Jan 20, 2014

AALJ Gets A NY Times Op Ed

     Randall Frye, the President of the Association of Administrative Law Judges (AALJ), the union that represents Social Security's ALJs, has an op ed piece in today's New York Times that tries to use the recent fraud allegations in New York City to promote a longstanding AALJ proposal to make Social Security's hearings adversarial.
      There are a couple of simple reasons why adversarial hearings aren't coming to Social Security. First, they would cost a lot of money. Second, and more important, it's been tried before and it didn't have any effect that anyone could claim was beneficial. The same people were bring approved and denied.
     If you think I oppose adversarial hearings out of fear for what they would do to my practice, you're wrong. My clients would still win at the same rate and my fees would go up significantly because adversarial hearings would subject Social Security to the Equal Access to Justice Act (EAJA), which would shift the attorney fee burden to the Social Security Administration itself in most cases. I oppose adversarial hearings because they are a bad idea. What the agency needs is increased funding so it can deal with its serious backlogs. Almost everything else is a distraction.

33 comments:

Anonymous said...

An adversarial proceeding would add to the hearing backlog. Many ALJs hold 30-45 minute hearings, which allow them to schedule many hearings in a day. With a govt opponent, how long would the hearing then last? I'm assuming an adversarial proceeding would cause an ALJ to schedule less hearings in a day. This would quickly cascade throughout ODAR and cause the hearing backlog to explode.

Anonymous said...

Like the ALJs are not adversarial enough.

Anonymous said...

the reform that is really needed is to drop the de novo review from the process

what other civil appeals system allows attorneys to start over? (other than SSA and VA benefits).

a true appeal system would close the record after reconsideration - and provide that the appeal would only rule on issues of law and procedure - not start the disability case over where "new rules" are applied.......

Anonymous said...

can you explain how your fees would increase? Even at 10 hours (which I believe is much more than most attorneys spend), you would make less money unless you are billing $450+ per hour.

Anonymous said...

In an adversarial proceeding, the govt would likely no longer separate the atty fee from the PDB. As is the case in most other adverse civil proceeding, the insurance company/defendant sends the settlement check to the attorney to disburse with the client. Attorneys need not subject themselves to a 25% fee. Contracts could be as they are in PI cases at 33-40% and they atty controls the disbursement.

That sir, is one way atty fees would rise, unless you wish to somehow have a conflict of interest built in an adversarial system where the adversary disburses the fees and funds

Anonymous said...

How about just increase the burdon of proof to a clear and convincing, rathan than a preponderance, standard? One very small legislative change that would get the people what they want. (Unless, of course, "the people" are unable to work. But they don't have the steam that the opposing view does in this political climate.)

Anonymous said...

In private disability cases, the check, including PDB, gets sent to the client, assuming no lawsuit has been filed.

Dirk May said...

If the government has a lawyer, then every claimant would get a lawyer. This would increase business for Social Security lawyers. Bring it on.

Anonymous said...

Deciding cases in non-adversarial hearings is one of many distinctions between SSA "ALJs" and other ALJs throughout the federal government. It is a distinction that justifies reconsidering the use of ALJs in SSAs claims processing system. Instead of spending more taxpayer money on adversarial hearings, the agency should consider saving money by going back to using hearing examiners as the statute originally intended.

Anonymous said...

Not true. I do ERISA LTD claims. Settlement proceeds come to me and I disburse and take out costs. This is industry standard.

Anonymous said...

I should also add yes, bring on the adversarial process. I can withhold any evidence I want, and object to adverse evidence on grounds of hearsay and other technical grounds. It will be like a trial. I love it. I'll be calling upon all of the DDS doctors to testify as my client has a due process right to depose or take the testimony from the opponent's expert witnesses. Can't wait for Daubert challenges. Believe me, this is a lawyer's dream. Not so much though for the non-attorney reps.

Anonymous said...

Moreover, I'll treat it like my PI cases, where I send my client to a plaintiff's doctor for extensive treatment, and the doc does all the X-rays, ortho, opinions, erc for FREE except that he asserts a lien on the settlement award in the end. I'll charge my SS clients 40% and it will be like a bench trial practice. Believe me, being on the adversarial process. Bureaucrats have no idea what they are asking for because they've never been in private practice

Anonymous said...

i know plenty of attorneys that will be happy to continue receiving a max of $6k for SS cases. Good on you if you can charge 40%, but you'll probably lose clients.

Anonymous said...

An adversarial process can be traumatic to vulnerable claimants with mental illnesses. Consider that claimants already have to go through quite a obstacle course by the time they get to the ALJ level. This is not meant as a slight to SSA or its employees. By "obstacle course" what I mean is trying to live while you are sick and likely with no income for a year or two.

To then face the prospect of going to a hearing where a trained advocate will be attacking your honesty and credibility is cruel. Yes, I know it already happens in PI and workers comp cases. I did those for a decade, and what I took away from it is was the memory of clients who were outraged and mentally scarred by what they had to go through.

I still see it from time to time, when one of my clients has to go in front of an ALJ who did not get the memo concerning the system being a non-adversarial process. They become intimidated, have trouble articulating their problems, and are left with the impression of having been treated rudely and denied justice. That's not what we should want for either SSA or the claimants.

Anonymous said...

Whiney crybaby judges are tiring.

Anonymous said...

What Judge Frye and Sen. Coburn overlook is that the system IS adversarial before counsel becomes involved. SSA maintains a stable of professional prostitutes for consultative examinations, most of whom write only adversarial opinions to support denials. The Agency Reviewers never see the claimant but render medical opinions--in any other forum, I believe that would constitute malpractice. And NONE of these "experts" are challenged or cross-examined.

I used to practice criminal and family law. Bring on adversarial hearings, but I want these "experts" to come into the courtroom to answer why their "professional" opinions differ so greatly from the medical sources who have treated the claimant for years. My client is entitled to due process, and I want so-called "expert" opinions substantiated. Most "evidence" in SSA Dib hearings would not meet standards to be admitted. The quickest testimony and brief cross would take at least half an hour. Crossing several experts will easily expand a "real" trial to about 2 days.

Anonymous said...

Judge Frye writes:

"The taxpayers have no advocate on their behalf to ask questions, challenge medical evidence or review the 500 to 700 pages of materials that make up a typical case file."

Perhaps Judge Frye doesn't know this because he only holds a few hearings a year, but that's his job as the ALJ assigned.

That's what I do and I don't need a government attorney to do it for me.

People who advocate this position never say what value the government attorney is going to add to the process and they never say how they're going to pay for this. I hold over 50 hearings a month; my ODAR probably over 500. How many attorneys will need to be hired to have a presence at those 450 hearings?

Further, Judge Frye's points are muddled: he wants to both sit as a neutral judge with two advocates battling it out AND he wants to be able to check social media in a game of gotcha with claimants. He can't have it both ways.

Anonymous said...

If SSA had reps at hearings, the wouldn't be experienced litigators, or even attorneys, but agency clerks like the ones who do the review in the field offices now, with with two weeks of additional training. I don't think they'd add much to the hearing process.

Anonymous said...

I think you guys are missing the point.

The ALJ's are not recommending trials. They are simply asking that the government have say at the hearing, a chance to scrutinize the allegations made by claimants.

Current SSA policy discourages ALJ's from probing claimant's or openly questioning their credibility. This makes effective adjudication difficult. Claimant's can say whatever they want, without consequence. Doesn't it make sence to have a so-called "devil's advocate" in the room to say something like "well, you told your dr. you like to walk daily, but you are now saying you never leave your house."

I can see the consternation (and legal problems) that true adversarial hearings would cause, but that is not what is being suggested. Take a deep breath and use some common sense. The system needs balance and currently it is one-sided, hardly a recipe for correct results.

Anonymous said...

ALJs ask those questions already.

This is what bureaucrats and policy makers and think tanks never understand. They don't know how lawyers and the legal system operates. If you want adversarial, then bring it on! It will be a lawyer's field day. Non-adversarial actually limits a lawyers powers of legal persuasion and argument. The rules of evidence don't even apply. But go ahead, add a new federal employee/attorney/devils advocate or whomever into the hearing room. The acceptance/allowance rates won't change much, and the only change is that you've ballooned the Agency's operating budget to pay these people to attend the hearings. Well done sir, you've just cost the govt more money under the guise of saving it money

Anonymous said...

I was being sarcastic about my prior post. I would still charge 25%. I was trying to make a point to the other individual that adversarial systems tend to bring on higher fees for many reasons. I'm not a shark. I'd still do 25% plus my pro bono work.

Anonymous said...

Facebook, really? Any idea how many lawyers advise clients to post things in Facebook to increase the value of their cases, or if not advise their clients to delete their Facebook accounts?

In PI practice, most lawyers advise Ps to delete the accounts but save the info in case it is subpoenaed. That way you don't run afoul of exfoliation.

However, SSA and ALJs lack the power of subpoena, so I laugh at the comments by those and by ALJ Frye about social media and evidence.

I repeat: make it adversarial. It will be a lawyer's dream come true. But sorry to the non-lawyer reps. Your days will be numbered and I and the other lawyers will pick up more cases and make more money.

Anonymous said...

"SSA and ALJs lack the power of subpoena"

Really, ALJ's do it in my office regularly (but not often). They have the U.S. Marshall service to enforce if needed.

Anonymous said...

@9:01

ALJs do have the power to subpoena, and sometimes it works. However, experience has shown that as a practical matter, if the subpoena is ignored it is rarely enforced.

Anonymous said...

An ALJ cannot issue a subpoena for evidence from a claimant in a non adversarial setting, and to the extent they can what enforcement power there may be is basically nothing. It is a paper tiger.

Then if you want to make it adversarial get ready for all sorts of objections to the questions you ALJs ask, all DDS doctors must then be made available for cross examination, no more of you ALJs sending out ME interrogatores (they will be made to testify for cross examination), duces tecum, motions to exclude evidence based upon relevance and prejudice and hearsay and I could go on. Being on the adversarial process!

Plus your ALJ rulings on motions and evidence will be subject to appeal and the FED COURTS will LOVE all the appeals on evidentiary grounds. I smell lots of remands and EAJA fees.

I am salivating!

Anonymous said...

"I'll be calling upon all of the DDS doctors to testify as my client has a due process right to depose or take the testimony from the opponent's expert witnesses. Can't wait for Daubert challenges." - Love it.


"Current SSA policy discourages ALJ's from probing claimant's or openly questioning their credibility." - How many unfavorable decisions already say that the Claimant's subjective complaints are not credible?

"That way you don't run afoul of exfoliation." This made me laugh. I'd never heard that term before. (Here we call it spoilage).

Justin

Anonymous said...

All of our lovely trial lawyers practicing disability law and how they would eat the system if they were turned loose. If you guys are so hot, why don't you bring in your own Vocational Experts sometimes instead of wasting your breath attempting to discredit the Agency provided ones?? I know, that would require some ffort and thought on your part, now wouldn't it.. Lazy, lazy, lazy..

Anonymous said...

@9:45 - I guess you forgot fees are capped at $6K and most of our clients never reimburse us for out-of-pocket expenses, unlike PI and WC cases where the entire funds are disbursed to the attorney. SSA employees who've never worked in the real world are the lazy ones. They'd never last a day in private practice.

Anonymous said...

Given all of the comments and the chief concern about earning a living off of practicing social security law, I am beginning to wonder what the topic of the original post was? Oh! The AALJ trying to suggest a way to deal with people whose primary focus is trying to make money off of the system! I think money pretty much frames the tenor of any discussion like this because the only matter of substance is the making of it. If this were a pro bono discussion group, might the issues be different – such as how to prevent unethical representatives and their clients from sullying the name of good attorneys in practice? Just wondering.

Anonymous said...

Not exactly sure how Social Security disability cases can be adversarial.

These cases are insurance claims. ALJs decide cases based on the evidence using federal law. Not sure how this is a plaintiff v. defendant case.

The SSA would have to admit presumptively all disability cases at the hearing level do not meet the requirements. Then, the SSA attorney would have to prove they are not disabled. It would be a mess.

That being said. I would love to cross-examine some of these hack consultative examiners (CEs).

Anonymous said...

Not exactly sure how Social Security disability cases can be adversarial.

These cases are insurance claims. ALJs decide cases based on the evidence using federal law. Not sure how this is a plaintiff v. defendant case.

The SSA would have to admit presumptively all disability cases at the hearing level do not meet the requirements. Then, the SSA attorney would have to prove they are not disabled. It would be a mess.

That being said. I would love to cross-examine some of these hack consultative examiners (CEs).

Anonymous said...

Glad to provide a laugh. Every year when I go to our malpractice carrier's CLE conference the mal rep goes crazy about exfoliage.

Spoilage is correct term in terms of evidence. Exfoliate is in terms of malpractice and sanctions.

If it were an adversarial system, lawyers (at least those of us who actually have a background in litigation before doing SS.work) would have a field day.

We'd get swarms of doctors to render MSSs and RFCs and pay them out of the award assuming the funds be disbursed to the attorney.

There is a ying and yang to life. I've made about 7 or 8 tongue in cheek posts herein, but the truth is there is an element of truth to all of sarcasm that most bureaucrats with no private practice experience don't understand

Anonymous said...

In the what Frye wants but is not saying category:

-The adversarial changes he proposes would give him an argument for SSA ALJs to get paid at a higher grade.
-His job would be made easier.

In other words, he wants more money for less work.

In the what Frye hopes nobody will notice category:

-The system he is proposing has been tried before and failed to result in appreciable improvement.
-It would cost much more to run than the current system.
-It would likely result in substantially longer waits for hearings and longer hearings.

In sum, Frye proposes a more expensive and less efficient system that has already been tried and failed...and which just happens to make his own job easier and more lucrative. No thank you!