I recently had a client who was approved disability. She had a well supported case. The AC did an own motion review in which they cherry picked the record for evidence least favorable to my client. Unfortunately for this client, the judge who granted her benefits left for another agency and the case was remanded to a "deny everyone" judge, who denied her case. This is the same AC who overlooks clear ALJ error and abuse of discretion to the point that my local District Court is remanding 40-50% of cases that come before it. I've had this same AC Judge do own motion remand for similar trivial things, and won them on remand b/c the evidence was there to support it. Totally infuriating.
Many of these CE examiners are jokes. SSA often sends people to doctors outside the area of specialty of the main impairment a claimant is alleging. Many of these examiners sole or primary source of business is disability CE's.
It's also important to note that according to CFR 404.1519n, CE's must take at least a certain length of time:
(1) Comprehensive general medical examination—at least 30 minutes;
(2) Comprehensive musculoskeletal or neurological examination—at least 20 minutes;
(3) Comprehensive psychiatric examination—at least 40 minutes;
(4) Psychological examination—at least 60 minutes (Additional time may be required depending on types of psychological tests administered); and
(5) All others—at least 30 minutes, or in accordance with accepted medical practices.
Certain examiners in my region give exams that take 15 minutes or less, and are never favorable. If I'm representing a client who is going to a CE with one of these examiners, I tell them to text my work cell when they go in and when they leave, and if it is less than the length of time prescribed, object to the CE.
I'm curious--since the AC does so few own motion remands and remands of FF decisions--what the basis of this remand was. Your comment conspicuously leaves that out completely and pivots to other, unrelated AC actions that are absurd as cover, but you don't actually say this remand was bad. Methinks you're being a little intellectual dishonest.
There are a lot of things I can will myself to do ONCE, maybe even twice. However, I pay (often dearly) for the effort. The issue is that that the claimant must be able to SUSTAIN such effort. The idea that being able to bend over once=not disabled is like suggesting the ability to nail ONE three-point shot=ability to play in NBA! Or, atleast the D-League!
You should read the entire regulation you cited, instead of "cherry picking" from it. 20 C.F.R. s. 404.1519n does NOT say that consultative examinations must take at least a certain length of time. In fact, it explicitly says that the the times you've cited are merely "minimum scheduling intervals," not durational requirements:
"The following minimum scheduling intervals (i.e., time set aside for the individual, not the actual duration of the consultative examination) should be used...."
I think you're doing your clients a disservice by not taking the time to read and understand the relevant authorities.
look on the other side .........which few reps ever see ......at the numbers of cases with consultative exams where the claimant is granted benefits at the initial level.......
the overwhelming majority of people who get disability get it without going to appeals or using representatives - despite the TV cable advertiser claims or other internet trollers........
@ 1:42: My office here in Alabama has seen a handful of AC own motion remands. We've only one where the decision was denied at the remand hearing. That case was at Chattanooga ODAR where their highest paying ALJ paid it, he went on leave and on remand was assigned to the HOCALJ Bartlett who denied. Now here is something I can't find any attorney in Alabama that has this happen. I'm calling it an AC Denial. Facts: 2/2014 Montgomery ALJ Neel hearing, 2/2014 ALJ Neel FFD (sed=grid), 5/2014 AC Notice that the decision was reviewed and found "it does not provide substantial support for the degree of limitation assessed in the decision", AC says we'll give 15 days to convince us otherwise or we're issuing a UFD, 7/2014 AC UFD issued (light=Step 4 denial), the case is now in the USDC-NDAL before Judge Blackburn waiting on a decision after briefing. One of our arguments of course is ALJ Neel's credibility determination is correct based on her actual observation of the claimant's antalgic gait (knee case). The point is that the AC turned itself into the DDS as far we are concerned. AC AAJ Stacy Evans denied the case without seeing the client for a due process hearing. If the AC can get away with this I don't see why there are ALJ hearings at all. Why don't we just have the DDS let their Hearing Officers do a 30 minute "hearing" and the AC make the decision...no reason for ALJ hearings apparently. If anyone has heard what USDC is deciding on cases like this, please respond.
About 2 years ago, beneficiaries began coming to my office seeking help after "continuing disability reviews" in which SSA had concluded that they were no longer disabled. However, SSA was asking for repayment of ALL back benefits from the date at which they had been determined to be disabled to the time when SSA decided to cut off benefits. In many of these cases disability benefits had been granted by ALJs. I can see repayment of back benefits after medical improvement, but there appears to be an effort to completely eradicate benefits.
I recently had a client who was approved disability. She had a well supported case. The AC did an own motion review in which they cherry picked the record for evidence least favorable to my client. Unfortunately for this client, the judge who granted her benefits left for another agency and the case was remanded to a "deny everyone" judge, who denied her case. This is the same AC who overlooks clear ALJ error and abuse of discretion to the point that my local District Court is remanding 40-50% of cases that come before it. I've had this same AC Judge do own motion remand for similar trivial things, and won them on remand b/c the evidence was there to support it. Totally infuriating.
ReplyDeleteMany of these CE examiners are jokes. SSA often sends people to doctors outside the area of specialty of the main impairment a claimant is alleging. Many of these examiners sole or primary source of business is disability CE's.
It's also important to note that according to CFR 404.1519n, CE's must take at least a certain length of time:
(1) Comprehensive general medical examination—at least 30 minutes;
(2) Comprehensive musculoskeletal or neurological examination—at least 20 minutes;
(3) Comprehensive psychiatric examination—at least 40 minutes;
(4) Psychological examination—at least 60 minutes (Additional time may be required depending on types of psychological tests administered); and
(5) All others—at least 30 minutes, or in accordance with accepted medical practices.
Certain examiners in my region give exams that take 15 minutes or less, and are never favorable. If I'm representing a client who is going to a CE with one of these examiners, I tell them to text my work cell when they go in and when they leave, and if it is less than the length of time prescribed, object to the CE.
I'm curious--since the AC does so few own motion remands and remands of FF decisions--what the basis of this remand was. Your comment conspicuously leaves that out completely and pivots to other, unrelated AC actions that are absurd as cover, but you don't actually say this remand was bad. Methinks you're being a little intellectual dishonest.
ReplyDeleteThere are a lot of things I can will myself to do ONCE, maybe even twice. However, I pay (often dearly) for the effort. The issue is that that the claimant must be able to SUSTAIN such effort. The idea that being able to bend over once=not disabled is like suggesting the ability to nail ONE three-point shot=ability to play in NBA! Or, atleast the D-League!
ReplyDeleteIt must really tickle Charles how many agency toadies haunt this blog!
ReplyDelete1:42 PM,
ReplyDeleteYou should read the entire regulation you cited, instead of "cherry picking" from it. 20 C.F.R. s. 404.1519n does NOT say that consultative examinations must take at least a certain length of time. In fact, it explicitly says that the the times you've cited are merely "minimum scheduling intervals," not durational requirements:
"The following minimum scheduling intervals (i.e., time set aside for the individual, not the actual duration of the consultative examination) should be used...."
I think you're doing your clients a disservice by not taking the time to read and understand the relevant authorities.
ReplyDeletelook on the other side .........which few reps ever see ......at the numbers of cases with consultative exams where the claimant is granted benefits at the initial level.......
the overwhelming majority of people who get disability get it without going to appeals or using representatives - despite the TV cable advertiser claims or other internet trollers........
@ 1:42: My office here in Alabama has seen a handful of AC own motion remands. We've only one where the decision was denied at the remand hearing. That case was at Chattanooga ODAR where their highest paying ALJ paid it, he went on leave and on remand was assigned to the HOCALJ Bartlett who denied. Now here is something I can't find any attorney in Alabama that has this happen. I'm calling it an AC Denial. Facts: 2/2014 Montgomery ALJ Neel hearing, 2/2014 ALJ Neel FFD (sed=grid), 5/2014 AC Notice that the decision was reviewed and found "it does not provide substantial support for the degree of limitation assessed in the decision", AC says we'll give 15 days to convince us otherwise or we're issuing a UFD, 7/2014 AC UFD issued (light=Step 4 denial), the case is now in the USDC-NDAL before Judge Blackburn waiting on a decision after briefing. One of our arguments of course is ALJ Neel's credibility determination is correct based on her actual observation of the claimant's antalgic gait (knee case). The point is that the AC turned itself into the DDS as far we are concerned. AC AAJ Stacy Evans denied the case without seeing the client for a due process hearing. If the AC can get away with this I don't see why there are ALJ hearings at all. Why don't we just have the DDS let their Hearing Officers do a 30 minute "hearing" and the AC make the decision...no reason for ALJ hearings apparently. If anyone has heard what USDC is deciding on cases like this, please respond.
ReplyDelete@12:07
ReplyDeleteOhhh c'mon. The agency's own public published data belie your statements. Are you saying that SSA is publishing false data? Really??
Sean G. Smith is the AC judge who remands just about every "own motion review" remand we get in the Midwest.
ReplyDeleteAbout 2 years ago, beneficiaries began coming to my office seeking help after "continuing disability reviews" in which SSA had concluded that they were no longer disabled. However, SSA was asking for repayment of ALL back benefits from the date at which they had been determined to be disabled to the time when SSA decided to cut off benefits. In many of these cases disability benefits had been granted by ALJs. I can see repayment of back benefits after medical improvement, but there appears to be an effort to completely eradicate benefits.
ReplyDelete