This was obtained from Social Security by the National Organization of Social Security Claimants Representatives
(NOSSCR) and published in its newsletter, which is not available online
to non-members. It is basic operating statistics for Social Security's
Office of Hearings Operations.
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15 comments:
Wonderful news!
This is temporary. Get ready. There are plenty of cases sitting at OHO where a a video option would work well where telephone is inappropriate. How about actually rolling that out rather than sitting on it? And, while the ALJs are currently looking for work to do, the backlog at initial and reconsideration is ridiculous. Cases did not move for months, medical records were slower to receive, consultative exams were held up for months. I am seeing my "pending" at those levels 3 to 4 times normal. My cases filed at the end of 2019 have not made it to the point where we would be seeking a hearing yet. But, movement is really beginning to happen, and our phones are suddenly crazy with new clients at those levels. I think you will see a big jump in receipts at OHO in December and January.
I've never understood why DDS doctors couldn't move cases without a CE. I know reading any DDE clues you in on this, but what exactly do they do besides adopt the CE's opinion or increase the opinion if the CE's opinion would result in disability? They're supposed to be looking at the whole record, and there should be plenty of files that would have sufficient records for the docs to do their job without the crutch of a CE.
It's reminiscent of ALJs who can't make a decision without an ME present to make it for them. Must be nice to get paid $180k a year to ask doctors questions a few hours every other day.
@8:34 - you are assuming the DDS doctors look at the records.
We are seeing cases being scheduled three and four months after the Request for Hearing. Nice for clients; not so great for business, but can't really complain.
The pending at the State Agencies will now be coming out to OHO. That should increase the pending cases going forward, but hopefully never back to the two year levels as before.
My fear is that the Agency will decide that telephone hearings (or new video) will be so efficient that this will become the default. In person hearings are critical to fair consideration. We do what we need to do in an emergency but the simple right to meet the person in person who is deciding your case should never be given up.
@9:43 AM
I think his implication is that the doctors at DDS ordering CEs for every case- like the ALJs who order MEs for every hearing- aren't reading the records. Nice gig if you can get it. But really awful for the lower-paid staff at the end of the conveyor belt who then have to do the doctors' and ALJs' jobs for them. And even worse for the claimants themselves, who really deserve so much better than this.
8:34, never practiced law much? Lemme guess, House SSA subcommittee minority-party staffer? ALJs must have a medical opinion before coming up with RFC in decision. Easy reversal by Appeals Council or the more activist District Courts if ALJ bases the RFC on their own whim. With DDS historically not using doctors for RFC in prototype states until 2017, and with DDS doctors falling in love with "insufficient evidence" as a denial grounds, often the hearing ME is the first doctor to give a proper function by function medical opinion on file. Vital to have them... Not every time, but often enough.
@3:17
What's your cite for an ALJ being required to have an opinion before a decision can be issued?
@7:27
3:17 is wrong. ALJs don't absolutely need a medical opinion to come up with an RFC. Opinions are helpful but not unequivocally mandatory in most cases. What is required is having a fully developed record with enough objective evidence to corroborate an RFC.
The worst part is that 3:17 is probably an ALJ. Had one in my last office that adopted opinions as their RFC, even if the opinions didn't contain actual, specific, and/or vocationally relevant limitations!
8:34 here. I am not a staffer. I am an ALJ in a former prototype state, and not to dogpile with the other comments, but an opinion is certainly not required to make a decision. I've had exactly one AC remand where they cited a lack of opinions, but it was a Lucia remand where they reached as far as they could to attach some other reason for the remand rather than just send it back for Lucia.
You are probably right about activist courts remanding for this reason, but activist courts manufacture all manner of legal errors to remand a case while avoiding performing a substantial evidence review. I don't concern myself with trying to play their never ending game of whack a mole on technical "mistakes."
If you are a rep, consider yourself lucky to be in a region and circuit where errors not found in the Regs are used to remand cases.
“[A] ‘claimant’s residual functional capacity is a medical question’” and “must be supported by medical evidence that addresses the claimant’s ability to function in the workplace.” Jones v. Berryhill, No. 16-5290 at *4, (W.D. Ark. Feb. 2, 2018)(quoting Lauer v. Apfel, 245 F.3d 700, 704 (8th Cir. 2001), and citing Lewis v. Barnhart, 353 F.3d 642, 646 (8th Cir. 2003)). The Eighth Circuit held that it was improper for the ALJ to rely on his own interpretation of these types of findings in determining the claimant’s RFC and remanded for further inquiry into the claimant’s ability to function in the workplace. Combs v. Berryhill, 878 F.3d 642, 647 (8th Cir., 2017).
Sounds like ALJs are wholly unnecessary in the 8th circuit unless one thinks a docto,r can't figure out how to evaluate SGA, PRW and a significant number of jobs in a few days.
The 8th Circuit's reasoning has been adopted by Courts outside of the 8th Circuit and even taken a step further:
This court has similarly noted, "where the treating physician has not discharged the patient from treatment and the physician has not made, and was not asked to make, a determination regarding plaintiff's functional capabilities, there is no substantial evidence to support an ALJ's functional capacity finding." Clemmons, slip op. at 11 (citing Lauer v. Apfel, 245 F.3d 700, 705 (8th Cir. 2001)).
Appling v. Astrue (N.D. Ala. 2012)
........
The consultative examinations ordered by the ALJ simply examined Ms. Appling's individual complaints, and none of her physicians provided any assessment of her impairments in vocational terms. See, e.g., Rohrberg, 26 F. Supp. 2d at 311 ("Where the 'medical findings in the record merely diagnose [the] claimant's exertional impairments and do not relate these diagnoses to specific residual functional
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capabilities such as those set out in 20 C.F.R. § 404.1567(a) . . . [the Commissioner may not] make that connection himself.'") (citation omitted). Appling v. Astrue (N.D. Ala. 2012)
("With a few exceptions (not relevant here), an ALJ, as a lay person, is not qualified to interpret raw data in a medical record.") (emphasis added) (citations omitted); Rohrberg, 26 F. Supp. 2d at 311 ("An ALJ is not qualified to assess a claimant's RFC on the basis
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of bare medical findings, and as a result an ALJ's determination of RFC without a medical advisor's assessment is not supported by substantial evidence.") (emphasis added) (citation omitted); cf. Giddings v. Richardson, 480 F.2d 652, 656 (6th Cir. 1973) ("To meet such a prima facie case it is not sufficient for the government to rely upon inconclusive medical discussion of a claimant's problems without relating them to the claimant's residual capacities in the field of employment.") (emphasis added).
Comparable to Rogers, Manso-Pizarro, and other similar cases, a lay person such as an ALJ is not able to discern Ms. Appling's work-related exertional abilities and appropriate non-exertional restrictions based upon the unfiltered information contained in her medical records. Therefore, in the absence of a medical source statement and/or any physical capacities evaluation conducted on Ms. Appling by a physician that corroborates the ALJ's determination that she is capable of performing a full range of light work despite her severe impairments of diabetes mellitus, cataracts, anemia, and osteoarthritis, the record has not been adequately developed. See, e.g., Cowart v. Schweiker, 662 F.2d 731, 732 (11th Cir. 1981) (citing Thorne v. Califano, 607 F.2d 218, 219 (8th Cir. 1979)); see also Sobolewski v. Apfel, 985 F. Supp. 300, 314 (E.D.N.Y. 1997) ("The record's virtual absence of medical evidence pertinent to the issue of plaintiff's RFC reflects the Commissioner's failure to develop the record, despite his obligation to develop a complete medical history.") (citations
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omitted).
Appling v. Astrue (N.D. Ala. 2012)
@3:17, 4:17 and 10:21
Yes. But getting cases without a medical opinion (which happens maybe 1% of the time) is NOT why some ALJs are calling in medical experts to testify in every last case that comes before them.
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