I don't know what percentage of claimants awaiting hearings on their Social Security disability claims are accepting telephone hearings, the only type of hearing available to them as the moment. If the agency is compiling numbers, perhaps some Social Security employee can tell us. Certainly, a lot of claimants are declining telephone hearings.
I can speak to what I'm doing. The most important thing to remember is that it's the client's choice. I've heard that a few attorneys just automatically accept or decline telephone hearings without consulting with their clients. I'm aghast at this. I've heard other attorneys express amazement that any of their colleagues would do this.
However, even though it's the client's choice, attorney opinion matters a lot. Whenever an attorney lays out a choice that a client has to make, whether it's on this issue or any other, most of the time the client asks "What do you think?" They're paying for our expertise so they ought to take our opinions into account.
The advice I'm giving clients depends upon the client's financial situation.
If it's an SSI or concurrent claim or even a Title II only claim where I know that the client has run out of money or soon will, I almost always strongly advise accepting a telephone hearing. Telephone hearings are not ideal but delay is potentially catastrophic for desperately poor claimants. I've had a couple of clients commit suicide. I've had several others who died of overdoses where you couldn't be sure whether the overdose was accidental or intentional. I'm pretty sure that financial stress was a factor in most, if not all, of these tragic situations. I've had too many conversations with clients who were facing imminent homelessness. I've had too many conversations with clients who stayed in abusive relationships for fear of homelessness. I take delay very, very seriously.
There are some situations where I can't recommend a telephone hearing even for poor claimants. If there are communication problems, a telephone hearing may be impractical. Some clients aren't in medical care. I can look at their files and see that they're going to lose if they don't get back in medical care. I tell them this in strong terms and advise that they refuse a telephone hearing at least until they can get back in medical care.
If my client is not in financial distress, my advice is that "it's your choice" but I tell them not to expect an in-person hearing to be scheduled until there's a vaccine for Covid-19. There's no reason to hope that a vaccine will be available until sometime next year. Even if you're not in financial distress, a long wait for a hearing can be difficult. Claimants want it all behind them. Having this hanging over their heads wears them down. I also warn that there's a risk that Social Security will eventually force a telephone hearing on them. If there's no vaccine in sight later this year, I expect that. Many of my colleagues may violently disagree with me but I think that would be a rational choice for the agency to make. I haven't run any numbers but I'd guess that well over half of my clients who aren't in financial distress elect a telephone hearing.
Other attorneys may be advising their clients differently. I can think of four factors that might make others recommend waiting for an in-person hearing.
- First, the attorney may expect that the Covid-19 pandemic will go away soon. In many areas of the country Covid-19 cases are declining. I happen to live in a state where Covid-19 cases are increasing so I can't be optimistic. Even if you're in an area where Covid-19 cases are declining, I don't think you should expect in-person hearings this years. As Social Security leaders remind us, they're running a national program. Can you resume holding hearings in Harrisburg, PA but not in Raleigh, NC? Can you resume holding hearings when the official advice is that individuals who are older or sicker or immunocompromised should stay at home as much as possible? Too many participants in hearings -- and not just claimants -- fall into one of these categories.
- A second factor is a fear that the telephone hearings being held now are just the start of a campaign to end in-person hearings. I am sure there are some at Social Security who might like this idea but I don't think that's likely to happen. It would draw massive opposition and have little support in Congress. In any case, the grand scheme of things isn't an individual claimant's concern. They need to know what's best for them. Also, individual claimants declining telephone hearings don't make telephone hearings go away. Others are accepting.
- Third, many attorneys have concerns about the mechanics of the telephone hearings. At least early on, there was a problem with hearing participants being dropped from the call without warning for no apparent reason. The other participants often had no idea that this has happened for several minutes. There's no way to log back on if you've been dropped. Also, I've found the sound quality on the telephone hearings to be only fair. I don't understand why the sound quality isn't better. It should be digital. Assuming they can hear each other, it's too easy for people talk over each other in these telephone hearings without intending to do so. I've also had several hearings in which the ALJ started to question the Vocational Expert but the claimant tried to answer because he or she thought the question was directed at them. I've seen that happen at in-person hearings but not too often.
- Fourth, and maybe most important, many attorneys believe that their clients' chances of winning may be lower with a telephone hearings than with in-person hearings. That could be but I haven't seen that myself. From what I've heard, I think most other attorneys who have done a few telephone hearings would agree with me on this. I haven't heard of attorneys doing a few telephone hearings and then start advising their clients to refuse them. I'd be interested in seeing some numbers from Social Security on how claimants who have telephone hearings fare.
Agreed 100%. I have some clients who are receiving long term disability benefits, or who have substantial other household income. Those are the clients of mine who have generally chosen to wait for in-person hearings. For my other clients, I caution that it could be months before there are in-person hearings, and most of them have opted to go forward.
ReplyDeleteI have interestingly found that I may be having greater success with in-person hearings. I have had several cases that easily could have gone either way that were approved. I wonder if ALJs are issuing more favorable decisions at this time when they are faced with a close call.
@11:31
ReplyDeleteSame. I suspect the slight uptick in favorables isn't a matter of policy, just psychological based on everything going on.
We have always been asking clients if they accept a phone hearing. Most of the time they will.
ReplyDeleteMy only hesitation is when clients use assistive devices. I like to believe ALJs are human and not robots. And if a client uses a cane, walker or wheelchair, I kind of want the client to hobble into the hearing room before the ALJ. Like to think this gives an impression. In these cases, I have been having clients take a picture with the assistive device to give the ALJ a more intimate portrait.
For psych cases, I do not care if it is over the phone. I just want the testimony. In fact, it seems like clients have been a little more open on the phone.
I actually like the phone hearings for clients with severe respiratory problems and immune problems. A closed environment with other people is just not safe right now for these claimants.
I have had a few clients continue the case mainly to get more treatment. This gives us a perfect excuse to continue the case. But for the most part, the phone hearings have been working well.
Phone hearings have been just ok for now, but they are not a long term solution to what is a long term problem. They are glitchy. You can't give a fair hearing for many who are particularly communication impaired. Some mental health impaired are really not competent in a room or their own, unmanageable. I think there is a huge pool of claims of more difficult cases just not getting heard. The straightforward cases can be done. Video streaming would be of help. I would like that ALJ to be able to see my client having difficulty coping, breathing or in a wheelchair. If the courts and the VA are able to do this, what is SSA's opposition? Sound can still be recorded by phone through SSA.
ReplyDeleteI don't see how anyone can, in good conscience, advise their client to wait for an in-person hearing. If that's your game-plan, then it looks like you're in for a long wait unless your client is willing to put themselves at high risk of acquiring an infection that's been killing ~5% of patients here in the great USA:
ReplyDeletehttps://www.washingtonpost.com/graphics/2020/national/coronavirus-us-cases-deaths/?itid=hp_rhp__hp-banner-low_web-gfx-death-tracker-duplicate%3Ahomepage%2Fstory-ans
Note that nearly half our states (most being red-states, whose populations tend to be over-represented among disability applicants) are now experiencing higher-than-ever-before rates of infection. As a nation, we barely dented the curve, and it's now getting steeper than it was back when this first started picking up. Truly we are winning and great again, aren't we?
I expect that I am going to be strongly criticized for my opinions, but I strongly disapprove of accepting the offer of conducting a telephone hearing. My experience has been that telephone hearings are vastly inferior to the dialogue that develops and flows between clients and the judge at an in-person hearing. I appreciate that those advising clients to proceed with telephone hearings are acting according to their sincere beliefs based upon concerns for the best interest of the client. I have no reason to attempt to persuade other attorneys to recommend that their clients decline telephone hearings. However, we humans are not auditory creatures; we are primarily visual creatures. I trust my clients to make a better presentation at an in-person rather than as a voice only during a telephone hearing. Conditions existing at the end of the summer may eliminate any choice as to telephone hearings.
ReplyDeleteThink it depends on the client. I have refused all telephonic hearings with translators so far. I have been in a live hearing where the judge refused to order the translator to translate the testimony of the VE saying that the translator only had to translate the questions and answers directly to the client. I am concerned that without simultaneous translation, that more judges will only allow the translator to translate direct testimony.
ReplyDeleteAnon 8:59 I get your point about the visual aspect. But I have also found clients to sometimes be more open over the phone. Maybe it's because they feel like it is more private especially in psych cases. But if hearings will not be in-person until at least September, then it is best to try to do it over the phone.
ReplyDeleteI have been told by multiple OHOs that there will be no in-person hearings until 2021. I am objecting to the lack of video conferencing/ability to see the claimant on the record. What if a client needs to stand up or move around a bit during the telephonic hearing? Or stretch an uncomfortable part of their body? What can be viewed by the judge and translated for the record will be lost.
ReplyDeleteFor the Reps who believe everyone can wait for in person hearings, please understand that many shelters have closed nationwide to the homeless because of the pandemic.
ReplyDeleteI take calls from claimants who say that rather than a shelter, they prefer to sleep in their vehicle or unheated camper because they have a pet with them that provides a normalcy to their life.
We'll be scheduling September shortly. Winter Is Coming.
5:42, are you an SSA employee who just went Game of Thrones on this stuff? And do you think that reps really don't care if their clients freeze to death?
ReplyDeleteOf course reps care if they freeze to death because if they are single, no kids, the chance of getting paid goes down the drain.
ReplyDeleteAt 5:42, etc. - Can you say "hypocrite?" How long does it take to get a hearing? Does the agency ever care if anyone is homeless, sleeping in their car, freezing to death. HELL NO! I have a client right now sleeping in a tent in the woods that should have been approved on the first decision. ITS BEEN ALMOST 2 YEARS. She was hospitalized for psychiatric reasons 23 times in 3 years. The psychologist at DDS who denied her admitted he doesn't read the medical records. The ALJ denied her because he didn't deem her morally worthy of receiving benefits (he doesn't understand the law and regs well enough so he just judges them to see if they measure up to his standards or worthiness). I had to threaten to get a writ of mandamus to the get the appeals council to expedite it. They did issue a good remand but should have just given her the benefits because now we have to wait for a new hearing and if its with the same judge he will most likely deny her out of spit. If the agency gave a damn about claimants being homeless or freezing to death they'd require DDS docs to actually do their job, instead they just want numbers. If the agency gave a damn about claimants being homeless or freezing to death, they'd give rid of ALJs like this one. If the agency gave a damn about claimants being homeless or freezing to death they'd give them benefits when its clear the ALJ is an idiot instead of remanding to the idiot and making the claimant wait again. Please spare me your trite remarks about reps caring. The agency you work for is responsible for prolonging suffering of claimants every day. Are you telling your bosses to do something about it? No? Guess you don't care, do you?
ReplyDeleteAll the current rumors I'm hearing are that the employees won't return to office until 2021. The US lost the battle against the virus. Phone hearings or nothing.
ReplyDeleteI want to add that I find the comments on this site valuable and relevant, simply for me to be exposed to the experiences of other attorneys focused on Social Security disability law. This site seems to be able to avoid "crazies" who regard social media as an opportunity to vent hateful and disrespectful words about other posters, issues, and concerns.
ReplyDeleteI discuss this with my clients, and none of them want to wait. So far, I've been given more leeway to describe or report my client's limitations. We do what we got to do. We are all working through something we've never been through.
ReplyDeleteRe: in-person service at SSA -- As of today, SSA's website states
ReplyDelete"How can I find out if my Social Security office is open?
Date: June 29, 2020
None of our Social Security offices can accommodate walk-in visitors until further notice. In-person service is by appointment only and for limited, dire need situations. This decision protects the population we serve—older Americans and people with underlying medical conditions—and our employees during the COVID-19 pandemic.
However, we are still able to provide critical services. If you have a critical situation that we cannot help you with by phone or online, we may be able to schedule an in-office appointment for you.
You can speak with a representative by calling your local Social Security office or our National 800 Number. Local office phone numbers are available online at our Social Security Office Locator. Please visit our Office Closings and Emergencies page for the latest information about office closings.