An addition to Social Security’s HALLEX manual:
A.
GeneralHearing office (HO) staff will initiate and conduct a prehearing case analysis and workup when the HO receives a claim(s) file. HO staff will consult with the administrative law judge (ALJ) and HO management on the issues discussed below, as needed.
B.
Prehearing Analysis of Evidentiary IssuesAs part of the prehearing case analysis, HO staff will review the claim(s) file to determine whether the claimant informed the agency about additional evidence that is not in the record. If the evidence is not in the record, HO staff will develop the evidence according to the regulations and instructions in Hearings, Appeals and Litigation Law (HALLEX) manual I-2-5-13.
If HO staff determines additional evidence may be needed for a full and fair inquiry into the matters at issue, they will consult with an ALJ to determine whether to develop the evidence. See HALLEX I-2-5-2. If the ALJ decides that he or she needs additional evidence, the HO will develop the evidence before scheduling the hearing.
C.General Overview of Prehearing Analysis and Workup
In addition to performing a prehearing analysis of evidentiary issues, as discussed in subsection B above, HO staff (or the ALJ, if otherwise stated in the referenced citation), will take the following actions:
Ensure the claim(s) file is associated with the correct claimant.
Assess whether there is a prior claim(s) file. See HALLEX I-2-1-13.
Determine whether special handling procedures apply. See HALLEX I-2-1-55 D.
Determine who is a party to the hearing. See HALLEX I-2-1-45.
Determine the issues in the case. See generally HALLEX I-2-2.
Ensure concurrent claim(s) or requests for escalation of claim(s) are associated with the case. See HALLEX I-2-2-22.
Determine whether special notices are required. See HALLEX I-2-3-45 and I-2-3-50.
Document whether the claimant has objected to appearing at the hearing by video teleconferencing. See HALLEX I-2-0-21.
Note whether the case may be appropriate for a decision on-the-record, or whether the claimant has waived the right to a hearing. See HALLEX I-2-1-82.
Select the proposed exhibits and prepare an exhibit list. See HALLEX I-2-1-15 and I-2-1-20.
Determine whether an interpreter or other special accommodations are needed at the hearing. See HALLEX I-2-0-15 C, I-2-1-70, I-2-1-72, I-2-1-74, and I-2-3-10.
Determine whether expert testimony is needed at the hearing. See HALLEX I-2-5-34 and I-2-5-50.
Determine whether the testimony of any other witness is needed at the hearing. For instructions regarding when field office employees can be called as witnesses, see HALLEX I-2-5-71.
Give the claimant or the representative the opportunity to examine the claim(s) file. See HALLEX I-2-1-35.
Schedule a prehearing conference, if appropriate. See HALLEX I-2-1-75.
Schedule a hearing and send a notice of hearing (if applicable). See HALLEX I-2-3-10 and I-2-3-15.
For claim(s) remanded by the Appeals Council, request clarification before scheduling a hearing if the ALJ cannot carry out the directive(s) set forth in the remand order, or if the directive(s) appears to have been rendered moot. See HALLEX I-2-1-8.
Oh, say it isn’t so. This is basically the original Senior Attorney Program, apart from the unnecessary micromanagement of Hearings Office top heavy numbers of managers. Heaven forbid a well experienced Senior Attorney cannot make necessary decisions without consulting non-attorney, or less Agency specific experienced, HOD’s or GS’s! Plus, the original Senior Attorney Program was extremely productive and successful across the board. Although this Memorandum states this is to be done with ALL case files, Senior Attorneys were often tasked with working up case files in the non-designated age range for the cases that were designated SA cases, whenever the number of those cases reduced on occasion. OMG! This also worked well! Imagine that!
ReplyDeleteBack then, Senior Attorneys did most of the pre-hearing development; determined what medical records and CE’s were necessarily and ordered them; determined the issues and whether the case could be paid on the record, if so, we wrote, issued, signed and mailed the decision; we contacted claimants representatives where an amended onset date could result in a favorable OTR, for additional information, other prehearing negotiations, whatever was necessary to move the case along; we wrote and sent NE & VE Interrogatories when we believed such input had a high probability of the case being favorable OTR; we wrote short summaries/briefs for ALJ’s setting forth issues, potential RFC’s, drew attention to possible troubles we could not resolve, etc.
Bottom line is we did all these things in the original Senior Attorney Program, and it was a resounding success across the board. It’s unfortunate non-hearings level experienced members of senior management who could not wrap their minds around anything other than counting numbers, were NEVER able to see the bigger picture, and what worked and what didn’t work. ALJ’s complained they no longer got enough favorable to maintain production numbers, even though they had much more time to put quality work into the more challenging cases they were handling. Management still harassed ALJ’s over numbers.
Because of management’s unnecessary obsession with numbers, numbers, numbers, and general incompetence about how to best manage a workforce processing large volumes of cases while ensuring due process for claimants, went about destroying the Senior Attorney program bit by bit, until they finally succeeded.
SSA, and OHO and AC, in particular, would greatly benefit from putting well Hearings level experienced SSA Attorneys in high level management and policy decision making positions, rather than the numbers obsessed, often non-attorney members of management who have run SSA into the ground the past several years, and who have demonstrated over and over their inability to see the greater picture of how to manage in such a manner that produces the best quality work product while simultaneously maintaining employee morale and satisfaction with the work they perform.
Also, get rid of the far too top heavy managers in the Hearings Offices, where so much money is being wasted, and return to the one Supervisory Attorney and one Office Manager structure. I spent my entire career with SSA, and I just cringe with the mismanagement I witnessed last couple of decades. Just my two cents, but I surely hope someone with half a brain and ounce of common sense takes notice.
I don't think so.
ReplyDeleteAn ALJ in our neighborhood thinks reps are trash and likes to put them down. I have had three case-hearings of an hour each where she spent the whole time documenting the record of where in the transcript the DDS severe impairments were located, where the claimant had told the doctors of his symptoms, and where the testing reports were. (She didn't ask for opinions and didn't specifically admit exhibits. She did not take testimony nor ask the claimant any substantive question other than his name and birthdate.)
Last year, when I submitted briefs to her, she said she wouldn't read them because they were not submitted within five days -- even though 20 CFR 404.1512(a) doesn't apply to argument and I said I was submitting them in lieu of opening statement.
After the last hearing, my young client who has an incurable disease and is expected to die within five years asked me why the judge hated me. He said he was going to have to tell his family that there would be a two month delay and that he was behind on the house (would be foreclosed if no moratorium) and would have to get rid of his second automobile..and felt the ALJ had prejudged him. (Interestingly aside comment, he blamed Obama as appointing her.) He kept telling me that he didn't blame me... but he kept telling me that he didn't blame me!)
I do briefs for my other ALJs --- and I don't object to helping the ALJ find her information..they have a tough job! However, why if the ALJ doesn't understand something why not give me a call and ask for a brief, or ask in the hearing that I submit arguments in 10 days... or tell me in the appointment letter that these are important to her. I never had this game played where the ALJ would take testimony of me to index the record. Why take 60 minutes to find out what they already know?
12:45PM: The ALJ you described should be fired for incompetence. Start writing letters to RCAL & Central Office documenting your complaints.
ReplyDeleteAll the "will" language seems useful in the cases where HO staff do not develop evidence of which they've been informed. If the case is then denied that could be an argument to remand it by the AC or federal court.
ReplyDeleteI’m an experienced ALJ. The staff in my office are too busy and too short-handed to do more than the minimum. Some lack the experience to do more than the minimum. I lack the time and the support to review a file before the case is even scheduled. There are some extremely capable reps. However, the majority of representatives, lawyer and non-lawyer alike, are painfully lousy. Few reps have taken more than a fleeting look at the file before the hearing. At least 50% of the reps argue that the laughably unsupportable alleged onset date is the date when the claimant became disabled. At least 50% of the reps haven’t bothered to fully develop the file before the hearing, and need four to six weeks more to do so. At least 25% of the reps submit duplicate medical records and/or illegible medical records.
ReplyDeleteThe system is broken. It is fatuous to heap more responsibilities on the hearing office staff.
Respectfully, a Cog in the Machine
This is potentially -- potentially -- a benign and benevolent plan. Chief ALJ Nagle has mentioned that he wants SSA ALJs to have a similar system to what District Court judges have -- where they are the *last* person to see a hearing file, after it's been properly worked up by support staff and properly screened and annotated by a staff attorney/law clerk. Recently at SSA, the ALJ is the *first* person to read a file, after rushed SCT workup, and the *first* person to screen the case for OTR-worthiness.
ReplyDeleteThanks to COVID and the decline in hearings (both decline in number of cases to be pulled, and reps declining phone hearings left/right/center during the lockdown), there is finally time to read ahead -- impossible to do when ALJs had schedule 600 hearings a year and edit 500 decisions. Before now, pro se claimant hearings became pre-hearing conferences: Did you know your right to representation? We're missing three years' worth of your medical records? We may need to have a supplemental hearing with experts? Yes, we see you went to a CE two years ago, but the staff didn't move that exhibit over so we haven't read it yet -- next time!
This plan COULD turn the hearing office into a cohesive team, give the ALJ an organized file during the hearing itself and make decision-making easier.
Or...... it could be part of the AC's backdoor plan to replace ALJs with staff attorneys. My suspicion is someone is going to be tracking ALJs by how many cases they grant when the staff attorney recommended a denial (and many staff attorneys lack the experience and confidence to know a pay case when they see one). ALJs, start calling out bad reviews when you see them...
@4:55
ReplyDeleteI can understand your frustration, however all of the ALJs I appear before regularly go insane if we remove a duplicate record. One accused my firm, several years before I started there, of trying to hide evidence, so everything is submitted now. A newer ALJ in the area complained of the duplicate records, and my response was "Go talk to ALJ____ about it" and explained why we did it this way.
As for illegible records, with respect what is illegible to you is not always illegible to other individuals and vice versa, so I think it's a terrible idea to withhold something on the basis that it is "illegible."
I agree with @10:43. 20 CFR 404.1512(a) states that a rep must submit evidence in its entirety unless the rep previously submitted the same evidence or the rep is instructed otherwise by SSA. So if there is a pre-hearing order that instructs us to remove duplicates, we do that. If there is no pre-hearing order and a facility sends us the same MRI report that DDS already two copies of, we are still going to submit the MRI report in order to comply with the regulation. As for illegible records, we really do not have any recourse. If that is all the facility has, then that's what we are going to submit. It at least shows the client has sought treatment, evaluation, etc.
ReplyDelete@10:43 AM and 1:35 PM
ReplyDeleteIf you're wondering at all who @4:55 PM was referring to when he referred to "painfully lousy" attorneys aren representatives, I think it's safe to say you'll find an accurate answer by looking in the mirror.
Grow up and use your common sense.
I'm curious if this is why we've started getting tons of hearings scheduled with nothing exhibited, and often documents appearing unexhibited at random up a week or two prior to the hearing. Makes briefing incredibly difficult, as well as even ensuring the evidence of record is fully developed.
ReplyDelete@5:05
Sadly, common sense does not relieve attorneys/reps from liability. Better to be safe than sorry in regard to submitting medical records, especially since, like 10:43, we've been directly told by multiple ALJs not to exclude duplicate records. It's unfortunate your compatriots (presumably) have forced us to burden you with superfluous documents.