Monthly Archives: November 2014

As I’ve frequently stated in my writings on my blog and website, my main goal in starting my own disability practice is to improve the quality of representation provided to disability claimants via increased and improved communication. This is instrumental in educating clients about what types of actions they should take or avoid. It is equally instrumental in guiding the representative on what types of arguments and strategies they should be crafting.

Unfortunately, there are many firms that believe that such personalized service is incompatible with a business model centered on high case volumes and low operating costs. Many such firms thus transfer much of their client communication responsibilities away from their actual disability representative/attorneys and instead delegate them to their paralegal staff.

In my opinion, this sacrifice is unnecessary. While there is no replacement for communicating with claimants early and often, there are ways to streamline such communications and make them more practical for high-volume practices.

Take, for example, an issue that comes up frequently over the course of many disability claims: a claimant who has returned to work. Social Security’s rules governing work attempts are fairly nuanced, and therefore the questions and advice provided to such claimants must be equally nuanced. In a small disability practice like my own, all such communication would be done directly with a knowledgeable attorney. At a large volume practice, however, the attorneys’ schedules are much tighter. When I previously worked at one such firm, a frequent problem with this situation was that our paralegal staff didn’t obtain enough pertinent information about the claimant’s work attempt for me to have any idea how to advise them until I was finally able to reach the client, often needing to revisit the case once again since the client didnt always have all the requisite details.

The solution I came up with for this problem was to create a web-based  dynamic script and form for a paralegal staffmember to complete when encountering such an issue. This script uses progressive disclosure logic that both anticipates a multitude of scenarios, without overburdening the user with irrelevant questions. A sample is available here. This script program enables even a novice paralegal to collect only the relevant information from the claimant (which will allow the attorney to later assess the practicality of unsuccessful work attempt or closed period arguments on their own timetable), and pass along information that is tailored according to the claimant’s responses. The program is further able to anticipate situations in which the paralegal should ask for paystubs, special situations where a work attempt lasts between three and six months, and differentiate between work that is above SGA (and thus requires more detailed questions) or below SGA.

On Oct. 18, The Washington Post published a piece titled “The biggest backlog in the federal government”, which shed much-needed light on the practical consequences of the typical 17-20 month wait that disability appellants must endure before their case makes its way past a backlog of 700,000+ other cases and is finally heard by an Administrative Law Judge (ALJ). The article empathetically  centers its attention  on the fact that during this enormous waiting period, the claimants typically have no source of income to sustain themselves. Many are forced to rely on the sympathy of others to get by. The not-so-lucky ones are forced into homelessness and/or see their health deteriorate even further. And as the article elicits from ALJ Carol Pennock, some even die just waiting for their hearing date.

The article correctly attributes much of the backlog to lack of government funding devoted to thoroughly and efficiently processing cases. While I agree that this is the most substantial factor causing the backlog of cases, there are several other factors which exacerbate the problem. My belief after practicing exclusively in disability law for the past 2+ years and attending over 400 hearings is that, in the aggregate, some practices of the claimants’ representatives themselves contribute to the backlog. Namely, these factors consist of:

1.  the failure of claimants’ representatives to update their clients’ medical records in time for their hearing with a judge (the topic of today’s installment)
2.  the substantial legal pedantry employed by many representatives in an appeal process that was intended to be highly informal
3. the belated timing of some representatives’ choice to withdraw a claim

Over the next two weeks, I intend to tackle one of these contributing factors in each blog post, explaining how the practice contributes to the backlog and suggesting remedial solutions.

Today, I’d like to explain how the failure to update a client’s medical record (a topic  I touched on earlier) unnecessarily burdens ALJ decision disposition and thus contributes to the hearing backlog. My understanding of the way cases are processed at ODAR is that staff attorneys and judges will review each case a few times before the hearing, then again at the hearing itself. My assumption based on my experiences reviewing files multiple times  is that with each review, it typically takes quite a while just to refresh your memory on the case and make sure you don’t confuse it with countless other highly similar cases you’re working on at the same time. Failing to provide the ALJ with an updated medical record at the hearing, thus forces the ALJ to go through this tedious process at least once more, and prevents them from reaching and writing their decision while the hearing testimony is at least fresh in their memory. Also, many judges will (understandably) feel unable to even conduct a meaningful hearing without access to updated medical records, and will often be forced to postpone the hearing and/or schedule a supplemental hearing. In the aggregate, the lack of timely-filed medical records at a hearing can thus contribute to inefficiently processing cases for a department that is understaffed and underfunded as it is.

I already discussed the best way to correct the problem of missing medical records in my previous post on the topic, but just to reiterate, it would not be fair to punish claimants for their representatives’ failure to obtain their updated records. By the time of their hearings, most claimants have already waited an inordinate amount of time and endured an inordinate amount of struggles to get by. Nor do I think the already overburdened ALJ’s necessarily need to take on the added responsibility of disciplinarian for representatives’ mistakes. Instead, we as representatives should take the initiative of addressing this problem ourselves. For my part, I’ve adjusted my fee agreement template to include a protection for claimants, that guarantees that I will obtain and timely submit the client’s relevant records by the time of the hearing, or forfeit half my attorney fee if I fail to. I humbly suggest that all representatives should offer the same or similar protection in writing.

I’ve been proposing this idea to colleagues of mine for some time now, and I’m frequently asked why we individually as representatives should be concerned about taking a little extra time out of an ALJ’s day by making them review the file again, that the time that might be saved is merely a drop in the bucket. Besides the clearly deletrious effect that missing records has on our clients’ cases, by the faulty logic above, there would be little reason to do things like recycle or refrain from littering. The institution we have in the form of ODAR is a shared resource that we all collectively depend on to review and decide the cases we bring them. Failing to recognize it as such as well as the impact of our collective neglect only contributes to the already unconscionable backlog, and thus our clients’ already overwhelming hardships.

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.