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Post by jimmyjiggles on Jul 17, 2019 20:23:15 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. I get what you are saying and mostly I agree. I'm talking outliers, most of this is incompetence/indifference. Any firm that does USDC work is going to be a lot better than those that do not. Ahhh, the lost art of making a record. IMo, most big firms just dont care and are just playing the numbers. I have a lot of firsthand experience in dealing with them from an agency perspective. Some will literally tell you it's not their policy to order records until x days before the hearing. They dont know or care about SSRs or regs. Many people working there dont actually comprehend what they are doing or how the system works. Good luck talking to the person who is supposed to show up to the hearing. Most inexplicably, at least one of these firms is run by a non atty, yet exerts direct control over decisions in cases. Indeed, I once heard of a hearing where the ALJ suggested an amended onset. The attorney explained that he could not accept it or even discuss it with his client before calling the company - the company run by a non-atty - to see if it was OK (ie run the numbers and see if they were getting max fee). This is a blatantly, head-slappingly unethical arrangement, and yet this company probably is in the top 5 for fee receipts and no one seems to care. It is definitely number 1 for filing super long form objections in every case. As for USDC being insufficiently profitable, yes using standard law firm overhead percentages and values makes it look unprofitable. Until you realize it requires almost no overhead or fees. No ordering records, no need for an assistant, virtually no client contact. and most cases are indigent, so no court fees. I once was the go-to guy for AC and USDC appeals in my locale, and I tell you, if you can get your rep up, take good cases in good jurisdictions, it's the most stress free money you can make, and you can make quite a bit. Moreover, you can (or at least could) do all arguments telephonically/remotely. You could go live in Belize and do this. You are right about being in the right circuit. I practiced in the 10th circuit, and only lost one out of dozens of USDC appeals (and it was clearly written to be appealed and resolved in my favor, but the dang client died before I could). The case law at the time was ridiculously pro-claimant and a lot of the writing in the decisions was total garbage or boilerplate. OGC would green light fees under 7500 (this was in the aughts), I am hearing now its 10k. Personally, I was brought up in a small firm that was highly ethical. My partners sat on attorney disciplinary panels. They insisted we fully brief (like 10-20 pages) for the AC, despite the fact it was obvious that they were not reading them. In my 10 years at SSA, the longest AC brief I have read was probably 3 pages. Yet, not to do so was a disservice to the client and our professional obligations. This was a complete waste of time and money, but we persisted. However, you don't need to be an economist to see why others would not, and there are a lot of shortcuts to take without financial reprecusion in SSDI/SSI. To your last point, I actually don't think most individual reps are terrible at their jobs (though some very much are!!). Some of them are actually pretty great. In fact some reps at very terrible firms are now great ALJs or managers at SSA - lets's say I know a few cowboy hat alumni. Rather than being bottom of the barrel, these reps are working in a corporate structure that prevents their representation from being anything but short shrift and terrible. That corporate structure is built entirely around our fee system. In short, minimal representation yields the highest margins. Until we fix that, no amount of ethics, standards or rules will do a damn thing. |
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Post by jimmyjiggles on Jul 17, 2019 20:34:37 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. This is literally the best you can do to deter bad behavior under the current system. However it could become a time sink, and/or p.o. your regional folks. I hope you are getting some return on your investment from the RO. Keep fighting the good fight! Conversely, would 't it be great if you could increase the fee if the rep did an exceptional job? It's all about those economic carrots and sticks |
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Post by upperwolfjaw on Jul 17, 2019 20:35:52 GMT -5
I always wonder what the barriers are--from a real-world practical perspective--for an ALJ sending the bad actors over to OGC to consider discipline. Is it hard to find the time, or something else? Seems to me there is so much activity that clearly flouts the code of conduct, there may already be enough rules in place to cull the ranks and let the good attorneys practice without having to compete with the mills so much.
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Post by upperwolfjaw on Jul 17, 2019 20:43:28 GMT -5
Whatever it is regarding fees, it would need to be simple. No $6k cap if the record wasn't held open (for the attorney), the onset date was ultimately either OK or amended early, etc. Otherwise, cap remains.
In the meantime, shouldn't there be a streamlined process for discipline referrals? Is it already streamlined, but more hassle than an ALJ can handle?
I always wonder why there aren't more discipline cases for those basic head-scratching ethics violations described above--seems like a necessary thing.
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Post by jimmyjiggles on Jul 17, 2019 20:45:41 GMT -5
I always wonder what the barriers are--from a real-world practical perspective--for an ALJ sending the bad actors over to OGC to consider discipline. Is it hard to find the time, or something else? Seems to me there is so much activity that clearly flouts the code of conduct, there may already be enough rules in place to cull the ranks and let the good attorneys practice without having to compete with the mills so much. I've no first hand experience, but the few judges I've known to try to send stuff to OGC tell me it's mostly a black hole and goes nowhere, much like moat fraud referrals. Actually enforcing some basic level of diligence would be great. With receipts going down, there is less money to make. I do not know if all the big firms can sustain. Perhaps economic forces will open up some space for more local competent and ethical attorneys to thrive. |
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Post by jimmyjiggles on Jul 17, 2019 20:47:29 GMT -5
Whatever it is regarding fees, it would need to be simple. No $6k cap if the record wasn't held open (for the attorney), the onset date was ultimately either OK or amended early, etc. Otherwise, cap remains. In the meantime, shouldn't there be a streamlined process for discipline referrals? Is it already streamlined, but more hassle than an ALJ can handle? I always wonder why there aren't more discipline cases for those basic head-scratching ethics violations described above--seems like a necessary thing. Love the cap removal idea. As for discipline, seems we sure have a lot of attorneys and senior attorneys without much writing to do...... |
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Post by upperwolfjaw on Jul 17, 2019 20:56:09 GMT -5
On the flip side of that coin, I've been told several times by those on the receiving end of ALJ discipline complaints about reps (I'm talking about people at OGC and in re___al offices) that the issue is really that they need a pattern, and one complaint isn't enough. That's more like the real world of law enforcement or even what I've seen about state bar ethics matters. Volume speaks volumes.
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Post by carrickfergus on Jul 18, 2019 8:41:49 GMT -5
"Indeed, I once heard of a hearing where the ALJ suggested an amended onset. The attorney explained that he could not accept it or even discuss it with his client before calling the company - the company run by a non-atty - to see if it was OK (ie run the numbers and see if they were getting max fee). This is a blatantly, head-slappingly unethical arrangement, and yet this company probably is in the top 5 for fee receipts and no one seems to care. It is definitely number 1 for filing super long form objections in every case."
Had a hearing recently where the claimant returned to work and the rep for the big box firm amended the claim to a closed period - from the alleged onset to the return to work date. I explained to the rep that I thought the record supported a closed period as well because I saw clinical evidence of medical improvement, but that the RTW date was several months later. Suggested that the end of the closed period would more reasonably be the date of the medical improvement. Rep said he would discuss w/his company, so I put the case in post for 10 days for a brief.
I get a brief written by someone other than the rep, which pretty much indicated that the claimant's pain was just as bad after the medical improvement, and argued that therefore the record supported a closed period up to the return to work date.
But the inference to be drawn (and the rep knew this) is that if the claimant could return to work with pain at the same level as the during the requested closed period, she could have worked then as well. And there went the closed period.
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Post by arkstfan on Jul 18, 2019 8:58:58 GMT -5
"Indeed, I once heard of a hearing where the ALJ suggested an amended onset. The attorney explained that he could not accept it or even discuss it with his client before calling the company - the company run by a non-atty - to see if it was OK (ie run the numbers and see if they were getting max fee). This is a blatantly, head-slappingly unethical arrangement, and yet this company probably is in the top 5 for fee receipts and no one seems to care. It is definitely number 1 for filing super long form objections in every case." Had a hearing recently where the claimant returned to work and the rep for the big box firm amended the claim to a closed period - from the alleged onset to the return to work date. I explained to the rep that I thought the record supported a closed period as well because I saw clinical evidence of medical improvement, but that the RTW date was several months later. Suggested that the end of the closed period would more reasonably be the date of the medical improvement. Rep said he would discuss w/his company, so I put the case in post for 10 days for a brief. I get a brief written by someone other than the rep, which pretty much indicated that the claimant's pain was just as bad after the medical improvement, and argued that therefore the record supported a closed period up to the return to work date. But the inference to be drawn (and the rep knew this) is that if the claimant could return to work with pain at the same level as the during the requested closed period, she could have worked then as well. And there went the closed period. I am EXTREMELY skeptical of the idea that a claimant experienced medical improvement, began seeking work, found work, and started work, all on the same day. |
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Post by jimmyjiggles on Jul 18, 2019 9:12:15 GMT -5
"Indeed, I once heard of a hearing where the ALJ suggested an amended onset. The attorney explained that he could not accept it or even discuss it with his client before calling the company - the company run by a non-atty - to see if it was OK (ie run the numbers and see if they were getting max fee). This is a blatantly, head-slappingly unethical arrangement, and yet this company probably is in the top 5 for fee receipts and no one seems to care. It is definitely number 1 for filing super long form objections in every case." Had a hearing recently where the claimant returned to work and the rep for the big box firm amended the claim to a closed period - from the alleged onset to the return to work date. I explained to the rep that I thought the record supported a closed period as well because I saw clinical evidence of medical improvement, but that the RTW date was several months later. Suggested that the end of the closed period would more reasonably be the date of the medical improvement. Rep said he would discuss w/his company, so I put the case in post for 10 days for a brief. I get a brief written by someone other than the rep, which pretty much indicated that the claimant's pain was just as bad after the medical improvement, and argued that therefore the record supported a closed period up to the return to work date. But the inference to be drawn (and the rep knew this) is that if the claimant could return to work with pain at the same level as the during the requested closed period, she could have worked then as well. And there went the closed period. I am EXTREMELY skeptical of the idea that a claimant experienced medical improvement, began seeking work, found work, and started work, all on the same day. The brief writer should have known this would be a problem. When you are basically arguing improvement and employment on the same day you are likely better off just not asking for a CP and arguing for a TWP, assuming it is a T2 case. |
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Post by natethegreat on Jul 18, 2019 10:31:39 GMT -5
From a writer's perspective, most requested closed periods I have seen are technically inaccurate as claimant's continue to allege ongoing limitations.
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Post by everflowing on Jul 19, 2019 14:58:33 GMT -5
There is OT - again (in some offices).
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Post by george1 on Jul 19, 2019 15:27:06 GMT -5
There is OT - again (in some offices). [br In what region? Office? Is it for the legal assistants or for DWs? |
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Post by everflowing on Jul 19, 2019 15:41:29 GMT -5
There is OT - again (in some offices). [br In what region? Office? Is it for the legal assistants or for DWs? Writers and SCTs - region 4! |
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Post by bowser on Jul 22, 2019 8:41:27 GMT -5
I've no first hand experience, but the few judges I've known to try to send stuff to OGC tell me it's mostly a black hole and goes nowhere, much like moat fraud referrals. First hand experience here (repeatedly, before I realized the futility), and this is exactly it. Take the worst experience you've had with the lawyer/firm you know is among the worst appearing regularly in your HO. Send it up the flag pole and see what doesn't happen. It takes more effort than it ought to, with little likelihood of effect; all the while you are pressed to issue more and more dispositions. Exactly what is the incentive to voluntarily assume such a futile additional workload? Is there any ALJ who could not identify a shortlist of the 1-5 worst actors among the reps that appear regularly in their HO? Is there any reason to believe that there is any real impediment to identifying the bad actors if the Agency truly was interested in doing anything about incompetent/dishonest reps? Heck, if the Agency cared, why would they have come up with the ridiculous 5-day rule? Why would they not impose a requirement that a rep actually have contact with their client between the dates of the Notice of Hearing and the hearing itself? I'm not suggesting all reps are bad - but there are enough who are REALLY, blatantly, and unrepentantly bad, that it tends to color my view of all of them. There are so many small steps that could be done to reign in the worst actors while not overburdening the well-intentioned (or merely mediocre). That the Agency does not attempt such efforts speaks volumes. |
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Post by nylawyer on Jul 25, 2019 11:29:13 GMT -5
Apparently senior attorney's will now start reviewing aged cases in POST?
Strikes me as a little odd.
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Post by Deleted on Jul 25, 2019 15:38:12 GMT -5
Apparently senior attorney's will now start reviewing aged cases in POST? Strikes me as a little odd. Aged case deadline is coming up soon, all the hearing office are trying to clear them ASAP. Are the SAA's going to create a brief-like document for the ALJ's? What's the actual work here? Got one earlier this week. Basically a pre hearing brief. Comes with recommendation on cases dispo highlights of record procedural history. |
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Post by lurkerbelow on Jul 25, 2019 16:30:44 GMT -5
Interesting. That'd be a fun different change of pace from the grind. Hope they extend it to some AAs.
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Post by Pixie on Jul 25, 2019 16:45:54 GMT -5
But why review POST? If it is in that category, there is still outstanding evidence, unless the rep had been given a deadline and that deadline has already past. Then it should be moved to ALPO and a prompt decision made. Pixie
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Post by christina on Jul 25, 2019 17:26:58 GMT -5
But why review POST? If it is in that category, there is still outstanding evidence, unless the rep had been given a deadline and that deadline has already past. Then it should be moved to ALPO and a prompt decision made. Pixie I just had post case where a case assistant was fiddling around in post and had not ordered evidence. They were playing with status. That’s why. Mangt would have figured it out soon but I likely saved a week on that case. Some other post reviews I did were of limited value but they required next to no time to make sure all ducks were in right order. |
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