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Post by cougarfan on Oct 6, 2013 19:42:28 GMT -5
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. When I started I noticed I wasn't seeing OTR requests unt I prepared anywhere from 3-7 days before the hearing, and frankly it wasn't filed until the day before the hearing, so I have asked my pre-hearing CT to give me a to-do item and to send me an email every time one comes in. It has been helpful sometimes. The ones that come in and give a brief summary I the meds and then say "clearly the claimant is disabled and we ask for an OTR" are less than unhelpful. But it has helped to specifically ask staff to alert me to any OTR request.
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Post by moopigsdad on Oct 6, 2013 19:44:56 GMT -5
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. You are absolutely correct on the lack of proper prep time for ALJs for many hearings due to the numbers of cases they are hearing.
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Post by moopigsdad on Oct 6, 2013 19:52:55 GMT -5
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. When I started I noticed I wasn't seeing OTR requests unt I prepared anywhere from 3-7 days before the hearing, and frankly it wasn't filed until the day before the hearing, so I have asked my pre-hearing CT to give me a to-do item and to send me an email every time one comes in. It has been helpful sometimes. The ones that come in and give a brief summary I the meds and then say "clearly the claimant is disabled and we ask for an OTR" are less than unhelpful. But it has helped to specifically ask staff to alert me to any OTR request. By the way cougarfan my OTRs are always submitted at a minimum of 14 days prior to the hearing. I even call a week prior to the hearing to remind the ALJs hearing assistant that I have submitted an OTR brief and still sometimes the ALJ claims he never saw it.
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Post by cougarfan on Oct 6, 2013 20:08:11 GMT -5
When I started I noticed I wasn't seeing OTR requests unt I prepared anywhere from 3-7 days before the hearing, and frankly it wasn't filed until the day before the hearing, so I have asked my pre-hearing CT to give me a to-do item and to send me an email every time one comes in. It has been helpful sometimes. The ones that come in and give a brief summary I the meds and then say "clearly the claimant is disabled and we ask for an OTR" are less than unhelpful. But it has helped to specifically ask staff to alert me to any OTR request. By the way cougarfan my OTRs are always submitted at a minimum of 14 days prior to the hearing. I even call a week prior to the hearing to remind the ALJs hearing assistant that I have submitted an OTR brief and still sometimes the ALJ claims he never saw it. Oh I'm sure. And I do see some come in very timely, and those are not surprisingly the better written ones also. I too used to submit them 14 days before the hearing. And I was surprised that I had to ask to be told when one was filed. But now that my CT and I have a system I see them pretty quickly and even respond whether I can pay or not. As we all know, we see all levels if representation.
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Post by moopigsdad on Oct 7, 2013 7:53:06 GMT -5
By the way cougarfan my OTRs are always submitted at a minimum of 14 days prior to the hearing. I even call a week prior to the hearing to remind the ALJs hearing assistant that I have submitted an OTR brief and still sometimes the ALJ claims he never saw it. Oh I'm sure. And I do see some come in very timely, and those are not surprisingly the better written ones also. I too used to submit them 14 days before the hearing. And I was surprised that I had to ask to be told when one was filed. But now that my CT and I have a system I see them pretty quickly and even respond whether I can pay or not. As we all know, we see all levels if representation. Cougarfan I wished more ALJs followed your system to ensure that OTRs are reviewed prior to the hearing date.
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Post by bartleby on Oct 7, 2013 8:37:48 GMT -5
Cougarfan, to give you an idea as to how offices differ, our office does not use to-do's.. They are supposed to make a note in "Remarks" and somehow that is supposed to alert us that we have a potenial OTR or anything else in the records. The other day, I was reviewing a case for a hearing in a couple of days and I happened to notice that there was a change of claimant's address submitted 6 months earlier and it had not been changed in the record, so the Notice and Reminder were sent to the wrong address. Guess who didn't show for their hearing.. In another office we used to-do's and as soon as I understood them, I loved them. When properly used, as noted in eBP, they keep everything moving timely.. Not all pigs are equal.. Unfortunately.
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Post by epic0ego on Oct 7, 2013 10:17:42 GMT -5
When I refer to "adversarial" hearings, I do not espouse changing the substantive law at all. That would entail changes in the SSA statutes or CFRs, themselves. The major difference I see in adversarial proceedings is having gov't counsel to advocate and do the homework for the gov't. The federal rules are not even strictly applied in most federal agencies. Hearsay, leading questions, etc. are all liberally allowed but given "proper weight," whatever that means.
The biggest difference that I see, however, and one that would undoubtedly interest the esteemed Tom Colburn of Oklahoma, is that adversarial proceedings also permit entertainment of motions to dismiss, summary judgment, and in limine. It is the regular practice in federal courts to strictly limit an opponent's ability to introduce evidence, or to even be able to proceed in court at all. With this tool, ODAR judges could virtually eliminate 1/4 of their docket, or even higher, depending upon the practice that arises in construing "genuine issue of material fact." In federal court, "material," is a huge word that is used to boot out otherwise deserving claimants all the time. You may be able to show you are bed-ridden, but if the gov't can prove that there are a sufficient number of jobs available that would allow the claimant to be wired in and to take call center inquiries, then the question becomes whether rock-solid proof of a disabling back injury is sufficiently "material" to prove entitlement to disability payments. That is the piece that seems to be missing in some of these cases. It is not that the person is not legitimately disabled. The question is whether or not they are so disabled that they cannot answer the telephone or perform any job at all. My view is that adversarial proceedings would help to hone this distinction because you would have some smart lawyers focused entirely on this nexus and advocating vigorously in every case.
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Post by moopigsdad on Oct 7, 2013 10:25:29 GMT -5
When I refer to "adversarial" hearings, I do not espouse changing the substantive law at all. That would entail changes in the SSA statutes or CFRs, themselves. The major difference I see in adversarial proceedings is having gov't counsel to advocate and do the homework for the gov't. The federal rules are not even strictly applied in most federal agencies. Hearsay, leading questions, etc. are all liberally allowed but given "proper weight," whatever that means. The biggest difference that I see, however, and one that would undoubtedly interest the esteemed Tom Colburn of Oklahoma, is that adversarial proceedings also permit entertainment of motions to dismiss, summary judgment, and in limine. It is the regular practice in federal courts to strictly limit an opponent's ability to introduce evidence, or to even be able to proceed in court at all. With this tool, ODAR judges could virtually eliminate 1/4 of their docket, or even higher, depending upon the practice that arises in construing "genuine issue of material fact." In federal court, "material," is a huge word that is used to boot out otherwise deserving claimants all the time. You may be able to show you are bed-ridden, but if the gov't can prove that there are a sufficient number of jobs available that would allow the claimant to be wired in and to take call center inquiries, then the question becomes whether rock-solid proof of a disabling back injury is sufficiently "material" to prove entitlement to disability payments. That is the piece that seems to be missing in some of these cases. It is not that the person is not legitimately disabled. The question is whether or not they are so disabled that they cannot answer the telephone or perform any job at all. My view is that adversarial proceedings would help to hone this distinction because you would have some smart lawyers focused entirely on this nexus and advocating vigorously in every case. Are you espousing Senator Tom Colburn's definition of disability and not SSA's definition with this example?
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Post by prescient on Oct 7, 2013 10:31:42 GMT -5
I think a more efficient change would be to utilize senior attorneys to develop the case and draft briefs, similar to the rep's briefs which detail issues that need to be discussed at the hearing. As opposed to the brief screenings they currently do, they should identify the list of issues in the case, and take steps to address them pre-hearing. In my neck of the woods, the only time updated med records are requested are for borderline cases where there's a genuine possibility for an OTR. Otherwise, the cases are just returned to the docket with only a brief explanation as to why an OTR wasn't possible. Obviously, with the current expectation of 7 screenings per day, there's simply no time to develop all of the cases. But I think if the screening production quantity were removed, there would be more time for this.
The counter to this, is it essentially places all of the grunt work on the SAA's shoulders, and IMO would potentially weaken the justification for the current pay for ALJs.
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Post by moopigsdad on Oct 7, 2013 10:38:24 GMT -5
I think a more efficient change would be to utilize senior attorneys to develop the case and draft briefs, similar to the rep's briefs which detail issues that need to be discussed at the hearing. As opposed to the brief screenings they currently do, they should identify the list of issues in the case, and take steps to address them pre-hearing. In my neck of the woods, the only time updated med records are requested are for borderline cases where there's a genuine possibility for an OTR. Otherwise, the cases are just returned to the docket with only a brief explanation as to why an OTR wasn't possible. Obviously, with the current expectation of 7 screenings per day, there's simply no time to develop all of the cases. But I think if the screening production quantity were removed, there would be more time for this. The counter to this, is it essentially places all of the grunt work on the SAA's shoulders, and IMO would potentially weaken the justification for the current pay for ALJs. Furthermore, SSA would need to hire many more SAAs in each ODAR to deal with this new duty, in order to keep up with all the cases on an ODARs docket. Why not hire more ALJs and give them the opportunity to review cases in more detail as they could in the "old" days, so cases are worked up properly and decisions are more carefully decided?
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Post by bartleby on Oct 7, 2013 11:10:57 GMT -5
One thought was that many more of the AA's could be promote to SSA's and the SSA level could be increased to a GS-14 or 15 level, like attorneys in most Agencies..
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Post by cougarfan on Oct 7, 2013 11:35:47 GMT -5
Oh I'm sure. And I do see some come in very timely, and those are not surprisingly the better written ones also. I too used to submit them 14 days before the hearing. And I was surprised that I had to ask to be told when one was filed. But now that my CT and I have a system I see them pretty quickly and even respond whether I can pay or not. As we all know, we see all levels if representation. Cougarfan I wished more ALJs followed your system to ensure that OTRs are reviewed prior to the hearing date. And I wish more reps followed your good practice of submitting early!
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Post by cougarfan on Oct 7, 2013 11:39:32 GMT -5
Cougarfan, to give you an idea as to how offices differ, our office does not use to-do's.. They are supposed to make a note in "Remarks" and somehow that is supposed to alert us that we have a potenial OTR or anything else in the records. The other day, I was reviewing a case for a hearing in a couple of days and I happened to notice that there was a change of claimant's address submitted 6 months earlier and it had not been changed in the record, so the Notice and Reminder were sent to the wrong address. Guess who didn't show for their hearing.. In another office we used to-do's and as soon as I understood them, I loved them. When properly used, as noted in eBP, they keep everything moving timely.. Not all pigs are equal.. Unfortunately. that is unfortunate because it is so simple! We place something in the remark section and with about two more clicks place a to-do-item saying only a little more than "see remarks". At least that is the system my CTs and I use. too bad some other offices seem to make it so difficult.
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true
Full Member
Posts: 81
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Post by true on Oct 7, 2013 11:53:37 GMT -5
I do not think that having new attorneys in a semi-adversarial position for the agency is a solution to the problem of the backlogs or for weeding out claimants who are not truly disabled. If anything, one can make the argument that it would make the process more complicated and burdensome with discovery requests, rules, deadlines, etc. It will almost ensure that some claimants who might ordinarily want to attend the hearing pro se, obtain legal representation. Additionally, we have an adversarial process in our criminal justice system. However, some who are innocent still wrongfully get convicted and some who are guilty never get convicted. Whether this is due to human error or over zealous prosecutors- sometimes justice simply eludes the system. There is no perfect system. But, the question should be does our current system provides benefits for those who are truly disabled?
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Post by ncatty007 on Oct 8, 2013 8:28:09 GMT -5
As someone with a background in civil litigation, I don't see how having adversarial hearings is necessarily a bad thing. Having competing interests generally ensures that the other side is kept in check, and typically results in a more complete body of evidence being presented to the fact finder. Without that, there is certainly a risk of a selected presentation of facts. While I understand it is the current system at ODAR, asking the fact finder/decision maker (ALJ) to go out and develop the record comes very close to advocacy, in my opinion. And if I'm a claimant and the ALJ charged with deciding my case starts asking for additional medical history, statements from my physicians, etc., then I'm going to start questioning how impartial they really are. That feeling is likely underscored if the ALJ starts asking me pointed questions during a hearing. And if I'm an ALJ deciding a case I'm going to feel a little uncomfortable asking those pointed questions to claimant out of the fear of crossing the line between impartial fact finder and advocate.
Perhaps it is due to my background, but I see adversarial proceedings as frequently the best way to ensure a fully developed record for the fact finder. It generally works in civil litigation, criminal litigation, and also in workers' comp in my state. I don't see why it couldn't work for an ODAR hearing as well.
And to address the comments about pro se litigants, and requiring the person in a wheelchair to prove their in a wheel chair, I honestly don't see how that is any more of an issue for an ODAR hearing than a similar situation is in civil/criminal litigation in workers' comp.
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Post by Gaidin on Oct 8, 2013 9:18:44 GMT -5
You could always have "adversarial proceedings" but limit discovery, motion practice, etc. so that there is no delay. The biggest problem I see with turning these into adversarial proceedings is the delay it would cause. I also see concerns about the government advocate beating up on some mentally handicapped claimant trying to prove that their IQ is higher or that they really can work.
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Post by ncatty007 on Oct 8, 2013 10:35:05 GMT -5
You could always have "adversarial proceedings" but limit discovery, motion practice, etc. so that there is no delay. The biggest problem I see with turning these into adversarial proceedings is the delay it would cause. I also see concerns about the government advocate beating up on some mentally handicapped claimant trying to prove that their IQ is higher or that they really can work. Delay is a tough one and there probably would be some of that, at least initially. However, my guess is that would become less of an issue as the participants became educated about the adversarial system and claim selection (which claims to bring, compromise, or aggressively defend/pursue). In the long term an adversarial system could eliminate some of the chaff (assuming there is some and not everyone who applies is disabled), resulting in quicker decision times. If the ALJ is doing their job ensuring a full, fair and impartial hearing, there shouldn't be a government advocate "beating up" on a pro se litigant. The ALJ could still be responsible for ensuring a fully developed record (particularly in pro se matters), but with an adversarial system more of the development of that record would likely be accomplished by the parties when both are represented, leaving the ALJ to focus more on reviewing more narrowly focused issues and making a decision. I do agree with your thought of limiting discovery, etc. and I certainly wouldn't advocate the full-blown application of the FRCP and FRE because then you would basically have a trial. But having something akin to the discovery and procedure typically seen in a small claim arbitration might actually help with the movement of cases. Just my $.02.
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Post by privateatty on Oct 8, 2013 16:42:31 GMT -5
As someone with a background in civil litigation, I don't see how having adversarial hearings is necessarily a bad thing. Having competing interests generally ensures that the other side is kept in check, and typically results in a more complete body of evidence being presented to the fact finder. Without that, there is certainly a risk of a selected presentation of facts. While I understand it is the current system at ODAR, asking the fact finder/decision maker (ALJ) to go out and develop the record comes very close to advocacy, in my opinion. And if I'm a claimant and the ALJ charged with deciding my case starts asking for additional medical history, statements from my physicians, etc., then I'm going to start questioning how impartial they really are. That feeling is likely underscored if the ALJ starts asking me pointed questions during a hearing. And if I'm an ALJ deciding a case I'm going to feel a little uncomfortable asking those pointed questions to claimant out of the fear of crossing the line between impartial fact finder and advocate. Perhaps it is due to my background, but I see adversarial proceedings as frequently the best way to ensure a fully developed record for the fact finder. It generally works in civil litigation, criminal litigation, and also in workers' comp in my state. I don't see why it couldn't work for an ODAR hearing as well. And to address the comments about pro se litigants, and requiring the person in a wheelchair to prove their in a wheel chair, I honestly don't see how that is any more of an issue for an ODAR hearing than a similar situation is in civil/criminal litigation in workers' comp. This raises a point that I have often wondered about. I don't know anything about SSA (other than what i have heard and read about here). But I do know something about workers' compensation. And every day in every state there are unrepresented claimants getting the tar beat out of them by insurance attorneys at hearings. Sometimes the ALJ/hearing officer/whomever is there to mitigate the damage and even order an independent medical exam, but often its just another hearing. They have seen so much of this for so long its just routine. Now these are folks who got injured at work and who want to work (for the most part) and can't. And they can't prove their case because of any number of factors. Work comp came about because industrialized corporate American didn't want to pay tort claims so a "grand bargain" was struck. Only the lawyers got involved and things got complicated. You get injured on the job in OK, gosh help you. In CA, you are in far better shape. In SSA it seems to me that the Commissioner is asking too much of the ALJ. One question is to draw out evidence in the claimant's favor, the next is to question their motivation and assess credibility. If there was a concern that SSA attorneys would beat up on unrepresented Claimants, then give them a list of counsel and advise they get some, it they don't well at least there was an effort. In other forums this is how its done. The other point is that SSA seems to think that the claimant is inviolate--once disabled they are always so. That's crazy. In work comp the insurance adjusters re-open the claim. Create a filing fee and as suggested here use investigators. Check up on them. This could save millions.
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Post by ed on Oct 8, 2013 18:43:33 GMT -5
I see the problem with filing fees, but in my civil practice, we routinely paid the filing fees for the claimant. The fees were not too onerous and were the cost of doing business. They should not be required at the initial and reconsideration level, but could be required at the request for hearing level, upon receiving benefits, the fees could be returned. If no benefits, then the fees are kept. I wonder how many representatives would continue taking all cases at that point?
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Post by trekker on Oct 8, 2013 19:08:56 GMT -5
Really. Filing fees! Those of you who have never been involved in administrative law cases involving low income and people living below the poverty line should spend some time doing these cases before you suggest things like filing fees. And with waits that exceed 12 months -- you really have to be kidding me. And then spend some time reading Goldberg v. Kelly, Matthews v. Eldridge and all the other case law regarding these cases. Yes you can front filing fees and then collect them from these claimants who have nothing. But you can't help them pay their rent, their utilities and their food bills (remember Congress is getting ready to kill SNAP and vitually every other safety net for the poor). I don't want this to turn into a political discussion but the vast majority of claimants who file appeals have nothing, nothing in the way of income or assets to support some of your ideas. Call me idealistic but I do believe in giving everyone a fair shot and making sure the system is fair and that its integrity is preserved but upping the cost for the poor and working poor is not the way to do it. There are already enough rules in place that if properly enforced would achieve that goal. False and misleading statements is one of them. Look at the regs and then the POMS. The tools are there but Congress doesn't want to pay for quality. Only for the quick and simple. This is an agency who has problems processing the claims and appeals properly. Add extra steps and no funding to adequately do that and you have a train wreck. The vast majority of claimants are unrepresented until after they have requested a hearing. IFP's are no problem for federal courts -- they are used to them. But time and again, state courts have problems with the concepts and administrative hearings are supposed to be free. That is what due process is about. And with that I will shut up.
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