Posted: Thu May 29, 2008 06:01 pm Post subject: New ALJ making friends quickly
I received what appears to be a form letter from one of the new ALJs in my local ODAR. He has spelled out specific requirements he wants to be followed in the case.
Attorney must submit :
1. A statement indicating whether all probative and material evidence of which we are aware is of record.
2. A one-page typewritten document outlining theory of case going thru 5 step sequential evaluation process.
3. A one-page typewritten document executed by the claimant indicating their functional limitations and briefly summarizing their ADL's.
All these must be submitted 14 days in advance of hearing.
I take no issue with asking the rep to outline their theory of the case. I do, however, have a problem with the other requests. Why even hold the hearing if claimant is going to testify though a one page document or the document could be used to limit their testimony. As for the requirement of attestation from the attorney regarding the submission of all evidence, I think this is becoming too big brotherish.
Not sure what can be done. Seems as though new ALJ has taken a combative approach from the outset. Not what I was hoping for.
You probably are fortunate to have bestowed on you one of those 90 day wonders who have never practiced law, and know doodly squat about social security law. Not only does the extra paper work put added work on an already understaffed office, it is redundant. You are going over the same information at the hearing, because you want the sworn testimony. We had an ALJ who transferred into our office and came up with similiar nonsense, and was told it would not be done, none of the other ALJs did it, and if he thought it infringed on his judicial independence, to shoot his wad. He didn't.
According to info gathered re this ALJ, they had been representing claimants for a great number of years, handling thousands of cases at all levels,kwhich makes the behavior all that more strange in my opinion.
Joined: 13 May 2004 Posts: 25 Location: St. Louis, Missouri
Posted: Thu Jun 19, 2008 02:47 am Post subject:
I have a theory, based upon one of our newer (not newest) judges, that a judge (or for that matter, a person) always suspects others of doing what he or she secretly thinks they would do in such a situation. I see this, for instance, when a new client suddenly, and out of the blue, assures me that he or she will certainly pay my fee (this is from back when we had to get SSI fees directly). Obviously, this (which had normally not even occurred to me to be a potential problem) reflects the potential client's thoughts about not paying me. Rather than being reassuring, this always (almost) means I had better be extra careful to arrange for my fee to be paid.
Likewise, an ALJ who wants statements about the records all being in, and wants to get testimony prepared in advance, etc., is addressing some concern he or she has had/exploited for a long time, even, apparently, in private practice. For example, if that former attorney (and I do not state, obviously, that this is true, just a theory) was prone to "hiding" evidence, or holding it out for delay purposes, or for coaching testimony in various ways, or anything similar, he or she assumes that the practitioners appearing before him or her are planning/trying/doing the same things. The "clever" ALJ seeks to counter these "clever" lawyer tactics, not realizing that most lawyers did and do not require this structure to be honest/prepared/hard-working.
Alternative theory: The judge has hundreds of cases and would like to get through them as quickly as possible, which is a weeny bit difficult using e-files. Summaries are helpful. Plus there are representatives who withhold material evidence, which can, in certain circumstances, constitute felony fraud. The judge is kindly trying to save them from themselves and create the full and complete record--a duty imposed by statute.
Posted: Tue Jun 24, 2008 09:36 pm Post subject: NewALJ
Wait a minute...wait a miinute. I think we have some very paranoid folks here. Did it occur to any of you who are whining that this ALJ, who reportedly has been a claimant's attorney for years, is just trying to encourage/help you folks to do a decent job...or at least some job? (Too many just show up and meet their claimant's 30 minutes before the hearing and don't know squat about the case, much less effectively argue it.) More importantly, don't you see you are being given one hell of an opportunity to ensure your client's complaints and allegations are being presented in the most coherent,persuasive and comprehensive light????? Take that opportunity; don't whine about it.
Well Leo, that ain't the way it is. The ALJ is an asshole, and what he is doing is going out of his way to make it difficult for all involved in getting cases prepared, heard, and processed as swift as possible. He is involved in mass justice, and not in his former world, where he had personal secretaries and all the comforts of word processing at his command, in fact he has no one in his command, along with his fellow ALJs who have to share whatever human recourses are available.
Posted: Tue Jul 01, 2008 05:25 pm Post subject: New ALJ Making Friends Quickly
For the life of me, I can not understand why people are complaining about this new judge's requests.
Who suffers from compliance? Certainly not the claimant who, as noted above, has an opportunity to reflect on and refine his testimony under the direction of his attorney. (Who knows, maybe attorney will help draft the statement?)
I don't think it will hurt the claimant's case to have the attorney present a written arguement following the same five step analysis the judge must use in crafting a decision.
Compliance with the request to advise the judge whether all the evidence is in or not seems to be a very minor inconvenience at most.
So what is the harm in this judge's requests? Why is he an ass for making them? Is it perhaps because some representatives resent being asked to take the time to do what any competent representative should do?
I think the complaints, as you call them, come from the perspective of past experiences folks have had with ALJ's. There is a slippery slope that comes with ALJ's "requiring" certain things be done or "requiring" representatives to make certain verifications when they do not have the authority to require such things. To that end, I think it is just one indicator of the ALJ's potential attitude toward representatives and claimants. I hope that all of these complaints are off base and this ALJ is merely providing the representatives and claimants with an opportunity to better present the claim as you describe, but my past experiences tell me to beware and to tread lightly as this has been an uncommon experience in my career.
Joined: 13 May 2004 Posts: 25 Location: St. Louis, Missouri
Posted: Thu Jul 10, 2008 05:45 am Post subject: Re: New ALJ Making Friends Quickly
Leo wrote:
For the life of me, I can not understand why people are complaining about this new judge's requests.
Who suffers from compliance? Certainly not the claimant who, as noted above, has an opportunity to reflect on and refine his testimony under the direction of his attorney. (Who knows, maybe attorney will help draft the statement?)
I don't think it will hurt the claimant's case to have the attorney present a written arguement following the same five step analysis the judge must use in crafting a decision.
Compliance with the request to advise the judge whether all the evidence is in or not seems to be a very minor inconvenience at most.
So what is the harm in this judge's requests? Why is he an ass for making them? Is it perhaps because some representatives resent being asked to take the time to do what any competent representative should do?
Your position on this issue is interesting, and of course has some merit. I will try my best to answer you from my perspective, which others may or may not share.
Who suffers from compliance? -- The claimant is not always helped by placing in writing the contents of their expected testimony. This is never an opportunity to "reflect on and refine" testimony; I have never prepared one of these statement that didn't end up being the subject of questioning at the hearing. Getting things in writing would be useful if it was used for keeping the hearing short (i.e. if the questions about daily activities meant they were NOT gone into at the hearing). Instead, the ALJ either wants to impeach the client's testimony with the writing, or the client wants to tell the judge everything anyway. Thus, the lawyer has to spend extra time with the claimant on something that does not directly prepare them for testimony (no lawyer would dare let his or her client complete this statement alone!), the ALJ and staff spend extra time reading (or at least docketing) the forms, and then the contents must be summarized in the decision (maybe), and the claimant gets asked questions like "you said on the form you sent in two weeks ago that you never drive, but you just testified that you can go to the Post Office when your husband is at work if no one can take you - were you lying then, or now?" I have clients who cannot tell me the same answer from sentence to sentence, much less two or more weeks later. By the way, it is not the ALJ's job to determine what is an appropriate amount of time to spend with a claimant - this differs greatly. It is sometimes a big, expensive chore to get to meet with or even talk on the phoen to some clients. An extra meeting is not always a boon - and the issue in this discussion is a requirement that something ALWAYS happen, not that it is considered best practice.
Answer - no one gains, most people suffer.
Many attorneys present written arguments regularly to some or all judges. I agree that it generally cannot hurt. Still, it is not always appropriate, as a standing order would seem to indicate. Sometimes, arguments will be based on testimony. Sometimes of the claimant, sometimes of an expert. This speculative arguing can undermine a claimant's position, resulting in a decision line stating "the claimant does not allege that he meets or equals a listing," which of course, does not mean (as it is treated) that the ALJ should skip step three. Maybe the ALJ is smarter, and should review the possibility anyway. This is a non-adversarial process. But I digress.
Except for the possibility of very new judges, I rarely meet an ALJ who is interested in my legal briefs. Unless an ALJ demonstrates a history of listening to and explaning the adoption or rejection of a legal argument in the decision, why on earth would a lawyer want to take 1-2 hours to give the ALJ a concise, legally sound argument to be ignored? This is a two-way street - we're supposed to be working together (non-adversarial, remember); sometimes I might like a little extra thought applied to a case, but you can be sure I don't determine on which case the ALJ will spend his or her time. The same applies when the case is painfully obvious and shouldn't need a summary of argument. And especially when it is painfully obvious and you know you will still lose with this judge. For individuals in private practice, the most efficient use of time is that which generates the greatest return on investment. Three hours writing a kick-rear brief to a judge that never pays drug users is a waste of time. And the ALJ demanding the brief knows this is a waste of time in that case (and we reps probably think he or she giggles about it in their office).
I can understand (and certainly accommodate) ALJs who want a brief on an issue that comes up at a hearing, or who wants a proposed decision that he plans to use, or who wants written down my argument that the client meets a listing. But no one can seriously believe that this is always helpful. Not even mentioning those times when you have nothing nice to say. You can't write a brief explaining why you should lose, and you can't write a piece of idiotic garbage. All lawyers get bad cases. Losing cases can lose without jumping through hoops and making people look bad.
Having attended a fair amount of ethical practice seminars, I will give the Devil's Advocate version of your question about certifying the record complete. If you read the Social Security rules for representatives, and the civil penalty rules, you will see that what must be provided is (paraphrasing, I am not at work) evidence the client wants to submit that shows disability. I could certainly find no problem with notifying the judge 14 days before the hearing (or any time frame) what evidence is expected to come in, or whether any more evidence is expected. Attorneys bristle at a statement that they must "certify" that all evidence in their posession has been submitted. The ALJ has methods (admittedly underfunded) to obtain whatever evidence he wants. The claimant and the claimant's rep will almost always cooperate in getting anything not in the file. A certification is not to help the attorney avoid fraud (as hypothesized in another post), but is viewed by attorneys as simply an attempt to be able to PROVE fraud - or at least submission of an incorrect statement subjecting the attorney to penalties. And be aware - if the attorney submits this in 472 cases, then fails to submit it when it would be a "Crime" to submit it - what is a judge going to think? Obviously that there is something out there. Thus, attorneys, even with no particular problem with signing the certification, would not want to begin that process that could lead to serious ethical complications with their BAR rules.
The judge could be called an ass, therefore, not for making claimant reps do what they should do, but for the paternalistic attitude that they won't do it without his or her kind, guiding influence. The concept that this "helps" the attorney do their job is almost incredible (and again, paternalistic). This form is a direct accusation of every lawyer it goes to that they are incompetent and likely to mess everything up unless the judge takes them by the hand. Maybe some lawyers are incompetent. Maybe the ALJ should address this attorney at the hearing by asking if they have a theory of the case, or by asking them to submit something explaining their arguments after the hearing, or should ask about specific pieces of evidence at the hearing. Trying to get an ODAR waiting room full of "performing monkeys" isn't likely to endear the ALJ to reps.
And I have never seen this attitude, by the way, in a judge who actually is helpful when it comes to questioning the claimant in an unbiased manner, developing the record, and generally avoiding "hiding the ball" from the rep until the decision. Maybe if the judge would respond with a little note giving us an idea of where he or she stands on the issues in the case (like, "the main issue here seems to be whether this 61 year old can return to PRW, let's just focus on that at the hearing"), this would make sense, and be "helpful" to the claimant. But they don't. And I won't give them ammunition to shoot my client.
I hope I didn't come off too rude or hyper as I wrote this. I would actually not call this judge an ass, but maybe, since he or she is new, misinformed or unrealistic.
Joined: 13 May 2004 Posts: 25 Location: St. Louis, Missouri
Posted: Thu Jul 10, 2008 05:55 am Post subject:
- wrote:
Alternative theory: The judge has hundreds of cases and would like to get through them as quickly as possible, which is a weeny bit difficult using e-files. Summaries are helpful. Plus there are representatives who withhold material evidence, which can, in certain circumstances, constitute felony fraud. The judge is kindly trying to save them from themselves and creat
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