From
All Things Considered on NPR:
There exists today what I'm going to call a Disability Industrial
Complex. And Charles Binder had a big hand in creating it. When he
started in 1979, Binder and Binder represented less than 50 clients.
Last year, 30,000; 30,000 people who were denied disability appealed
with the help of Charles Binder - in one year. The firm made $68.7
million in fees.
So you've got 30,000 people denied disability
who are appealing to a judge, taking their case to the courts. And on
the one side, the judge has a passionate, persuasive lawyer making the
case that his client is physically or emotionally incapable of working.
And on the other side - who's on the other side? Nobody. Nobody, really.
I keep pointing out that years ago
Social Security tried having someone present at its hearings to represent its position that the claimant wasn't disabled. It was just a waste of money. It
didn't reduce the number of people approved. The government representative idea is a zombie. It's deserves to die but it's almost impossible to kill it.
A few ears ago i was a claimant.
ReplyDeleteIt seems to me it's possible the alj with his attorney adjudicating team has already developed an arguement for denial. So defense counsel is not needed.
It's clear to me,the alj adjudicating my claim considered it meritless before my testimony was given. But i knew it had merit and eventually it was approved.
One has to wonder, if the job of "defending the trustfund" was taken out of the hands of the beloved ALJ corps, if they would be less negative to Claimants and begin to apply the rules equally and let the attys battle the gounds of "deserving" disability.
ReplyDeleteOf course then there are those who think, no one is disabled, unless their paralyzed or in an iron lung...
ReplyDeleteFrom the things I have seen working with SSA, I believe that having an attorney present at the hearing can theoretically benefit everyone. The attorney can, on the record, help point out credibility, wage, medical and other issues that the ALJ may not see or may choose to ignore in issuing a favorable decision. On the other hand, the attorney can also help to ensure that the ALJ properly considers all medical evidence, opinions, testimony and other evidence prior to issuing an unfavorable decision.
ReplyDeleteALJs are tasked with reviewing and deciding 500 to 700 claims each year. That is an onerous task. Having a second set of eyes on the claim can only help to ensure that the best decision is reached.
Charles, the Government Rep project back in the early/mid 80s had lots of issues, as most "experiments" attempted in an operating environment do. But it was never finished--amusingly enough, Dorcas Hardy agreed to kill it quite quickly upon coming into office. Too many ties to the former "bad guys" at OHA. And lowering the allowance rate was far from the only criterion that it would/should have been measured upon.
ReplyDeleteI think this story has some inaccuracies. As a matter of fact, Binder and Binder has been using non-attorney "advocates" for the last several years because their salaries are lower than what they would pay an attorney.
ReplyDeleteIf there was a government rep, would it still be possible to have non-attorney representatives? Would they have to give the ALJs regular power of a judge?
ReplyDeleteNo, that would require an overhaul of the regs, which, as written, frame the hearing process as non-adversarial and administrative in nature.
ReplyDeleteI have to wonder how many of those Binder advocates are all that "passionate" and "persuasive". From what I've heard, they only take the very strongest cases in the first place - cases that the claimant may very well be able to win on his or her own!
ReplyDeleteNon-attorney reps should be excluded at the hearing and post-hearing level. They should be allowed to do only "paperwork" at the DDS levels. The same like immigration lawyers who go to immigration courts (and beyond) but non-attorneys (all sorts of "notarios") are allowed only to file paperwork with the CIS (fmr INS). And yes, we need govt attorneys present at disability hearings - as they are present in other admin areas. Hearings should be adversarial - that's the soul of Anglosaxon legal tradition. Govt attorneys should have authority to settle (most of) cases before, during or right after hearings. A very small % would ever be actually "tried" so, over time, we would reduce number of ALJs and not keep increasing. Other changes need to be instituted as well, two of which is either elimination of the Grids or they radical change to reflect the US of the 21st century and - elimination of cash SSI for kids.
ReplyDeleteDo we need ALJs? Really? At over $100,000/year, appointed for life. They are basically just agreeing with the decison of the DDS ADJ, on far fewer claims than the DDS does. Could the Hearing and all the trappings be replaced by a lower cost Esquire based Senior Adjudicator? Eliminates all of ODAR costs, right of appeal directly to FDC with no AC in Baltimore. Huge reduction in SSA costs, faster processing for Claimants and still about the same outcome for decisions. No need for Attorney or Non-Atty reps at all. Perhaps just NFP ombudsman.
ReplyDeleteNo, SSA does not need ALJs to decide 500 disability claims each per year. The hearing process is non-adversarial and does not require that federal rules of evidence or procedure be followed. When compared to ALJ duties at other federal agencies, the SSA job is at most a hearing examiner position and should be paid at a much lower salary. It should be open to qualified college graduates, who, after undergoing SSA's internal training program, could easily perform the job.
ReplyDeleteHey, do it. Have a government attorney. But the first thing I'll demand is to get discovery from them. I want to see what the VE is going to testify to. No more pretending that the VE is coming up with the testimony on the spot, or that it's unique or based on the individual expertise of the VE.
ReplyDeleteNo other litigator in the country would dream of cross-examining an expert on testimony he or she knew about just that moment.
From the Reps I have come across, there isn't a litigator in the group, so it shouldn't be a problem..
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ReplyDeleteLet's make it adversarial, so long I get a jury. I would love to try these cases and get a jury's verdict in them - especially on a preponderace of the evidence standard. Juries don't have quotas like ALJs. How can you put a quota out there. Imagine the outrage if the state of Montana said this year, we will find 27% of defendants not guilty in criminal cases and 42% of plaintiffs in civil cases will be denied relief.
ReplyDeleteI have never seen a quota in SSA as to the outcomes of the cases. They set goals for desired number of cases disposed of, but no influence is ever placed on the Judges. Further, the jury argument doesn't fly. If you have tried very many personal injury cases, you know the juries aren't sympathetic to bad backs, odd pains, and the claims of all I do all day long is lie on my back. If you want to go adverserial, let SSA use investigators and video equipment like worker's compensation cases do... It would make it a lot easier..
ReplyDeleteWhat we need is to remove ODAR and ALJs from the contol/supervision of SSA. Over the last few years, SSA hired many SSA insiders, who seemingly have only a superficial knowledge of the law, and are more concerned about doing their numbers than they are about knowing their files and how to apply the law. That is the brewing scandal nobody is talking about, yet. I don't get upset when one of my cases is denied and it is clear the ALJ knew the file and considered the facts fairly, but that is by no means the rule.
ReplyDeleteRemoving ODAR and ALJs out of SSA would be a disaster. More control not less is needed over SSA's ALJs. If a rep and claimant are going into a hearing where an ALJ hasn't bothered to read the claimant's file, SSA needs to have a way to discipline that ALJ and put him or her on a performance improvement plan.
ReplyDeleteA six or traditional twelve person jury system may not be practical, but consideration might be given to the Civil Law (as in Europe) where full time professional judges often hear cases with two lay "co-judges" helping to make the decision. Much like a US jury trial, the professional judge handles the more technical points of law and practice, while the "co-judges" add common sense, participate in the deliberation and vote for the ultimate decision.
ReplyDeleteThis may have some merit for SSA disability hearings, to have the people that are paying into Social Security have a part in deciding who receives the benefits.
Or take disability back to where it started, a place where you had to be completely disabled from any job. The CAL list is a great place to start. Make the criteria much higher and much more realistic. Dont want to work, then you are the responsibility of your family, not the state, not the nation. If they do not tend to you then throw yourself on the mercy of the community services but we are not paying you. If you are a worker, stuck down with a serious condition most likely to end in death in 12 months, you are disabled. No Judge, No Reps, No Equate. 14 Million people cannot all be unable to work ANY job in the US Economy, really folks do we really belive that?
ReplyDeleteThe previous commenter had it right, get the judges out of SSA. Many of the judges in the offices where I practice are fine, but more and more of them are overly focused on their production. Consequently, many are not fully familiar with the files and speed through the hearing. From what I hear, SSA pressures judges to do high numbers, so they hired people they thought would likely submit to their pressures. SSA management does not care if judges know or don't know their files, they just want the backlog reduced. Reducing the backlog is important, but so are individual claims and lives. SSA management is the problem.
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