From a recent presentation by the Commissioner of Social Security:
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What if I told you that claimants who show up for in person hearings with an attorney win 5% more often than represented claimants who have telephone hearings? I can't tell you that because I don't know. I've seen no stats on this. Maybe there's some difference. Maybe there's not. You'd think that Social Security could generate those numbers but if they've compiled them, they haven't released them. And don't give me aggregate numbers on telephone hearings. We all know that unrepresented claimants with in person hearings lose most of the time because they couldn't find an attorney to represent them and either didn't show up or show up and lose because of the same problems that made it hard for them to find an attorney.
I actually found those numbers quite staggering. I never voluntarily accept a telephone hearing but conduct and participate in video hearing every time unless my client objects which they only very rarely do. I had thought that was the norm but apparently not.
ReplyDeleteI would like to hear from reps who do routinely accept telephone hearings and whether or not they think that is a good (fair) process. I simply don't see how but am willing to be convinced, not just by whether they are just as successful but whether or not they believe that the client feels they were listened to and got a fair shake.
Yes, almost all of my hearings have been via telephone, and my approval rate has only increased the last few years. I find the video hearings awkward and somewhat distracting compared to telephone hearings. Claimant's do not seem to know how to frame their faces properly if they use their own camera. My experience with the video hearing is the Judge staring off camera almost the entirety of the hearing -- which certainly can give the impression they aren't listening.
ReplyDeleteOur firm does probably 95% in-person hearings and will do phone hearings if necessary. I find the claimant is able to provide better testimony in-person and the ALJs engage with the claimants in a more meaningful way. Whether this impacts the outcome is anyone's guess. I did just have an in-person hearing today in a mental health case where the ALJ thanked the claimant for choosing to appear in person and stated that it "added a lot to the case." Whether that was just the ALJ being kind, I can't say.
ReplyDeleteI absolutely hate MS Teams hearings for the reasons stated by 3:11. And there seem to be more technical issues and delays with the MS Teams hearings.
Many years ago SSA did a study of initial disability claims taken in person vs by phone and mail. They found the in person claims had a higher allowance rate. I would think the same would be true for hearings.
ReplyDelete@6:23pm,
ReplyDeleteI think you are right.
However, I don't know how valid that would be anymore. 15-20 years ago, we had a more time available to take and document cases, especially with extensive claimant observations (which, in some circumstances, definitely DO make a difference with DDS).
These days, it is just a management driven numbers mill no matter how the claim is filed. The limited FO staff we have now are drowning and literally have no time to spend on such things.
If claimants have waited for years for their day in court, then I think they are more than entitled to an in-person hearing before an ALJ without jumping through any hoops. Yet the Commissioner disagrees, and has not ordered ALJs back to the office and allows them full-time telework, despite forcing those in the regional offices, headquarters and OGC back in for non-public facing jobs. One of the dumbest Commissioners I've seen in my time.
ReplyDeleteI'm curious what reps and ALJs think? I figure for reps it must be so much easier not having to travel and being able to do multiple hearings a day with different offices? And I'm sure ALJs love to work at home without having to report to an office?
I am an ALJ. While I love working from home, in my opinion, the claimants do better with in person hearings for many reasons, particularly children. It is easier to establish rapport when you can look someone in the eye. I think they feel like the ALJ is listening better in person. If there is an obvious physical problem, like nodes of the hands in rheumatoid arthritis, the ALJ can see it. Frankly, claimants generally get much better representation. I find the reps are better prepared for an in person hearing, the record is better developed, and reps are more likely to have actually spoken with the claimant before the hearing.
ReplyDeleteI will note that if an ALJ is looking at the side during a hearing, the Agency gave us extra monitors, so the ALJ may be looking at medical evidence or notes on the supplemental screen. It is difficult to know where to look - is it more effective to look into the camera directly or at the claimant on the screen? And personally, I would rather do a phone hearing than a video hearing. I don't see the video adds much. Many reps do not prepare their clients to use the video properly - poor lighting, doing it through a phone and not having the phone still, problems with internet speed or logging in. Telephone hearings are much easier for the claimants to manage.
Yet with phones, I have heard dogs and chickens and children and traffic noise. In person hearings are just better.
However, my pay rate did not change when we were 100% phone/video. The medical evidence is there or it is not.
There doesn’t appear to be much difference over the last few years.
ReplyDeleteFY 2018: 53.9%
FY 2019: 52.9%
FY 2020: 54.1%
FY 2021: 52.2%
FY 2022: 54.2%
I pulled this from the 2023 OIG report on ALJ trends so it’s missing that FY’s data and current data, but I would predict it’s in the same ballpark. My personal favorable numbers increased during the pandemic shutdown. As there were only phone hearings offered in the second half of 2020 and most of 2021 and the numbers didn’t substantially change, I’d say the type of hearing has little bearing on the outcome.
I don’t think there is any meaningful difference, but if the claimant or their representative does, then by all means get an in-person hearing. Phone and OVH are chosen by the claimant quite often in my area because it can be a multi-hour drive to get to an in-person site in the western states. If you were to tell a client their odds of approval increase 5% if they would make a 4-hour drive into the hearing office, I wonder how many would make that choice.
I would be interested to see how the favorable rates compared between represented and unrepresented cases. I’m not sure that factor can be adequately controlled for given that representatives don’t accept every client that contacts them and that some individuals have cases that no representative will take.
It is a records driven system. Years ago I had an in-person hearing with a claimant who looked dreadful. You cannot award benefits based on "dadgum she looks awful" when there is no medical evidence and there had been some recent visits and nothing that would explain the claimant's appearance other than an extensive history of substance abuse. I write unfavorable instructions. It gets written, I sign it, and that's it.
ReplyDeleteAbout two weeks later get a call from the rep. The claimant had recently gone to the emergency department and drawn a physician who didn't dismiss them as an addict, did some testing and discovered the individual had such widespread cancer they couldn't determine the point of origin. Rep got the records uploaded and we did an amended decision.
Modality of the hearing isn't a critical factor. Claimants are as likely to harm their case as help it. I know when I had a serious health crisis, I would reflexively downplay my pain and other complications to the doctors and nurses.
The most important thing the claimant does at a hearing is provide clarity. Why are you getting this treatment? How does it impact you? Why isn't this allegation being addressed? In the electronic records era, you have to make sure that providers aren't just dumping data from previous visits. I notice when the same narrative appears over and over and absolutely nothing changes in complaints. I need the claimant to tell me what was really happening.
My allowance rate has increased post-Covid, I think in part because of natural human behavior. We get a decent number of close calls. People want you to understand their situation and unfortunately many people try to emote and demonstrate their limits and in doing so present as exaggerating with body language and facial expressions, with those visual clues wiped away it becomes how does the testimony align with the record.