Sep 23, 2014

I Warned You But You Didn't Listen

     When it proposed new regulations to force a claimant to make a decision on whether to accept a video hearing soon after a request for hearing is filed -- and long before a hearing is actually scheduled -- Social Security was implicitly making a bet that the result would be a decrease in the number of claimants objecting to video hearings. I warned at the time that the result would probably be the exact opposite, an increase in objections to video hearings. Those early choice letters started going out in my area in the last week or so. What I'm hearing so far from other attorneys and from claimants themselves suggests that Social Security is going to lose the bet it made. In my area, I looks like there will be vastly more objections to video hearings.
     So, what's next, mandatory video hearings with all the Administrative Law Judges herded into a huge warehouse where they only do video hearings and can be completely overseen by wise central office taskmasters?

30 comments:

Anonymous said...

We received in the mail over a the weekend hundreds of these letters. It appears that every claimant pending at ODAR was sent this letter, even those who have in-person hearings already scheduled! We will automatically reply to all of these letters asking for in-person hearings. With all things being equal, why wouldn't you ask for an in-person hearing given the choice? The only claimants who will have VTC hearings will be those who are unrepresented or have attorneys who don't read their mail.

Anonymous said...

Why would you object to a video hearing? We've done several before and have not seen a prejudice against our clients in these cases. Several clients have called recently asking whether they should object. So far we have advised not to do so since there's no real advantage to objecting.

Does anyone have any different views on this subject?

Anonymous said...

So, what's next, mandatory video hearings with all the ALJ's herded into a huge warehouse where they only do video hearings and can be completely overseen by wise central office taskmasters?

Yes. That's exactly what the Deputy Comm's office wants and has proposed.

Anonymous said...

9:37: If you know nothing about Judge A vs Judge B, except the fact that Judge A will hold an in-person hearing and Judge B will hold a VTC hearing, the in-person hearing is always advisable. The in-person hearing is more personable, allowing the ALJ to look our client in the eye and get a better feel for the person. Plus, we have established relationships with the local ALJs which help us in close cases or negotiating closed periods or amended onset dates. If ODAR promised a quicker hearing with a VTC, then we'd have to weigh the situation. However, as the letter is stated now, it's a no-brainer to request an in-person hearing.

Anonymous said...

The propaganda with the letter says that "Often an appearance by video hearing can be scheduled faster. . ." Bovine scat! Before our local field office (FO)was closed, causing the loss of a nearby video hearing site, ALJs' assistants were telling us that scheduling of the video hearings would take 2-3 months longer because the video site was steadily booked.

Now instead of driving 25 miles to the local FO for a video hearing, my client and I have to drive 80-90 miles to ODAR for A VIDEO HEARING WITH SOME ALJ located across the country. If we are required to drive to the ODAR anyway, I want a live hearing so the ALJ can better evaluate my client! Before the local FO closed, I WANTED TO DO VIDEO HEARINGS--my win rate was the same as for live hearings at the local ODAR.

In about 20% of the cases, it is beneficial for the ALJ to see my barely ambulatory client struggle to get into the hearing room or for the ALJ to pick up on the "weirdness" of my mentally ill client's demeanor. I will always object to a certain number of video hearings. NOW, I'm sending in blanket objections, but stating that if my client's circumstances change, I may be willing to have a video hearing at the time when scheduling is being considered.

Anonymous said...

Forget the warehouse, in the not too distant future, ALJs will be doing their hearings via video from the comforts of their own home. And you won't be able to object or do anything about it...Guaranteed

Anonymous said...

I've been both an attorney rep and an agency attorney. I don't hear many judges complaining about video hearings, but I feel the video setting lessens human connection. Looking the claimant in the eye in person will help a judge make a decision. In remote rural settings, video hearings may be a better option, but it should be the claimant's choice.

Charles, you hit the nail on the head- the agency's latest attempt by its non-attorney leaders to cut corners (and due process) will backfire. Remember that "secret ALJ" policy? This is what they choose to do rather expanding screening and the Senior Attorney program- they are killing it instead because ODAR hates its attorneys and judges.

Yes, they are intending to house more "professional" staff in warehouse and virtual units eventually. There will be no hiring of attorneys with attrition in the hearing offices and the positions will go to the NCACs or RCACs instead where those attorneys will have no contact with claimants, reps or judges.

Dehumanizing the process is not the answer.

Anonymous said...

You all put way too much stock into: 1) the ALJs being swayed by your claimant's appearance/demeanor at hearing; and, 2) the increased ability to better assess appearance/demeanor in person as opposed to via video.

Has the appearance of a claimant swayed an ALJ to pay where he or she may otherwise not have? Sure. But these cases are tiny in number, and of this fraction, I dare say the vast majority would have been similarly moving via video.

But whatever, it's your right to object and (save for the rare cases discussed above--most places a video hearing occurs more quickly) make your clients wait another few weeks/months for the same outcome.

Anonymous said...

@ 10:52

I've explained before the decrease in senior attorney adjudicatory authority--it has nothing to do with top brass hating attorneys (that's AFGE, not the agency) and everything to do with the multiple layers of quality control all with different review criteria/scores finding a suddenly lower agree rate with senior attorney decisions a year ago and getting the head actuary in a tizzy.

I don't believe all that top brass says, but I very much believe Sklar and Bice when they say they'd hire mostly or all attorneys for writer jobs and use senior attorneys more if they could (again, it's AFGE impeding this, not the agency).

As far as due process, etc., you're living in la-la land if you think an in-person hearing is a Constitutionally required thing or that Congress and GSA, with our huge budget, isn't going to be onboard with the cost savings we'll realize with more telework and thus decreased physical footprint. These changes are coming.

Anonymous said...

"Dehumanizing the process is not the answer".

Actually,dehumanizing the process is the answer. It will reduce bias. Remove all visual contact with the claimant. A paper review of the administrative record is all that is needed for a decision.

Anonymous said...

Number 1. The claimant's that ar enot represented will fall for it, thinking they will get a faster hearing.

Number 2. As an ALJ I think an face-to-face hearing is best. We often have problems with the video equipment and the other day I couldn't even see the face of the Rep or the claimant. Having spoken to other ALJ's, I think it is common opinion that it is easier to deny a claimant via video than in person...

Anonymous said...

Rec'd 75 of the video ltrs in today's mail and I've already had calls from 17 confused, worried clients who called regarding the video ltrs they rec'd.
SSA certainly knows how to do it wrong.

Anonymous said...

Charles,

I understand you are against this. But the agency is doing its with what it has.

it will be helpful for you to let us know what we can do to improve this service and other services.

columbus ssd said...

My experience has been that there is not much of a difference between VTC with an ALJ who routinely holds face to face hearings with claimants but there is a BIG difference between a hearing with an ALJ who ONLY does VTC hearings and other ALJs.

Some of the ALJs in the NHCs have never had a face to face hearing with a claimant and they are pure bureaucrats who will follow whatever they are told to do by the Commissioner. (Oh yeah, the ALJs are independent, I forgot. That's why the agency has to tell them where they stand percentage wise compared to other ALJs and the Agency recently changed the position description)

Anonymous said...

Since travel to remote sites has basically ended and hearing offices have a limited number of hearing rooms, you really need a mix of in-person and video hearings. My office has four hearing rooms and two desktop video units, allowing six of the seven ALJs to hold hearings on the same day; if everyone wants to appear in person, only four ALJs can hold hearings.

Matt Berry said...

Wow. For all of you who believe that video is as good (or bad) as an in-person, let me ask you...

1. Would you agree to a criminal trial via video?

2. Would you agree to have a serious PI case, perhaps involving a child, be tried via video?

3. Would you ever allow YOUR claim, or your wife's, or your children's to be heard by video?

Damn right you wouldn't. And neither would any ALJ.

As for the half-wit who remarked above that hearings just add subjectivity I would say no, that add credibility and accountability to the process.

Anonymous said...

The letter tells the claimant to return the form in the envelope that SSA sent to the representative.
What is that about???
So the claimant is supposed to sign the document, find an envelope and a stamp (or a fax machine, or scanner, I guess) and send the hard copy to their lawyer so that the lawyer can put the form in the SASE that SSA send to the lawyer for the claimant. Why in the world do it that way, especially since the lawyer acts for the client directly in similar matters all the time?

Anonymous said...

@ 6:06 PM, September 23, 2014

Are hearings needed in any other types of insurance claim? Or does the written record suffice? These hearings add subjectivity and or bias.

SSA could save money by replacing ODAR with state level adjudicats for the third level of appeals.

Anonymous said...

@ 6:06 PM, September 23, 2014

Are hearings needed in any other types of insurance claim? Or does the written record suffice? These hearings add subjectivity and or bias.

SSA could save money by replacing ODAR with state level adjudicators for the third level of appeals.

Matt Berry said...

LOL. when an insurance claim is denied and or low-balled a hearing is absolutely needed. In front of a judge and or jury.
the end goal is not to "save money". The goal is to get it right. to honor the concept of due process.
And I noticed you dodged my three questions. Lets hear your answers.

Anonymous said...

"The goal is to get it right. to honor the concept of due process"

I do not understand why theses goals can not be honored by a state level adjudicator earning state level pay. In regard to two of your questions,federal judicial review mostly involve only a paper review and sometimes oral arguement.

It's my understanding,SSA goal is to save money. A $36,000 state adjudicator certainly cost less than a $165,000 ALJ.

Anonymous said...

We already have a state level adjudicator, who do you think the claimant's are appealing from? If that level were fair, would the ALJ's be paying so many claims? Maybe you need to read about protecting the public from the bias of the Agency that is denying them benefits.. APA..

Matt Berry said...

You still haven't answered the question:
How would YOUR case be adjudicated?

As for your other questions, it is simply a matter of due process. The claimant has rights under the law as set forth in the Code and they are to be adjudicated under the APA. As for the issue of Federal Judicial review, the only reason it is "paper only" is because the scope specifically excludes the subjective, but crtitical, judgments resulting from a full hearing. Like credibility.
Let me give you a real-life example.
I had a client who had 3 separate spinal fusions. He had a later revision of one due to infection. He had another procedure to implant a spinal stimulator. Another still to take it out. Finally, a morphine pump was implanted after a suicide attempt due to chronic pain. Despite all of this, he was denied at APP and denied at RECON. Why? Because they don't consider pain. And he did not meet the Listing (amazingly). So, he did not fit the bureaucrats little peg-board. Thus the denial.
His eventual hearing lasted 20 minutes.
THIS is why you must have a hearing and why, in my opinion, it should be in-person.

Anonymous said...

10:44, right on!!!

Anonymous said...

"How would YOUR case be adjudicated?"

I know as fact that my case would be adjudicated favorably at the state DDS before any ALJ adjudication. I further believe it's because any bias/or prejudice
would be restricted by a record ONLY review.

Perhaps for certain claimants,an in person hearing is appropriate. For other disadvantaged claimants,a strong evidentiary supported record review is appropriate.

But considering tight budgets and the economy,regardless whether attornies and claimants like it or not,SSA will think cheaper and smarter.

This is likely my last comment in this post.

Anonymous said...

The commenter I mentally refer to as comma guy (since his comma's are continually misplaced) has a long history of hating alj's.

In my area, the state DDS pays only 25% of claims. That is based on a paper review. If that's the system comma guy wants, I know the ODAR brass would love it.

Anonymous said...

I no longer consent to video hearings. I never really liked the idea, but I thought I'd give them a try in certain circumstances. I found it, as did my clients too, quite impersonal and often hindered with technical difficulties. In addition, many of the judges, over video, seemed less interested in the case and just wanted to move another widget. Now, if you get a bad judge, you've got a bad judge and need to correct it on appeal, but I have found, in general, the judges who don't like to do video hearings are the better judges. In my experience, they seem to be the ones who have spent the most time reviewing the case and are most interested in getting it right than just meeting one of ODAR's silly goals. Of course, I'd like all of my clients paid, but it's easier to accept a denial from a judge who was truly interested and was not one of the new breed of judges who just churns out cases.

Anonymous said...

I'm not old or a Luddite, so I wouldn't care if my claim/a claim for a loved one was via video.

The other examples you mentioned--those are all real hearings. We don't follow the rules of evidence here; our hearings are (generally) a one-time thing lasting under an hour with maybe one witness in addition to the claimant. All the pertinent facts exist in the record or can be gotten from the claimant--there is no need for witness accounts, police reports and accounts, considerations of 4th, 5th, 6th, etc. amendment rights, motions in limine regarding the admission of evidence, ballistics, etc. etc. (other stuff requiring other witnesses in the aforementioned types of cases), and if there is missing evidence or a need for expert opinions on that evidence, that information is gotten via CEs and MEs/VEs.

Oh, and SS benefits are an entitlement program, not a criminal proceding or a tort action potentially making an individual liable for huge sums. Please don't tell me you think an SSA applicant is entitled to the same due process (and standard? should SSA only deny if nondisability isn't shown beyond a reasonable doubt?) as the criminal defendant...

Anonymous said...

I much prefer in-person hearings over video hearings for many of the same reasons already mentioned by others. While there is no introduction of evidence, as the previous comment notes, witness credibility is best presented and weighed when the proceeding is in-person. I, too, am neither old nor a Luddite, and love technology, but video hearings, in my view, are a disservice to the claimant and public, in general. And, regarding the previous comment's remark about the standard of review -- ALJ's should be granting more than they deny because the standard, preponderance of the evidence, is so low. Indeed, it's the lowest legal
standard there is.

Anonymous said...

Does anyone know how long it takes to get a letter saying when your hearing date will be? Our lawyer had us fill out this letter asking if we wanted a video or in person hearing the first week of October. We marked it saying we wanted an in person hearing and we have not heard anything since.