Category Archives: Blog

Even ignoring McCaffery’s improper alleged involvement in Rapaport’s referral fees, the fact that the ethical rules permit attorneys to collect this much money for work they never performed should naturally produce calls for change. The Inquirer’s article documents how Rapaport siphoned much of her $1.2 million in fees from damage amounts ultimately intended to redress grieving families. One family’s child suffered brain damage due to medical malpractice. Another client was the estate of a police officer killed in the line of duty. There is evidence that Rapaport never so much as spoke with the plaintiffs (the child’s parents or the officer’s family) themselves. Aside from McCaffery’s involvement, however, the referral fees generated from these cases were probably permissible according to the ethical rules. But honestly, should they be?

I was recently drawn into a pretty touchy forum debate (a great use of my time, I know…) with some other claimants’ reps who took a contrary view on my pet topic, the importance of updating all medical records before each hearing. These attorneys were deflecting blame for failing to submit a complete record on doctors and their staff, some of whom are less than forthcoming with the records we request. While I’ve experienced this problem at times as well, I’m adamant that that doesn’t absolve a representative from their duty to update the medical record in time for the hearing. Aside from ordering and following up on records early and often, I contend that a representative should exhaust all their options in pursuing any medical records that are proving difficult to obtain. I therefore shared my strategies for obtaining records from obstinate providers- a sequence of approaches to bringing the doctor’s staff around to your side and expediting the records request.

1) politeness
2) begging (“my boss is going to give me a really hard time if i don’t get these records in time…”)
3) guilt-tripping (“this patient has waited so long for their hearing and is going through rough times. If we dont get these records in time it will jeopardize their case.”)
4) browbeating (“let me talk to your supervisor”)
5) legal threats (HIPAA complaints)
6) notifying the client of the doctor’s obstructiveness and enlisting their help
7) notifying the judge and requesting subpoena

I’ve only ever once needed to resort all the way to the last step, and even then the records came in just in time.

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.

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.