Does This Address Real Problems?

     From a Notice of Proposed Rule-Making (NPRM)published in the Federal Register today by the Social Security Administration:

404.935 (a) ... Each party must make every effort to ensure that the administrative law judge receives all of the evidence and must inform us about or submit any written evidence, as required in Sec. 404.1512, no later than 5 business days before the date of the scheduled hearing. If you do not comply with this requirement, the administrative law judge may decline to consider or obtain the evidence unless the circumstances described in paragraph (b) of this section apply.

(b) If you have evidence required under Sec. 404.1512 but you have missed the deadline described in paragraph (a) of this section, the administrative law judge will accept the evidence if he or she has not yet issued a decision and you show that you did not inform us about or submit the evidence before the deadline because:

(1) Our action misled you;

(2) You had a physical, mental, educational, or linguistic limitation(s) that prevented you from informing us about or submitting the evidence earlier; or

(3) Some other unusual, unexpected, or unavoidable circumstance beyond your control prevented you from informing us about or submitting the evidence earlier. For example, the administrative law judge will accept the evidence if you show that:

(i) You were seriously ill, and your illness prevented you from contacting us in person, in writing, or through a friend, relative, or other person;

(ii) There was a death or serious illness in your immediate family;

(iii) Important records were destroyed or damaged by fire or other accidental cause; or

(iv) You actively and diligently sought evidence from a source and, through no fault of your own, the evidence was not received or was received less than 5 business days prior to the hearing. ...

404.938 Notice of a hearing before an administrative law judge.

(a) Issuing the notice. After we set the time and place of the hearing, we will mail notice of the hearing to you at your last known address, or give the notice to you by personal service, unless you have indicated in writing that you do not wish to receive this notice. We will mail or serve the notice at least 60 days before the date of the hearing...

404.949 Presenting written statements and oral arguments.

You or a person you designate to act as your representative may appear before the administrative law judge to state your case, present a written summary of your case, or enter written statements about the facts and law material to your case in the record. You must provide a copy of your written statements for each party no later than 5 business days before the date set for the hearing.

     This seems to me to be an attempt to blame the attorneys who represent Social Security claimants for the horrible hearing backlog. We're not to blame. It's the fault of the Congress which has failed to give the agency adequate operating funds. This sort of thing gives aid and comfort to those who would blame the victims of the backlog. Even taken at face value this proposal could address no more than the tiniest sliver of the backlog.
     I have often found that Social Security employees who have never been involved in obtaining evidence from claimants' medical sources haven't the slightest idea how difficult and time consuming this can be, nor how long it can take. Doctors and hospitals aren't standing around eager to hop on my request for medical records. They often sit on requests for weeks or months and ignore telephone calls urging them to act. They often invent bizarre excuses for failing to act, such as "This is a photocopied signature and we can't accept that" when the printed medical release was obviously signed in blue ballpoint ink. One of the biggest dodges is to demand that the patient sign the medical provider's own medical release. These medical providers refuse to accept medical releases designed to meet all legal standards. Only their medical release is good enough even though some of the provider medical releases fail to meet legal standards. Can you imagine how difficult this can be when an attorney is dealing with hundreds of medical practices and a dozens of hospitals? And I haven't even mentioned claimants who fail to communicate with their attorneys. Due to homelessness, poverty and mental illness many claimants lead highly disordered lives. It's hard to get them on the phone and when you do, it's hard to get information out of them. Every attorney who represents claimants will tell you tales of claimants who denied new medical sources in a phone call a month or two before a hearing but who then show up on the day of the hearing and tell the attorney about hospitalizations and new physicians that date back well before that phone conversation. Worse, some claimants simply disappear for months and then show up on the day of the hearing. I make diligent efforts to obtain medical evidence on my clients. I generally contact my clients, to the extent I can, two months prior to a hearing to update their medical records but sometimes the medical evidence still hasn't arrived by the date of the hearing. And, no, I'm not just starting to obtain medical evidence two months prior to the date of the hearing. That starts soon after the request for hearing. I'm talking about updates here. Administrative Law Judges want up to date medical records and so do I but it's a moving target. New medical records keep getting created.