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Post by deltajudge on Jan 13, 2014 16:06:35 GMT -5
8-)Decade, thanks for clearing up the confusion. I realize that you would have had to be around for awhile to see the incremental moves of management chipping away at the ALJs and the APA. Kinda like the old cliche of not seeing the forest for the trees. Keep that blender going.
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Post by sandiferhands (old) on Jan 13, 2014 16:41:38 GMT -5
I think its a completely valid argument, Funky. Myself, I really prefer my hearings to be as non-adversarial as possible. There's really no need for a lot of ya-ya-ing back and forth, and losing ones temper. There's no jury, so no need for grandstanding, or scoring points, etc. I dislike it when the personalities of the representative and the VE clash, and I do everything I can to shut that down. For me, a hearing has a lot more to do with getting relevant facts on the record than debating argument and counter-argument. So, for me, the idea of throwing another lawyer in the room sounds like a bad idea. Longer and more contentious hearings would be likely results, with little to show, I think, in terms of quality. R I agree with all of your observations, robg. A full-blown, hyper-adversarial environment like a big products liability trial would be totally counterproductive for the purpose of these hearings. (The ya-ya, tempers, and grandstanding should not be allowed in any legal proceeding.) But having some pre-hearing disclosure by the claimant to someone adverse who could offer the ALJ information about missing records, inconsistent work and recreation history, etc. (ie, getting relevant facts on the records) could force claimants and their attorneys to be more forthcoming and focused (avoiding longer and contentious hearings). Might it thereby allow ALJs to more quickly and informedly decide cases?
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Post by funkyodar on Jan 13, 2014 17:04:52 GMT -5
I think its a completely valid argument, Funky. Myself, I really prefer my hearings to be as non-adversarial as possible. There's really no need for a lot of ya-ya-ing back and forth, and losing ones temper. There's no jury, so no need for grandstanding, or scoring points, etc. I dislike it when the personalities of the representative and the VE clash, and I do everything I can to shut that down. For me, a hearing has a lot more to do with getting relevant facts on the record than debating argument and counter-argument. So, for me, the idea of throwing another lawyer in the room sounds like a bad idea. Longer and more contentious hearings would be likely results, with little to show, I think, in terms of quality. R I agree with all of your observations, robg. A full-blown, hyper-adversarial environment like a big products liability trial would be totally counterproductive for the purpose of these hearings. (The ya-ya, tempers, and grandstanding should not be allowed in any legal proceeding.) But having some pre-hearing disclosure by the claimant to someone adverse who could offer the ALJ information about missing records, inconsistent work and recreation history, etc. (ie, getting relevant facts on the records) could force claimants and their attorneys to be more forthcoming and focused (avoiding longer and contentious hearings). Might it thereby allow ALJs to more quickly and informedly decide cases? Sounds like the perfect job for senior attorneys. We already review cases for on the record pay (or did till they neutered the program). Why not let seniors review each case at some point prior to the hearing? Then they could write up a brief recommending pay or no pay giving their reasons for each and pointing out any curable deficienciesin the record. Odar already has them and pays them more than a regular writer. Why waste them writing decisions? They wouldn't have to be in the hearing, but could present some written argument on why the case should be denied and that could be proffered to the claimants rep a couple weeks prior to the hearing so they could prepare a rebuttal or remedy any evidentiary shortcomings.
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Post by trekker on Jan 13, 2014 17:21:08 GMT -5
For lack of anything better to do, since I had one of the best SSDI hearings I have had in a long time (and the client had major issues), I just have to weigh in on the DDS issue and having someone from that agency represent the client. It is not as simple as you might imagine to get a DDS representative to appear at a hearing or to answer questions. And having an attorney represent the agency is difficult for the reasons enumerated above, cost being the biggest factor. DDS is a state entity. SSA contracts with each state to run a DDS program. (This may be an oversimplification but if you google DDS, you will see that they are part of a larger state agency whether it be OVR/DVE/Labor&Industry, etc. There are usually two different DDS's. One that makes the disability decisions for SSA and then one that makes the disability decisions for the state Medical Assistance Program (aka Medicaid). Medicaid is TItle XIX of the Social Security Act. There were different ways to become eligible for Medicaid and one of those ways was to prove you are disabled and Medicaid is mandated to follow the same analysis as SSA uses. The big difference is that the state Medical Assistance Programs have to make their decision within 90 days and SSA only has a reasonable time limit. Some state DDS programs get the SSA decision out about the same time as the Medicaid decision, but not always. If SSA is timely, then the SSA decision is binding until the person gets worse, develops a new condition, or 12 months have passed. (Please note that I am giving you the abbreviated version and there are twists and turns that don't always make sense.) Sometimes, a claimant may make the decision that medical benefits are more important than cash and will delay filing an application with SSA or will withdraw until the state agency decision is made. You can appeal the Medicaid decision and you will also get to a hearing before a state ALJ or hearing officer quicker than you will ODAR because again, there are strict time limits (more or less) that are much shorter than are found in Title II/VII/XVI
The state appeals are adversarial but the rep comes from the state Medical Assistance Program and they do have to argue the validity of the DDS decision (remember there are two different entities and they use the state side of DDS). Having represented a number of individuals at this stage of the game (and it is not that many because of the binding nature of SSA's decision), the hearings are longer as are the decisions that are written. (At least in my experience.) Trying to get DDS to appear at these hearings is awful and relying on the state's rep to argue DDS's decision is not always effective for either side. Part of this is because DDS never sees the claimant. Everything is done on paper and so there may not be a lot there, especially when claimants don't have access to health insurance and the consultants and reports are minimal. With the shorter turn around times, it is difficult to get records from health care providers (it is normally 60 days from the day I send a request until the day I get them back). And some of the experts they use (including non-examining consultants), are not full time or even part time employees. If you want DDS to be represented by an attorney, I would be willing to wager that the state DoJ would want to be the attorney since it is a STATE agency.
I also looked at the records that DDS submitted in my hearing today. We got them from the same source and even though I asked for records starting with a date after the last record DDS got, there was some overlap. When I compared the pages, I noticed that DDS had pulled a significant number of pages out of the record and left out the daily reports and only submitted the discharge summaries. Not a big deal? It was in this case because the discharge summary was only 2.5 pages long for a 2 week hospitalization. There were lots of daily notes that supported the ups and downs this particular claimant was having. As I have said before, this is not as cut and dry as we would like to think. I had a good ALJ today who took the time to read the 1000+ pages of medical records I submitted. Even if we get an unfavorable decision, I felt she did a good job and was respectful to my client. Some ALJ's would not have been.
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Post by deltajudge on Jan 13, 2014 18:51:10 GMT -5
8-)Back when the administration was throwing all sorts of management initiatives around, one of the main problems was what to do with the government rep. so to avoid any indication of impartialty. This went back a ways. When I started with BHA/OHA, this was so important that SSA offices and OHA offices could not be in the same building. Course that soon fell by the wayside.
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Post by ed on Jan 13, 2014 19:59:48 GMT -5
I do not need anyone else in the room to review the same records I can read, I would rather have an investigative arm to see if the claimant is going to work off the books, is really using that wheelchair to get around, is unable to get off the couch, a CE that can run the prescription drug report to see just how many narcotics the individual is being prescribed. We get one side of the individual, and it is the side that is skewered in favor of disability because the claimant provides it. What I would like is an actual day in their life, not what is answered to the rep's question. I know that answer, but some people do not always tell it as it is.
So as much as it would make my job easier, I would not propose a government rep, but more investigators.
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Post by prescient on Jan 13, 2014 20:55:31 GMT -5
I agree with all of your observations, robg. A full-blown, hyper-adversarial environment like a big products liability trial would be totally counterproductive for the purpose of these hearings. (The ya-ya, tempers, and grandstanding should not be allowed in any legal proceeding.) But having some pre-hearing disclosure by the claimant to someone adverse who could offer the ALJ information about missing records, inconsistent work and recreation history, etc. (ie, getting relevant facts on the records) could force claimants and their attorneys to be more forthcoming and focused (avoiding longer and contentious hearings). Might it thereby allow ALJs to more quickly and informedly decide cases? Sounds like the perfect job for senior attorneys. We already review cases for on the record pay (or did till they neutered the program). Why not let seniors review each case at some point prior to the hearing? Then they could write up a brief recommending pay or no pay giving their reasons for each and pointing out any curable deficienciesin the record. Odar already has them and pays them more than a regular writer. Why waste them writing decisions? They wouldn't have to be in the hearing, but could present some written argument on why the case should be denied and that could be proffered to the claimants rep a couple weeks prior to the hearing so they could prepare a rebuttal or remedy any evidentiary shortcomings. I agree. I actually think using SAAs in this way would be more beneficial than even having them screen cases. If each case could have be prepared before it gets to the ALJ with a detailed description of why/why not a case could be paid, with permission to obtain missing treating source/former employment/school records ahead of time. it would save bundles of time.
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Post by bartleby on Jan 13, 2014 22:53:35 GMT -5
They might even spend 5 minutes checking Facebook, although I know at the present time it is a no-no. Perhaps this will change with the fraud issues coming forward.
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Post by christina on Jan 14, 2014 7:22:02 GMT -5
Yes, investigators would be a great idea.
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Post by trekker on Jan 14, 2014 8:26:05 GMT -5
There are investigators. OIG has them. Read some of the reports; the synopses can be found online. I have told this story before but for all the new people, I will repeat it. Many years ago, I had a claimant who had lost her job for millionth time. She and her husband were homeless as a result. He was my client and had been on SSI for many years. He had an overpayment because of her work. SSA claimed they did not report her income. Not true. The pay stubs were in the file and they had been reported every couple of months as noted on the date stamp. As I got to know the client and his wife, I found out that they had met in high school special ed classes in the 1960's (verified by school records and IQ testing). He was on SSI because of his low IQ (he thought it was his back but I verified it with the field office). I could not convince her to apply for SSDI because she wanted to work. She looked for 2 years (she could not read or write which is why she kept losing jobs). I convinced her after many years (by then I was their attorney and the called me for advice on everything). She was denied. We appealed. When I copied the hearing file, there was a fraud report. It was a joke. I apparently was part of the investigation because I was advocating for her and had gotten him on disability benefits in 19xx. Only problem was that I was still in law school then, in a different state, and had not met the clients until 20xx. There were so many errors in the report it was a joke. I'm not saying there isn't fraud. There is. But if you want to investigate every single claimant, it is going to be expensive but will probably provide you with more laughs than some of the outrageous stories the claimants will tell you.
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Post by funkyodar on Jan 14, 2014 8:48:19 GMT -5
They definitely have investigators though in my entire time with odar I have only seen one case where they did an investigation.
I do recall reading an article where it was reported ssa had bought a pantload of ammunition. The reason given was that they had armed investigators with arrest powers and security that needed it.
Can't be long before CBS comes out with CSI:SSAOIG
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Post by moopigsdad on Jan 14, 2014 9:11:34 GMT -5
I say this first paragraph tongue-in-cheek. Why stop at investigators, but instead force claimants to have video cameras installed in their homes, cars and on themselves so OIG or whatever agency can keep close tabs on every move they make? You will then be able to see any fraudulent actions by claimants. Big brother is watching you!
Does fraud occur? Yes, without hesitation it does based upon past investigations by OIG. However, is fraud running rampant as some think without check? I don't think so. There are isolated cases or pockets of cases that occur. However, if DDS, the ALJs and the Appeals Council are properly doing their jobs, then while a few fraudulent claimants may occasionally slip through the cracks, most claimants who receive benefits deserve those benefits based upon SSA law, rules and regulations as presently written.
If you truly want to lower the numbers of people acquiring benefits, then the key would be to have Congress and the SSA Administration change SSA law, rules and regulations to make it more difficult for claimants to acquire disability benefits. The answer is not to hire investigators pre-hearing or create an adversarial practice as those cost would be prohibitive, but the best way to better control fraud and the numbers of people determined to be disabled is to tighten up the process, so less people officially qualify for the benefits (i.e. change the age categories from those presently listed in "The GRIDS"). Yes, it may mean those claimants who qualified in the past, would no longer qualify, but like a lot of laws and regulations things change with the times.
Would some people be hurt by the changes? Probably, because some who qualify now would no longer qualify, but it would be a process equal for all new claimants based upon newly updated laws, rules and regulations. Also, you can always reinstitute CDRs for all claimants under the age of 55, so CDRs are done every three years. Would this mean a few more SSA hires are necessary to complete this task? Yes, but the cost savings from removal of fraudulent or no longer disabled claimants could pay for this cost. However, all these common sense changes require some backbone in Congress to make substantive changes in the process. It may never politically happen because of fear and lobbying groups.
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Post by mertonite on Jan 14, 2014 9:16:34 GMT -5
as I've said before. . .
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).
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Post by trekker on Jan 14, 2014 9:18:30 GMT -5
And I hope to get invited as a writer. I used to see more of these reports but I think OIG stopped putting them in files a few years ago. The true fraud cases rarely go to the ALJ stage. But along with my couple with intellectual disabilities who were in their mid-50's there were more. There was the blind client who was investigated. Reason: he kept driving despite being legally blind. But then you just had to look at all his citations and wonder why it took DMV so long to pull his license. He usually had someone in the car with him telling him which way to turn. And the ophthalmologist sent a letter saying there was no way he could fake the blindness test unlike being able to memorize the DMV screening. Then there was the non-English speaker in an all caucasian town in Appalachia. He was immediately suspicious. OIG even has links to the LATEST and the MOST POPULAR investigations on its web site. oig.ssa.gov It is entertaining. Have to wonder how soon some of the reality TV stars are going to get busted. And there is a hotline number.
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Post by christina on Jan 14, 2014 10:21:00 GMT -5
thanks trekker for showing some of the weaknesses using investigators. That being said, there are claimants out there who say they can't lift a gallon of milk but work on their car, lift all sorts of things, and are considerably more functional than alleged. Having these things documented by an investigator and/or with a video camera, as I believe they are in Workers comp cases, could help with catching some of those who should never file for disability. I doubt their actions would rise to criminal fraud(from an ability to prove standpoint)but having a way to discover and more easily deny those claims would help. Re your third paragraph moopigs, it seems like that is exactly what ODAR is doing and could be tied into the increased interest in tightening or in my opinion, choking the rein on the judges. What is missing is that this tightening should go through the regs, laws, and other proper channels, which of course, takes time. The way it is being currently handled is too capricious for my comfort. And i agree, there is less fraud and waste than currently alleged.
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Post by sealaw90 on Jan 14, 2014 12:21:54 GMT -5
Aljfaq, there is a law already on the books for this, a Qui Tam lawsuit.
I will say that Worker's Comp cases are investigated heavily by insurance companies because they have a financial incentive to do so. Where is the private corporate incentive to getting rid of SSDI fraud? None, since they don't pay for SSDI insurance (that I know of). I do favor SSA investigators being hired instead of SSA representation at ALJ hearings. Seems like a better use of funds, less cost, no need for ethical/conflict of interst issues to be raised, etc.
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Post by decadealj on Jan 14, 2014 12:50:54 GMT -5
Back in the mid 90s, there was a program called the AO pilot. It consisted of non-attorney writers who had authority to pay a case or brief the reason or issues for non-payment to the ALJ. We scheduled the cases within 30 days of the AO review. The program suffered at first because of poor selection of AOs, some of whom would not even pay a listing. But in time, at least in our office, we had some outstanding people and the program was wonderful. Therefore ODAR terminated it. Later on, we had SAs, who had approval authority, enclose notes in the file as to why they didn't pay it. The only problem was getting the case to hearing before the rep "discovered new evidence", often a mental impairment, that of course caused delay. But this process would work if the rep had to certify the record was complete (as was a prerequisite to the AO review) and the case was scheduled within 39 days of the "SA review". If the ALJ couldn't pay the case, the decision would go the SA for writing the decision. My guess is that such a process probably exits in the the National Hearing Centers. Maybe someone reading this blog knows why the AO pilot was terminated and could offer some thought on why such a process wouldn't work but it seems to me to be rediscovering the wheel.
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Post by mcb on Jan 15, 2014 16:44:47 GMT -5
For those ALJs on transfer lists to another ODAR
...you may want to compare your place on the December to and Jaunary to lists.
I've been bumped by 2 NHC ALJs on the new list and I noticed that there are other NHC ALJS that have bumped ALJs at other ODARs in my region and throughout the country.
I was also told these NHC ALJs can choose up to 5 ODARs to transfer to, but I've just verified on the alphabetical transfer list that an NHC ALJ I know is on the list for transfers to 11 ODARs. Another ALJ is on the transfer list to 15, yes, 15 ODARs.
Finally, I also noticed that ALJs at regular ODARs are asking to transfer to up to 5 ODARs. Has there been a change from 3 to 5 ODARs or are all these ALJs former management? .
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Post by philliesfan on Jan 15, 2014 17:49:29 GMT -5
MCB: Under the new IFPTE contract, all ALJs can list up to five places on the transfer list.
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Post by mcb on Jan 15, 2014 17:56:02 GMT -5
MCB: Under the new IFPTE contract, all ALJs can list up to five places on the transfer list. Gracias, PF (I reckoned that might be the case). Actually, I'm only interested in transfering to one ODAR and am unhappy that two (NHC) ALJs who weren't on the "to list" to that ODAR in December 2013, have now - January 2014 list - bumped me down two more spots, with their transfer requests predating my transfer request. One of the two has requested a transfer to 11 different ODARs. SMH!
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