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Post by johnthornton on Dec 23, 2014 14:36:03 GMT -5
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Post by moopigsdad on Dec 23, 2014 14:56:15 GMT -5
So, Senator Colburn has decided to drop a lump of coal on all claimant's attempting to prove a disability as a Christmas gift. All I have to say to Senator Colburn is Bah Humbug! |
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Post by Pixie on Dec 23, 2014 17:09:00 GMT -5
Senator Coburn has prostate cancer and is retiring two years early because of the disease. He has already started treatment.
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Post by Loopstok on Dec 23, 2014 17:16:36 GMT -5
Holy mackerel. A total wish list for someone who has no idea how the disability hearing process works. Let's see all that Mr. Coburn would do: placing quasi-criminal sanctions on claimants (symptom validity tests) and representatives (who would now have to submit fee petitions on every case)... as well as on ALJs who are deemed statistical outliers (700+ cases/year or 85% win rate... in case there are any such ALJs left). The grid rules would also be eliminated for anyone under 55; the reconsideration step would be eliminated; and there would be government representation at the hearing (i.e. a "disability hearing attorney")... which is odd, considering how SSA just got finished effectively eliminating the Senior Attorney program.
This has no chance of becoming law within the next 24 months. But... this is probably our future, at some point.
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Post by prescient on Dec 23, 2014 17:47:10 GMT -5
Holy mackerel. A total wish list for someone who has no idea how the disability hearing process works. Let's see all that Mr. Coburn would do: placing quasi-criminal sanctions on claimants (symptom validity tests) and representatives (who would now have to submit fee petitions on every case)... as well as on ALJs who are deemed statistical outliers (700+ cases/year or 85% win rate... in case there are any such ALJs left).. not going to happen The grid rules would also be eliminated for anyone under 55; . LONG overdue the reconsideration step would be eliminated; . LONG overdue there would be government representation at the hearing (i.e. a "disability hearing attorney")... which is odd, considering how SSA just got finished effectively eliminating the Senior Attorney program.. some machination of this would be an excellent idea. it would be nice if they could just hire 1000s of new ALJs, to burn through the backlog, but that is never going to happen. so when you look at what areas can be adjusted to make the ALJ case review simpler, some form of intensive file prep pre-hearing by senior attorneys, which, if done correctly, could completely eliminate the ALJ from even needing to look at the file, would be an enormous time saver. As it currently stands, SCTs are incapable of proper file development. Heck, most are incapable of just exhibiting/organizing the docs currently in the record. By the time the case gets to the writer, it's way too inefficient to start the ball rolling on case development. |
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Post by moopigsdad on Dec 23, 2014 21:23:49 GMT -5
Senator Coburn has prostrate cancer and is retiring two years early because of the disease. He has already started treatment. This is another reason why someone with his illness should be able to show more compassion for someone who has a disability. |
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Post by Loopstok on Dec 24, 2014 1:22:13 GMT -5
So here's my point-by-point take on the bullet points laid out by Charles Hall.
1) Essentially eliminating SSD benefits for claimants already on early retirement. No big deal.
2) Simplifying the CDR process somewhat. Maybe my mind can't grasp this one after office hours, but seems like Coburn's people want to make it easier to cut off people on CDRs.
3) Automatic termination of benefits after 3 years from the first month of entitlement to benefits, for claimants marked "medical improvement expected". Makes sense from an actuarial standpoint, but would lengthen every hearing by 10 minutes as reps beg and plead with the ALJ to not set a CDR date on the case about to be paid.
4) No grid rules below age 55. I can see this one being fought heavily -- remember what happened when they wanted to change "closely approaching advanced age" from 50 to 52. Will not happen until 2017 at the earliest.
5) GOODBYE, RECON! The first proposal on the Hall list that excites me.
6) Closing the record at the hearing, very similar to how I remember the DSI process being rolled out in Region 1. I don't remember that being received very well; maybe anyone here who did Region 1 work back then would have a clearer idea of how that ended up working in practice.
7) Claimants and reps must submit all adverse evidence. I think a similar proposal washed out of the regs years ago, because the wording conflicted with representatives' ethical duties towards their clients (or maybe I used to read too many NOSSCR bulletins).
8) Creating disability hearing attorneys. Could be an enticing job opportunity for those of us who don't get the golden ticket from the current register. But the notion of senior attorney types appealing fully favorable decisions from ALJs in their own office should create some very awkward Christmas parties at ODAR. On the flip side of that would the DHA also get to join in on the appeal of poorly-thought-out ALJ denials?
9) Easier process for sanctioning representatives. I could see this getting out of hand in a hurry.
10) Eliminating the "controlling weight" provision. I think I've been instructed to give "controlling weight" exactly twice during my tenure with ODAR; this sounds like a much more drastic change than it would probably be in practice. But what would it mean for giving "great" or "significant" weight to a treating source?
11) "Symptom validity" tests for claimants. Holding claimants to a quasi-criminal standard, as I mentioned above. Bad idea.
12) Enabling ALJs to use evidence from social media. Fine by me. I mean, the hiring committee can see our social media pages, right?
13) Maybe I'm reading this too broadly so soon after eating dinner, but it sounds like reps would have to fee petition on every single pay case from now on. The administrative nightmare this would cause ODAR would seem to make this impossible to implement.
14) OIG investigation of selected reps. Quasi-criminal.
15) No more EAJA fees for reps who appeal to federal court. This probably makes sense to Cato Institute-type people. Would have a chilling effect on appeals of Appeals Council affirmations.
16) The return of the Bellmon reviews. Those didn't work out so well in the 1980s.
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Post by carrickfergus on Dec 24, 2014 14:28:42 GMT -5
My 2 Centavos on a few of these proposals that were summarized above:
2. CDRs are going to be nightmare for the agency very soon. Simplification will come one way or another, so let it be done with planning instead of reaction. But I think the MIRS will not be as problematic in the future b/c vapid RFCs are going by the wayside.
3. It seems sensible that time-limited benefits should be the default (and not subject to appeal), unless the ALJ finds that the condition is not expected to improve with treatment. That being said, I've had way too many cases where medical coverage would've prevented the impairment from rising to disabling-level severity, so ALJs should be able to approve Medicare/Medicaid benefits for an extended period of time. In some cases, an approval with an award of retroactive benefits and prospective medical insurance is appropriate.
4. Grid rules need to be rethought, but so does the reliance on the DOT. Don't think you reasonably can do one without the other
5. Recon is a huge waste of time and just delays the process, as well as increase the size of the files w/the passage of more time. Deleting that would free resources at the DDS and ODAR levels.
6. Even though we are dealing with remedial statutes, the record should be closed shortly before the hearing, if for no better reason than to give the reps an incentive to work the case in a timely fashion. Of course, if a showing can be made that circumstances reasonably prevented submission of material evidence, then by all means let it in. But the onus should be on the reps to make that showing.
7. There already is rule-making on submitting all evidence. 80-90% of what I have to review currently has no bearing on the case, and this is going to be another time-suck. With this and the CDR boom to come, be vigilant for the political pendulum to swing back to ODAR mgmt encouraging quick-and-dirty hearings. What I think the rep should be required to do is to expressly identify adverse evidence, similar to how a prosecutor has to reveal possibly exculpatory evidence.
8. "Disability Hearing Attorneys" - Not feasible, and most likely a due-process violation for unrepped clts. Also, time-limited benefits would ameliorate suspect FFs.A better use for much less resources would be to create a dedicated atty position for pre-hearing file review. Like what's supposed to happen now w/SCTs, but doesn't.
Another approach that worked well when I was a state ALJ is to allow the DDS to request (only after being vetted by top-level mgmt) an AC review of a disputed decision; the AC would then issue a decision indicating whether or not the decision was deficient, and if so, why. The AC decision would not interrupt the ALJ's decision, but would be for informative purposes only. It should be redacted made available for all adjudicators as a means to increase consistency in policy and procedural intrepretations.
9. Sanctioning reps should be available, but should only be done from the Region. As noted, this could add way too much noise if done... umm... injudiciously.
10. "Controlling weight" is a red herring. Sometimes MSSs are entitled to great weight, sure; but I've never given controlling weight to a MSS because there is always other evidence that is contradictory. Such as the DDS MCs opinions.
11. SVTs are by, all accounts I've seen (other than ODAR), recognized as valid tools by the medical community. There's nothing "quasi-criminal" about it; nothing's at stake other than benefits. They are relevant, and of course the rep should be allowed to argue the relative weight to be given.
12. Social media, if part of the record, is fair game. But I just don't see having ODAR staff scouring FB, Twitter, Instagram, Linkedin, etc. etc., adding much bang for the buck.
13. If reps are going to have to submit fee petitions for every case, ODAR better create a unit dedicated to reviewing those. I'm not going to be able to.
14. OIG investigating reps? NO. Not only is that quasi-criminal, it would also be a waste of time. But referrals to the reps' bar should be an available tool for ALJs.
16. Focused reviews on ALJs based on pay rate and/or dispositions will probably be found to be violations of procedural due process when appealed to federal court.
Finally, and I acknowledge this is highly controversial, but aren't the some cases that deserve a note at the end of the decision to the effect that the ALJ believes that fraud may have been committed, and that if the region agrees then let it be brought to OIG's attention? What with all the "see something, say something" messages raining down from HQ, and all....
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Post by maquereau on Dec 28, 2014 12:24:52 GMT -5
For all of you who are trying to become SSA ALJs, you will most definitely want the record to be closed prior to the hearing date. It really helps make the job doable. You will not want to pore over fee petitions on the cases you pay. That would make the job a lot less doable.
Regarding the use of social media: I've never needed it, but I think this is getting some play because of the huge fraud case in NY where the 9/11 first responders have been collecting disability while they STUPIDLY posted pictures of themselves deep sea fishing off the Bahamas. Yeah, that has kinda P----d off a bunch of people.
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Post by bucksfan on Dec 28, 2014 23:21:09 GMT -5
Carrickfergus, how would having Disability Hearing Attorneys "most likely [result in] a due-process violation for unrepped clts?"
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Post by Deleted on Dec 29, 2014 9:12:07 GMT -5
What the bill and subparts all boil down to is very simple: In the end you as an ALJ you will do what the the rules and regs require you to do.
As for questions of the bill particulars in regard to why's, could'a, should'a, what if's, how does', etc's......that is another agency and their people (Congress/politicians) to debate and contrive.
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Post by Pixie on Dec 29, 2014 12:08:22 GMT -5
I like the idea of "disability hearing attorney" positions. If the bill passes, will there be a need for these positions in every region? This is especially appealing for those of us who will never get to become ALJs. The biggest factor limiting many people from applying to the ALJ gig is the geographical location limitations. Yes, if the bill should pass, there would be a need for these attorneys in every region. This particular provision has a limited probability of making it through, as drafted, because the agency will fight it all the way. If enacted, I think the agency higher ups would find ways to reduce its impact on the agency. Don't look for this to become law anytime soon. |
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Post by Deleted on Dec 29, 2014 13:50:01 GMT -5
Loopstock, I am in total agreement with your feedback: the elimination of reconsideration is a plus and will save the agency money by shortening the time for review from initial denial to hearing level. (As a claimant's rep, I speak against self-interest in saying so.) A "symptoms validity" test is not only quasi-criminal in nature, it may encourage some ALJ's to play doctor. With respect to requiring fee petitions in lieu of the standard fee contract: YIKES, private practitioners can say goodbye to any ability to pay staff and overhead in a timely manner. This will drive competent, small practice attorneys away from the field altogether. I'm reminded of the Saturday Night Live Skit: BAD IDEA JEANS. As an aside, regarding the duty of the claimant's rep to submit adverse evidence, here is a link to an article on the matter written by a very fine claimant's rep  annekhoward.blogspot.com/ |
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Post by carrickfergus on Dec 29, 2014 13:59:29 GMT -5
Bucksfan: If a Right to a Hearing applies to a gov't decision, a FF decision successfully appealed by the agency can only result in a remand for another hearing. The agency is not going to make scarce ALJ/AC resources available for a program that may at best ferret out some bad RFCs. So the only thing remaining would be to allow an attorney to interfere with an ALJ decision - sans another hearing - which cannot happen without violating the clt's due process rights.
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Post by Propmaster on Dec 29, 2014 14:02:23 GMT -5
Here is why reconsideration cannot be removed universally. It will require a change in regulations. Changes in regulations need a budget impact assessment. Getting rid of reconsideration will accelerate the time at which some claimants obtain disability. This is calculated as a 'cost' of the regulation change in the first year after it is changed, and then ongoing. The agency will not (at least at this time) change the regulations in a way that would make it look like the change will result in greater payments. Thus, this will not happen at this time.
Edit: I think I might mean statute here. I did not look it up. I know the test of eliminating the recon step is regulatory, but I guess probably by statutory authority? Either way, neither the agency nor Congress will do something that looks like it costs money, even if it actually doesn't.
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Post by Deleted on Dec 29, 2014 14:12:02 GMT -5
Here's a reform that I would like to propose. It would save the agency a boatload of money. At this time of year, my mailbox overflows with COLA statements on my former SSI claimants. Why does SSA mail these to claimants reps each year? What a waste of postage. Why not mail the statements to only the claimants, and write on the bottom, "If you have questions, contact your local office and/or your former legal representative"? My former claimants never call me about these statements- they pretty much speak for themselves. I open them, take a glance, and throw them in the shredder. A nice illustration of government waste.
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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 29, 2014 14:35:36 GMT -5
I am wondering if eliminating the recon step will be helpful to the claimant and the agency. It seems that it could be more helpful to the process to make the recon a more substantial review with continued development of the record and the procurement of additional updated medical records rather than what the recon sometimes appears to be - essentially pro forma.
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Post by Deleted on Dec 29, 2014 19:39:04 GMT -5
I say eliminate the recon stage and channel that $$ savings into Senior Attorney Reviews at the ODAR level. Most Sr. Attorneys that I know are basically mini-ALJ's and are excellent decision-makers. The Sr. Attorneys can contact claimants reps, if applicable, and get them to hurriedly update the medical records. If there is no rep involved, the Sr. Attorneys can spot the strong cases and send out 827s themselves. In my state, the recon grant rate is currently 9.7%, and the few cases that are granted on recon are usually the result of a failure to acquire all treating records at the initial level and perhaps follow up with a CE exam. Let's have the Sr. Attorneys do this one year or so before hearing. Generally speaking, I trust our our Sr. Attorneys more than adjudicators at the recon level.
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Post by JudgeRatty on Dec 29, 2014 20:04:22 GMT -5
I say eliminate the recon stage and channel that $$ savings into Senior Attorney Reviews at the ODAR level. Most Sr. Attorneys that I know are basically mini-ALJ's and are excellent decision-makers. The Sr. Attorneys can contact claimants reps, if applicable, and get them to hurriedly update the medical records. If there is no rep involved, the Sr. Attorneys can spot the strong cases and send out 827s themselves. In my state, the recon grant rate is currently 9.7%, and the few cases that are granted on recon are usually the result of a failure to acquire all treating records at the initial level and perhaps follow up with a CE exam. Let's have the Sr. Attorneys do this one year or so before hearing. Generally speaking, I trust our our Sr. Attorneys more than adjudicators at the recon level. I was under the impression that SSA was phasing out the Sr. Attorney positions? No. Our way of writing OTRs has changed but we are still actively doing many different duties. We have not had any new positions open in a while but there was a huge promotion push several years ago. We are constantly scrutinized for our agreement rates and quality review and this has been a topic of discussion lately. But there has been no mention of phasing out the program. Our responsibilities may change though. |
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Post by hopefalj on Dec 29, 2014 20:14:02 GMT -5
I say eliminate the recon stage and channel that $$ savings into Senior Attorney Reviews at the ODAR level. Most Sr. Attorneys that I know are basically mini-ALJ's and are excellent decision-makers. The Sr. Attorneys can contact claimants reps, if applicable, and get them to hurriedly update the medical records. If there is no rep involved, the Sr. Attorneys can spot the strong cases and send out 827s themselves. In my state, the recon grant rate is currently 9.7%, and the few cases that are granted on recon are usually the result of a failure to acquire all treating records at the initial level and perhaps follow up with a CE exam. Let's have the Sr. Attorneys do this one year or so before hearing. Generally speaking, I trust our our Sr. Attorneys more than adjudicators at the recon level. I would rather have senior attorneys handle CDRs rather than new claims, and I suspect that might be where the SAA program will head once those start coming in on a more regular basis. I can't imagine that the AALJ is going to be on board with these NADH attorneys that will essentially substitute their own judgment for that of the ALJ. They could just as easily allow current SAAs and AAs submit such cases for review after they've been drafted. In my experience, my interpretation of the law applied to a certain record is frequently not the same as the ALJ's, but that doesn't mean that either interpretation is necessarily wrong. |
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