May 19, 2020

What A Mess

     Can Social Security start holding in person hearings prior to the release of a vaccine for Covid-19? Many disability claimants are immunocompromised because of medication they're taking. Even if everything else is reopening, it may be inadvisable for them to attend a hearing. And it's not just the claimants. Some of the Administrative Law Judges (ALJs) who hold the hearings are immunocompromised as are some of the attorneys, vocational experts and hearing reporters who attend the hearings. Many others are at additional risk from Covid-19 because of their age. I really want to get back to in person hearings but can they be held with reasonable safety for all the participants?

32 comments:

Anonymous said...

What a mess, indeed. Nearly all claimants are either over 55 and/or possess co-morbid conditions that place them at extremely high risk of mortality should they contract COVID-19, and many ALJs and support staff do as well. And on top of that, many claimants have mental health conditions that predispose them to inappropriate reactions to stresses or requests to do things they may not want to do (such as wear a mask, which is about the easiest thing in the world to do, but nonetheless seems to be a source of endless strife for >50% of the US population). Given all this, I think it's safe to say reopening before a vaccine is in place (or effective large-scale testing with contact-tracing) would be a recipe for mass-scale disaster.

Anonymous said...

Thankfully, Alexander Graham Bell invited the telephone.

Anonymous said...

2 months in now on phone hearings and they appear to be proceeding smoother than I originally anticipated. As one of my hearing associate attorneys told me recently, the good cases are still getting paid, the bad cases are still getting denied and the ALJs are even giving the benefit of the doubt on some borderline cases given the circumstances. It helps that we're an established firm and that the ALJs know and respect us, even over the telephone. Decisions are being released timely. The claimants, for the most part, appear to be OK with the process and are getting their fair due process. Our office manager was told by a scheduler that phone hearings are likely at least through the end of the year. I anticipate they will continue until a vaccine is readily available.

Anonymous said...

The problem is that many things cannot be conveyed over the phone. Claimants may not hear the question accurately. Distractions may mean incorrect answers. How do you convey on the phone the extent of disfiguring arthritis, or anxiety, or inability to relate to others? Even video hearings can be lacking, but they're better than phone hearings. I fear that SSA will use this as an excuse to go to phone hearings forever, in the interests of "efficiency". As a aside, would you want to be tried for a capital crime with a trial conducted by phone? Due process demands more.

Anonymous said...

11:16 Query: what are the vocational experts testifying to as far as jobs available? My first batch of cases were all delayed because of various reasons, but I have 3 cases coming up soon. How can a VE testify with a straight face that there are jobs available?

Anonymous said...

@12:53 PM Some of the VEs I have encountered have testified that they have adjusted job numbers based on unemployment claims, sectors, impacted, and sectors with increased work. I don't usually challenge them on it if the jobs they site are still being performed.

Other VEs, however, are making no adjustments and simply recite whatever Skilltran tells them. I even had one VE testify that she was still using an outdated version of Skilltran because the most recent update (I believe a year or two ago) didn't provide enough sedentary jobs. Well that's how she testified in the first hearing. An hour later, in hearing number 2, she testified that she was using the most recent version.

Anonymous said...

I want to protect my clients, and all others involved in a hearing, myself included. Many of these hearing rooms are quite small, as are waiting rooms. In general, my phone hearings have run smoothly, and I've also had the experience that borderline cases seem to be getting paid lately, not sure if this is coincidental. But I have several cases in which a phone hearing just won't work, for various reasons. These are typically mental health reasons in which a claimant has difficulty expressing themselves, and can do so better with their attorney or advocate in the room. I wish we could do video hearings with clients who are less physically at risk, but have difficulty expressing themselves for mental health reasons, although I understand that still puts the hearing reporters at risk. I'm at a loss as to how to proceed should phone hearings continue to the end of the year.

anon said...

I can accept the fact that vocational witnesses are basing their job numbers on stats from earlier in the year before adjustment for quarantining. What I do have a problem with is the testimony that I have elicited that there would be no adjustment in numbers of jobs at all by adding a requirement that all workers remain six feet apart. Whether the judge accepts the premise or not is one thing, but that testimony is preposterous.

Anonymous said...

There is no equivalency between the quality and benefits of an in-person hearing, and either video or telephone hearings. I have been representing claimants for 45 years with a reasonable level of success and I am convinced beyond any doubt that a client is disadvantaged by either a video or telephone hearing. It is extremely important to maintain face-to-face contact between judges and clients. What a judge sees and hears in a room with the client is significantly different from a hearing conducted by video or telephone. The administration would prefer to eliminate in-person hearings for the sake of efficiency. Again, it is critical that we continue to have a system that necessitates judges being in direct contact with people to remind them that their work and decisions affect people. The judge has to see and interact with people to appreciate that fact. Otherwise, the judging process is reduced to grading papers. For now, and thru the summer, I am holding out for a return to in-person hearings.

Anonymous said...

My phone hearings have been going well. As stated above, I have seen some ALJs grant more borderline cases especially a few OTRs. The low granting ALJs will do what they always do - never grant a borderline case. But the middle of the road granting ALJs are learning towards granting.

I do see the value of in-person hearings. This is especially true when the claimant uses an assistive device like a cane or a walker. But I have been sending in pictures of the claimant using the device but it is not the same. I like to think ALJs are human and not robots (though not sure for some). And seeing the claimant hobble into the hearing has to make some sort of impression. But in psych cases, all I want is the testimony.

Do not see in-person hearings as some grand violation of due process. The medical records are almost always the most important in proving disability. So if this is the way of the future, then so be it. Have to adapt.

Anonymous said...

@6:34 PM

Your reasoning seems circular, antiquated, and apparently inconsistent with the experience of your peers. Bet you also think it's just not possible to judge someone's character without looking them in the eye and getting a firm handshake. I just hope you'll come to your senses soon enough to minimize the harm you're doing to your clients.

Anonymous said...

@8:12 AM
Those are rather strong and highly opinionated comments by a person who is unfamiliar with me and my reputation, both professionally and personally. You can disagree with my opinions and recommendations, but I suggest that you utilize the antiquated and old fashioned style of politeness and courtesy when expressing your views. Have a nice day.

Anonymous said...

I for one agree with @6:34/@10:19. In person hearings are far superior to video hearings, which are superior to phone hearings in my estimation. Evaluating the consistency of the testimony with the rest of the record involves more than simply reading a transcript, which is very much what this feels like.

Many of my hearings are falling off the calendar to wait for in-person hearings, and I understand completely. I do wish I could say to the rep making that request, though, that since you were planning for a hearing soon, and since you probably have the record updated and where you want it, why don't you send in a brief explaining why I can allow the claim without a hearing. And I will use the time previously set aside for that claimant to evaluate the file and your brief.

Anonymous said...

Several representatives have posted comments about the value of having the ALJ able to observe, preferably in person, their clients' infirmities and presentation. Do these representatives also accept without objection statements in ALJ decisions about observations of the claimant's ability to sit through hearings without apparent discomfort, etc., or do they then fall back on the impropriety of these lay observations?
As to the VE testimony about jobs, I would suggest it is inappropriate to base this testimony on what we all believe or at least hope to be a temporary change in workplace conditions. It will be months or years before anyone can reliably identify permanent modification of the workplace or employment numbers as a result of COVID-19.

Anonymous said...

@11:13 AM

Your suggestion regarding the promotion of OTR dispositions is exactly the strategy I have been following for my clients, and with the experience of very positive results. Thank you for your thoughtful comments.

Anonymous said...

No one is arguing that, all things being equal, in person hearings are not far superior to phone (or even VTC) hearings. However, things are certainly not equal now. I think it can be argued that it is malpractice to hold out for in person hearings before a vaccine or effective therapeutic is widely available. One, you're putting your client in danger who, most likely, is already in a high risk category. Two, the delay in eventual payment is certainly harming the clients. In persons hearings likely won't be held again until 2021.

I agree with the ALJ above who suggested submitting OTR requests with briefs. We've done that with some cases and had some success in getting several favorable decisions without a hearing. Otherwise, the benefits of phone hearings during this time greatly outweigh the downsides.

Lastly, I can imagine that those holding out for in person hearings must have small practices with small overhead expenses. Our firm would have a difficult time paying salaries/health insurance to all our employees as well as rent and advertising costs if we suddenly stopped doing hearings for an extended period of time. That has to be part of the equation as well.

Anonymous said...

Immigration has been holding vidoe hearings for a long long long time. About time SSA got with the program.

Anonymous said...

@12:16 PM
It seems that many offering their comments with regards to the value of in-person rather than video or telephone hearings, seem to be disregarding the human element of the hearing process.

Judges need to be made aware daily that their position involves making decisions that will have a significant effect upon the lives of other persons. That necessitates involving the judges in situations that place them in face-to-face encounters with our clients.

We can not permit the system to eliminate this critical human aspect of the disability evaluation process. Otherwise, the judge is reduced to the status of a graduate teaching assistant whose only purpose is to grade papers.

If any attorney fails to understand the importance of this crucial element of the disability evaluation process, she or he needs to select another area of law in which to represent clients. Disability law is not real estate law.

One final analogy is the comparison to a civil jury trial, in which I have participated in hundreds, possibly thousands, during my 45 year legal career. There is a significant difference between standing in front of jurors and witnesses in a three dimensional face-to-face setting compared to doing a trial by telephone or video. There is a similarity in that regard to civil jury trials and our comparison of the worth or effect of in-person versus telephone or video hearings in the disability evaluation process.

There is too much humanity in our business of representing clients seeking disability benefits to reduce our services to participation in either video or telephone hearings.

Finally, no lawyer or law firm should place financial concerns for her, his, or the law firm's needs above the interests of the client. You, as a lawyer, do what is best, in your judgment, for your client. Factoring in concerns about payment of overhead expenses for the lawyer or law firm is a slippery slope that will impair your judgment and diminish your professionalism. I would rather sell shoes in a shoe store than prioritize my financial self-interests above the needs of my clients.

Anonymous said...

@12:53 PM

It bears mentioning that the telephone hearings being held by SSA are NOT on the level of those held by immigration judges, who often make no effort even ensure they are able to hear the detainees and other participants. Trust me, you do NOT want SSA to begin running OHO the way DOJ runs its immigration mill. And thankfully, I don't foresee SSA stooping to that level anytime soon.

Anonymous said...

@11:52

No, because sitting through a 1 hour hearing doesn't tell you the individual can do that for 8 hours a day, 40 hours per week. Being unable to sit through a 1 hour hearing DOES tell you the individual can't do that for 8 hours a day, 40 hours per week. I get the presumption that it should cut both ways, but it does not. If the hearing lasted 8 hours, or actually 6, then maybe an inference could be drawn that the claimant can do sedentary work (or at least the sitting component), although that would still leave open the question as to 40 hours per week.

@12:16

Agreed. We are doing OTR requests as well, and have had some success.

@12:53

Or immigration could start holding in-person hearings and provide a modicum of due process.

Anonymous said...

@ 1:38: I agree with your overall premise, even though you do come off being a tad sanctimonious. Of course it is better for the claimants and the system to have in person hearings where the ALJ can interact with the claimants and attorneys. However, during a world-wide pandemic, I am thankful that Social Security is still able to hold phone hearings and continue processing disability claims, both for the sake of the claimants and my law firm (sorry, but the dozens of employees of my firm who count on a paycheck and health insurance for them and their families would rather I not choose to instead "sell shoes in a store.") I believe phone hearings are a good compromise for all interested parties until a vaccine or effective therapeutic is developed. Only at that time, hopefully sometime in 2021, can we all move back to in person hearings.

Anonymous said...

@1:38 Even over a 45-year career, 1,000 civil jury trials comes out to nearly 2 per month. But you said "possibly thousands." Plural. And 2,000 is nearly one per week. How could you possibly represent even a single client (ethically) at a disability hearing in the midst of such a tremendous workload? Talk about putting your financial gain ahead of your clients'... Tsk tsk. I sincerely doubt you know the first thing about "the humanity in our business of representing clients seeking disability benefits."

Anonymous said...

Covid raises many interesting questions. How long will these hopefully temporary job losses last? As far as vocational expert testimony is concerned SSA seems to assume the most optimistic outcome possible, that all jobs will come back soon and be the same as they were before COVID. We don't know that though. If it ends up like the Spanish flu in duration of impact we could be in for a long ride. If that happens the what? Mass re-adjudication all decisions that found that people could do jobs which did not exist at the time of adjudication? How long would it take before post-COVID reduced job numbers are acknowledged as more than just a temporary cycle?

Then consider what if some job requirements become materially different due to Covid, but those differences were not accounted for in the VE testimony and could change the claim outcome. How will SSA handle claims where it is contraindicated for a particular claimant to be in a work environment post-Covid because of a medically determinable impairment? How SSA answers these questions will have a large impact on many claimants.

Anonymous said...

I dont believe there should be hearings at all. You have been denied at least once and in most states twice.

Anonymous said...

@ 8:47AM Troll much?

Anonymous said...

@ 10:11 no, it is an opinion. Or just drop all the in between stuff and do a hearing first. You get your shot. Prove disability or not.

Anonymous said...

@8:47/10:40

1, Google Goldberg v. Kelly and Matthews v. Eldridge. Due process requires at least one hearing.

2, The "in between stuff" saves SSA tons of money in administrative costs because the majority of claims are awarded at the initial and recon levels. It also stops the hearing wait list from ballooning out of control, or at least more out of control. The majority of claims are also awarded at the hearing level, meaning the few that are not awarded by the state agency largely are awarded in the end with ALJs going against the state agency.

3, I would support removing recon, and the AC for that matter, but not because having multiple levels of review somehow advantages claimants, because it doesn't.

Anonymous said...

Right to a hearing is mandated under the Act. In contrast, the largely money-sucking ineffectual AC is a regulatory not a statutory construct and could be eliminated to save considerable resources. And before trotting out the old red herring about the fed courts being inundated, the sky did not fall when the AC agree rate was hovering around 90 to 95 percent anyway

Anonymous said...

Go back and read those cases harder: the only people entitled to the hearing are those who already have a property right in benefits--i.e., cessation cases. And even then, these folks aren't entitled to that hearing before being ceased.

The act and the regs still exist and control, but the Supreme Court sure has signaled hearings aren't Constitutionally required for initial claims.

Anonymous said...

@7:38

11:16 here. I did not claim hearings are constitutionally required, they are required statutorily under the Social Security Act, 42 USC § 406(b)(1) specifically. If Congress wants to amend it, they could. As to whether the Supreme Court has signaled hearings are not required for initial claims, absolutely not.

First, that would be strikingly at odds with the statutes as written which consistently and repeatedly state the determination is "on the basis of evidence adduced at the hearing."

Second, it would strongly impact the trust the Courts have placed in the Administration under the deferential substantial evidence standard of review, because the fact-finder would be in no better a position, at all, from that of a reviewing Court.

Third, as to Goldberg and Matthews, the Goldberg Court held the opportunity to be heard must be tailored to the capacities and circumstances of those who are to be heard, and the opportunity to provide written submissions is insufficient. In Matthews, the Court held a hearing was not required because recipients are not harmed (significantly) by erroneous termination of benefits because they can appeal and have the benefits restored retroactively, whereas if the termination was valid and benefits were erroneously paid, then SSA would be harmed because recouping an overpayment is hard (I paraphrase). I would also say, prior recipients could simply file a new claim, and actually get a hearing. On a related note, I'm curious if SSA's payment of interim benefits during termination proceedings undercuts the harm the Matthews Court relied upon in siding with SSA.

On the other hand, if benefits were denied without a hearing initially, those benefits are lost in all Title XVI claims, and in many Title II claims (the ones that are post-DLI). So the harm is irreparable in the context of an initial claim.

Anonymous said...

In one region, folks were told they are expecting to keep offices closed for the next 2-3 months at a minimum to employees. I would assume employees will return to the office well before the public is allowed back in, so I don't see an end to phone hearings any time soon.

Anonymous said...

@7:48 p.m. Okay, you have unmasked me!

Yes, I have been only a first semester first year law student now for 45 years who clearly is not paid a salary for his math skills. I recalculated the numbers and it is highly unlikely that I have had over 1,000 civil jury trials during the past 45 years, unless the total includes motion hearings before the bench. More likely, the total for civil jury trials should be 350 - 500 but I was only trying to inflate my credentials by puffing up the estimate in my previous message to impress readers like you.

Indeed, the only real client experience I have had for the past 45 years is limited to landlord tenant law performed at the law school staffed local legal aid office.

Thank you for sobering me up and disrobing my deception. I really do feel better now about my life. And, only because of your watchdog surveillance.

Anyway, you know what, modern medicine provides medications and therapy for treatment of your anger and temper issues.