Monthly Archives: December 2014

This post is the third and final installment in a series that I’ve been writing on my blog outlining ways that some common practices amongst disability representatives contribute to the extreme backlog of disability cases currently waiting to be heard/decided. Today, I’ll discuss what I personally consider to be the second biggest contributor to the hearing backlog behind the SSA’s funding problems: the conscious choice made by many representative groups to pursue essentially meritless claims all the way to a hearing (or to withdraw immediately beforehand).

Whether or not a case is meritless, a judge still needs to spend the same amount of time working on it. They still need to allot the requisite time for their hearing and testimony. They still need to review all records just before the hearing in preparation. They still need to write out a very detailed and meticulous decision at the risk of being overturned on a technicality. The not insignificant number of meritless claims that come before a judge throughout each year thus occupy a portion of their schedules that could otherwise be used to handle meaningful claims and reduce the hearing backlog.

At this point, I should clarify what I mean by “meritless” cases. I’m not simply referring to “weak” cases, where serious legal or evidentiary questions make the claim’s approval unlikely. In fact, difficult cases require a lawyer’s involvement much more than “slam-dunk”cases. Instead, what I mean by “meritless” is that the claimant’s representative has literally no reasonable argument for why the claimant qualifies for disability. For example, this would occur in situations where the claimant has not only pursued no treatment for the medical conditions allegedly keeping them from working, nor received any medical opinions supporting their alleged limitations, nor have they any explanation for what would keep them from adjusting to other work at Step Five of Social Security’s sequential process.

For outsiders to this field of law, it might seem illogical that lawyers would decide to bring such meritless cases to a hearing, especially on any regular basis. Why would an attorney waste their time and effort pursuing a case with almost no possibility of getting paid? The reason it regularly happens is rooted in the hearing backlog itself. When an attorney evaluates the case of a prospective client, they generally do so with the understanding that the client’s hearing won’t be held for at least another year. That gives the client and attorney ample time to pursue the treatment and medical opinions that can turn what starts out as a weak case into a strong one. This doesn’t always happen, however.

After taking on a new client, oftentimes the client’s subsequent actions or inactions can jeopardize their case, sometimes to the point that the case has essentially no merit at all. Given the typical administrative adversities of the standard volume practice, oftentimes a firm does not realize when a case has no merit until after they’ve reviewed the updated medical records that they’ve purchased and organized, which is usually done very close to the hearing date. Since by this time the firm has already invested its time and money into obtaining records, and since there are no direct negative consequences to the firm for unfavorable decisions, my understanding is that most firms discourage withdrawl of even meritless claims at this point in process. As a result, the firm’s lowly associates are forced to present themselves to the judge with a red face and piece together something that sounds vaguely like an acceptable legal argument, or lose their nerve and withdraw the claim at the last minute. As I explained earlier, either of these scenarios is a colossal waste of the court’s time- time that could be used to tackle the hearing backlog.

What’s truly frustrating is that it doesn’t need to be this way. A short, simple conversation with a client updating the details of their treatment a month or two before the hearing is all that is generally needed to ascertain which cases will be untenable. Doing this would allow the representing firm to withdraw from meritless cases before investing time, money, and energy into record collection. Withdrawing at this slightly earlier stage would also allow the judge’s office to free up space on their docket and time allotted to case review. It also spares the client time that they would have otherwise wasted waiting for an inevitable denial, and gives them an opportunity for a head start in correcting whatever factor was plaguing their case (generally lack of treatment, non-compliance, or substance abuse). In fact, the very types of progressive disclosure software programs that I develop are capable of gathering the requisite information from a client for deciding when a case has any potential. The built-in logic in these programs would allow even trainees and new hires to gather this information for efficient presentation to an experienced attorney who could make the final decision.

In conclusion, we as representatives must recognize that the hearing backlog obviously has an extraordinarily devastating impact on the lives of our clients. We should avoid a cynical outlook that nothing can be done to solve the backlog, and recognize the steps that we ourselves can take to help correct it (or at the very least, not exacerbate it).

Today’s post will be the second installment of a series exploring alternative causes for the disability hearing backlog. Rather than focusing only on the lack of funding at the Social Security Administration as the sole culprit for the backlog, I intend to explore ways that the practices of disability representatives unfortunately contribute to this problem, and ways we can help fix it. Today, I’ll discuss how the overly-pedantic approach that many attorneys and representatives take with their cases contributes to the backlog.

At its core, a disability judgment is a fairly simple analysis. An individual claims to be disabled based on any number of reasons. The judge considers the legal sufficiency of those reasons, the credibility of the claimant, and the extent to which those claims are supported by medical evidence.

The degree to which the Social Security Administration has dispensed with much formality in its hearing process really demonstrates the fairly simple nature of the process. Hearings are held in small conference rooms without the typical trappings of the courtroom setting. The rules of evidence (particularly hearsay) simply don’t apply. All proceedings are non-adversarial, as the government has no attorney arguing against the claimant.

Still, there are many representatives who in my opinion take a very complicated, if not pedantic, approach to arguing their cases. Specifically, I’m referring to the consistent use of “job numbers” arguments along with amorphous debates with vocational experts at Step Five of the sequential process. I don’t intend to discuss the legal sufficiency of these types of “hailmary” or “kitchen sink” arguments, except to point out that the Social Security Act and all its regulatory descendents have never defined numerically what constitutes a “significant number of jobs”, thus essentially rendering any argument thereof to the realm of the academic or theoretical. Nor will I comment on the effectiveness of this strategy, beyond mentioning that I’ve never known an ALJ to be receptive to a generalized vocational argument, and have only seen the Appeals Council remand cases on this basis very inconsistently. Instead, I’m focusing today on the aggregate effect that these types of diaphanous, yet highly involved and complex arguments can have on a system that is already backlogged just with straightforward cases.

My main problem with a “job numbers” or otherwise aggressive yet unfocused cross-examination of vocational witnesses is not that it makes each hearing last significantly longer than normal and diverts its focus away from the claimant’s impairments (though it does). Rather, I take exception with any case theory that is designed entirely with a second hearing (remand) in mind when there is already an enormous backlog of worthy claimants waiting for their first hearing. In my experience, the Appeals Council (and federal courts) can be very unforgiving of even the slightest judicial error, and will sometimes remand cases even when that error constitutes a minor technicality tangential to the matter at hand. Since “job numbers” data and vocational questions are by far the most complicated and least understood aspects of disability law, these often serve as the bases for such remands despite the infrequency in which they are actually relevant to a case. In fact, my understanding is that at least one of the largest disability advocacy groups in the country have a policy where they will appeal literally every unfavorable hearing decision they receive, and base their appeals on any technicality they can possibly conceive. Such practices put in enormous strain on the wheels of bureaucracy, as the adjudicatory process provided by the Social Security Administration is essentially a resource that all firms and advocacy groups, along with disabled individuals themselves, must share. Simply put, there are only so many judges that can only hear so many cases (and remands).

I’m not saying that advocates should refrain from preserving important issues on the record at the hearing in anticipation of potential appeals. This is, in fact, one of the most important roles of the claimant’s representative. But in my opinion, if a hearing devolves into a pedantic argument with the vocational expert over the precise number of jobs in the national economy in each field, or the precise job requirements of individual positions without any direct purpose in mind, it likely means one of two things: 1) The representative did an inadequate job of preparing better medical evidence to present at the hearing. 2) the claimant’s case is so weak that it should not have been brought at all. In either case, the thousands of claimants who are currently waiting for a hearing in the system’s backlog could be making much better use of the judge’s time.

Whatever your thoughts on the opinions expressed above, I’d love to hear them and open up a dialogue in the comments section below.