I wonder if someone could confirm something for me. I've heard that in Social Security disability cases prior claim files, as long as they are electronic, are linked to current electronic claim files in some fashion and are easily available to those adjudicating the new claim. Is this accurate?
The problem for me is that the prior claim files are not available to attorneys representing claimants. If these files are available to an Administrative Law Judge (ALJ) hearing a case, shouldn't they also be available to the claimant and his or her attorney? I can hear the response, "Well as long as I don't make them an exhibit, what's the problem?" The problem is two-fold. First, how do I, as the claimant's attorney know that you haven't looked at them? It's possible to look at something without making it an exhibit. I'm not implying some impropriety. My impression from things I've heard is that many ALJs believe that if something was made an exhibit at a prior hearing, it remains an exhibit at a hearing on a new claim and is available to the attorney representing the claimant but it isn't. Second, the prior file may include valuable information that would help in the adjudication of the new claim. If ALJs aren't looking at the prior claim files, they should be.
The problem for me is that the prior claim files are not available to attorneys representing claimants. If these files are available to an Administrative Law Judge (ALJ) hearing a case, shouldn't they also be available to the claimant and his or her attorney? I can hear the response, "Well as long as I don't make them an exhibit, what's the problem?" The problem is two-fold. First, how do I, as the claimant's attorney know that you haven't looked at them? It's possible to look at something without making it an exhibit. I'm not implying some impropriety. My impression from things I've heard is that many ALJs believe that if something was made an exhibit at a prior hearing, it remains an exhibit at a hearing on a new claim and is available to the attorney representing the claimant but it isn't. Second, the prior file may include valuable information that would help in the adjudication of the new claim. If ALJs aren't looking at the prior claim files, they should be.
20 comments:
prior electronic claim files are available to SSA staff for viewing. If needed, we bring evidence from a prior claim into the current claim and notate it as such.
@9:07
it's a little more complicated than that.
If there has been a prior claim file which is electronic, and there is a potential reopening issue, then the prior file SHOULD be copied into the current file. There are standing orders for the SCTs to do this, and/or an ALJ can request it. But.. not all SCTs or ALJs recognize the potential reopening, and thus the prior file sometimes isn't incorporated.
Also. the above only occurs if the prior claim file wasn't appealed to the ALJ level. if the prior claim was denied by an ALJ, the prior records obviously have been exhibited. once this occurs, for reasons that make no sense to me, you CANNOT copy the prior records into the current file. You can however view them, but it involves manually going into the prior electronic file. I can guarantee that 90% of ALJs either don't know how to do this, or if they do, don't look at it.
medical evidence and development usually, non medical from an overnight request.
I think Charles is kind of on to something. I had a claimant with a claim pending before an ALJ with VERY low approval rate (10%ish - she has since been demoted)
we dismissed the claim at the hearing and the claimant had additional health problems shortly thereafter. I think with a better ALJ we would have won on step 4 or possibly step 5 decision)
I refiled the claim and we were heard by a ALJ in an NHC. He repeatedly brought up the fact that we had dismissed the prior claim and had only done so because of the ALJ we had drawn. He went so far as to try and question the claimant as to conversations she had with me about the reason to dismiss the prior claim (of course I object, instructed her not to answer and we filed a complaint after the hearing)
It was very clear he was drawing his insight into the prior claims file that he had access to and we did not.
Eventually we won as she met the listing due to her worsened condition.
I am sure that Charles would like to have the same electronic access to the prior electronic files as he has to the current file. Charles knows much more about computers than I, but I don't think that can happen soon. I think and hope that either the district office or the hearing office will happily provide you with a CD containing all of the documents from a prior efile on request.
@ 12:50 you said "It was very clear he was drawing his insight into the prior claims file that he had access to and we did not."
You do realize that the CLAIMANT, your client has a right to get that file and likely did actually get a CD with all that information in it right? Not to mention, anything that was sent to the claimant, the claimant already has.
I get calls like this a lot, claimants/reps asking questions about the file. We tell them what's in it and essentially say, either you gave us what is in the file or we already mailed a copy. SSA is not trying to hide anything from claimants or reps.
Yes indeed, Charles is on to something! For several years, I have found that if a client had a previous case which went to hearing, the denial by the former ALJ is almost ALWAYS included in the file. Additionally, UNFAVORABLE consultative examiners' (CE) reports are included, but favorable CE reports from the prior file are often omitted.
Another frequent occurrence is the omission of FAVORABLE MRI or other imaging reports from cases being appealed to hearings from DDS. The same pattern is often recognizable for unfavorable or favorable treating source statements [this is less frequent than the imaging reports]. In the days before electronic files, I used to suspect that the MRI had been pulled to possibly be shown to a supervisor or medical consultant, but this same occurrence is now happening in electronic files.
These occurrences are so frequent that I now search older files when available or attempt to obtain the old record so I can find what has been omitted--frequently the missing evidence will be strong enough so the case history will contribute to a winning case before a new ALJ.
This problem was discussed in a thread in Charles' blog quite a long time ago. Someone from SSA made the comment (to the best of my recollection) that "we are only required to submit material which supports our decision." If that person is correct, it explains the gaps in evidence which I've observed. And, it shows a misunderstanding of due process.
And here it goes another conspiracy theory... Evil ALJs/SSA do whatever they can (get away w) to ruin highly credible clts and their well-founded allegations. They do it cuz they have a Dark-Side sort of agenda. They do it cuz they compete who will deny more claims. They do it cuz they have so much extra time to study not only that 1,000-page-thick new file but same size or bigger old files... they do anything in order to send away clts and their reps penniless.
Shameful.
I think that others have pointed out that the claimant and rep can have access to the prior folders if they were to ask for them. The problem is reps barely read the current file.
Just to clarify.. most good reps read the ere file very carefully. I would also suspect that most reps would ask for things should they know that the ALJ's have it, have access to it or will be utilizing it.
This isn't so much a conspiracy theory as it is actually happening. @2:44 and @2:17 comments are somewhat obnoxious to suggest the failure lies with the reps when they are not aware that such files are available and being utilized.
@2:17, its not a conspiracy "theory" if there are facts which support it. Not only can ALJs access the prior electronic folders, but the DDS can access them as well and typically do when adjudicating a newer claim. If you look at the Disability Determination Explanations, you will frequently find that the DDS will reference evidence from the prior file, at times bringing it into the current folder but frequently not.
I routinely object to the DDE at hearings if it references evidence reviewed which is not in the record. The bigger issue, as others have stated, is that we only know what they want us to know about the prior file. I have never seen helpful evidence referenced, only evidence which is contrary to a claimant. I have had a claim where the DDS only referenced some IQ reports from prior claims, leaving out the reports that supported a finding of disability. There is no longer any sense of trust as it relates to ODAR. As to the DDS, I just think they know any better.
I'm not going to search HALLEX because I just don't want to right now (lazy, shoot me), but the sections that deal with actually adding exhibits from prior files as exhibits in the current file have a huge ALJ discretion component.
Some previous commenters are misconstruing the HALLEX' requirement (in certain situations) in earlier sections requiring the ODAR office to GET the prior file and review it, but after we get it, it seems like it is totally within the ALJ's discretion what of that old evidence she wants to rely on and thus exhibit in the current file.
If you want to know about prior files, especially electronic ones, just ask about them and for them. Like was said earlier, files are easily enough shared with claimants and reps (electronic ones, at least) and me and my ODAR brethren are most certainly not trying to hide evidence from you.
If anything, ALJs and decision writers want to NOT consider prior file evidence because that file/period was dealt with already and this file already has 1000 pages thank you very much.
Chavez issues can require the ALJ to read the prior ALJ decision for any res judicata on the RFC. But I've usually always seen the prior ALJ decision in the exhibits if that is an issue.
I'm sure will always be things that make the system imperfect - that's just fact. I don't think either side is intentionally railroading claimants. However, I would simply ask this: if the process were so straight forward, would claimants even need representation? Aren't reps charging a fee because they know how to navigate the system? No one would sign over up to $6000.00 just have someone file paperwork for them would they?
Could the system be better? YES!!!
But there's no conspiracy to deny people benefits.
A rep can't ask for a prior file if he/she doesn't know there is one. Even when my client has a prior denial letter, and I think the prior file is relevant (e.g., within the reopening period or SSR 91-5p applies), and I request the prior file be exhibited, ODAR fails to exhibit the prior file.
It requires an additional step by the CT at ODAR -- more work -- and it just doesn't get done in my neck of the woods.
Every file should have a Disability Office Report that contains the basics on the claim, observations by the CR who did the intake, and the prior file history. The file should also contain a DibReview Sheet, which lists every prior application. These documents will let you know about prior files if your client cannot tell you.
SSA has access to prior electronic files in eview. They can also request prior paper files. If the evidence from prior claims is not exhibited and available to reps in the current claim file, why not just ask for it? Is there any legal basis for the agency not to disclose it.
The ALJ is not supposed to base their decision on anything that is not in the record. for example, if an ALJ sees a claimant skipping to their car, that ALJ must make a record of their observation, make it an exhibit, and permit the claimant an opportunity to respond. its called "due process." The same holds true for all of the "stuff" in the "C" section and if other electronic files that may or may not be "paper-clipped" to the current folder. If the ALJ looks at it, it becomes evidence and the claimant has the right to be provided a copy of it (whether or not he/she should have access to it or have retained a copy or whatever). A hearing is an adjudication - though informal - due process requires certain protections and access to all of the evidence is a fundamental protection that should not be fudged. Unfortunately, it is frequently fudged by ALJs and other staff going in and looking at things not available to the claimant and deciding whether or not to make it evidence. Once the ALJ reads something, the bell is rung and cannot be unrung. Good ALJs go nosing around and find things that staff does not and make it evidence following proper procedures, other ALJs do other things. Yet another flaw in the system.
I should clarify that when I say "it becomes evidence" I mean in a legal sense. In the SSA world, a document doesn't become evidence until it is marked as such electronically. Nonetheless, if an ALJ considers something in making the decision it is evidence in the legal sense and should marked as such for SSA purposes.
11;17 AM What do you mean by "nosing around..." and where?
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