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Post by sandiferhands (old) on Dec 15, 2014 10:54:08 GMT -5
I did not want to hijack the "oral argument" thread, but as an outsider I'd like a little backstory fill here:
What is the extent of an individual ALJ's discretion in administering his hearings? It seems that an ALJ might make the caseload more manageable if he efficiently controls the hearing process to minimize wasted time. Obviously, "waste" could be defined very differently by different participants. Can the ALJ:
1) set the length of the hearing? Is there a rule such as it must be at least 30 minutes? 2) can he, during the hearing, decide he has heard enough and end the hearing? Or lengthen it if that is needed? 3) how active can he be in quizzing the claimant and witnesses to avoid wasted time and ask probing questions that will elicit the needed information? 4) if a case appears to be one that should clearly be paid or not based on the medical, can he rule on it with no hearing at all?
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Post by hopefalj on Dec 15, 2014 11:06:00 GMT -5
I did not want to hijack the "oral argument" thread, but as an outsider I'd like a little backstory fill here: What is the extent of an individual ALJ's discretion in administering his hearings? It seems that an ALJ might make the caseload more manageable if he efficiently controls the hearing process to minimize wasted time. Obviously, "waste" could be defined very differently by different participants. Can the ALJ: 1) set the length of the hearing? Is there a rule such as it must be at least 30 minutes? 2) can he, during the hearing, decide he has heard enough and end the hearing? Or lengthen it if that is needed? 3) how active can he be in quizzing the claimant and witnesses to avoid wasted time and ask probing questions that will elicit the needed information? 4) if a case appears to be one that should clearly be paid or not based on the medical, can he rule on it with no hearing at all? Subject to any and all correction or clarification... I believe hearings can be scheduled for no less than 45 minutes. However, it can be ended at any time, and judges do run over the scheduled time on occasion. The hearing is over when you have elicited enough information and the claimant and/or his rep has had their say. You can be as active as you want at the hearing and ask essentially anything you want to get information you find germane to the application. I assume there may be some limits to the type of questions you could ask, but tact and common sense should prevent such problems. You can always issue an on-the-record decision if the evidence supports a fully favorable decision, which prevents the need for holding a hearing.
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Post by moopigsdad on Dec 15, 2014 11:10:40 GMT -5
I did not want to hijack the "oral argument" thread, but as an outsider I'd like a little backstory fill here: What is the extent of an individual ALJ's discretion in administering his hearings? It seems that an ALJ might make the caseload more manageable if he efficiently controls the hearing process to minimize wasted time. Obviously, "waste" could be defined very differently by different participants. Can the ALJ: 1) set the length of the hearing? Is there a rule such as it must be at least 30 minutes? 2) can he, during the hearing, decide he has heard enough and end the hearing? Or lengthen it if that is needed? 3) how active can he be in quizzing the claimant and witnesses to avoid wasted time and ask probing questions that will elicit the needed information? 4) if a case appears to be one that should clearly be paid or not based on the medical, can he rule on it with no hearing at all? Sandi, I had no idea you never practiced SSA law. I can answer your questions from a representative's (attorney's) perspective based upon 30 years of practice. 1) There is no set length of time for a hearing, other then they are usually scheduled 45 minutes to one hour apart. Sometimes, they may only last 10 minutes and others could go more than two hours and 30 minutes. The ALJ can indeed control the time needed to a certain extent, but not completely as the claimant must be afforded a full and fair hearing. 2) The ALJ may stop the hearing and decide that there is enough evidence to pay the case and issue a "bench decision" which is favorable. Nothing stops the ALJ from lengthening the hearing based upon evidence he feels is necessary to cover in the testimony of the claimant. 3) The ALJ can decide to question the claimant first and allow the representative (attorney) follow-up questions or he/she can do it the opposite way. The bottom line again is to allow the client and representative (attorney) to have a full and fair hearing on the issues. 4) The ALJ can issue an "on-the-record" (OTR) decision without any testimony if the medical record is strong enough. However, the ALJ cannot issue a denial without the claimant at least having a right to testify if he/she so wishes to do so. I hope that solves some issues for you about the process Sandi.
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Post by Loopstok on Dec 15, 2014 11:19:35 GMT -5
I did not want to hijack the "oral argument" thread, but as an outsider I'd like a little backstory fill here: What is the extent of an individual ALJ's discretion in administering his hearings? It seems that an ALJ might make the caseload more manageable if he efficiently controls the hearing process to minimize wasted time. Obviously, "waste" could be defined very differently by different participants. Can the ALJ: 1) set the length of the hearing? Is there a rule such as it must be at least 30 minutes? 2) can he, during the hearing, decide he has heard enough and end the hearing? Or lengthen it if that is needed? 3) how active can he be in quizzing the claimant and witnesses to avoid wasted time and ask probing questions that will elicit the needed information? 4) if a case appears to be one that should clearly be paid or not based on the medical, can he rule on it with no hearing at all? Back during my Perry Mason days, I appeared as a claimant's representative in hearings that lasted anywhere from 2 minutes to 3 hours. The "standard" set time was 45 minutes, which could routinely under-run or over-run. ALJs who'd read the file in advance and only needed to fill in a few blanks (and, specific in the Northeast, those ALJs who talked particularly fast) could hold a complete hearing and elicit 45 minutes' worth of representative argument and claimant testimony, in merely 10-15 minutes. This was different in the south, where it could take certain judges 10-15 minutes just to say good morning and state my name (two syllables long). 1) I am unaware of any HALLEX rule that sets a minimum hearing time. 2) A hearing can end at any time if the ALJ is ready to pay. However, most ALJs will give reasonable extra time if they know they're going to deny, so that the representative can exhaust any appealable issues. The rep will continue to talk and the ALJ will simply stop taking notes. I've heard of ALJ's who say they've "heard enough", because they're fed up of the claimant's rambling or dissembling, a good rep will recognize this, and not waste the Court's time by prolonging the hearing if the case has little merit. 3) The more pro-active the ALJ, the better. The most frustrating hearings for the Perry Masons out there are the by judges who never ask a question of either the claimant or the rep, and then deny the case for reasons that are not properly translated into the decision-writer's draft. 4) If the claimant waives the right to a hearing, the ALJ can issue an unfavorable based on the written record. If the case is clearly a favorable, the ALJ can issue an on-the-record ("OTR") favorable decision. The due process (i.e. the hearing) is there to protect the claimants who aren't getting a fully favorable decision.
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Post by sandiferhands (old) on Dec 15, 2014 11:29:16 GMT -5
Very helpful info, thank you all so much. As I suspected, if a judge reads the record in advance, prepares for and pays attention during the hearing, and directs the hearing in a productive way, due process can be achieved with efficiency. In other words, you just have to do the job you were hired to do.
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Post by dudeabides on Dec 15, 2014 13:27:10 GMT -5
A related, outsider question:
Theoretically, shouldn't decisions denying a petition/claim be SHORTER (I will not say easier) than decisions granting a claim? That is how it works in my current agency.
Here is my logic: A claimant must satisfy MANY requirements [e.g. "5 steps"] in order for her claim to be granted. For example, she must prove (1) that she is not doing "substantial gainful activity:" (2) that she has a "severe;" (3) "medically determinable;" (4) "physical or mental impairment;" (5) that meets the 12 month duration requirement; AND (6) that either (a) meets or equals one of the listings on Appendix 1 or (b) that she cannot do her past relevant work, etc etc, etc. 20 CFR 404.1520; 404.1520a etc.
Fail any ONE of these tests = claim denied. End of story. End of decision.
Therefore, a decision denying a claim only needs to discuss the ONE test that the claimant failed. Whereas a decision granting a claim must discuss how/why the claimant satisfied ALL of the tests.
Now I recognize that, as a practical matter, a denial is much more likely to be appealed, so you might write it more carefully. But if you are confident that the claimant failed ONE of the criteria, that is ALL you need to say. Such a decision should be shorter.
I understand that, even for a denial, SOME judges MAY choose to write a "belt and suspenders" CYA decision, e.g., analyzing each and every requirement and explaining how the claimant satisfied criteria 1, 3 and 5(a) but failed to satisfy criteria 2, 4, 5(b) and 6. BUT, is there an SSA requirement that the ALJ write such a belt and suspenders decision (e.g., to reduce the need for remands?). Or is it just the ODAR practice?
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Post by moopigsdad on Dec 15, 2014 13:37:47 GMT -5
A related, outsider question: Theoretically, shouldn't decisions denying a petition/claim be SHORTER (I will not say easier) than decisions granting a claim? That is how it works in my current agency. Here is my logic: A claimant must satisfy MANY requirements [e.g. "5 steps"] in order for her claim to be granted. For example, she must prove (1) that she is not doing "substantial gainful activity:" (2) that she has a "severe;" (3) "medically determinable;" (4) "physical or mental impairment;" (5) that meets the 12 month duration requirement; AND (6) that either (a) meets or equals one of the listings on Appendix 1 or (b) that she cannot do her past relevant work, etc etc, etc. 20 CFR 404.1520; 404.1520a etc. Fail any ONE of these tests = claim denied. End of story. End of decision. Therefore, a decision denying a claim only needs to discuss the ONE test that the claimant failed. Whereas a decision granting a claim must discuss how/why the claimant satisfied ALL of the tests. Now I recognize that, as a practical matter, a denial is much more likely to be appealed, so you might write it more carefully. But if you are confident that the claimant failed ONE of the criteria, that is ALL you need to say. Such a decision should be shorter. I understand that, even for a denial, SOME judges MAY choose to write a "belt and suspenders" CYA decision, e.g., analyzing each and every requirement and explaining how the claimant satisfied criteria 1, 3 and 5(a) but failed to satisfy criteria 2, 4, 5(b) and 6. BUT, is there an SSA requirement that the ALJ write such a belt and suspenders decision (e.g., to reduce the need for remands?). Or is it just the ODAR practice? As a general rule dudeabides, most denials (unfavorable decisions) are usually longer than most approvals (favorable or partially favorable decisions) because you end up having to explain in more detail why the case was denied to satisfy a possible court appeal at some point. However, with the slew of upcoming CDRs on the horizon, now the favorable decisions might be almost as long as most denials from ALJs.
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Post by hopefalj on Dec 15, 2014 14:18:41 GMT -5
My denials are written with much greater detail and analysis than my favorables mostly because of the appealability. An unfavorable draft is an exercise in avoiding a remand, which warrants a greater evidentiary discussion, more detailed credibility/RFC/opinion evaluation, and a much greater procedural discussion. Every time something gets remanded for something you've done, you learn about something new that needs to be addressed in future decisions. The more you learn, the more hurdles you have to jump when drafting n unfavorable decision, thus making it longer.
My favorables are exercises in listing all the favorable evidence for the claimant and showing why they're generally credible. I draft them to show the claimant can't work and to get past own motion reviews by the AC. I don't concern myself with CDRs because I don't know how much my decision is going to affect the DDS doctors that make the first two determinations or the next ALJ's assessment of the evidence since the favorable decision. CDRs should be based on evidence after the first decision was made.
With regard to the things you listed that must be shown, 2-5 are very easy to demonstrate in a favorable decision.
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Post by moopigsdad on Dec 15, 2014 14:31:36 GMT -5
My denials are written with much greater detail and analysis than my favorables mostly because of the appealability. An unfavorable draft is an exercise in avoiding a remand, which warrants a greater evidentiary discussion, more detailed credibility/RFC/opinion evaluation, and a much greater procedural discussion. Every time something gets remanded for something you've done, you learn about something new that needs to be addressed in future decisions. The more you learn, the more hurdles you have to jump when drafting n unfavorable decision, thus making it longer. My favorables are exercises in listing all the favorable evidence for the claimant and showing why they're generally credible. I draft them to show the claimant can't work and to get past own motion reviews by the AC. I don't concern myself with CDRs because I don't know how much my decision is going to affect the DDS doctors that make the first two determinations or the next ALJ's assessment of the evidence since the favorable decision. CDRs should be based on evidence after the first decision was made. With regard to the things you listed that must be shown, 2-5 are very easy to demonstrate in a favorable decision. Yes what you stated is basically true hopefalj, but in order to deny someone from continuing benefits on a CDR review there has to be medical improvement shown for the claimant from the original decision-making by an ALJ or the agency decision. Now, if the original decision didn't specifically list all the reasons for a disability finding, but glossed over them somewhat, then it isn't likely for any future physician, agency or ALJ to find medical improvement for a claimant in the future, no matter if such improvement has occurred or not.
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Post by dudeabides on Dec 15, 2014 14:42:25 GMT -5
MPD and Hopefalj: Thank you for your patience. Denials are longer and more careful because they are more likely to be appealed. Sure.
BUT, if the ALJ is certain that the claimant failed to meet necessary criterion X (and has the courage to say so) then why not just deny based on failure to meet criterion X, and dispense with any analysis of criteria A to Z? They are moot.
The Abider
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Post by moopigsdad on Dec 15, 2014 14:52:06 GMT -5
Dudeabides if the claimant is performing SGA at Step 1 of the Sequential Evaluation of the disability process, then the case is over and the decision would not need to be long at all for a denial. So, yes sometimes a decision can be cut short, but if the claimant meets the first couple of hurdles in the process, then the denial has to be more detailed to explain why the claimant isn't disabled under the regulations.
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Post by hopefalj on Dec 15, 2014 15:20:02 GMT -5
MPD and Hopefalj: Thank you for your patience. Denials are longer and more careful because they are more likely to be appealed. Sure. BUT, if the ALJ is certain that the claimant failed to meet necessary criterion X (and has the courage to say so) then why not just deny based on failure to meet criterion X, and dispense with any analysis of criteria A to Z? They are moot. The Abider Depends on what X is. Like MPD says, if X is SGA, it is generally pretty easy to deny at step one quickly. However, if the claimant isn't working (which is probably 99% of the time), you have a whole new set of issues, and you have to go through A to Z to get there. Impairment non-severe or not an MDI? Better make sure you address all the evidence to support the lack of functional limitations and specifically reference. Better address all of the claimant's allegations. Better address the factors under 96-7p on why the claimant's allegations of functional limitations aren't credible. Better point out why the less than sed treating source opinion isn't entitled to any weight, and you'd better make sure you don't miss any statements by any other providers that could be construed as an opinion. This continues under a step 4 or 5 denial as well, but instead of supporting no functional limitations, now you're justifying the RFC. There are several things that need to be addressed under the rules and regulations when making a step 2/4/5 denial. If you gloss over, completely omit, or simply address these things with stock language, you are inviting a remand. The extent of the analysis needed to support the unfavorable RFC is far more substantial than in a favorable. In a favorable, you can get away with heavily leaning on the evidence that supports the decision and quickly address factors supporting credibility and rejecting DDS opinions. But I guess you'll have to just wait and see next month.
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Post by Deleted on Dec 15, 2014 15:22:37 GMT -5
If a hearing lasts for more than 2 hours, the parking meter runs out and I get a ticket. Just saying.
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Post by eyre44 on Dec 16, 2014 3:59:20 GMT -5
There are several things that need to be addressed under the rules and regulations when making a step 2/4/5 denial. If you gloss over, completely omit, or simply address these things with stock language, you are inviting a remand. And don't forget to add in any interesting circuit dependent requirements. Good luck in certain districts in the 9th Circuit trying to jump through the hoops needed to draft a case that can withstand a remand.
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Post by Deleted on Dec 16, 2014 7:11:29 GMT -5
What eyre44 said and even more so.
My favorable decisions run no more than 6 pages at most. And then 3.5 of those pages are canned regurgitation of rules and parameters. And remember invariably the claimant/rep will only read the first line of that decision i.e., "Fully Favorable" and stop there. Nothing else really is of their interest, so appeals by reps/claimants of fully favorables are rare and thus you can get by with canned formats.
However, my unfavorable decisions will run umpteen pages. Yes, I agree, that is nonsensical as if the claimant failed to prove steps 1-4 then, BAM! should be instant denial and done.
1 page denials.
If only so......
In real life you are writing the unfavorable not for the claimant or rep, but to avoid remand and that in turn means to avoid federal court review and remand. Here as eyre44 correctly points out, is where the kicker lies. There are 94 federal court jurisdictions in the US. Each of those 94 courts is a separately ruled fiefdom entirely free to review and rule on your SSA decision as they desire. And they will. It is very very very common for Court no. 37 to uphold an ALJ unfavorable finding at Step 3 whereas Court no. 16 routinely overturns that step 3 ALJ finding...even though both courts are applying the same set of rules and regs to the same set of underlying facts. Then, to make matters more complicated, Appeals Court no. 6 may review and uphold no. 16 but Appeals Court no. 10 would overrule no. 85, etc...
Now in this epoch of hearing cases in which your hearing room is in one jurisdiction and the claimant may be located in another federal court jurisdiction, and then the writer of your decision across the country in yet another juridiction, you can begin to see the conundrum. A Step 2 denial may suffice in jurisdiction no. 44 but the exact same finding will not be upheld in jurisdiction no. 25, ad nauseum.
Thus as ALJs we write unfavorables in overly lengthy formats in attempts to cover all scenarios and bases as best we can. (E.g., I do not find the claimant meets or equals step 3 but I will nonetheless go on to deny him at step 4 and in any event I am still going to provide an alternative denial at step 5. Each one of those steps will require 2 to 3 pages of explanatory justification.)
If and only if there was one (1) overall court of review for SSA claims that unilaterally applied the same rules and regs in the same manner for all SSA claims, then yes, in that event, we could probably start issuing 1-2 page denials. But that is not going to happen any time into the foreseable future, if ever.
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Post by Deleted on Dec 16, 2014 9:20:07 GMT -5
"3) how active can he be in quizzing the claimant and witnesses to avoid wasted time and ask probing questions that will elicit the needed information?"
I wanted to make a quick point or two about this. My opinion is that questions need to be focused on moving the disability football. I need age, education, work experience, extent of disability, etc. Everything else is to some degree irrelevant. Some ALJ's get caught up in trying to be the investigative prosecutor, trying to corner the claimant in a lie, or an exaggeration. My opinion, it's not a cross examination, but others may disagree. I have also seen ALJ's decide to play life coach and lecture the claimant on choices or give the claimant health advice. I cannot stress how much that is not our role. Don't get me started on the ALJ who decided it was okay to ask about sexual orientation, or the other ALJ who liked to "gotcha" claimants about why they needed SSI when they could afford cigarettes.
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Post by JudgeRatty on Dec 16, 2014 9:33:07 GMT -5
"3) how active can he be in quizzing the claimant and witnesses to avoid wasted time and ask probing questions that will elicit the needed information?" I wanted to make a quick point or two about this. My opinion is that questions need to be focused on moving the disability football. I need age, education, work experience, extent of disability, etc. Everything else is to some degree irrelevant. Some ALJ's get caught up in trying to be the investigative prosecutor, trying to corner the claimant in a lie, or an exaggeration. My opinion, it's not a cross examination, but others may disagree. I have also seen ALJ's decide to play life coach and lecture the claimant on choices or give the claimant health advice. I cannot stress how much that is not our role. Don't get me started on the ALJ who decided it was okay to ask about sexual orientation, or the other ALJ who liked to "gotcha" claimants about why they needed SSI when they could afford cigarettes. Double like! Yes! Please focus on the evidence of the disability evaluation and avoid the lecture. And paaaleeeeezzzz avoid the "my wife has xxxx" and "I had that surgery" comments. Making that kind of comparison always blows my mind, especially when personal issues about the ALJ are revealed on the hearing recording for all to hear. Yikes!
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Post by bartleby on Dec 16, 2014 9:46:31 GMT -5
Let's not forget the Reg's 404.1520:
(4) The five-step sequential evaluation process. The sequential evaluation process is a series of five “steps” that we follow in a set order. See paragraph (h) of this section for an exception to this rule. If we can find that you are disabled or not disabled at a step, we make our determination or decision and we do not go on to the next step.
According to the Reg's we should stop at the point we can make a finding, not go on and on and on. If it's a step 4 case, past relevant work, we are not to go on to Step 5 and add other work..
Remember also that we tell them that they have the burden of proof through the first 4 steps. We often forget that and go on digging to find out what is going on instead of making the Rep tell us..
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Post by maquereau on Dec 16, 2014 9:49:35 GMT -5
"3) how active can he be in quizzing the claimant and witnesses to avoid wasted time and ask probing questions that will elicit the needed information?" I wanted to make a quick point or two about this. My opinion is that questions need to be focused on moving the disability football. I need age, education, work experience, extent of disability, etc. Everything else is to some degree irrelevant. Some ALJ's get caught up in trying to be the investigative prosecutor, trying to corner the claimant in a lie, or an exaggeration. My opinion, it's not a cross examination, but others may disagree. I have also seen ALJ's decide to play life coach and lecture the claimant on choices or give the claimant health advice. I cannot stress how much that is not our role. Don't get me started on the ALJ who decided it was okay to ask about sexual orientation, or the other ALJ who liked to "gotcha" claimants about why they needed SSI when they could afford cigarettes. We may disagree. Cigarettes are sometimes a legitimate point of inquiry. Claimant alleges environmental limitations due to respiratory condition, but continues to puff away. Yeah, that's something I look at. Claimant says he can't afford inhalers, yet he somehow gets $400 worth of ciggies every month. Records show that claimant is advised to quit smoking, but he ignores the advice. In my opinion, these are relevant issues for purposes of credibility and/or medical compliance.
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Post by redryder on Dec 16, 2014 10:02:42 GMT -5
Just a quick point about burden of proof. In theory, the claimant has the burden of proof at the first 4 steps of the sequential evaluation and the COSS has the burden at the fifth step. And when the claimant is represented, that analysis holds up well. However, when the claimant is unrepresented, the ALJ has a greater duty to assist the claimant and develop the record. What this often means is the claimant may only allege the most recent calamity in his applications but when he is sitting in the hearing room, the ALJ discovers there are several impairments for which there is no evidence. That aspect of the record has never been developed. The most memorable instance of this for me was a claimant whose medical records only addressed the amputation of 3 fingers on the right hand. When he came to the hearing, he only had 2 fingers on the left hand and was blind in one eye. He had been blind in the eye since childhood and lost the fingers on the left hand years ago. But because he was able to work despite these conditions, he did not allege them on his applications. He didn't have to stop working until he lost the fingers on the right hand.
So beware. Your mental picture of the person as described in the file doesn't always match the person who actually appears before you. You owe the unrepresented claimant a duty to develop his record, even if he does have the burden of proof.
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