When I first started representing disability claimants for a big local law firm, I quickly noticed a problem all too commonplace in the practice of disability law: the failure of the firm to obtain their client’s updated medical records and thus complete the record of evidence in time for their hearing with a judge. The striking absence of these immensely important records was often the source of much conflict with the Administrative Law Judge at each hearing. Informing the judge that the records had not yet been obtained was typically met with a harsh lecture, or mild annoyance at best. After all, as these frustrated judges would often admonish us, there’s already between 17-22 months that a client must wait for their hearing, which is more than enough time to complete the simple task of obtaining their updated medical records. Furthermore, during this overwhelming wait for a hearing date, the client typically has no source of income, and therefore struggles to figure out how to provide for even their most basic needs. The firm’s failure to obtain medical records in time for the hearing (and the subsequent wait for their arrival, review, and the judge’s decision) thus unnecessarily dragged this agonizing process out even longer for clients. And in the ultimate twist of perverse irony, the firm’s failure to obtain medical records in some cases actually increased their attorney fee, since that fee is based on retroactive benefits accrued while time elapses.
Failing to update a client’s medical records can, in my opinion, also jeopardize the case’s outcome, even if those records are eventually obtained. In general, the more medical records exist showing consistent treatment, the stronger a client’s case is. When the judge reviews a file just before the hearing, and it appears that the client has not received much medical treatment (only because records are missing), this can negatively color the judge’s initial impression of all existing medical records and your claim in general.
The cause of this uncannily frequent mistake, as a helpful judge once educated me at one of my first hearings, was the fact that most firms use paralegals to prepare a file ahead of each hearing. However hard-working and well-intentioned a paralegal may be, without actual experience representing disability claimants at hearings, they typically don’t know how to identify what medical records are important to obtain in time for the hearing. (I’ve always felt that the bigger problem was the paltry amount of time that these paralegals are afforded to provide individual service to their clients, considering their overabundance of other duties).
Regardless of the problem’s root cause, it had grown so rampant while I was at my old firm that one local judge resolved to penalize attorneys something like $100 for every document that the attorney failed to timely submit (though I believe some were trying to fight those penalties and I’m not sure of the outcome). It is also my understanding that in one region of the country (the New England states), there is a strict deadline for submitting any medical evidence five days before the hearing.
While the former measure sounds toothless and the latter measure sounds heavy-handed, the best approach to solving this problem is bonafide self-regulation amongst disability representatives. My own fee agreement contract essentially guarantees that medical records will be updated by the time of the hearing by providing that half of my fee will be forfeited back to the client if I fail to update their records in time for the hearing. If this were standard practice in the field, there would be more incentive for attorneys to update their clients’ records in time for their hearings and prevent the various problems that failing to do so can bring about.