Aug 3, 2018

Proposal To Require That VEs Not Be Present In Person At Hearings

     Social Security has sent proposed new regulations on Setting the Manner for the Appearance of Parties and Witnesses at a Hearing to the Office of Management and Budget (OMB) for approval. If approved, the proposed regulations will be published in the Federal Register for public comment. Social Security will have to consider the comments before adopting final regulations. Here's Social Security's summary of the proposal:
We propose to revise 20 CFR parts 404 and 416 to establish a preference for the manner in which parties and expert witnesses appear at a hearing, including by video teleconference (VTC) or by telephone.  We also propose to require non-parties, including medical and vocational experts, to appear by telephone or VTC, unless circumstances in the case warrant a different manner of appearance. We would specify that although the adjudicator may identify facts that may impact an individual’s manner of appearance, it is ultimately the Agency’s responsibility to schedule the hearing and determine the manner in which individuals will appear.

21 comments:

Anonymous said...

This reassigns responsibility for scheduling away from the ALJ and puts agency firmly in control. Ridiculous. What problem is this intended to solve? Phone service is so bad on SSA's low bid phone systems that hearings will become a nightmare game of "What? What? WHAT?!".

Anonymous said...

How do we even know the expert is paying attention to what is going on at the hearing?!

Anonymous said...

Hmmmmm… sedentary with a sit stand option.

Margaret Kibbee said...

Love all the comments here, especially 9:27.
I could put up with VTC but not phone.

Anonymous said...

When I request to appear via telephone before an ALJ when they failed to give me 75 days notice of the hearing and I am double-booked, I get screamed at for dereliction of duty. However, they bend over backwards to allow "experts" to testify from their bathtubs.

This agency is pitiful.

Anonymous said...

Does SSA pay these experts less if they testify by phone? What problems would increasing the amount of phone testimony solve?

There are a lot of potential problems with phone testimony. As observed above, how do we know they are paying attention. Also, how do we know someone else is not paying attention. Consider confidentiality and security of information problems inherent in having hearings in which the claimants protected information might be passing outside of the hearing room into a non-secure phone, or on a speaker phone which could be overheard or even recorded. Finally, it will often only be obvious at the hearing that a witnesses physical presence could make a difference. I predict ALJs would be reluctant to reschedule for in person testimony on a rep or claimants objection in the middle of a hearing, due to the havoc it would create in their already strained hearing schedules. There are several ways increased expert phone testimony can hurt claimants, so the questions raised are whether any benefits are worth it, and if they are increased, has SSA done everything possible to ameliorate the potential harmful effects to claimants.

Anonymous said...

As an ALJ, who worked for 15 years in a hearing office in which VE's appears in person, and who now works in an office where VEs almost always appear by telephone, I can say that appearance by telephone is beset with problems. Poor phone quality is a continual problem. Sometimes it is our problematic phone system, sometimes it is the VE's. VEs appearing by telephone often do not pay attention to the testimony; in hearings, they have no choice. VEs in telephone hearings are more prone to inaccurate information and less inclined to attempt to correct or defend such information. I sometimes wonder what they are smoking on the other end. Eating and drinking is sometimes audible when the mute button is off on the VE's end.

SSA does not solicit any feedback from ALJs as to the competence of the VEs that we are required to use.

Anonymous said...

This proposal makes for interesting timing given Biestek v. Berryhill has been taken up by the Supreme Court. I would imagine an expert who actually has seen a claimant might have greater insight into either their medical functionality, or whether jobs exist in the national economy in significant numbers despite their impairments.

The Administration acts as if MEs and VEs are to limit their testimony to the evidence of record, yet 20 CFR § 404.1566(e) does not place limits on a VE's testimony (although SSR 00-4p requires reasonable explinations be provided for apparant conflicts in vocational evidence). SSR 17-2p limits an ME to the evidence of record in regard to determining whether the claimant meets or equals a listing, but not in terms of functionality.

This just seems like an ill-timed attempt to further reduce the humanity of the process.

Anonymous said...

VE testimony in person is far better than by phone in just about every aspect, but particularly in terms of logistics. In hearings where VE's appear by phone, there are constant problems with the phones that delay and in some cases cause hearings to be postponed.

Anonymous said...

This is 100% to wrest control from the ALJs. You have no idea how much time and effort AAs, SCTs, LSCTs, and mgmt spend calling up every VE they know when something happens at the last second to find a VE that can appear in person to appease the all-powerful crybaby ALJ who refuses to have a VE appear otherwise. You don't want to know the number of hearings postponed and person-hours wasted trying to sub an in-person VE at the last minute, but I guarantee those hours and dollars were tabulated in Falls Church and are the basis for this change.

Anonymous said...

My favorite is when the ALJ directs the on phone VE to raise his right arm to be sworn.

How do I know if they really did? Is the oath not effective unless they raise their arm?

How silly this all is.

Anonymous said...

SSA's phone system should not be the issue anymore since phones should not be used to contact experts, reps, or claimant's by phone. The VTC is set up to call directly through that unit, and assuming the VE's phone is not shot (not guaranteed), the clarity is actually great. Perhaps VEs should be required to maintain a landline to conduct phone hearings to ensure (or make reasonably sure) that they're not going to cut in and out of the hearing. Of the VEs that testify in my hearings via phone, only one or two actually have phone issues. Most come through quite clearly through the video unit.

With regard to the VE paying attention or not seeing the claimant, so long as they're paying attention to the work history discussion and answering the ALJ and rep questions, they don't need to pay attention to hearing testimony. If you're a rep that lazily asks, "If everything the claimant said was true, could they sustain work?" then that's on you to ask the VE those questions. I'll never let a VE answer that question.

Finally, to the assertion that a VE that has seen the claimant might have greater insight into their functionality or that the VE should see the individual before giving their testimony, that's well beyond the scope of their duties and expertise in the disability hearing. They don't review records. They don't see or hear anything beyond what they're told or what they see, which is frequently well beyond what the records support. Their sole role is to classify past work and answer judge/rep questions by discussing the effects of limitations on a hypothetical individual's ability to work. They are not supposed to take the claimant's testimony or presentation into account in making their opinions.

Anonymous said...

@1:25

My opinion differs from yours. There are plenty of times a claimant might demonstrate a restricted range of motion or other functional limitation that might clarify limited information in medical records. Many ALJs (and I suspect you are one from your comment) fail to include sufficiently specific information in your questions to experts to capture the claimant’s actual limitations. Only over-broad cookie cutter questions to VEs are used or permitted, leading to findings and decisions that fail to accurately account for the claimants actual functional capacities. It is one of the most frequent grounds we appeal cases to Federal Court and for which our clients are granted remands. It is very easy to point at your VE hypo, compare it to more detailed limitations documented in the record, and point out how they don’t match.

Anonymous said...

@2:38

You are correct about my position.

"It is very easy to point at your VE hypo, compare it to more detailed limitations documented in the record, and point out how they don’t match."

This point is entirely valid (in terms of "you" meaning "us"), but it has little to do with the VE being in person or over the phone. Any demonstration will need to be verbally described on the record. Any competent rep (and I assume you are) can phrase a hypo to reflect the limitation to the VE. If the medical records sufficiently demonstrate an unaccounted for limitation from a hypocrite, the VE's location is rather meaningless.

Conversely, if a claimant comes in and says "I can only lift my right arm this high" and demonstrates slightly above waist level, yet the records show normal or mildly limited range of motion, note that the claimant tweaked their shoulder painting the ceiling, etc., then the demonstration is rather meaningless.

Anonymous said...

No one has mentioned this will be the New Norm as the agency prepares to nationalize VE's this fall.

Most Regions are in the process of Centralized Scheduling where I large OHO will begin scheduling for theirs and other OHO's. Eliminating the pleasure of having your favorite VE sitting in the hearing.

What does this save? Currently, VE travel expenses of $100+ per day. As the agency nationalizes under contract(s) VE compensation will drop dramatically.

Anonymous said...

"non-parties, including [but not limited to] medical and vocational experts"?

This is going to touch interpreters as well, I'd wager.

And if you think a phone VE is bad, try a phone interpreter.

Or worse, a case with an unrepresented claimant trying to ask the phone VE questions via a phone interpreter.

Many ALJs don't have the IT knowledge to set up testimony by phone, and with the new contract VHRs who travel from HO to HO, they often don't know how technology works in a given office either. $100 in travel costs) for an in-person VE (who can do multiple hearings on the same day, so figure $25/case) is cheap compared to wasting a hearing slot when the technology can't be figured out and the hearing needs to be postponed.

Anonymous said...

Or say you've got video hearing with representative in remote location, claimant appearing by telephone because they are in prison or hospital and VE appearing by telephone. Current Agency VOIP doesn't allow that many conference calls. So you have contract hearing reporter trying to make verbatim record with VOIP running and landline speaker phone. Good luck having any sort of hearing with lag and feedback let alone record that will make any sense in FDC.

David Tucker said...

Has anyone else experienced a hearing where a VE seemed almost coached by the ALJ prior?

I've had a few where the VE snap answers the ALJ Hypotheticals without even thinking. Are they allowed to talk to the VE prior to the hearing?

Margaret Kibbee said...

Responding to 2:11, The VE's seem to know what that ALJ wants, but I have no proof that there is a prior or subsequent conference between them. We are supposed to include questions with all the limitations, but the decisions only seem to encompass the answers that the ALJ elicited.

Anonymous said...

David-

To me (an ALJ) it seems some VEs only have a repertoire of 5-6 jobs they'll use at any given exertional level, and those VEs don't take a lot of time in answering a hypo if jobs exist.

With regard to your last sentence, there are times that I will ask a VE ahead of the hearing if they have an idea of what a person's past work classification is and whether transferable skills might exist to a lower exertional level in cases of a 50+ or 55+ claimant. I do that for efficiency's sake in either quickly getting to a FREV or at least narrowing down the period at issue in a later onset decision, but I also acknowledge that I have done that on the record once I get to the VE's testimony.

David Tucker said...

@7:33 Do you think this is fair to the claimant?

Your hearings are supposed to be impartial. If ALJ's can conference with VE's prior to the hearing, claimaints counsel should be able to as well.