Jun 21, 2013

ACUS Recommendations

     The Administrative Conference of the United States (ACUS) has issued its recommendations for "Improving Consistency in Social Security Disability Adjudications." In reading this document, it's quite obvious that ACUS thinks that too many claims are being approved by Administrative Law Judges (ALJs) and Something Must Be Done. It's also obvious that even after studying Social Security, ACUS barely has a handle on what happens at the agency but, still, Something Must Be Done. Anyway, here is a summary of the recommendations with my comments in brackets and bolded after each recommendation:
  • Require attorneys and others representing claimants to submit pre-hearing briefs [Why?]
  • "Expand" the use of video hearings [How? Why?]
  • The Appeals Council should issue "Appeals Council Interpretations" with "greater frequency." [What's an Appeals Council Interpretation? I've never seen any document by that name. What makes ACUS think that Social Security management trusts the Appeals Council to issue policy guidance to ALJs.]
  • Publish selected ALJ or Appeals Council decisions to serve as model decisions. [ACUS doesn't realize that ALJ decisions are mostly boilerplate disseminated by Social Security management.]
  • Allow even more ALJs to serve even longer details with the Appeals Council. [Why?]
  • Expand "own motion" Appeals Council review based upon "announced, neutral and objective criteria." [You don't understand, ACUS, that keeping the criteria (which are already used) a secret is of primary importance to Social Security. They can't tell the world what their criteria are because there's a good chance the world won't like the criteria, not to mention the fact that attorneys and ALJs will find ways to slide around criteria if we know what they are. You also don't understand, ACUS, that the Appeals Council doesn't have anything like the manpower needed to do more "own motion" review. They can't keep up with their workload as it is.]
  • "SSA should revise its regulations ...to eliminate the controlling weight aspect of the treating source rule in favor of a more flexible approach based on specific regulatory factors." [Why? Really, why? Other than the fact that you'd like to see fewer claims approved, what is the basis for this recommendation? This is not happening with a Democrat in the White House. Probably not happening even with a Republican in the White House. Social Security would have a hard time explaining or justifying such a change. The fact that appellate courts all over the country have forced the treating physician rule on Social Security should tell you that the treating physician rule makes a lot of sense to a lot of people. If the agency is going to change this it's going to have to come up with reasons that go beyond saying it's based on the agency's "adjudicative experience." The agency has gotten away with that "explanation" in the past but I don't think it'll work on something so prominent and so easily understood by laypeople.]

11 comments:

Anonymous said...

Require attorneys and others representing claimants to submit pre-hearing briefs [why?]

Really? You can't think of any possible reason why this would be a good idea?

How about, it would help expedite review of the file? Or maybe, if the rep wants to allege a listing, wouldnt it be nice to always have a written brief with citations to the record AND the listing to argue why the listing is met? (as opposed to the current situation where most lazy reps just show up at the hearing, rattle off 30 different listings that the claimant allegedly meets with NO ability to cite to any specific exhibit in support)

Anonymous said...

Here are more reasons:

Forces the rep (or at least the office staff) to actually look at the entire file, which it is evident some reps have not done.

Allows issues like work after onset to be addressed upfront.

Makes the rep (or at least the office staff) actually spend some time earning their fees

Makes it easier to identify gaps in the medical record/missing records in advance of hearing

Anonymous said...

How about, it would help expedite review of the file? Or maybe, if the rep wants to allege a listing, wouldnt it be nice to always have a written brief with citations to the record AND the listing to argue why the listing is met? (as opposed to the current situation where most lazy reps just show up at the hearing, rattle off 30 different listings that the claimant allegedly meets with NO ability to cite to any specific exhibit in support)

Promise me someone will read it more than five minutes before the hearing and I'll think about it.

Anonymous said...

How about you do it because you have clients best interests in mind and don't wanna have any doubts you provided the best service possible, regardless of whether you think anyone reads it carefully or not. Asking too much?

Anonymous said...

Anon 8:29 -- that apparently is asking too much for people like Charles who know that no matter how little they do, they will still likely win 50% or more of their cases and will collect a nice fee.

Anonymous said...

Wow, lots of animosity and misinformation about reps here. Yes, a prehearing brief can be useful to both the attorney preparing for the hearing and the ALJ to "cut to the chase" to focus on the relevant issues. However, as someone mentioned above, it is clear that many ALJs do not read them. Or other ALJs will stick to their scripts regardless of the direction the attorney provides in the brief ("can you button buttons or pick up coins from a desk?" in a psych case). But I will concede the prehearing brief requirement if someone could explain to me why ALJ pay rates across the country have significantly dropped. At the NOSSCR conference in DC last month, the head of ODAR said he could count on "one hand" the number of outlier ALJs paying 15% or less of their cases. The crowd groaned - I can count on one hand the number of ALJs who pay <15% just in my local ODAR. What is going on here?

Anonymous said...

Why are reps so hell-bent on the "controlling weight" doctrine.

I've written over 2000 decisions and I have yet to see it used once.

Anonymous said...

@9:43

hyperbole much??

a brief review of the disposition data clearly indicates that of judges who've issued 100 or more decisions this FY, a total of THREE have pay rates lower than 15%. last I checked, that's less than a handful, no?

Anonymous said...

Charles, I was surprised that you had never heard of Appeals Council Interpretations. Check out HALLEX II-5-0-1 et seq.
http://www.socialsecurity.gov/OP_Home/hallex/II-05/II-5-0-1.html

Anonymous said...

fyi,

ALJs read briefs that are well written. I read and adopt language from good briefs when writing, just like all the appellate courts in this country do.

But no, we don't read those one or two paragraph "briefs" that rattle off a gargantuan list of impairments (75 percent of which usually are obviously not severe or even extant), littered with glaring errors (because you got your staff to write them for you, didn't you?) and then conclude no regular/continuous work. Or possibly meets listing, with no citation to medical evidence showing specific criteria from the listing, of course.

Start writing decent briefs--it isn't too hard. I wrote halfway decent briefs by my second summer of law school, I'm sure you reps can handle it. If you do, you might find your clients' decisions filled with your own words and coming to the very conclusions you did...

Anonymous said...

echoing 7:33.

I am a decision writer. One more than a few occasions I get told by the ALJ to "follow the rep brief". In a FF decision, this should almost be standard. However, my estimate is that at least 80% of the "briefs" we receive are cursory and conclusory with no real analysis.

Our decisions must adhere to a (admittedly low) legal standard in order to be defensible in court. The formula isn't that hard.

1) summarize the objective findings (both pro and con)

2) list ALL the medical opinions (yes, even those that don't support your argument)

3) give weight to those opinions

I have yet to see a rep brief that does all three of those things. Many reps can list claimant allegations (not really important, but I see why they do it) and highlight a medical opinion that supports their case.

However, true analysis only occurs when the opinion is assigned weight and the reason for that given weight is listed.

I know that the ALJ's in my office read almost every brief. Most do a somewhat decent job of summarizing the case. However, it's the analysis that is missing. If you are going to write a brief, make it count.