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Post by sealaw90 on Dec 18, 2014 14:14:53 GMT -5
You know what papajudge, that happens in criminal court with the cheap-suit attorneys. Basically, you (sometimes) get what you pay for. Just because you passed the bar does not mean you can fall asleep at the table. I see it too may times to count on my fingers and toes, and there are better ways for these 'attorneys' to make a living somewhere outside of a hearing/court room. Makes me sick, but I digress...
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Post by Deleted on Dec 18, 2014 15:20:36 GMT -5
It goes without saying that there are good attorneys and bad attorneys. There are also inexperienced new attorneys, and established veteran attorneys who know the law very well (sometimes better than the ALJ). I shudder to think of mistakes that I made in the courtroom when I was just starting out. We have all been there. It does sound to me like the ALJs in this forum witness a lot of shamefully bad lawyering; I apologize on behalf of my profession.
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Post by Deleted on Dec 18, 2014 18:51:56 GMT -5
Papajudge, I can assure you that I will never cross examine a VE in those circumstances. ESPECIALLY if a kindly judge encourages me to shut my mouth. That said, once in a blue moon even the best claimants' reps are floored by an unfavorable decision that they did not expect, given the dynamics at hearing. As an example, an experienced attorney once shared with me his discouragement at receiving a denial after the ALJ did not ask the VE any questions whatsoever at hearing. He felt badly that he did not ask the VE any questions because he (wrongly) assumed a grant. I've had a few cases (that I both represented or wrote for) where a tough judge rejected a ME's opinion that the case met or equalled a listing, as well. Once, the ALJ "tentatively" offered my client an amended onset date, then rescinded in his decision. So these cases are all ripe for appeal. But the point I'm trying to make is sometimes even the best attorneys either drop the ball or regret that only hindsight is 20/20. Unfortunately, some hearings, like law school exams, resemble the proverbial Trailer Park Beauty Contests.... the least ugly wins. Being a claimants' rep is a mixture of trial and error (no pun intended). I wish I could get a time machine and go back and polish my performance on 80% of them.
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Post by mamaru on Dec 18, 2014 19:32:15 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?? No - but I've seen ME's asked this direct question.
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Post by Deleted on Dec 18, 2014 20:18:49 GMT -5
Well, at least the ME has a leg up on the ALJ in that he or she has an MD. My bigger concern is the common rejection of treating source and treating specialist opinions that come in the form of detailed narrative statements or completed medical questionnaires pointing to specific objective clinical findings. I know of one relatively new ALJ who routinely rejected such statements and then retired and left, in her wake, a pile of AC and Federal District Remands. Again, common sense can guide us in our interpretation of evidentiary weight given to different sources. This isn't to say that there aren't the "check box," meaningless RFCs completed by short term treating sources. But as it says in the Old Testament, "Come Let us Reason."
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Post by hopefalj on Dec 18, 2014 21:14:12 GMT -5
Well, at least the ME has a leg up on the ALJ in that he or she has an MD. My bigger concern is the common rejection of treating source and treating specialist opinions that come in the form of detailed narrative statements or completed medical questionnaires pointing to specific objective clinical findings. I know of one relatively new ALJ who routinely rejected such statements and then retired and left, in her wake, a pile of AC and Federal District Remands. Again, common sense can guide us in our interpretation of evidentiary weight given to different sources. This isn't to say that there aren't the "check box," meaningless RFCs completed by short term treating sources. But as it says in the Old Testament, "Come Let us Reason." In my office, well supported treating source statements are a rarity. Not unicorn or Sasquatch rare, but not far off and to the point that I can actually remember most that were well supported. One of the easier parts of my job is impeaching them.
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Post by JudgeRatty on Dec 18, 2014 21:34:11 GMT -5
Well, at least the ME has a leg up on the ALJ in that he or she has an MD. My bigger concern is the common rejection of treating source and treating specialist opinions that come in the form of detailed narrative statements or completed medical questionnaires pointing to specific objective clinical findings. I know of one relatively new ALJ who routinely rejected such statements and then retired and left, in her wake, a pile of AC and Federal District Remands. Again, common sense can guide us in our interpretation of evidentiary weight given to different sources. This isn't to say that there aren't the "check box," meaningless RFCs completed by short term treating sources. But as it says in the Old Testament, "Come Let us Reason." In my office, well supported treating source statements are a rarity. Not unicorn or Sasquatch rare, but not far off and to the point that I can actually remember most that were well supported. One of the easier parts of my job is impeaching them. Ditto. Close to unicorn rare in my office. In fact, most are on the extreme side, "never" checked off in almost all areas, no or little support etc. When there are medical source statements that are supported, it is a very nice treat. And then there is the usual conclusory prescription pad "disabled" statement. It sounds like to me that different areas of the country have reps with different "routine" ways of representing too. We rarely get briefs, and the effort tends to be lacking except for a small handful of solos. When we were assisting other regions with writing cases, I noticed a big difference in the representation as well as the pattern of denials at the State agency level. Very interesting to have a chance to hear cases from all over.
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Post by Deleted on Dec 18, 2014 22:02:24 GMT -5
I can only speak from personal experience. Many of the practicing attorneys on the Listserv in Connecticut are excellent. They put my limited knowledge to shame. I recently moved to CT from Ohio and the Cincinnati Bar's Social Security Committee has monthly meetings for its members that are extremely informative and led by veteran SSDI attorneys. The yearly Cincinnati Social Security CLE's sponsored by that group attract many ALJs, Fed District Judges, and ODAR Decision Writers, in addition to practicing claimants' reps. So yes, I feel rather out of the loop in this forum. I was spoiled by a wonderful group of practicing mentors in Cincinnati who knew their stuff inside and out, and the Cincinnati ODAR was, to my knowledge, extremely respectful of our bar. Obviously, this experience varies from region to region based on what I am reading in this forum. I guess I got lucky in both regions of the country.
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Post by Deleted on Dec 18, 2014 22:29:16 GMT -5
In my office, well supported treating source statements are a rarity. Not unicorn or Sasquatch rare, but not far off and to the point that I can actually remember most that were well supported. One of the easier parts of my job is impeaching them. Ditto. Close to unicorn rare in my office. In fact, most are on the extreme side, "never" checked off in almost all areas, no or little support etc. When there are medical source statements that are supported, it is a very nice treat. And then there is the usual conclusory prescription pad "disabled" statement. It sounds like to me that different areas of the country have reps with different "routine" ways of representing too. We rarely get briefs, and the effort tends to be lacking except for a small handful of solos. When we were assisting other regions with writing cases, I noticed a big difference in the representation as well as the pattern of denials at the State agency level. Very interesting to have a chance to hear cases from all over. Sratty, I almost spit my beer out when I read the "prescription pad" statement. As everybody knows, I came from the Criminal Defense bar and never practiced SSA law. It took me a couple of times looking at the F Exhibit to figure out what it said and then why it was written on a prescription pad?? It's only happen once so far with me in 4 months, but I thought at the time, what in the world is that??
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Post by JudgeRatty on Dec 18, 2014 22:35:43 GMT -5
Ditto. Close to unicorn rare in my office. In fact, most are on the extreme side, "never" checked off in almost all areas, no or little support etc. When there are medical source statements that are supported, it is a very nice treat. And then there is the usual conclusory prescription pad "disabled" statement. It sounds like to me that different areas of the country have reps with different "routine" ways of representing too. We rarely get briefs, and the effort tends to be lacking except for a small handful of solos. When we were assisting other regions with writing cases, I noticed a big difference in the representation as well as the pattern of denials at the State agency level. Very interesting to have a chance to hear cases from all over. Sratty, I almost spit my beer out when I read the "prescription pad" statement. As everybody knows, I came from the Criminal Defense bar and never practiced SSA law. It took me a couple of times looking at the F Exhibit to figure out what it said and then why it was written on a prescription pad?? It's only happen once so far with me in 4 months, but I thought at the time, what in the world is that?? Yep, not uncommon in my neck of the woods. LoL!
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Post by Deleted on Dec 18, 2014 23:16:53 GMT -5
You know what papajudge, that happens in criminal court with the cheap-suit attorneys. Basically, you (sometimes) get what you pay for. Just because you passed the bar does not mean you can fall asleep at the table. I see it too may times to count on my fingers and toes, and there are better ways for these 'attorneys' to make a living somewhere outside of a hearing/court room. Makes me sick, but I digress... Sealaw90,
Why drag Criminal Defense Lawyers into an ALJ discussion board, but since you did, criminal defense lawyers may be a lot of things, but sleeping at the table is not one of them. (Yes, I know of the Supreme Court decisions in many states and the SCT cases showing the same).
The reasons a Criminal Defense Attorney can't sleep at the table is that the DA's office and the PD's office think they own the only two tables in the courtroom and the State Criminal Court Judge would be screeching or whining too loud about one thing or another in your ears, so there fore sleep would be impossible.
Some of the smartest and best criminal defense attorneys looked like crap in their "cheap-suits" and more than a couple wore the same suit or suit coat day in and day out.
I just finished practicing Criminal Defense for the last 12 years in one of the largest cities in America (top 20) and one of the most dangerous (#3 at least and always in the top 5), all the while as a successful Criminal Defense Lawyer (I took a 30K+ pay cut for this job and glad I did).
And yes, I would say to potential clients that you get what you paid for as a interviewing technique, but I knew all the while that the cost of the suit had nothing to do with the breath of talent that a hard working "cheap suit" wearing "true believer" criminal defense attorney could do in a court of law.
IMHO, Tiger
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Post by Deleted on Dec 19, 2014 8:16:51 GMT -5
Thank you to Stratty and Hopefalj for causing me to lose sleep last night wondering at the discrepancies of our opinions. How is it, I wondered, that I have had many cases over the years that contained excellent treating source narrative statements and/or RFCs that were given little weight by the ALJ and often resulted in AC or Fed District Court remands, while Stratty and Hopefalj say its a unicorn-like rarity? Surely, it cannot just be a regional matter? This led me to thinking about the dynamic of this discussion forum at large, and the commonalities in opinions voiced by decision writers and many ALJs vs. claimants' reps or outsiders. Here's a foggy version of my conclusion (I'm halfway through my first cup of Joe): I think when you are on the government end, you see a lot of weak cases and poor representation. In contrast, if you are a competent claimants' rep, you cherry pick your cases in order to not waste time or money. I only take a case with merits where I think I have at least a 50% chance of winning with a 24% grant rate judge. If I did not have that selection process my business would fail. Thus, when you shake down our experiences, you'll find that those few narrative statements that were rejected came from my office, or from a similar private practitioner's office. Finally, there is the personal, day-to-day impact of losing cases with strong treating source support. As a decision writer, the person in front of me was a paper file. Now, it's the man or woman who phones my office crying, or yelling, or just whining about the loss at hearing and demanding to know what I am going to do about it on appeal. So these experiences tend to stay with me. Maybe they are not as frequent as I think they are, but they are quite memorable when they happen. PS- When I went to Decision Writer Training in Kansas City, I was amazed at the comments made by some of the ALJ teachers and one Appeals Council writer who led the group. They obviously had much higher grant rates than those of the ALJs at the ODAR in Dayton, where I was employed. At that time, my ODAR had one of the highest denial rates in the country, and also the greatest backlog. So there is definitely something to be said about regional disparity.
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Post by JudgeRatty on Dec 19, 2014 8:40:54 GMT -5
And it may be that you are colored by the fact that you cherry pick good cases, while we see all of those other ones (weak cases, applied due to economy, can't get a job due to felonies,etc) as well. It's like when I worked as an RN in a county hospital ER. I began to think most of society was on heroin and a gang member. LOL! I had a different view when I was a rep, and then I saw a different picture after coming to ODAR. Perspective my friend.
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Post by sealaw90 on Dec 19, 2014 9:04:40 GMT -5
You know what papajudge, that happens in criminal court with the cheap-suit attorneys. Basically, you (sometimes) get what you pay for. Just because you passed the bar does not mean you can fall asleep at the table. I see it too may times to count on my fingers and toes, and there are better ways for these 'attorneys' to make a living somewhere outside of a hearing/court room. Makes me sick, but I digress... Sealaw90,
Why drag Criminal Defense Lawyers into an ALJ discussion board, but since you did, criminal defense lawyers may be a lot of things, but sleeping at the table is not one of them. (Yes, I know of the Supreme Court decisions in many states and the SCT cases showing the same).
The reasons a Criminal Defense Attorney can't sleep at the table is that the DA's office and the PD's office think they own the only two tables in the courtroom and the State Criminal Court Judge would be screeching or whining too loud about one thing or another in your ears, so there fore sleep would be impossible.
Some of the smartest and best criminal defense attorneys looked like crap in their "cheap-suits" and more than a couple wore the same suit or suit coat day in and day out.
I just finished practicing Criminal Defense for the last 12 years in one of the largest cities in America (top 20) and one of the most dangerous (#3 at least and always in the top 5), all the while as a successful Criminal Defense Lawyer (I took a 30K+ pay cut for this job and glad I did).
And yes, I would say to potential clients that you get what you paid for as a interviewing technique, but I knew all the while that the cost of the suit had nothing to do with the breath of talent that a hard working "cheap suit" wearing "true believer" criminal defense attorney could do in a court of law.
IMHO, Tiger
Tiger, I know what you are saying, and it applies to probably 95% of the criminal bar. I don't disagree. When I left active duty and hung out a shingle, I did what I knew best, criminal law. I also dabbled in other areas to pay the bills. Anyway, I was shocked, shocked, at the lax, lazy and downright borderline ineffective assistance I saw rendered by so-called criminal defense lawyers in my local bar. Not all, but a few guys who made a so-called living representing criminal defendants. Mind you, this is one of the largest cities in my state (not saying much, really). I think these attorneys were burned out, should have retired, or done something else with their practice, but they were embarrassing to watch. The cheap suit didn't bother me as much as the lack of preparation or concern for their client. We do not have a PD office here, and legal aid is practically non-existant. The mentality in my jurisdiction is one of "if the cops arrested you, you must be guilty, why do you need a defense?" Now, we also have some top notch defense counsel, who cost a lot, but would also take on cases for little or nothing and really were looking to right the wrongs and fight for the little guy. It seems that in the disability law world, there appears to be reps who are not doing the best for their client, and they remind me of some of the C- attorneys I saw in local court - that's all. I would NEVER disparage criminal defense attorneys - I was one too!!! - Sea
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Post by hilltopper on Dec 19, 2014 9:25:13 GMT -5
For me, the most perplexing aspect when reviewing a medical record is the lack of objective analysis by the treating physician. Maybe they are scared they'll be sued for Medical Malpractice if they don't list all 23 of the aches, pains, or conditions the claimant/patient wants to talk about. Or maybe it's just much easier to write every subjective complaint of pain down and not take the time to see if there is an objective sign or basis for the complaint.
We are taught not just to accept subjective complaints or symptoms as proof of disability. Rather, the subjective complaint, has to be confirmed by observations of the treating physician (signs), or by objective testing. Too often I read medical records from doctors whose only statements are "patient complained of ..." with no attempt to actually confirm such reported pain by examination for signs while maintaining a healthy skepticism.
Too often I read Medical Source Statements (MSS's) that are nothing more than a regurgitation of the claimant's subjective complaints without any attempt by the treating physician (who more often than not specializes in receiving referrals from firms principally practicing social security law) to put what they truly believe the Patient is capable of doing.
When you are faced with such doctors, (for whom every patient is disabled), because they do not record confirmatory signs, only the patient's subjective complaints of pain, the most crucial pieces of evidence are the objective tests. And unfortunately a substantial majority of the time the MRI, CT Scan, Spirometry Test, echocardiogram, etc. - do not bear out what the patient has complained of and the doctor has seemingly blindly recorded.
What's an ALJ to do?
You make the best credibility determination you can, and you move on.
For me the best hearings, are the ones where the Rep/Attorney in their opening statement say something like, "Your honor, I know the most crucial reason for this hearing is so that you can confirm that my client's subjective complaints of medically disabling conditions are confirmed by the objective medical record. Let me tell you that my client has indicated he suffers from ... and that is supported by Dr. X's observations in Exhibit 3F at page 22, and by the MRI in Exhibit 7F at page 2. ..." And they take me through the proof in about 5 min covering the disabling conditions.
The reps that take this approach with me, and cut out all the other BS, gain great credibility for themselves and their clients. And when the rep comes in that prepared (and I can tell they have read the record like I have) the hearings tend to go very quickly. When the Rep has no brief, no opening statement, and only questions the claimant about what hurts and their ADL's, the hearings go much longer, because I have to do all the digging to find out which of the 23 disabling conditions the claimant has alleged, are severe, and truly disabling and which are non-severe or non-existent and simply more tender on the fire to gain sympathy.
I view my job as something akin to being a judicial Sherlock Holmes ... looking for clues that will help me reconstruct what really is the case - and then deciding whether they are truly disabling. And unfortunately, the doctors I have to listen to are not named Watson.
ht
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Post by Deleted on Dec 19, 2014 9:28:29 GMT -5
I think when you are on the government end, you see a lot of weak cases and poor representation. In contrast, if you are a competent claimants' rep, you cherry pick your cases in order to not waste time or money. You have won the morning coffee prize!!! You have hit the nail squarely on the head. You must as an ALJ hear anything and everything. Unless and until Congress grants ALJs authority to pre-review and pre-dismiss meritless claims as an ALJ you will routinely ask "why am I hearing" any of the following extremely common if not daily scenarios: The claimant who was injured years ago, off work for 2 months total, returned to full work since, and wants "disablity" for those 2 months. The claimant who has no impairments, they simply cannot find a job. The just released prisoner now out on the streets without a job. The "walking dead" claimant: the claimant whose MD has issued a 1 page report at the reps request finding the claimant has no (zero, none, ziltch) capacity to sit, stand, walk, breath, eat, talk, see, hear, live or exist; yet every prior MD report for years found the claimant "in no distress, no complaints, doing well." And most common of all if not daily: the non-existent claimant and/or rep. More times that you will be able to count, you, your reporter, the VE and ME will be found slowly spinning in chairs, quietly whistling Dixie and staring at celings as once again the claimant and/or rep did not show for a long scheduled hearing. IMHO: these are reasons why the SSA system is backlogged and not because of faulty decisions or incompetent ALJs. As you clearly noted that if in private practice you were forced to take everything that walked in the door, you would quickly go broke. Ipso facto the current SSA "crisis". One must simply grin and bear it.
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Post by Deleted on Dec 19, 2014 9:28:41 GMT -5
Sea, I didn't think you were disparaging criminal defense lawyers either, but I always like to say a good word about them anytime it comes up in conversation because it is a tough existence for a professional grad to do day in and day out, particularly with some of the attitudes of prosecutors and State Judges.
In my old city, judicial demeanor was only a topic of discussion in the CLEs for about half of the criminal court State Judges (at the Federal level it's 180 degrees difference).
It is a source of pride for me as an ALJ that I don't badger the claimant or the rep (so far) and I hope to keep it that way over the next 14 years. I can follow the law and deny claims without making the claimant feel like scum, after all these folks are at the lowest point of their life. The years of being a criminal defense actually prepared me very well in that area. Anyway, take care, got to get to the office.
Tiger
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Post by Deleted on Dec 19, 2014 10:44:15 GMT -5
Can someone please assist this Barbie doll with instructions on how to quote another person and then respond? It's not rocket science, but it is to me (born in 1966). My response to Papajudge: Another grand waste of time: the individual who is not financially eligible for SSI and has not worked enough and paid into the TItle II trust fund. I try to tell them that they simply don't have a case regardless of the severity of their impairments, but darn it if they don't insist on going to a hearing pro se because the situation is so "unfair." As an aside, I think that Binder has learned the hard way that that glory days of high grant rates are over. Thus, it is unwise to take anything and everything that comes through the door. Today, Social Security practices need to be lean and mean- regardless of size.
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Post by gary on Dec 19, 2014 10:48:33 GMT -5
Can someone please assist this Barbie doll with instructions on how to quote another person and then respond? It's not rocket science, but it is to me (born in 1966). My response to Papajudge: Another grand waste of time: the individual who is not financially eligible for SSI and has not worked enough and paid into the TItle II trust fund. I try to tell them that they simply don't have a case regardless of the severity of their impairments, but darn it if they don't insist on going to a hearing pro se because the situation is so "unfair." As an aside, I think that Binder has learned the hard way that that glory days of high grant rates are over. Thus, it is unwise to take anything and everything that comes through the door. Today, Social Security practices need to be lean and mean- regardless of size. if you mean like this, click the quote button, position your cursor after the quoted material, type, then post.
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Post by southerner on Dec 19, 2014 12:58:37 GMT -5
Most attys are at least case knowledgeable, not so much re regs or SSR. It is annoying when in making their case and I ask Step 3 or Step 5, they hesitate for a bit and then perhaps say Step 5. If Step 3, I do ask which and what evidence by exhibit number supports. Sometimes I get a reference to evidence globally. This is rare but it happens. When asked if there were a particular Grid Rule they wanted to direct my attention to and then they say no. Sigh.
When I was traveling to the NW and had hearings in Washington State, there was an atty who, when asked what his leagal theory was, said the claimant was disabled. In an attempt to get more particulars, I asked under which basis--lising level severity, Grids, vocationally, and he replied he would not say as that was privileged work product. Is it your position that you will not state what basis you contend for disability? Yes. Sigh, again. His firm had 8 hearings with me over a 2-day period. Those were quite long days.
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