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).