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Post by BagLady on Oct 8, 2013 19:40:08 GMT -5
We have filing fees in state/municipal court. Those who can't afford it simply attach a poverty affidavit and the fee is waived.
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true
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Post by true on Oct 8, 2013 23:08:09 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. I was just pointing out that with a filing fee requirement, attorneys will carefully assess the validity of a case prior to accepting it. This "self-assessment" should reduce the number of frivolous claims. By the way, the claimants are required to pay court costs if they appeal to federal court, unless they are allowed to proceed in forma pauperis. I doubt if a filing fee would seriously hinder a claimant's access to justice or the disability proceess. Filing fees are required in bankruptcy court, small claims court and civil courts. As you know, we dont have a shortage of diability lawyers and reps. If the client has a winnable case, an attorney or rep should not have a problem paying a small filing fee. In any event, these poverty stricken claimants are very often required to pay their attorneys monies for medical expenses etc. Prior to taking on their cases. |
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Post by moopigsdad on Oct 9, 2013 5:51:21 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. Trekker you are right on here. Workers' compensation cases don't have filing fees. If someone is disabled or hurting we should not be forcing them to pay a fee for their day in court. I think we have way too many litigators here (I have done litigation and non-litigation) who equate access to courts with fees. If you are going to charge a filing fee, why not just do away with the program and tell the disabled too bad? Quite frankly for some that is what you would be doing. I can appreciate ideas to fix the system, but charging a fee for access to acquire an entitlement, if you are disabled, is not the answer. |
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Post by ncatty007 on Oct 9, 2013 7:43:44 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. Trekker you are right on here. Workers' compensation cases don't have filing fees. If someone is disabled or hurting we should not be forcing them to pay a fee for their day in court. I think we have way too many litigators here (I have done litigation and non-litigation) who equate access to courts with fees. If you are going to charge a filing fee, why not just do away with the program and tell the disabled too bad? Quite frankly for some that is what you would be doing. I can appreciate ideas to fix the system, but charging a fee for access to acquire an entitlement, if you are disabled, is not the answer. Doesn't your third statement assume as true the very thing that the hearing is trying to establish? If that is the assumption, then why bother with a hearing at all? Just take every application, rubber stamp it, and start sending disability checks. Having a filing fee with a mechanism for people to file IFP works in federal court. I don't understand why have a filing fee for a disability hearing is such a bogeyman. As someone else pointed out, the fee could always be refunded if the claim is substantiated. |
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Post by lurker/dibs on Oct 9, 2013 8:29:04 GMT -5
I will state again that the vast majority of SS claimants are indigent. Every single case or nearly every single case would qualify. If that is the case, how would I filing fee out of every 100 appeals filed change anything?
Also, what about legal services and other charity programs for claimants? That would eliminate their participation in the process.
And, a good percentage of claims end with no or very little past due benefits. I'm lucky to collect 30% of my expenses on cases. I wouldn't expect repayment of a filing fee on any higher percentages.
We have to remember this program is for those people who are disabled. And more often disabled and indigent. And a good part of these claimants are unrepresented. And even more are represented by non-attorney reps.
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Post by epic0ego on Oct 9, 2013 9:21:33 GMT -5
By the way, before you advocate a government rep., you should remember it was tried before and successfully killed in court. Salling v. Bowen, 641 F. Supp. 1046 (W.D.Va. 1986). salling v bowen is a very instructive case. thank you for citing it here. nothing in that case would prevent Tom Colburn or others from proposing enabling legislation that would amend the SSA's mandate on "adjudicating" vs. "advocating" disability claims. but I agree that the current mandate clouds that picture. many agencies, however, administrative adjudicate claims brought by the public against the agency in an adversarial context. that is, the agency is represented by in-house counsel before an agency administrative judge. so it is certainly commonly done and could be done with SSA disability claims as well. another simple approach is to have DOJ or attorneys from other agencies represent the govt's interests before SSA ALJs. I don't really see the basis for apprehension about bringing adversarial procedures to the ODAR process. |
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true
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Post by true on Oct 9, 2013 9:55:49 GMT -5
I will state again that the vast majority of SS claimants are indigent. Every single case or nearly every single case would qualify. If that is the case, how would I filing fee out of every 100 appeals filed change anything? Also, what about legal services and other charity programs for claimants? That would eliminate their participation in the process. And, a good percentage of claims end with no or very little past due benefits. I'm lucky to collect 30% of my expenses on cases. I wouldn't expect repayment of a filing fee on any higher percentages. We have to remember this program is for those people who are disabled. And more often disabled and indigent. And a good part of these claimants are unrepresented. And even more are represented by non-attorney reps. If the majority of SSA claimants are indigent and thus a filing fee would not make a difference, Why is it that Congress believes that means testing would make a difference in the social security program? |
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Post by trekker on Oct 9, 2013 11:05:18 GMT -5
Social Security is, to some extent, means tested. It is a regressive payment. If Congress was truly intent on means testing Social Security benefits, they would have to apply it to the middle class otherwise it won't make a dent in preserving the trust fund. And the middle class is relying more and more on Social Security for their retirement. The three-legged stool of the past doesn't really exist anymore.
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Post by bartleby on Oct 9, 2013 11:08:21 GMT -5
True, maybe one thought is how the two programs work. Title II has a family cap and Title XVI doesn't, therefore, a family of 6 on Title II would be limited to maybe $2,500.00 a month. A family of 6 on Title XVI may receive somewhere around $4,200.00 a month. There is a lot of disparity in the programs.. A Title II claimant commits a felony and is convicted. His impairments arise from his feloneous activity. He cannot receive Title II. A Title XVI claimant commits a felony and is convicted. His impairments arise from his feloneous activity. He can still receive Title XVI benefits... Strange world we live and work in.
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Post by bartleby on Oct 9, 2013 11:08:48 GMT -5
Sorry, duplicate submission.
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Post by epic0ego on Oct 13, 2013 13:44:34 GMT -5
I don't get the seeming "fear" of the adversarial process expressed by some. Our entire legal system is based on the adversarial process. The most important decisions in our most important cases are decided on this system. I think SSA claimants deserve no less consideration. I get that indigence is an important consideration, and I agree that modifications to the adversarial model are required. I just think it is a mistake to throw the baby out with the bath water. I handle cases every day involving indigent pro se claimants and the adversarial system works just fine. Correct me if I'm wrong, but the regs provide for direct compensation to counsel for ODAR claimants when they prevail. Counsel in cases before me have no such entitlement, except a possible Equal Access to Justice Act claim. Again, the federal rules are rarely applied in any strict sense in cases before federal agencies. Much discretion is left with the administrative judges and hearing officers. If time delays are a concern, then simply impose procedural deadlines. Trust me, ALJs know how to deny motions for extension of time.
I also read a suggestion that the attorney corps be beefed-up to process cases faster and better than ALJs, and then reduce the number of ODAR ALJs that are needed. In the current climate of austerity that we all labor under, this is a tempting idea. But efficiency must be balanced against fairness in structuring the adjudication process at ODAR, as well as in Article III courts, for that matter. Some have likened the ODAR ALJ's role to that of an AFLAC claims examiner. I'm sure there is some truth to this analogy. The question is whether Congress, the Administration, and our Government care about this somewhat sordid comparison. Is it o.k. that government disability determinations are made in this way? Can our due process obligations be equated, indeed marginalized to that of an insurance company's naked profit-motivated determinations? I think not, and I don't think it would be something the public would countenance. These determinations should be made by a trained, and independent judge -- an ALJ, subject to judicial review. Indigent claimants and volume practice are the tails that should not wag the due process dog. I vote for the adversarial-system model with steam-lined rules and truly-independent ALJs who know how to balance the competing interests of the parties.
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Post by hopefalj on Oct 13, 2013 16:24:34 GMT -5
I don't get the seeming "fear" of the adversarial process expressed by some. Our entire legal system is based on the adversarial process. The most important decisions in our most important cases are decided on this system. I think SSA claimants deserve no less consideration. I get that indigence is an important consideration, and I agree that modifications to the adversarial model are required. I just think it is a mistake to throw the baby out with the bath water. I handle cases every day involving indigent pro se claimants and the adversarial system works just fine. Correct me if I'm wrong, but the regs provide for direct compensation to counsel for ODAR claimants when they prevail. Counsel in cases before me have no such entitlement, except a possible Equal Access to Justice Act claim. Again, the federal rules are rarely applied in any strict sense in cases before federal agencies. Much discretion is left with the administrative judges and hearing officers. If time delays are a concern, then simply impose procedural deadlines. Trust me, ALJs know how to deny motions for extension of time. I also read a suggestion that the attorney corps be beefed-up to process cases faster and better than ALJs, and then reduce the number of ODAR ALJs that are needed. In the current climate of austerity that we all labor under, this is a tempting idea. But efficiency must be balanced against fairness in structuring the adjudication process at ODAR, as well as in Article III courts, for that matter. Some have likened the ODAR ALJ's role to that of an AFLAC claims examiner. I'm sure there is some truth to this analogy. The question is whether Congress, the Administration, and our Government care about this somewhat sordid comparison. Is it o.k. that government disability determinations are made in this way? Can our due process obligations be equated, indeed marginalized to that of an insurance company's naked profit-motivated determinations? I think not, and I don't think it would be something the public would countenance. These determinations should be made by a trained, and independent judge -- an ALJ, subject to judicial review. Indigent claimants and volume practice are the tails that should not wag the due process dog. I vote for the adversarial-system model with steam-lined rules and truly-independent ALJs who know how to balance the competing interests of the parties. This isn't an adversarial process, and there is no need to make it one. The majority of the disability payments are paid under Title II, which is a disability insurance program. The workers applying for and collecting payments under this title have paid into the system, and if they meet the statutory requirements, they are entitled to get paid. Having a government attorney there to advocate for keeping benefits out of their hands really doesn't serve any legitimate purpose. It would be like your insurance company having an attorney there to tell your claims rep why your claim should be denied at every turn. In a lot of ways, ALJs are the equivalent of an AFLAC claims examiner, except that they have to apply myriad rules, regulations, codes, etc., which creates a need for legal expertise in applying facts to the relevant law. If an ALJ does their job and reviews the record prior to the hearing, there should be no need for a government rep to be there. I would imagine ALJs usually have a pretty good idea of which way they're heading with an RFC once they review the file, and most of those I've seen have used hearings to clear up confusion in the record, allow the claimant to give their side of the story, and perhaps allow the claimant to explain any contradictions in the record or their statements. For judges like the guy in Huntington, WV, or those on the opposite end of the scale that deny 85+% of claimants, a government rep isn't going to make a difference because their mind is made up regardless of what arguments are set forth. For those that fall somewhere in the middle and generally do a fair and reasonable job in their determinations, a government rep is unnecessary. If the purpose of a government rep would be to either recommend or outright pay claimants they felt were entitled to receive benefits or advocate against those claimants that they felt are not entitled to them, then they're essentially doing the job of an ALJ themselves. And indeed, the ALJ position would certainly jump up to the sweetest gig in the government since you wouldn't really have to do a whole lot other than maybe review a couple of briefs, hold a hearing, draft some simple instructions, and review a decision. Sign me up for that. |
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Post by deltajudge on Oct 13, 2013 16:42:44 GMT -5
8-)I was a Worker's Comp judge before I came on board with OHA. Those hearings were adversarial and a lot of fun and excellent as to true trial experience. We followed the rules of evidence, and had to rule on objections instanter, and the record we made was reviewed by the state supreme court on appeal. The carriers treated these cases as very important, and sent the best lawyers in the firms they used to represent their interests at the hearing. The lawyers representing the other side were also experienced and versed in the law and procedure. If they could figure out some way to have adversarial hearing in SS cases, think the ALJs would enjoy it. You gotta be on your toes though if it comes about. It might prove difficult for those with no trial experience.
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Post by epic0ego on Oct 13, 2013 16:57:41 GMT -5
I enjoy the diversity of opinion being expressed here. This probably mirrors the discussions that were had when SSA instituted the pilot program for adversarial proceedings. But when people say "if they [disability claimants] meet the statutory requirements," then they are entitled to be paid under Title II, this argument merely begs the question, it seems to me. I like deltajudge's attitude. I think the adversarial approach would instantly make this area of law more intellectually appealing and interesting. But more importantly, it would help to bring more accurate decision-making to the process, just as is done in all of the high courts in the land. And if by saying that ALJs would then have nothing to do except read briefs, hold hearings, and issue decisions, you insinuate that the ALJ job would require less thinking, I respectfully disagree. There is something very sobering about having excellent lawyers on both sides holding judges to account and looking to the judge to settle their differences. It also makes for a more complete appellate record when lawyers from both sides are there to object and to take exception to judges' rulings. Good judges tend to be conscientious about being reversed on appeal and will try to avoid legal errors in future cases.
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Post by BagLady on Oct 13, 2013 20:50:56 GMT -5
" It would be like your insurance company having an attorney there to tell your claims rep why your claim should be denied at every turn. In a lot of ways, ALJs are the equivalent of an AFLAC claims examiner . . ." Hmmm, this sounds like my job. My practice has primarily been insurance defense. In my state, insured persons can make a direct claim against their insurance companies when a tortfeasor is uninsured or underinsured. Now, just because the insured person has purchased insurance of, let's say $500,000, does not mean that a subsequent claim is payable under the terms of the policy or worth the policy limits. The insured person (claimant) is typically represented by counsel, and it is my job to determine whether the claim is valid and compensable (and, if so, at what value). There are, of course, claimants who allege a herniated disc due to a motor vehicle accident; however, sometimes I find that the herniation was diagnosed before the accident. It is not my job to deny the claim, but it certainly is my job to make sure that the insurance company has the full picture. (My practice also includes personal injury, so I know both sides.) And I completely disagree that an ALJ is the equivalent of a claims examiner. With all due respect to my claims examiners, they are certainly not the equivalent of JD-holding professionals with (or without) seven or more years litigation experience. Although I've had a few that would disagree with me, but I digress . . . |
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Post by epic0ego on Oct 14, 2013 11:30:21 GMT -5
I'm with you, baglady. It's all about reaching correct determinations, which cuts both ways. If indigents are not being properly represented, then we should beef up the regulatory scheme which currently provides for attorney fee awards. If bogus claims are being filed, then they should be subject to the same procedural dismissal jeopardy that other legal claims are subject to. We can no longer afford to pay these claims at current levels if we are to take care of those who are truly deserving.
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Post by hopefalj on Oct 14, 2013 18:43:23 GMT -5
I enjoy the diversity of opinion being expressed here. This probably mirrors the discussions that were had when SSA instituted the pilot program for adversarial proceedings. But when people say "if they [disability claimants] meet the statutory requirements," then they are entitled to be paid under Title II, this argument merely begs the question, it seems to me. I like deltajudge's attitude. I think the adversarial approach would instantly make this area of law more intellectually appealing and interesting. But more importantly, it would help to bring more accurate decision-making to the process, just as is done in all of the high courts in the land. And if by saying that ALJs would then have nothing to do except read briefs, hold hearings, and issue decisions, you insinuate that the ALJ job would require less thinking, I respectfully disagree. There is something very sobering about having excellent lawyers on both sides holding judges to account and looking to the judge to settle their differences. It also makes for a more complete appellate record when lawyers from both sides are there to object and to take exception to judges' rulings. Good judges tend to be conscientious about being reversed on appeal and will try to avoid legal errors in future cases. Making this area of law "more intellectually appealing and interesting" is far down the list of things of importance. While I don't disagree it would certainly be more intellectually stimulating, the question is whether it (a) better serves claimants and the public and (b) does so in a more efficient manner. With regard to (b), the answer is clearly no. It's not going to weed out weak or baseless claims because those claimants will still get a hearing before a judge, even if it's a hearing on the possible dismissal. However, now you're talking about expanding the process to include motions, multiple hearings, and lengthier hearings. None of that will make the process more efficient, and the added expense of attorneys won't make it any more cost effective. To your point that good judges tend to be conscientious of remand, I don't disagree. In fact, if you ask any of the ALJs that post on this board, I'm willing to bet that almost every one of them would say they try to avoid legal errors that will get a case sent back to them. As a writer, I certainly do my best to prevent a decision from coming back, too. That isn't the issue, though. Would government reps have made a difference in Huntington? Do you think it would matter to the judges that go 85+% unfavorable in their decisions? Honestly, there is very little to suggest it's going to matter to outliers and/or judges that are currently doing a sloppy job. In fact, I would again argue that judges that tend to either go solely with DDS assessments or whatever their medical experts testify to at their current hearings would likely go with whatever the government attorney argues before or during a hearing. So what purpose does having a government rep really accomplish here, other than allowing an ALJ to feel like a "real" judge by ruling on objections or banging a gavel? Like I said, if a judge is doing their job, a government rep is unnecessary. If a judge is not doing their job, having a government rep would likely have only a minimal effect on how they actually perform their job. And BagLady, allow me to clarify my statement on ALJs being claims examiners as I didn't realize it was going to be taken so literally. In a lot of ways, the job duties of an SSA ALJ are equivalent to those of an AFLAC claims examiner. Instead of reviewing the evidence and determining whether a policy covers an individual, you look at the evidence and determine whether the applicable statutory and regulatory provisions cover the individual. The job itself does not require a whole lot of high level legal analysis, and you're not going to be determining cases of first impression or creating new law. You're going to be providing public service in an area of well-settled law with pressures to do so in a quick manner. |
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Post by epic0ego on Oct 15, 2013 8:55:59 GMT -5
the vast majority of dismissals that occur in article III and federal administrative proceedings DO NOT "require a hearing." 12(b)(6) motions almost never require a hearing, and if an oral argument is conducted for summary judgment proceedings, this would result in a tremendous savings of time, compared to conducting a hearing. And even where hearings are required, streamlined procedural rules for administrative proceedings, generally allow those cases to be docketed, heard, and decided within 60 days, soup to nuts. I am amazed at how good attorneys can prejudge this process and assume that appropriate procedural rules cannot be fashioned to make the process more efficient, while also providing for adequate due process protections. The CURRENT process at ODAR allows for attorneys fees awards. If you sweeten the % of allowable attorneys fees, you will attract more and better lawyers to this area of practice. That is not just speculation - you can take that to the bank, literally. Similarly, with ALJs, if you make this area of law more appealing and interesting, you will attract and retain better judges. Many, many ODAR ALJs are looking to go to other agencies, precisely because of this reason. It is certainly not because they would make more money. This brain drain is not good for the agency or for claimants. Would an adversarial structure solve the problem of non-productive ALJs? My answer is - partially. Most good judges and lawyers are responsive to the thought of being shamed before their colleagues. But the problem of non-productive judges is a management problem that should not be foisted onto the procedural due process matrix. If an ALJ does not care about doing his job properly, then he cannot complain when management gives him less than desirable duty assignments. And rare as it is, there are examples of ALJs who have been appropriately disciplined and removed from their positions. I just don't think that that tail should wag the dog. The vast majority of ALJs are conscientious and capable. With proper training and refreshers, I believe they would respond favorably to new procedures designed to cull non-meritorious claims from the process (efficiency), and enhance legal representation for those with meritorious claims (due process).
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Post by JudgeRatty on Oct 15, 2013 9:45:38 GMT -5
But the problem of non-productive judges is a management problem that should not be foisted onto the procedural due process matrix. If an ALJ does not care about doing his job properly, then he cannot complain when management gives him less than desirable duty assignments. And rare as it is, there are examples of ALJs who have been appropriately disciplined and removed from their positions. I just don't think that that tail should wag the dog. The vast majority of ALJs are conscientious and capable. With proper training and refreshers, I believe they would respond favorably to new procedures designed to cull non-meritorious claims from the process (efficiency), and enhance legal representation for those with meritorious claims (due process).Agree! |
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Post by moopigsdad on Oct 15, 2013 11:01:15 GMT -5
I started this thread to get opinions from the entire Board and I have seen many different ones. It seems what you see is a litigation vs. non-litigation split. More than likely those usually doing litigation think it would be a good idea to make it an adversarial hearing and more than likely those usually doing non-litigation stating it should stay non-adversarial. It is an interesting dynamic. Unfortunately the cost of change could be prohibitive. Perhaps, we just need a few tweaks in the rules and regulations to make it less likely for non-disabled to acquire benefits. The wide card is ALJ's judicial independence. Just because you would have an advocate representing SSA's viewpoint doesn't mean that only correct decisions will be made. It still comes down to people and since people aren't machines and are part and parcel of their upbringing and environment there will always be some differences in ALJ opinions on similar facts.
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