving claimants being denied benefits. Why go looking to create a problem, which can be solved by proper funding of ODAR? There has to be a cost to fund the representative/attorney for ODAR, in either actual money or in lost time and effort from other duties. Use that cash for more ODAR funding or re-structure the department you are taking the "prosecutors" from if they have that much time to oversee ODAR hearings. Don't tell me you can take AAs and SAAs and make them the "prosecutors" because they struggle now to keep up with the writing of decisions and wouldn't have the time to "prosecute" disability claimants. Congress and the President just needs to fund SSA/ODAR better, so ALJs have adequate time to review files and make sure they are complete.
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Post by trekker on Oct 6, 2013 8:34:06 GMT -5
This is a thoughtful analysis and I can appreciate what moops is discussing. BTW: the plaintiff's bar, from the legal aid to the private sector, is very concerned about the piece that is to air tonight. If it is like the NPR report, it presents a really one-sided perspective of people who receive SSI and SSDI. I would add that I think SSDI claims will continue to rise, not entirely because of the economy, but because of the raising of the normal retirement age. The financial penalty is getting bigger and there really are some individuals, especially those who perform heavy lifting and labor that just cannot work after a certain age and they certainly do not have the skills to do a desk job. As for the children, not sure we really want to go there. This is coming from the parent of a special needs child. But we had the resources and skills to turn what might have been a dependency on the system to an independent and hard working adult. But not every parent has access to those resources (and fewer do every day).
I do adversarial hearings at the state level as a legal aid rep. SSA hearings are more efficient in many ways because the ALJ and rep can get into a rhythm that helps everyone (there are exceptions -- unethical reps (attorney and non attorney) and grouchy/rude ALJ's. With the adversarial system that most states use, there is often a lot of anger between the claimant/beneficiary and the state agency. The few times the state DoJ attorney showed up at the hearing, the whole process just became brutal and prosecutorial. Does anyone really think an 85 year old survivor of WWII who escaped Nazi Germany really needs to be beaten up about how fragile she is? Do you really want to call that person a liar? Further, I would imagine most of the insiders and reps have read some of the fraud reports issued by the OIG investigators. By and large they are a joke but they do provide some sort of check and balances to the system. If you then throw in an attorney to represent the agency, I guarantee the hearings will be longer and nastier. The vast majority of claimants that I see in my office and in the ODAR waiting rooms are not the educated, middle class, upper income folks. No those claimants have physicians and can pay for neatly bundled packages to prove they meet the rules. Plus, they often have been on temporary disability. Please remember: these are my experiences and others may have different ones. And yes, Congress really needs to fund SSA and ODAR adequately at all levels.
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Post by moopigsdad on Oct 6, 2013 8:46:50 GMT -5
I brought it up not because it is controversial, but it is what some Congressmen want to do. I think there are some ALJs out there who may feel the same way as those Congressmen. I don't want to create an argument, but I am looking for viewpoints from all sides, ALJs, attorney reps, SSAs and AAs, etc. on this issue. I think it is truly one we may face one of these days in this process. There is also talk of making claimants re-prove their disability status every five years. I don't even want to get into that one or other ideas that have arisen regarding SSA disability. I just would like some thoughtful analysis, like trekker did above, on the issue of government representatives at ODAR hearings. Yes, trekker, I too have done adversarial hearings on the state and federal level, but I don't think SSA disability should become one of those adversarial hearings.
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Post by bartleby on Oct 6, 2013 11:05:39 GMT -5
One way to think of it is that it places the Judge in a position of fact finder and not fact gather just like almost all other Judges. It is unfair to expect an ALJ to wear three hats and do justice to all of them. An Agency Rep would/could make sure the case is properly developed and ready for the hearing. Just another viewpoint. It wouldn't need to be adverserial, it could be more fair to everyone, the claimant, the trust fund, and the tax paying citizens.
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Post by bowser on Oct 6, 2013 11:07:15 GMT -5
Of all the things that need to be improved about the disability program and hearing process, having a government rep at hearings in certainly not among them. We cannot replace attrition, and folk suggest creating a whole new class of employee?
While the ALJ is responsible for ensuring that the record is fully and fairly developed, the claimant has the burden of proving disability. I suppose the type of judge who likes having an ME in every case to establish the RFC, which they then present to the VE who provides the judge his/her decision, might well enjoy having another person in the room doing the judge's job for them!
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Post by maquereau on Oct 6, 2013 11:13:56 GMT -5
Having an SSA representative attorney at hearings will not help me issue more and better decisions. Having a law clerk to help with a thorough review of the files, on the other hand, would help me issue more and better decisions.
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Post by bartleby on Oct 6, 2013 11:46:51 GMT -5
One proposal was to have our Attorney-advisors become the advocates and they would then write the decision as they would be very familiar with the case and hearing. The advocate would be able to limit the decision to evidence that was controversial and not that agreed to by both parties. Should make shorter more specific decisions without having to discuss every piece of evidence or severity of impairment if both sides agreed to prehearing. The advocate would be able to recommend OTRs and have prehearing conferences or telephobe calls with the Rep to discuss problematic items, such as remote AODs, SGA, need for certain specific evidence, CEs, etc.
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Post by trekker on Oct 6, 2013 12:17:08 GMT -5
To some extent, some of my state hearings (which are adversarial) did progress along the lines bartleby describes. With good hearings reps (at the state level, we usually dealt with agency reps who had been promoted and occasionally with state DoJ attorneys), I could work through some of the issues and narrow them down or even settle the case. The DoJ attorney (usually the same one) just made the process brutal. On occasion, a napoleonic agency rep would be involved or there was so much anger between my client and the state agency that nothing short of a full blown hearing would suffice. A lot of these hearings were 3-4 hours long and a few were spread over a couple of weeks. (Just imagine an eviction/involuntary discharge from a long-term care facility hearing with the facility attorney and the state agency rep present.) And while that sometimes happens with ODAR hearings (lurker or privatty can attest to that better than I can), it is really rare. And I was a state training on the ACA recently and we were told that attorneys representing the exchanges may be involved in hearings on denials, terminations, etc that were appealed. Most of us just stared at the speaker in disbelief because we knew that: (1) The hearings would be nasty and the state ALJ's would not be happy; and (2) it was going to cost the exchanges a lot of money that could be put to better use (like making sure the computer systems were working or that there were sufficient providers for the new enrollees. Of course for the true litigators in federal or state civil courts, this is all very trivial since they routinely deal with trials that last for days.
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Post by lurker/dibs on Oct 6, 2013 15:51:23 GMT -5
Personally I do not believe having an agency attorney would do anything more than muddle the process. I have questioned more than 50 ALJs on this issue. And the only ones that I, personally, spoke with who are for agency attorneys are those who pay very few cases. In fact on one specific case, the ALJ told me after the hearing as I was leaving that he felt that he had to pay the case based on the evidence and testimony, but if the agency had been properly represented he didn't think he would have had to pay it. (The claimant met a listing and I had medical source opinions). So long as decisions are fair, I know I can deal with any situation. But, as others have said, why take a 30 min to 1 hour hearing and turn it into a 3-4 hour process. And I am most concerned with unrepresented claimants. So many times I tell claimants that they don't need a lawyer to take their money because the records clearly indicate they are disabled. I'm not so sure I could say that in an adversarial procedure.
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Post by epic0ego on Oct 6, 2013 16:16:38 GMT -5
the job of a gov't attorney is to make the case as easy as possible for the judge to decide by citing all of the most pertinent legal authority and marshalling the quintessential facts of that case. some gov't attorneys do a better job than others but in most cases, gov't attorneys provide the right answers. If they are overzealous than its the judge's job to reign them in. I also agree that you have to have law clerks, and not this blasted pool arrangement. that is mere bureaucracy. it is much, much more efficient to have law clerks who know my approach to issues and the way I express decisions. if i have to "teach" each law clerk my preferences for every decision, it becomes a huge waste of time. our entire legal system is founded on the adversarial approach. are administrative proceedings only deserving of some lesser form of due process? I get the expediency point, which is of some value. But for those of you who practice in this area, can you honestly say that implementation of the checks and balances of the adversarial system would not help to vindicate the public interest in these cases?
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Post by epic0ego on Oct 6, 2013 16:20:59 GMT -5
the job of a gov't attorney is to make the case as easy as possible for the judge to decide by citing all of the most pertinent legal authority and marshalling the quintessential facts of that case. some gov't attorneys do a better job than others but in most cases, gov't attorneys provide the right answers. If they are overzealous than its the judge's job to reign them in. I also agree that you have to have law clerks, and not this blasted pool arrangement. that is mere bureaucracy. it is much, much more efficient to have law clerks who know my approach to issues and the way I express decisions. if i have to "teach" each law clerk my preferences for every decision, it becomes a huge waste of time. our entire legal system is founded on the adversarial approach. are administrative proceedings only deserving of some lesser form of due process? I get the expediency point, which is of some value. But for those of you who practice in this area, can you honestly say that implementation of the checks and balances of the adversarial system would not help to vindicate the public interest in these cases?
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Post by moopigsdad on Oct 6, 2013 18:11:26 GMT -5
the job of a gov't attorney is to make the case as easy as possible for the judge to decide by citing all of the most pertinent legal authority and marshalling the quintessential facts of that case. some gov't attorneys do a better job than others but in most cases, gov't attorneys provide the right answers. If they are overzealous than its the judge's job to reign them in. I also agree that you have to have law clerks, and not this blasted pool arrangement. that is mere bureaucracy. it is much, much more efficient to have law clerks who know my approach to issues and the way I express decisions. if i have to "teach" each law clerk my preferences for every decision, it becomes a huge waste of time. our entire legal system is founded on the adversarial approach. are administrative proceedings only deserving of some lesser form of due process? I get the expediency point, which is of some value. But for those of you who practice in this area, can you honestly say that implementation of the checks and balances of the adversarial system would not help to vindicate the public interest in these cases? In doing adversarial and non-adversarial hearings at both the state and federal levels, I can honestly say both serve their purposes. There are reasons why some are adversarial and some are non-adversarial. However, I find it a little bit overkill to have an adversarial hearing for someone suffering from a true disability. It smacks of making someone who is wheelchair bound prove he is wheelchair bound by making him crawl across the floor to prove his disability. I don't think we need to have a prosecutorial action against a disability client, especially a pro se client. I understand other viewpoints and respect them, just as I hope those who see things differently respect my opinion.
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Post by bartleby on Oct 6, 2013 18:46:47 GMT -5
The problem is, is that we are seeing the marginal disabled claimant. The one wheelchair bound is paid at a lower level. We don't see the easy ones..
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Post by hopefalj on Oct 6, 2013 19:08:56 GMT -5
There's really no need to have government representation at an ODAR hearing. It's not an adversarial process. If the idea is to have us attorney-advisors review the record, determine whether CEs should be scheduled, issue OTR decisions, figure out the critical evidence, argue for denials,and then draft the decisions, then you might as well get rid of ALJs at SSA, hire 2x that number of attorneys to replace them, and make us all hearing examiners.
Not that the money is available, but a better use of resources would be disability investigators and/or more frequent CDRs to determine whether paid claimants are seeking medical treatment or are as physically limited as initially found by a judge or the DDS.
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Post by funkyodar on Oct 6, 2013 19:24:06 GMT -5
Well, that was much ado about nothing.
Didn't address the issues facing aljs that might lead to paying a claimant that might shouldn't qualify at all.
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Post by moopigsdad on Oct 6, 2013 19:25:28 GMT -5
The problem is, is that we are seeing the marginal disabled claimant. The one wheelchair bound is paid at a lower level. We don't see the easy ones.. I see them (easy ones) yet rather frequently bartleby in my state, as DDS only pays around 20% of the cases it processes. I think it depends upon where you live and work. I have represented quite a few clients that have met listings bartleby due o DDS errors or failure to work up cases that go to hearing, even after doing OTR requests I sometimes still have to go to hearing because the ALJ never saw my OTR brief or lacked proper time to review the file prior to the hearing. I don't think only marginal cases are going to hearing in my state bartleby.
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Post by usnrcwo on Oct 6, 2013 19:28:09 GMT -5
Well, that was much ado about nothing. Didn't address the issues facing aljs that might lead to paying a claimant that might shouldn't qualify at all. Nice forum for my Senator though.
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Post by lurker/dibs on Oct 6, 2013 19:30:10 GMT -5
Could someone explain this issue to me? It seems that I may be a bit confused. When discussing an attorney to represent the agency in hearings, are we talking about them acting as a DA does in a criminal case? Where he/she cross examines the pro se claimant with the 62 IQ who is schizophrenic?
Or are we talking about an attorney who discusses the case with the rep prior to the hearing, ironing out AOD or remote DLI issues? And then only the facts in issue are brought before the ALJ?
Are we talking about absolute adversarial or an hybrid? I think there are pros to something sort of hybrid. So many cases should/could be paid OTR if a claimant had known he/she couldn't allege a 2007 AOD on a Title XVI case. But, as others have said, I can't imagine telling the 55 year old man who has a 7th grade education and has done manual labor his entire life and has 3 failed back surgeries that he isn't disabled. If that becomes the job OPM is hiring for, I would have to decline.
Maybe someone can clarify this for me. Or maybe it's all speculation. It just seems, based on the comments, that there are more than one schools of thought.
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Post by moopigsdad on Oct 6, 2013 19:35:52 GMT -5
Could someone explain this issue to me? It seems that I may be a bit confused. When discussing an attorney to represent the agency in hearings, are we talking about them acting as a DA does in a criminal case? Where he/she cross examines the pro se claimant with the 62 IQ who is schizophrenic? Or are we talking about an attorney who discusses the case with the rep prior to the hearing, ironing out AOD or remote DLI issues? And then only the facts in issue are brought before the ALJ? Are we talking about absolute adversarial or an hybrid? I think there are pros to something sort of hybrid. So many cases should/could be paid OTR if a claimant had known he/she couldn't allege a 2007 AOD on a Title XVI case. But, as others have said, I can't imagine telling the 55 year old man who has a 7th grade education and has done manual labor his entire life and has 3 failed back surgeries that he isn't disabled. If that becomes the job OPM is hiring for, I would have to decline. Maybe someone can clarify this for me. Or maybe it's all speculation. It just seems, based on the comments, that there are more than one schools of thought. Lurker there are several thoughts on how a government representative would work. The original premise was the representative would be at the hearing to represent the government's interest to make sure the government could argue against the client's disability. Bartleby suggested something of a hybrid, which I could find acceptable as the rep. would only help prepare the case for the ALJ.
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Post by lurker/dibs on Oct 6, 2013 19:35:54 GMT -5
The problem is, is that we are seeing the marginal disabled claimant. The one wheelchair bound is paid at a lower level. We don't see the easy ones.. I see them (easy ones) yet rather frequently bartleby in my state, as DDS only pays around 20% of the cases it processes. I think it depends upon where you live and work. I have represented quite a few clients that have met listings bartleby due o DDS errors or failure to work up cases that go to hearing, even after doing OTR requests I sometimes still have to go to hearing because the ALJ never saw my OTR brief or lacked proper time to review the file prior to the hearing. I don't think only marginal cases are going to hearing in my state bartleby. I totally agree. I regularly get easy grid or Listing level cases. DDS often makes silly mistakes. Like last week I had a 61 year old woman that DDS had listed as a 36 year old woman. DDS said she was limited to sedentary with only medium level PRW, but because she was a "younger indivisible" she was not disabled. Lots of cases are marginal, but probably 1/5 of my cases are cut and dry. And my ALJs also don't see my OTR requests, either. Some cases get paid the day before when the judge finally sees them or with the judge simply adopting my prehearing brief at the hearing. That supports the issue that judges need more prep time for cases.
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