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Post by recoveringalj on Jul 10, 2019 21:48:05 GMT -5
I seem to remember that the 5-day rule was essentially stillborn. Shortly after the reg was finalized, ALJs were trained by the AC that the 5-day rule was unenforceable by the ALJ. The ALJ was supposed to develop the record as to why the 5-day rule was not followed and refer the rep to TPTB appropriate action (warnings or disqualification). But I’m any event the records were to be considered. I believe language to that effect appeared in HALLEX.
But maybe that was a bad dream.
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Post by Pixie on Jul 10, 2019 22:45:29 GMT -5
I have learned the A/C will never enforce any rule that makes for a more efficient hearing process for the judge. Pixie
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Post by jagvet on Jul 10, 2019 23:07:56 GMT -5
I have learned the A/C will never enforce any rule that makes for a more efficient hearing process for the judge. Pixie Exactly. After losing a case, some reps appeal and get new home-cooked CEs. Then AC remands because of the new evidence. |
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Post by anderson on Jul 10, 2019 23:09:22 GMT -5
I seem to remember that the 5-day rule was essentially stillborn. Shortly after the reg was finalized, ALJs were trained by the AC that the 5-day rule was unenforceable by the ALJ. The ALJ was supposed to develop the record as to why the 5-day rule was not followed and refer the rep to TPTB appropriate action (warnings or disqualification). But I’m any event the records were to be considered. I believe language to that effect appeared in HALLEX. But maybe that was a bad dream. The dream is real. The regs suggest the claimant has the burden of producing evidence 5 days before the hearing, and the ALJ has the discretion to determine if any of the exceptions to the 5-day requirement are met. HALLEX says otherwise. The 5-day rule was supposed to create efficiencies and reduce postponements, but the AC is using it as a (remand) stick. |
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woody
Full Member
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Post by woody on Jul 11, 2019 4:41:12 GMT -5
Give me a rule and I will follow it. I kept evidence out. Now in receipt of probably three AC remands and one from DC. None of them address any of the criteria for late submissions (unavoidable etc.). All were repped cases where the rep told me they had no reason why the evidence was late. DC said, 'well you could have accepted it,' and was silent on the paragraph of reasons I gave for why I didn't. The nail in the coffin was yesterday from the AC...rep on the case for 2 years. Eleven days before the hearing he wrote to a doctor and asked for an opinion and he so advised. In my view this is not 'evidence known to him' because it is only a request, nothing even existed when he informed me about this. So now AC is confusing requests with evidence. Uncle. No longer looking at any inform letters and replacing all that nonsense in the decisions about it with a paragraph 'in accordance with these remands I am ignoring all the rules and accepting all evidence so as not to prejudice the claimant for any failures on the part of the rep.' FUBAR.
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Post by natethegreat on Jul 11, 2019 6:18:17 GMT -5
The AC's response to the 5 day rule sadly is unsurprising. I remember years ago R1 and the AC were going round and round over this rule (back when they were the only region with it). R1 ALJ would exclude evidence, AC would consider it, and AC would remand. AC's response to R1 was basically "you have your rules and we have ours".
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Post by rp on Jul 11, 2019 7:23:02 GMT -5
The majority of my cases are unrepped, or barely repped. By barely repped, I mean repped by a city agency that does nothing prior to the hearing, but isn't collecting a fee. I have thought of going to a model where I schedule 20 a week and just put over the hearings where I don't have the evidence. But, I'm concerned- what happens when they all are actually ready to go? Plus, I imagine TPTB will not be thrilled when every case ends up requiring 2 or 3 hearing days. Only so much I can do. I'm a new judge in a city with 4 different hearing offices and around 50 ALJs so I can't just make everything change. But when I'm Chief Judge... boy oh boy will there be changes. Just curious, is the 5-day rule not fixing some of this for you? It seems like if there isn't a good reason for these claimants to have failed to submit 2/3 of their medical evidence in advance, you would have a basis to decide their case on the record that exists at the time of the hearing and move on. What’s the “5 day rule?” 😂 |
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Post by fowlfinder on Jul 11, 2019 9:12:11 GMT -5
Just curious, is the 5-day rule not fixing some of this for you? It seems like if there isn't a good reason for these claimants to have failed to submit 2/3 of their medical evidence in advance, you would have a basis to decide their case on the record that exists at the time of the hearing and move on. What’s the “5 day rule?” 😂 In a nut shell its a semi-recent rule that was supposed to create an exhibit disclosure deadline, a claimant/rep had to provide all the evidence for hearing 5 business days prior to the hearing. If they did not have all the evidence, the claimant/rep was required to provide notice 5 business days prior to the hearing a) that other relevant evidence not in the file existed and b) that good cause existed why it had not yet been provided. Absent that notice of a and b it was my understanding that the evidence could (and should) be excluded. |
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Post by rp on Jul 11, 2019 10:07:19 GMT -5
What’s the “5 day rule?” 😂 In a nut shell its a semi-recent rule that was supposed to create an exhibit disclosure deadline, a claimant/rep had to provide all the evidence for hearing 5 business days prior to the hearing. If they did not have all the evidence, the claimant/rep was required to provide notice 5 business days prior to the hearing a) that other relevant evidence not in the file existed and b) that good cause existed why it had not yet been provided. Absent that notice of a and b it was my understanding that the evidence could (and should) be excluded. My apologies - I should have put in parentheses- SARCASM. My point being - the rule doesn’t exist because it has been swallowed by the various things noted above. |
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Post by Thomas fka Lance on Jul 11, 2019 11:34:35 GMT -5
If it's just a small amount of medical, on previously known issues, with the Rep advising me before hand or their cognitively impaired client not mentioning it until the day of the hearing or during testimony, I'll discuss it at the hearing and admit it post-hearing.
However, (again presuming they are Rep'd) if it is a great deal of medical evidence, or on a completely new issue, with no notice, then we either postpone or have a supplemental hearing. Either way, I apologise to the claimant for the requirement to return but explain....
My job is not to guess what a person may have or what the treating source's records might show. My job is to decide based on the evidence. If I don't have that evidence, and thus they don't have the opportunity to discuss what that evidence might show, I cannot make the most appropriate decision for their case.
They seem to understand and quite frankly appreciate the thoroughness and the Rep has to make a second trip.
Takes time, but the Reps seem to catch on.
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Post by jagvet on Jul 15, 2019 18:44:48 GMT -5
5-day rule should have teeth in being a factor justifying reducing the fee. That would solve the problem pretty quickly. In Article 3 courts, failure to request available material evidence in time for the judge to review is called....."malpractice."
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Post by hopefalj on Jul 15, 2019 19:37:42 GMT -5
5-day rule should have teeth in being a factor justifying reducing the fee. That would solve the problem pretty quickly. In Article 3 courts, failure to request available material evidence in time for the judge to review is called....."malpractice." If you are so inclined, you can always challenge the rep's fee agreement in a favorable case. You can't disapprove the fee agreement, obviously, but you can give an explanation to your RCALJ within 15 days of the decision's effectuation of why the fee is excessive in light of the representation to reduce the amount of the awarded fee. YMMV depending on your RCALJ, though, so the extra effort may not be worth it to you. |
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Post by superalj on Jul 16, 2019 9:09:23 GMT -5
What I am seeing way too much of is the rep meeting with the claimant relatively recently as evidenced by the 1696 and fee agreement for the bigger and online firms and then just listing all the evidence that is pending in there 5 day letter while asking for the record to say open. Again, the exceptions have swallowed the rule. My humble request is just to have all the evidence in (even if given to be date of hearing) so I can craft an appropriate RFC and decide the case without having to put it in purgatory, I mean post.
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Post by recoveringalj on Jul 16, 2019 13:49:31 GMT -5
Reps figured out very quickly that it just requires notice (besides being toothless).
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Post by upperwolfjaw on Jul 16, 2019 18:05:11 GMT -5
From the claimant's/rep's perspective, it's hard to believe that there are still some who believe there is some strategy in using various rules to count on obtaining AC remands (there is a post above that sounds like that). After eliminating all of the petty technical deny-it-differently remands and (more often) the AC remands that are just wrong about the law and seemingly done to meet a quota, the AC actually remands for something argued by a claimant/representative much less than 10% of the time. With those odds, anyone who treats that as a viable strategy (e.g. sandbagging evidence) is insane.
Just as odd is assuming anyone with sense is doing that on purpose.
Speaking of malpractice, a claimant is given a protective filing date on a later new app of the date of submission of new evidence to the AC, so submitting evidence to the AC should be automatic for that reason alone.
Just my .02!
(and I think its worth noting that federal court practitioners see nothing but AC denials, all seemingly with template sections refusing to consider new evidence; while ALJs see mostly the AC remands and not the denials--creating warped impressions of what the AC is actually doing overall)
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Post by rightspeech on Jul 17, 2019 9:33:20 GMT -5
I like the new chief judge memo better :-)
This has been my favorite OCEP in years. Let the office collegial discussions begin lol.
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Post by jimmyjiggles on Jul 17, 2019 10:46:52 GMT -5
From the claimant's/rep's perspective, it's hard to believe that there are still some who believe there is some strategy in using various rules to count on obtaining AC remands (there is a post above that sounds like that). After eliminating all of the petty technical deny-it-differently remands and (more often) the AC remands that are just wrong about the law and seemingly done to meet a quota, the AC actually remands for something argued by a claimant/representative much less than 10% of the time. With those odds, anyone who treats that as a viable strategy (e.g. sandbagging evidence) is insane. Just as odd is assuming anyone with sense is doing that on purpose. Speaking of malpractice, a claimant is given a protective filing date on a later new app of the date of submission of new evidence to the AC, so submitting evidence to the AC should be automatic for that reason alone. Just my .02! (and I think its worth noting that federal court practitioners see nothing but AC denials, all seemingly with template sections refusing to consider new evidence; while ALJs see mostly the AC remands and not the denials--creating warped impressions of what the AC is actually doing overall) In my experience, those who use sandbagging as a tactic (as opposed to just laziness) do so when they either have been assigned to a low paying judge and/or have favorable USDC remand rates. At least when I was a rep, I would never count on the AC for anything. They just seemed to do things at random. Get to USDC, now you have a judge who will listen to you, and you can get EAJA fees or possibly 406b fees if you win. Indeed the merits of the case are secondary - if you can get to the USDC, you'll make more than max fee anyway, even on a case that is substantively weak. With a weak case, an AC remand is actually a nondesireable outcome, because it has placed obstacles in your way to getting to the USDC. Until there are financial incentives to follow the rules/be diligent, etc., (ie the fee will be impacted) there will be no change of behavior for reps. Personally I think they should change the fee agreement structure altogether, but that's a topic for another day. |
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Post by upperwolfjaw on Jul 17, 2019 15:59:24 GMT -5
EAJA fees don't come remotely close to the money needed to operate a law firm (it's basic math - max $190/hour with 55% odds and 20% seized for Treasury debts--while operation of a standard firm requires collecting at $250-#300/hr for the lawyer).
There are a few districts here and there that will routinely remand for technical error, but the vast majority (and some entire circuits, such as the 6th) will affirm on any issue if the medical is weak. The only way to ethically advocate for a client is to put on the best case and do the best work at each and every stage--and continually advise the client to stop if the case completely lacks merit.
The harmless error standard goes a long way. As to our topic--evidence that could have been submitted to the ALJ is really never a grounds for a federal court remand, and even if the evidence was new, material, and couldn't have been submitted, at best you'd be trying for a no-fee sentence 6 remand.
Winning administratively is the source of solid revenue for a normal practice--and that's why most of the mills have such limited or outsourced appellate practices, IMHO. I can count fewer than ten firms nationwide that are healthy financially and rely mostly on the revenue from federal court practice.
I think it is too easy to confuse incompetence for strategy. Perhaps I'm in the minority, but I cannot stomach lawyers making decisions about cases based on fees rather than client outcomes. When that's happening, it is time IMHO to think about ethics questions. I think the much more likely root cause of representatives failing to be diligent or to follow the rules is nothing more or less than them being downright terrible at the job. ("terrible" was not my first choice of word, but the best for a public forum!) These are the same folks who show up late, haven't talked to the client, don't have a theory of the case, have no idea why the VE isn't right, submit briefs that never make a point, etc. - ugh.
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Post by mercury on Jul 17, 2019 18:41:23 GMT -5
EAJA fees don't come remotely close to the money needed to operate a law firm (it's basic math - max $190/hour with 55% odds and 20% seized for Treasury debts--while operation of a standard firm requires collecting at $250-#300/hr for the lawyer). EAJA fees don’t require a final decision on the merits from the court. Remands also qualify and some courts issue a lot of remands. The DC EAJA rate is a little over $200, which isn’t great, but there are firms that specialize using this fee basis, such as in veterans law. |
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Post by lurkerbelow on Jul 17, 2019 19:24:15 GMT -5
Similar topic. Today's OCEP ended with a deputy from OHO making a slightly ominous allusion that organizational change may be in the works.
My guess is that once the new systems are up and running they are going to open up more distance case drafting so that writers with lower queues to help the other offices with backlogs catch up.
Either that or corral us all into cubicle farms somewhere. But that costs money and space rental, so I'm willing to bet they'll go with the cheaper option.
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