Nov 23, 2016

SSA Wants To Get Program Uniformity Rules Finalized Before Change Of Administration

     I'm surprised that this is being done so late. Typically a new President suspends not just ongoing regulatory actions but new rules that have been finalized but which have not yet gone into effect. Since Social Security has to give at least 30 days notice before a final rule goes into effect, OMB has little time to act on this proposal.
     By the way, if you were going to rush something through, why wouldn't you rush through the proposal to prevent claimants who need a representative payee from buying guns?

28 comments:

Anonymous said...

The changes proposed, while well meaning, are not grounded in reality. You simply cannot always get medical records to submit as evidence in 5 days. Even SSA cannot get the records in such a short time.

Anonymous said...

@12:27

The five days is in regard to blocking submission of evidence 5 days prior to the hearing. You can submit evidence up to this point. Also, I'm not certain of any evidence submitted post-hearing. The regulation does not address this.

Discouraging submission of evidence in general is going to result in a great deal of court remands.

Anonymous said...

Thanks for the clarification, I don't handle these cases and I was working from a vague memory, should have read more.

Anonymous said...

Does OMB ever make significant changes at this point in the review process, or is omb's approval just a formality at this point?

Anonymous said...

Considering the backlog for hearings, 1-2 years should be pleeeeeeenty of time to submit evidence not already obtained at the initial or reconsideration level. Unless!!... there is some nefarious reason why *cough* attorney reps *cough* would deliberately delay/hide critical evidence until the max amount of time *cough* back pay has passed....

Matt Berry said...

Anonymous 8:51 is either a Troll or woefully naive as to the hearing process. Let me enlighten you as to a typical hearing query:

ALJ: Is the medical record complete?

Rep: With the exception of records from the last 30 days. They are under request.

ALJ: Why aren't they in the file??

Rep: Beeeecause they were made in the last 30 days?

ALJ: So you're saying I have to hold the record open?

Rep: You do if you (or I) want them. (And I do).

ALJ: Why aren't they in the file??

Rep: Judge, I'm not sure at this juncture if it is my client who has the cognitive disorder in this room.

Anonymous said...

Give me a break. Typical tun around time for processing records is rarely over 14 days.

30 days before a hearing and they are still trying to build their case, huh? The two year++ wait from initial filing to hearing date just wasn't enough time?
They filed for disability because they felt they were disabled at the time of or sometime before filing, right? I guess everyone should preemptively file for disability then. It blows my mind evidence can be submitted so long after filing.

Just keep at it, I guess. Can always file a new claim at any time, usually the day after the ALJ decision. Maybe the evidence and documentation will be stronger next time... as much as a myriad of subjective and nonverifiable complaints can be documented, that is.


Anonymous said...

@9:25 The issue is not "was claimant disabled on alleged onset date," it is "was claimant disabled on AOD and is he still disabled now?" Unlike a personal injury, disability is ongoing, changing, and not a singular event for which evidence is easily obtainable. Anyone who thinks a disability claim ought not to have up-to-date evidence is either a dufus, anti-claimant, or some combination of these two.

Anonymous said...

Let's be honest here. 99.9% of the time, there is absolutely nothing that has happened within the 30 days prior to the hearing that makes or breaks the case. yea, I'm sure there are those claimant's who have some substantial medical event that happens just before the hearing. But get real. that does not happen often

Matt Berry said...

14 days 9:25??? You have clearly NEVER tried to get records as a member of the private sector.

You are correct at 11:39. And I will often tell an ALJ "the most recent records are ongoing treatment records of conditions already documented in the record. We do not expect them to materially add substance to the record."

ALJ: I'll hold the record open for 30 days.

9:25, what is clear from your post suggesting that Reps delay adjudication is that you do not have even a basic understanding of economics. The most profitable cases are (wrap some duct-tape around your head), the ones that are adjudicated quickly (favorably).

Anonymous said...

*Puts on tin foil hat* The ones that are adjudicated quickly (favorably)... like oh inflammatory breast cancer, multiple myeloma, lung/heart/liver transplant, ESRD on dialysis.... THOSE are those most profitable? We both know that is a load of crap.

How can it be profitable for you if allowed at the initial level... and within the 5 month waiting period? Hmmm.. 6% of $5,000... $300? That's the most profitable?

The most profitable cases for attorneys are the ones that go to hearing. 6% of 4 years worth of backpay... THAT'S where the money is, folks. I guess it's lucky you "represent" those with limited mental capacity, because with a little critical thinking, it's pretty easy to see what's going on. It's just sad that some represented claimants have to go years without income, maybe lose their home, and then get a big chunk taken out of their back pay for rep fees (plus whatever other misc bullcrap "expenses" you assert)... when in some cases, without an attorney purposely dragging out the case, they could have been allowed easily at initial.

It's a shame, really. The public is led to believe SSA is so evil they need an attorney to fight for them at a hearing. When in many cases, it's the unscrupulous attorney rep who is evil. Hiding medical sources/evidence, coaching claimants not to turn in forms or cooperate with evil SSA/DDS, then BAM! get to a hearing and suddenly the allowable evidence comes out!!! Wowza! Truly amazing how that happens.

Happy Thanksgiving

Anonymous said...

@8:49. Put down your Thanksgiving eggnog and do a little research. You have any idea how many reps do initial claims? Very few. Sooo, I guess that means that there should be a large percentage of those claimants awarded at the initial level then, correct? I mean, since "without an attorney purposely dragging out the case, they could have been allowed easily at initial." But wait, oh what...the percentage of initial claims is well below 40% nationwide...oh...

Anonymous said...

@11:24 stated, "The issue is not "was claimant disabled on alleged onset date," it is "was claimant disabled on AOD and is he still disabled now?" Unlike a personal injury, disability is ongoing, changing, and not a singular event for which evidence is easily obtainable. Anyone who thinks a disability claim ought not to have up-to-date evidence is either a dufus, anti-claimant, or some combination of these two."

This is SPOT-ON! Anyone who thinks otherwise, should not be handling disability cases - PERIOD.

Dan Smith said...

A representative has an obligation to not to waste their clients' time and the judge's time by showing up to the hearing without having submitted 24 months of medical records. It happens way too often and is a substantial drain on ODAR's resources and frankly an insult to clients who are already forced to live with no income for far too long.

That said, there's no nefarious plot to lengthen client wait times in order to maximize backpay. According to Hanlon's Razor, "Don't assume bad intentions over neglect and misunderstanding." These records get omitted because at various firms, cases are being neglected and deprioritized well behind new case acquisition.

Something clearly needed to be done to address the problem here. Now, is the answer to that problem the exclusion of relevant info in the ALJ's decision? I don't think so. It's not fair to claimants. But reps who bury their heads in the sand and pretend there isn't a big problem here, or who don't propose a solution of their own, have little right to judge.

Tim said...

I would be surprised if DDS read half the file! Not a compassionate allowance or completely obvious meeting of a listing.... deny, deny, deny (taking a page out of the Clinton playbook!)!!! Then wait 18-21 months for a hearing while trying to hit a target date that you might not know until 20 days before the hearing! In the meantime, congressional inquiries only get you, "Hearing waiting to be scheduled." Ask ODAR for a ballpark figure, you get, "Possibly soon." As a claimant, the process seems "Possibly endless (like Nebraska)."

So, you want a 5 day limit? Fine! Give us a 60 day notice!


Anonymous said...

Anyway... I think we can assume the gun control/rep payee thing is deader than dead in the water, no?

Anonymous said...

Closing the record five days prior to the hearing is fine, so long as a person with an unfavorable can file a new application and appeal to the appeals council at the same time. After all, they are now two discrete periods, right? Social security will find itself with another due process problem. Problem one is that they don't know what due process is. It's like arguing with a claims rep who wants to tell an attorney what collateral estoppel is. Don't even get me started on res judicata. They don't even know what evidence is.

Anonymous said...

murder and then suiisde is the only why to get ssi to stop killing poeple on ssi and ssdi.

Anonymous said...

If this rule goes through, when ALJ's try to block late submitted evidence, the result will be an enormous amount of withdrawals of requests for hearings followed by the immediate filing of a new claims with a request to reopen the just closed claim, on the basis of new evidence (the new evidence being the evidence that was just barred). Thus, how is having to procese a new claim (probably all way up to the hearing level again) just to get in a piece of evidence going to save ssa time and money? There is a reason why the regulations have always allowed submission of evidence at anytime. To close the record before a decision is issued will result in greatly wasted resources related to having many more new claims filed just to get into the record evidence that was blocked in the prior claim. If you think the backlog is bad now, wait until you see the backlog resulting from all the refiled claims.

Anonymous said...

the decision to not reopen a prior app is not an appealable issue so certainly wouldn't hang my hat on that

Lindav said...

They should go back to having DDS doing informal remands in some of these cases where there are long delays an the person has a new serious impairment or significant worsening .

Anonymous said...

11/24 @ 8:49 @

You need to readjust the tinfoil hat. If reps made only 6% on cases, what you say might be true, but in this reality, they get 25%. Most of these guys max out on fees with a year of retro or so, so I would expect all the evidence to come in as soon as the fee cap was hit if your theory were true. Moreover, no-one is looking at the file after recon; not until the ALJ sees it a month or so before hearing. So I don't know how these people would all get paid just by submitting evidence in a timely fashion in any event. That said, there are some horrific reps - but the backlog is not actually their fault.

timb said...

@8:49 AM, November 24, 2016

This person's lack of knowledge re: how reps do cases, how SSA ignores the file until a week prior to the hearing, and animus toward claimants point to only one occupation: Medical Consultant at a DDB. They are the only people to hate claimants enough to keep arguing points they don't understand.

Anonymous said...

I would love to win all my cases at the reconsideration level or on the record and accept that I will receive a lower fee. And I WISH all records could be received in 14 days or less. I can clearly remember the very few instances where I received records within a few days of requesting them. You send a request, a month later you're informed what's wrong with your request, and then another month goes by and you're sent a bill (in some instances). The providers are pretty good about getting records to you, but these companies like health port and MRO make life miserable.

Anonymous said...

Politically it would be unwise for the Obama Administration to tee up a regulation that will utlimately be used to screw over individuals with disabilities. If anybody in OMB has a brain, they will toss this in the trash and let the Trump Administration take all the credit.

Anonymous said...

It's amazing how this myth that attorneys stall progress on cases just to earn a bigger fee continues among SSA personnel. Like 9:25, I would love to win all my cases at reconsideration or early at hearing level on the record. For several years running from about 2008-2013, I checked my hourly times expended on cases versus the fees earned. If I won the case quickly, the fee was less, but the hours expended my by me and staff were much, much less than having to hold hands for anxious clients, counsel them and reassure them that SOMEDAY they might get their benefits, and write letters to their creditors explaining the status of their case. SSA employees have no concept of the time spent serving clients. When we had to go to a hearing (or even to the Appeals Counsel), the greater fee earned was about the same per hour as if we had won the case at earlier stages. [After 2013 and the arrival of ALJs that have a set payment rate of 20% or who push amended onset dates so NO claimant will ever get more than one year of past-due benefits, the statistics broke down.]

Anonymous said...

I previously represented claimants and now work as a hearing office attorney. I understand wanting to get that last good but if evidence in for your client, but there needs to be a cut off at some point.

If I draft a decision and have it ready for the judge to sign, but we have to incorporate and consider evidence submitted (often without any warning or any request that the record be held open) before the decision is signed, it uses a lot of my time. When more time is spent on late evidence (and it is usually missing old evidence), my work and that of the ALJ is delayed. Your next claimant gets her decision a little later. The problem is cumulative.

So, reps please have everything in before the hearing. We don't need tp wait for repetitive evidence (e.g. PT visit #23). If your client had an MRI to evaluate spinal problems the day before the hearing, that might be worth waiting for. But most evidence is more of the same.

Anonymous said...

12:29 I appreciate your input because you've seen both sides. Our issue as attorney reps are the ALJs who feel the need for every last office note in the file before they make their decision. We have ALJs who will hold the record open for us to get office notes from visits within the last 30 days that won't tell us anything differently than the records from the last 24 months already contained in the file.

Appearing in multiple ODARs, some offices take 15 months to schedule hearings while others take 24 months. And even the same ODAR has different scheduling times based on the particular ALJ assigned to the file. Adding to the difficulty, some doctor offices or hospitals will send records within 30 days of receipt of the request while others can take 3-4 months. So we're constantly trying to hit a moving target when we order medical records. Order them too early and there's missing office notes. Order them too late and they're not received by the hearing date. Throw in the fact that our clients are often unreliable and may not immediately inform us of new medical treatment, obtaining complete medical records for our hearings is one of the most challenging and labor intensive tasks we have. If this 5-day rule goes into effect, we hope that ALJs will be more understanding concerning this issue.