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Post by smokingalj on Apr 1, 2020 19:39:23 GMT -5
I was told the plan was phone hearings through May 1, but that was subject to change
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Post by Thomas fka Lance on Apr 1, 2020 20:07:16 GMT -5
What?
Different people have been told different things?
There's no one, consistent, message?
I'm shocked!
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Post by sealaw90 on Apr 1, 2020 21:57:43 GMT -5
What? Different people have been told different things? There's no one, consistent, message? I'm shocked! I haven't been told anything, imagine that!
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Post by x on Apr 1, 2020 22:42:17 GMT -5
Whether a given claimant "fits" or not can change with economic conditions:
at least some vocational experts testify that employer tolerance for absence and off-task behavior is inversely related to the unemployment rate -- why keep a slower worker when there are so many fish in the sea?
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Post by nylawyer on Apr 2, 2020 2:38:50 GMT -5
Which was why I suggested any writer listen to the recording first thing.
But that leads me to another thought.
ALJ holds hearing. Discovers it wasn't recorded. During second hearing, claimant substantially changes his testimony.
Can the ALJ rely on the initial testimony at all? Can they even question the witness about the change?
(Yes, the time stamp is accurate, this is what I wake up in the middle of the night thinking about)
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Post by ba on Apr 2, 2020 8:32:59 GMT -5
Which was why I suggested any writer listen to the recording first thing. But that leads me to another thought. ALJ holds hearing. Discovers it wasn't recorded. During second hearing, claimant substantially changes his testimony. Can the ALJ rely on the initial testimony at all? Can they even question the witness about the change? (Yes, the time stamp is accurate, this is what I wake up in the middle of the night thinking about) I have had to redo a hearing because of this, within minutes of it finishing as we discovered a recording error. Thankfully, it was represented and the rep was understanding. I don’t hide that we are doing it again because of the error. I think any reviewer understands that. The issue you raise did not arise, but if it had I would have absolutely said on the record, “Didn’t you say X in response to that question under oath just a few moments ago?”
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Post by nylawyer on Apr 2, 2020 8:54:36 GMT -5
Which would be my first instinct as well.
Except then you are essentially interjecting yourself as a witness into the proceedings, particularly if the claimant were to deny it.
Definitely a gray area.
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Post by ba on Apr 2, 2020 9:03:13 GMT -5
Which would be my first instinct as well. Except then you are essentially interjecting yourself as a witness into the proceedings, particularly if the claimant were to deny it. Definitely a gray area. SSR 16-3p We will consider statements an individual made to us at each prior step of the administrative review process, as well as statements the individual made in any subsequent or prior disability claims under titles II and XVI. If an individual's various statements about the intensity, persistence, and limiting effects of symptoms are consistent with one another and consistent with the objective medical evidence and other evidence in the record, we will determine that an individual's symptoms are more likely to reduce his or her capacities for work-related activities or reduce the abilities to function independently, appropriately, and effectively in an age- appropriate manner. — And, if the case is repped by an attorney, I seriously doubt the lawyer will put their license on the line to perpetrate that kind of obvious fraud on the tribunal by pretending something heard by the judge, VE, and hearing recorder wasn’t said, merely because the claimant’s prior statement wasn’t audio recorded. Seems like a big gamble for a little gain.
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Post by nylawyer on Apr 2, 2020 9:30:15 GMT -5
There's a line from some movie that I can't exactly recall, but the gist is- if it wasn't recorded, then it never happened.
So, if we were to hold the prior, unrecorded statements as evidence- where is it in the record? Does the ALJ create a ROC? Again, isnt that making the ALJ a witness?
As for the rep- I'd agree a rep is extremely unlikely on back to back hearings to go along with a wholesale change in testimony. Putting ethical issues aside, you'd like to think their reputation would mean something to them. But, that still leaves the unrepped cases, cases where a different rep is at a subsequent (delayed) hearing, or where at the second hearing 3 months later it's the same rep who really doesn't know what the client said at the prior hearing (which is terrible, but not exactly unforeseeable if it's a rep being hired per diem to cover the hearings).
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Post by carrickfergus on Apr 2, 2020 9:52:40 GMT -5
1. Lack of an audible hearing recording isn't an instant remand if the decision isn't appealed. It hasn't been my job to check the viability of recordings before, and it won't be now.
2. On remands, I usually follow the VHR transcript of the testimony from the prior hearing to check for consistency. If I get an answer that is a substantial and material departure from the first hearing, I just inform the clt his current testimony doesn't match the prior unofficial transcript, and simply need clarification. If the explanation is unsatisfactory, and the issue is important enough it may become an element of the decision. I have yet to get an objection from a rep on that issue at the hearing or raised on appeal. If the rep objected at the hearing, I would tell her that I will take it under consideration, and provide rep and clt with a copy of the transcript and give them the opportunity to respond in writing.
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Post by hamster on Apr 2, 2020 9:54:50 GMT -5
There's a line from some movie that I can't exactly recall, but the gist is- if it wasn't recorded, then it never happened. So, if we were to hold the prior, unrecorded statements as evidence- where is it in the record? Does the ALJ create a ROC? Again, isnt that making the ALJ a witness? As for the rep- I'd agree a rep is extremely unlikely on back to back hearings to go along with a wholesale change in testimony. Putting ethical issues aside, you'd like to think their reputation would mean something to them. But, that still leaves the unrepped cases, cases where a different rep is at a subsequent (delayed) hearing, or where at the second hearing 3 months later it's the same rep who really doesn't know what the client said at the prior hearing (which is terrible, but not exactly unforeseeable if it's a rep being hired per diem to cover the hearings). Tom Clancy book. “If it wasn’t written down, then it never happened.” Or words to that effect. About the stock marketing cratering and war with Japan. Be well.
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Post by lurkerbelow on Apr 2, 2020 10:07:16 GMT -5
1. Lack of an audible hearing recording isn't an instant remand if the decision isn't appealed. It hasn't been my job to check the viability of recordings before, and it won't be now. HALLEX I-2-6-40
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Post by nylawyer on Apr 2, 2020 11:02:54 GMT -5
There's a line from some movie that I can't exactly recall, but the gist is- if it wasn't recorded, then it never happened. So, if we were to hold the prior, unrecorded statements as evidence- where is it in the record? Does the ALJ create a ROC? Again, isnt that making the ALJ a witness? As for the rep- I'd agree a rep is extremely unlikely on back to back hearings to go along with a wholesale change in testimony. Putting ethical issues aside, you'd like to think their reputation would mean something to them. But, that still leaves the unrepped cases, cases where a different rep is at a subsequent (delayed) hearing, or where at the second hearing 3 months later it's the same rep who really doesn't know what the client said at the prior hearing (which is terrible, but not exactly unforeseeable if it's a rep being hired per diem to cover the hearings). Tom Clancy book. “If it wasn’t written down, then it never happened.” Or words to that effect. About the stock marketing cratering and war with Japan. Be well. Yup, I think that's what I was remembering- the Japanese crashed the market but then also launched a cyber attack that erased all records of the transactions that day, which ended up being the solution. Debt of Honor- will likely never made into a film due to 9/11.
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Post by Ace Midnight on Apr 2, 2020 11:40:36 GMT -5
I think all Clancy fans were thinking of Debt of Honor on 9/11.
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Post by southerner on Apr 2, 2020 11:43:48 GMT -5
DW don't have much to do at present given much fewer hearings and will be forced to listen to hearings as no VHR's. Still not sure how copious the notes will be given their DRAP functions at home.
My concern is if a cl or rep says something significant and the audio goes out--for cl, rep. or someone else--how will we know if that occurred and no follow-up if we did not hear it. Will recording pick up dropped audio if only one party did not hear (ALJ, e.g.)? Ah well, my first hearing is at home on the 13th, so hoping all the kinks are fixed by then. Sigh.
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Post by prescient on Apr 2, 2020 13:27:17 GMT -5
1. Lack of an audible hearing recording isn't an instant remand if the decision isn't appealed. It hasn't been my job to check the viability of recordings before, and it won't be now. . Unless you’re issuing a FF, you’re going to be redoing the hearing if there is no audio or it’s inaudible
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Post by ba on Apr 2, 2020 19:08:19 GMT -5
1. Lack of an audible hearing recording isn't an instant remand if the decision isn't appealed. It hasn't been my job to check the viability of recordings before, and it won't be now. . Unless you’re issuing a FF, you’re going to be redoing the hearing if there is no audio or it’s inaudible I actually wonder if the case is pulled for own motion review, whether you would have to redo it as well.
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Post by WallyGator on Apr 2, 2020 19:15:12 GMT -5
I’m glad it’s working better for some. I went into it very optimistic as my phone hearings from the hearing room had gone well. Yesterday was a disaster. I was supposed to have reporter number one take my hearings. She could not get into the program. So reporter number two was called in. We started late, but the second hearing had postponed so I was hopeful we would be back on track. No such luck. The call dropped frequently. I think the most we were able to record at once was about ten minutes at a time. I tried switching from WiFi to wired. I tried using my cell phone. We both restarted multiple times. Nothing helped. The first three hearings took about two hours each. Yes, I was IMing the HOCALJ the entire day. My VE was beyond irritated and would have quit, but we got hearing reporter number three. I think she took the last three hearings, but it’s all a blur. Once we switched I think we only had the call drop twice and once I think it was just that the rep accidentally hung up. Myself and hearing reporter three had to work credit hours to finish as there were no other reporters available. The absolute best part was finding out today that only the last two had fully recorded. At least one will need to be rescheduled for a new hearing. Some had only the voice of the reporter and no one else.
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Post by jagvet on Apr 2, 2020 19:27:04 GMT -5
Bad kharma today, @wallygator. I had better luck, but some people told me I was breaking up from time to time. I can't wait to get back to "normal."
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Post by TigerLaw on Apr 2, 2020 20:30:57 GMT -5
I’m glad it’s working better for some. I went into it very optimistic as my phone hearings from the hearing room had gone well. Yesterday was a disaster. I was supposed to have reporter number one take my hearings. She could not get into the program. So reporter number two was called in. We started late, but the second hearing had postponed so I was hopeful we would be back on track. No such luck. The call dropped frequently. I think the most we were able to record at once was about ten minutes at a time. I tried switching from WiFi to wired. I tried using my cell phone. We both restarted multiple times. Nothing helped. The first three hearings took about two hours each. Yes, I was IMing the HOCALJ the entire day. My VE was beyond irritated and would have quit, but we got hearing reporter number three. I think she took the last three hearings, but it’s all a blur. Once we switched I think we only had the call drop twice and once I think it was just that the rep accidentally hung up. Myself and hearing reporter three had to work credit hours to finish as there were no other reporters available. The absolute best part was finding out today that only the last two had fully recorded. At least one will need to be rescheduled for a new hearing. Some had only the voice of the reporter and no one else. I think for the most part, 90% or better, there are no problems with the phone hearings. If you are in the middle of NOWHERE, then internet might be a problem. The vast majority of America has reliable internet. I conducted 5 hour-long hearings from a small size city in America with ZERO issues! My headset was better than video hearings as far as sound, I could easily switch to simple ear phones from my cell phone. As far as the VE is concerned, they can get "beyond irritated" all they wish, but I will remind them that they are paid by the hearing and many days they get paid the same for doing ZERO! So give me attitude while in the mist of a National Pandemic and I will make you wish you weren't born! This is a National Pandemic, suck it up, drive on, and do your damn job!
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