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Post by JudgeRatty on Dec 19, 2014 13:26:27 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 were taught to believe the patient if they said their pain was a 10 or a 9 out of 10. We were not to judge, not to delve into motives or anything like that. If they said they hurt in every part of their body, we had to report it. So you will see all 23 of the aches and pains they list. On the objective part, I know when I was working as an RN, the details of charting and documenting was dependent upon staffing levels, how many patients we had assigned, etc. It was crazy hard to get everything documented that needed to be documented. I am not making excuses for anyone, but I can sure see why some records are lacking. They went to "charting by exception" so that the computer program defaulted to a "normal" answer and we only filled in the abnormal. That helped us some, but the problem with that kind of documenting is that when we read those records now, we take it as true that the claimant had a "normal" gait etc. With all of that said, we cannot look into this backdrop since it is not in evidence. We have to go by what is in the record. Period. If it isn't charted, it didn't happen.
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Deleted
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Post by Deleted on Dec 19, 2014 13:36:45 GMT -5
there was an atty who, when asked what his leagal theory was, said the claimant was disabled. Glad to see I am not alone in this; I get that nonresponse response a lot, a whole lot, when asking a rep for their case theory. "My client is disabled, your honor." sigh............ Other area ALJs see reps routinely fail: step 3. Rep says "my client equals listing XXXXX". Me: No they don't. Rep: Yes they do, here is the treating physician report that says so. Me: No they don't ... (sigh) Please let me explain (again) SSR 96-6p and 96-5p require that to "equal" a listing the finding must be made on the the opinion of a medical expert designated by the Commissioner and cannot be based on the conclusion of a treating physician. There is no designated ME finding as such here. Rep: Ok, then my client meets listing XXX. Me: But to meet that listing she must have this specific symptom/sign. Does she have that? Rep: No she does not...that is why we now claim she equals XXXXX.......... rinse, lather, repeat....aaaauuugggghhhh.
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witty
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i tawt i taw a puddy tat (Livingston/Foster/May/ made famous by Tweety B.)
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Post by witty on Dec 19, 2014 13:54:05 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. Sometimes the case may appear to be "meritless", but sometimes, something may be there, IMHO. Regarding released prisoners, I think statistics show that lots of incarcerated persons have substantial mental disorders and the jails have become poor substitutes for housing the mentally ill. I think the statistics show that the number of mental health facilities has steadily and drastically decreased over the past thirty years and I think an argument could be made that some of those incarcerated should actually be in a residential mental health facility. HOWEVER, I also understand and believe that some claimants may actually be unable to find employment, have some health issues, and understand that he/she has nothing to lose by filing a claim. So, I think the system permits lots of claims by people who are not eligible, not even a close question, and that these claims may result in a drain on scarce resources. But, who can say that such persons do not have a right to a hearing? I think our laws provide such a right. Same with courts - I guess. But, can the process be made more efficient? I am not an ALJ, but regarding the case of the person who was out of work two months, with no work accommodations or other exceptions, and SGA for all but the two months, that sounds like a clear denial. Maybe that is a case for a pre-screening scenario (if one exists) - a discussion with the claimant to verify work, no accommodations, etc, and then a denial on the record because, is not that person technically ineligible? The person can still request further agency review - right? Or, wrong? Just postulating.
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Post by maquereau on Dec 19, 2014 14:20:12 GMT -5
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. Sometimes the case may appear to be "meritless", but sometimes, something may be there, IMHO. Regarding released prisoners, I think statistics show that lots of incarcerated persons have substantial mental disorders and the jails have become poor substitutes for housing the mentally ill. I think the statistics show that the number of mental health facilities has steadily and drastically decreased over the past thirty years and I think an argument could be made that some of those incarcerated should actually be in a residential mental health facility. HOWEVER, I also understand and believe that some claimants may actually be unable to find employment, have some health issues, and understand that he/she has nothing to lose by filing a claim. So, I think the system permits lots of claims by people who are not eligible, not even a close question, and that these claims may result in a drain on scarce resources. But, who can say that such persons do not have a right to a hearing? I think our laws provide such a right. Same with courts - I guess. But, can the process be made more efficient? I am not an ALJ, but regarding the case of the person who was out of work two months, with no work accommodations or other exceptions, and SGA for all but the two months, that sounds like a clear denial. Maybe that is a case for a pre-screening scenario (if one exists) - a discussion with the claimant to verify work, no accommodations, etc, and then a denial on the record because, is not that person technically ineligible? The person can still request further agency review - right? Or, wrong? Just postulating. There are very few prisoners who do not, for example, have some kind of "personality disorder." Most of them have already shown themselves to be narcissists and to have no real respect for the person or property of others. I suspect that most of them could get a psychologist to write up a statement showing that they have marked or extreme limitations in the area of social interaction - demonstratively so, or they wouldn't have been in prison to begin with. Hmmm, I'll have to go back and see how many of these personality-disordered individuals I've paid.
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Deleted
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Post by Deleted on Dec 19, 2014 17:08:15 GMT -5
Southerner, that is truly despicable. It makes me wonder if we should not only require all claimants' reps to be attorneys, but also require that they obtain special certification via written testing to practice SSDI/SSI at the agency level (i.e. know the basic regs, commonly used listings, evidentiary standards, and the 5-step evaluation process at a minimum.)
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Post by moopigsdad on Dec 19, 2014 17:27:45 GMT -5
I love when blanket statements are made about certain types of cases or claimants, when in reality no two cases or claimants are the same. Not everyone can afford the best physicians or the testing necessary to prove to some ALJs' satisfaction he/she has enough objective evidence for them. When you deal with Medicaid physicians who will spend three minutes with a patient and just prescribe pain pills, but doesn't order testing because Medicaid won't pay for it, what do you expect those records to show an ALJ? When the state DDS fails to do the medical testing and sends the claimant to an equally awful DDS-used physician who spends three minutes with the claimant and issues a "boiler-plate" medical report showing no disability, so the state DDS physician can continue receiving state agency referrals because otherwise that physician couldn't earn a normal living. Then, this Medicaid claimant ends up in front of an ALJ and despite the fact he/she may have a real disability he/she is denied. Interesting fact scenario that plays out more frequently than you believe.
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Deleted
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Post by Deleted on Dec 19, 2014 17:34:21 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. Don't forget, Stratty, that I DO "see" those cases when the claimants phone my office on a weekly basis, present me with their shoddy facts, and I refuse to meet with them, let alone take on the case. ALJs and decision writers deal in high volume and get a taste of what's out there in terms of the quality of Social Security claims being filed. However, many SSDI attorneys also practice in high volume and are well acquainted with what's "out there," so to speak. In the alternative, there is something to be said for a claimants rep taking on a weak case with little to no evidence and building that case in the year or so prior to hearing because the rep has personally met with the claimant and truly believes that the claimant cannot work due to severe impairments. Occasionally I will take that SSI only, formerly incarcerated/drug addicted individual and do everything in my power to get him or her mental health and/or physical treatment in the months prior to hearing. Why? Because, in that particular instance, I feel that it's the right thing to do. Yes, I'm here to make money, but I'm also here to help human beings in distress. This is why I have great respect for many legal aid attorneys. And I will add that winning such cases is immensely rewarding. "But for" my representation, the claimant would still be homeless and probably end up back in jail (costing society more money in the long run). I've also been known to shell out money from my own pocket to get a claimant a private CE. Sometimes I win and the claimant pays me back, other times, I lose and take the loss. So be it. All that said, don't think for a minute that I'm a bleeding heart Mother Theresa. I ain't!
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Deleted
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Post by Deleted on Dec 19, 2014 17:50:05 GMT -5
Also, another fine example of a seemingly weak, SSI only case that a good claimants' rep can turn around: 12.05(B) and/or (C) findings. It occasionally happens that I meet with a claimant who is obviously very slow on the draw. Nevertheless, he or she just has a minor physical and/or mental impairment. Upon further investigation, I find out that the individual cannot read or write, and/or has never lived independently , and was in special ed and dropped out at an early age or was just given a HS diploma to get out of the system before reaching age 20. I'll request a DDS psych CE with IQ and memory testing and voila- we have a grant. In fact, the claimant's ongoing unsuccessful work attempts and lack of SGA do not indicate laziness- but are the result of a very real cognitive deficit.
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