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:
- 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)
- the substantial legal pedantry employed by many representatives in an appeal process that was intended to be highly informal
- 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.