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Post by Deleted on Dec 16, 2014 10:02:51 GMT -5
No, Maq, I think you are correct in a COPD case. I think asking if they continue to smoke is legit. But to apply that line of questioning to a young person with a bad back, as a kind of lecture on life style choices, ("Who pays for your cigaretts/tattoos?") still seems poor practice.
I may have to think for a second on the medical compliance issue...Hmm. A claimant with seizure disorder who is non-compliant with meds, that seems legit. But, can I fault a smoker for not following doctor's advice to quit? If they try and fail? If so, there are a LOT of people out there non-compliant. I don't think I can fault an obese claimant for not following doctor's advice to lose weight... I'll look that up when I have a sec.
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Post by hopefalj on Dec 16, 2014 10:35:14 GMT -5
That's an interesting question, robg, but as a writer, I normally don't use the lack of weight loss in a credibility discussion, unless the doctor prescribes walking for 30 minutes, four days a week and the claimant alleges they can't even walk half a block.
Now failing to follow a diabetic diet? Maybe. I will typically address smoking when there is an alleged disabling lung impairment or, more commonly, where a claimant says they cannot afford their generic medications for diabetes, hypertension, mental impairments, etc., but they continue to smoke a pack a day. I know some judges ask about this, and the explanations can be interesting.
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Post by sandiferhands (old) on Dec 16, 2014 10:45:30 GMT -5
This has been and outstanding and informative discussion. Thank you all for the insights.
Hopefalj--you mention that "I" (you) don't use weight loss as a factor, etc. Is the determination of what factors should be discussed/used something that writers do? I thought that would be a decision the judge should make and provide an instruction to the writer?
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Post by Deleted on Dec 16, 2014 10:47:18 GMT -5
Smoking as credibility issue. The courts are all over the board. Take your pick as to which way to proceed.
example: Shramek v. Apfel 7th Cir. failure to quit smoking is "unreliable basis on which to rest a credibility determination." But then just mosey a little bit over to the 10th Cir and Oklahoma in McNeill v Astrue specifically finding failure to quit smoking as a proper basis to assess credibility.
Thus once again for the newbie ALJs applicants; in stark reality it commonly is not the medical evidence or credibility that will decide a case, but simply nothing more than where the claimant's feet physically touch the ground when he gets up in the morning that will decide, yea or nay.
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Post by hopefalj on Dec 16, 2014 10:59:05 GMT -5
This has been and outstanding and informative discussion. Thank you all for the insights. Hopefalj--you mention that "I" (you) don't use weight loss as a factor, etc. Is the determination of what factors should be discussed/used something that writers do? I thought that would be a decision the judge should make and provide an instruction to the writer? Depends on the judge and the quality/detail of the instructions, but I imagine most of a decision's components are left to the writer's discretion. In my office, you'll find very few judges that even mention credibility or medical opinions in their instructions. A lot of the decision is left to the writer to address, which is fine with me because I have the time to do it and review the whole record when I draft a decision anyway. My job is to make the ALJ's decision legally defensible or to advise them on items that may cause problems. I've said it before and I'll say it again... the ease of my job is almost entirely based on the quality of the decision in light of the evidence. If the decision can be supported by the record, I will write you a decision that will hold up, whether I personally might have gone a different way.
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Post by Deleted on Dec 16, 2014 11:03:35 GMT -5
Ah, here it is. That is a high standard with big holes in it. Doesn't work if they have a good reason for not following advice and doesn't work if the treatment can't be expected to put them back to work. SSR 82-59: TITLES II AND XVI: FAILURE TO FOLLOW PRESCRIBED TREATMENT POLICY STATEMENT: An individual who would otherwise be found to be under a disability, but who fails without justifiable cause to follow treatment prescribed by a treating source which the Social Security Administration (SSA) determines can be expected to restore the individual's ability to work, cannot be virtue of such "failure" be found to be under a disability. www.socialsecurity.gov/OP_Home/rulings/di/02/SSR82-59-di-02.html
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Post by bartleby on Dec 16, 2014 11:07:26 GMT -5
Smoking is the number one cause of failed back surgery... Some doctors won't do surgery unless the patient stops smoking.
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Post by bartleby on Dec 16, 2014 11:11:00 GMT -5
Robg, here is the rub,"which the Social Security Administration (SSA) determines can be expected to restore the individual's ability to work". we are the Social Security Administration. We are supposed to be able to determine what treatment can be expected to restore the individuals ability to work... Medical degrees anyone??
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Post by mamaru on Dec 16, 2014 11:20:40 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! And try to refrain from asking whether the claimant's bad back interferes with his/her sex life - it's bad enough when they volunteer that information. TMI
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Post by bartleby on Dec 16, 2014 11:33:24 GMT -5
Have a female friend who had a hearing with a 29 year old with 10 children that said there wasn't any position that she could get in that was comfortable due to her bad back. My friend had to stifle her self from blurting out, "I know one position you seem to be pretty damn comfortable in."
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Post by Deleted on Dec 18, 2014 8:52:33 GMT -5
I have not had time to closely read all comments on this thread. I say that in preface in the event that I duplicate earlier comments. I'd say that I have practiced in front of well-over 60 ALJs at ODARs in at least 10 different states (including video hearings). I see common patterns that make for a good and efficient ALJ, and a not so good ALJ. Regarding the latter: their hearings are excessively long (90 to 120 minutes) because they often take over the first hour of the hearing by asking the claimant a litany of questions with the focus being on issues involving credibility. Many of my claimants are either not very bright, and/or zoned out on pain meds, and/or terrified and stressed-out at being in a court of law for the first time in their lives. Thus, they mess up and get confused and the ALJ capitalizes on that and takes them down a long path of further confusion in order to make a case for lack of credibility. After 45 or so minutes of such questioning, the ALJ gives me a turn at questioning. Now it's my turn to not only ask the basics about ADLs and pain levels, but devote another 30 minutes at trying to repair the damage that was done in the earlier testimony. After such hearings I wonder, were we trying to determine if this person could work despite severe impairments, or was there some kind of character assassination going on? The claimant usually leaves the courtroom somewhat traumatized by the process. Sometimes, they are downright angry at being treated in such a manner. By far, most ALJs that I practice in front of do not play that game. They are objective and fair and question for maybe 10-15 minutes before giving me time to ask the claimant questions. A few actually permit me to lead the questioning from the get go, and this greatly pleases me as I could do this job in my sleep so I sort of pride myself on getting to the meat of the matter very quickly. One observation about an ALJ in Providence, RI who I greatly admire: he usually has an ME on the phone. He may ask a few questions of the claimant, then he turns to the ME and gives him the ball on Listing and RFC matters. If it's a RFC finding, this ALJ turns to the VE and offers the ME's RFC as a hypo. Thus, if it is a medically strong case, a FF or an amended onset date FF can be offered. There, hearing done. Rocket docket moves along to the next case. If the ME testimony does not render relatively positive results, we proceed with more testimony and the hearing lasts longer. Interestingly, this ALJ has a middle of the road grant rate (higher than the national average, but not that high).
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Post by Deleted on Dec 18, 2014 8:57:55 GMT -5
Ahem, "whom" I greatly admire. That said, there are times when proper grammar makes an individual sound greatly affected
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Post by Loopstok on Dec 18, 2014 10:34:10 GMT -5
I have not had time to closely read all comments on this thread. I say that in preface in the event that I duplicate earlier comments. I'd say that I have practiced in front of well-over 60 ALJs at ODARs in at least 10 different states (including video hearings). I see common patterns that make for a good and efficient ALJ, and a not so good ALJ. Regarding the latter: their hearings are excessively long (90 to 120 minutes) because they often take over the first hour of the hearing by asking the claimant a litany of questions with the focus being on issues involving credibility. Many of my claimants are either not very bright, and/or zoned out on pain meds, and/or terrified and stressed-out at being in a court of law for the first time in their lives. Thus, they mess up and get confused and the ALJ capitalizes on that and takes them down a long path of further confusion in order to make a case for lack of credibility. After 45 or so minutes of such questioning, the ALJ gives me a turn at questioning. Now it's my turn to not only ask the basics about ADLs and pain levels, but devote another 30 minutes at trying to repair the damage that was done in the earlier testimony. After such hearings I wonder, were we trying to determine if this person could work despite severe impairments, or was there some kind of character assassination going on? The claimant usually leaves the courtroom somewhat traumatized by the process. Sometimes, they are downright angry at being treated in such a manner. By far, most ALJs that I practice in front of do not play that game. They are objective and fair and question for maybe 10-15 minutes before giving me time to ask the claimant questions. A few actually permit me to lead the questioning from the get go, and this greatly pleases me as I could do this job in my sleep so I sort of pride myself on getting to the meat of the matter very quickly. One observation about an ALJ in Providence, RI who I greatly admire: he usually has an ME on the phone. He may ask a few questions of the claimant, then he turns to the ME and gives him the ball on Listing and RFC matters. If it's a RFC finding, this ALJ turns to the VE and offers the ME's RFC as a hypo. Thus, if it is a medically strong case, a FF or an amended onset date FF can be offered. There, hearing done. Rocket docket moves along to the next case. If the ME testimony does not render relatively positive results, we proceed with more testimony and the hearing lasts longer. Interestingly, this ALJ has a middle of the road grant rate (higher than the national average, but not that high). Terrific summary, and I agree strongly. When I was on the rep side, I seemed to spend a lot of my time writing post-hearing briefs to the ALJ, or appeal briefs to the Appeals Council, trying to correct the Administration on the issue of conflating medical impairments with character flaws. I had a couple of cases sent back for ALJ credibility mistakes (citing to a very remote criminal record in the decision, or, more egregiously, compound questions during the hearing), but usually found that the Council gave the ALJ a bit of discretion to engage in gamesmanship during the hearing. All that being said, now that I've jumped over the fence, I do acknowledge where it's important for the ALJ to ask a reasonable number of highly targeted questions, getting at the credibility factors that the regulations (20 CFR 404.1529/416.929) and rulings (96-7p) require me, as the writer, to address in depth. Even a cursory review of the medical evidence often reveals post-onset work activity (off-the-books) reported to several treating doctors, or medication non-compliance. As for seizures, that's the fairest game of all, thanks to SSR 87-6 (I think it is). The regs & rulings are silent on smoking, but they're pretty clear on seizures. So those are all questions that must be asked on the record. One of the mental challenges that I've set for myself lately -- in anticipation of Bob calling this week and offering me the black robe(which hasn't happened yet) -- is figuring out how to ask the smallest possible number of probative credibility questions, without giving the impression of grandstanding or lecturing or engaging in character assassination, all while keeping the hearing within 30 to 45 minutes. [Of course, the mere hubris of my even thinking about scheduling my docket, before I'm actually appointed to one, is probably the single most important reason why my phone has not yet begun to ring.]
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Post by hopefalj on Dec 18, 2014 10:47:22 GMT -5
Of course, the mere hubris of my even thinking about scheduling my docket, before I'm actually appointed to one, is probably the single most important reason why my phone has not yet begun to ring.
loopstok, I think you'd have a hard time finding anyone that applied for this job that didn't share these premature thoughts, especially those who have practiced in the area as an insider and/or a rep.
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Post by Deleted on Dec 18, 2014 11:15:33 GMT -5
Agreed that certain cases beg for questions on credibility, especially when reviewing the ADL forms completed early on for DDS. For example, you claim disability based primarily on a back impairment and yet stated in a form that you mow your lawn. How many acres do you own? Ride on or push mower? How long does it take you to complete the job? As a claimant's rep, I've been known to withdraw from cases after reading such forms or looking at a claimant's Facebook site. For example, one claimant claiming physical only disability worked out at the Y everyday, and I'm not talking doctor-ordered physical therapy in a pool, I"m talking sweat-producing, calorie burning work outs. Another claimant took her kids to the amusement park on a weekly basis and joined them on the roller coaster. Dang, I can't even do those things without pulling out my back or feeling stomach sick! But I digress. When all is said and done, it comes down to basic common sense on the part of the ALJ and the claimant's rep. By the way, I sincerely hope you get a call this week. Good luck.
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Post by prescient on Dec 18, 2014 13:28:38 GMT -5
I have not had time to closely read all comments on this thread. I say that in preface in the event that I duplicate earlier comments. I'd say that I have practiced in front of well-over 60 ALJs at ODARs in at least 10 different states (including video hearings). I see common patterns that make for a good and efficient ALJ, and a not so good ALJ. Regarding the latter: their hearings are excessively long (90 to 120 minutes) because they often take over the first hour of the hearing by asking the claimant a litany of questions with the focus being on issues involving credibility. Many of my claimants are either not very bright, and/or zoned out on pain meds, and/or terrified and stressed-out at being in a court of law for the first time in their lives. Thus, they mess up and get confused and the ALJ capitalizes on that and takes them down a long path of further confusion in order to make a case for lack of credibility. After 45 or so minutes of such questioning, the ALJ gives me a turn at questioning. Now it's my turn to not only ask the basics about ADLs and pain levels, but devote another 30 minutes at trying to repair the damage that was done in the earlier testimony. After such hearings I wonder, were we trying to determine if this person could work despite severe impairments, or was there some kind of character assassination going on? The claimant usually leaves the courtroom somewhat traumatized by the process. Sometimes, they are downright angry at being treated in such a manner. By far, most ALJs that I practice in front of do not play that game. They are objective and fair and question for maybe 10-15 minutes before giving me time to ask the claimant questions. A few actually permit me to lead the questioning from the get go, and this greatly pleases me as I could do this job in my sleep so I sort of pride myself on getting to the meat of the matter very quickly. One observation about an ALJ in Providence, RI who I greatly admire: he usually has an ME on the phone. He may ask a few questions of the claimant, then he turns to the ME and gives him the ball on Listing and RFC matters. If it's a RFC finding, this ALJ turns to the VE and offers the ME's RFC as a hypo. Thus, if it is a medically strong case, a FF or an amended onset date FF can be offered. There, hearing done. Rocket docket moves along to the next case. If the ME testimony does not render relatively positive results, we proceed with more testimony and the hearing lasts longer. Interestingly, this ALJ has a middle of the road grant rate (higher than the national average, but not that high). When you get to wear the robe, you'll find that the types of hearings your prefer as a rep, are not ideal, unless you're planning on paying a ton of cases. The ideal hearing should be focused on inconsistencies in the record, fill in gaps in treatment, etc. Allowing the rep to control the hearing, asking leading questions, only ends up with a transcript of "here is why I'm disabled"...that's not at all helpful.
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Post by Deleted on Dec 18, 2014 13:42:39 GMT -5
Allowing claimant's reps to "control" the hearing? Basing a decision on "leading questions?" I don't recall mentioning those things in my comment. Rather, I was trying to focus on the issue of judicial efficiency in the courtroom. I can see that I need to step back and resist commenting too much in the future, lest it sabotage my dreams. Words can easily be taken out of context.
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Post by Deleted on Dec 18, 2014 13:48:59 GMT -5
Loopstok, my first dozen of so hearings were 1.5 hours and were on the script (whether the claimant was or not). Over time, you develop your own style and flexibility. Your prior knowledge is invaluable. I love the freedom that we have to go in the direction needed.
My only advice (and you will hear it over and over again). Dont be the ALJ that fights the evidence. If three TPs say they are less than sed, off task over 20 percent, missing 3 or more days of work, etc., and the objective findings support that, dont get another CE or UF them because they smoke. On the other side, if the CE and other findings clearly show the claimant is qualified to be in the 2018 Olympics as a gymnast, dont FF the case because they had a tough childhood.
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Post by Deleted on Dec 18, 2014 13:52:09 GMT -5
It goes without saying that the first type of ALJ is making claimants' reps at the Federal District level a lot of money, and jamming up those dockets, as well.
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Post by Deleted on Dec 18, 2014 13:55:04 GMT -5
Prescient: total agreement. As an ALJ we do not need a regurgitation of the established record, we must instead fill in the blanks, the inconsistencies, credibility, etc. that have yet to be filled by hearing time.
In my former life as a rep I also would prepare OTR requests, update the medicals to current status, and at hearing present the case theory in short synopsis. In my current life as an ALJ I must candidly admit disappointed astonishment at the overwhelming numbers of reps I see who are not at all familiar with the case facts/issues, have little if any working knowledge of SSA rules/regs, and who simply recite and/or regurgitate a canned list of questions and/or objections that have no relevance whatsoever to the case at hand. The most amazing thing that I have seen more than once now is that I will question the VE with full and obvious point that there are no jobs for the claimant and he/she is going to be found disabled per step 5 or grid out. I will then ask the rep if they would like to ask the VE any questions, with full expectation that the answer will correctly be "No your honor." To my utter amazement (Headslap "DOH!!!") I have seen quite the opposite, reps (apparently feeling an unwarranted obligation to do or say something legalish) will then "cross" the VE using canned questions that not only are not relevant but in fact horribly backfire. By opening mouths the questions invariably lead to the VE right back to finding that the claimant can indeed perform other work or even worse, go back and perform PRW. Reps, when an ALJ looks directly at you and asks "Counsel, are you SURE you want to ask questions?" take that as a compliment, a gentle tap on the head, a hint, a reminder, an open door, that perhaps it would be best for everyone to put down the canned questions, smile and simply say "No I sure do not your Honor. Thank you."
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