Working with Your Local Hearing Office

Transcription

1 8th Circuit Social Security Disability Working with Your Local Hearing Office Presented By 3:45 p.m.-4:45 p.m. Hon. John Sandbothe, ALJ SSA Office of Disability Adjudication and Review West Des Moines, IA Hon. Denzel Busick, ALJ SSA Office of Disability Adjudication and Review Fargo, ND Thursday, August 20, 2015

2 Common Sense Practice Suggestions for ODAR Hearings 1 Denzel R. Busick, Administrative Law Judge When possible, prepare the case in advance of hearing and be prepared to emphasize in a short opening statement the main treating and examining sources that support your theory for a disability determination. Provide all of the medical and psychological records available to you or the claimant that relates to the issue of disability for the relevant period, unless previously submitted or we instruct otherwise, or if is subject to attorney-client privilege or the attorney work-product doctrine. Getting the evidence to us as soon as possible and certainly no later than the hearing date, will expedite both the pre-hearing review of the ALJ and the probable timely issuance of a decision. (See attached Keys to Submission of Evidence). Remove any duplicate documents. If you assert a Listing level impairment and feel it is a strong argument, consider seeking an "onthe-record" (OTR) decision long before the scheduled hearing date. If you wait until only a week or two, or certainly just days prior to the hearing, it is likely that most ALJs will conclude at that point you might as well have a hearing. When you do submit a request for an OTR based on a Listing level impairment or strong GRID rule evidence, you need to identify the records (preferably via provider, exhibit number, page and date) supporting the request and your view as to why the Listing is met. Regardless of whether it is an OTR situation, a strong Listing argument, or likely to reach Step 5 of the sequential evaluation for resolution, it is helpful when possible, to submit a pre-hearing brief or statement outlining your theory and in a Step 5 situation, to set forth your position on each step of the sequential evaluation process. Be sure that all documents submitted are legible and readable. We often receive records that are too faint to be read, or are simply undecipherable. In those cases, those records will not receive any weight. Do not send records without identifying the source, unless readily apparent from the record itself. If there are problems in your claimant s history that are readily apparent in the records, (such as a history of alcohol or substance use), you should point these out in either your pre-hearing brief or opening statement, as dealing with it candidly will generally lend credibility to the case presentation. 1 The author offers these suggestions with a view that they relate to the conduct of ODAR hearings consistent with applicable Regulations, although they reflect only opinions of the author, without official sanction by ODAR.

3 If a claimant s impairment did not receive evaluation by the State Agency or by the ALJ prior to hearing via a Consultative Examination (CE), do not assume that the ALJ at hearing will be aware of the issue. For example, if you have evidence of depression or anxiety, but the State Agency did not even address that issue, and the ALJ has not ordered a CE, the ALJ may not be ready to find it is necessarily a severe impairment. It is best to alert the ALJ prior to hearing. Be sure your claimant is fully prepared to discuss any past work. Most ALJs want to know what jobs the claimant has done in the past. More specifically, both the ALJ and the VE want to know how the claimant did each relevant job. Was it mostly seated or standing, or a combination, and if so how many hours, total, were seated and how many standing? What was the most weight the claimant had to lift and carry on the job? Did the claimant do the job in the same manner as all of the other employees? Often, it is a good idea to go over the work history with the claimant, in reverse order, starting with the last job worked and going back for the last 15 years. You can use the earnings records, often the DEQY to refresh the claimant s memory before the hearing. Doing so in advance, often expedites the hearing process. Obviously, the submission of a large volume of documents at the hearing, or just a few days before, is not good practice. Admittedly, there are times when it is unavoidable, but be prepared to offer a full explanation for the delay. Most ALJs prefer to read and digest the material before the hearing. In some cases, many ALJs will postpone a hearing if the amount of material is too voluminous, or the additional material may necessitate a supplemental hearing, which is less than an ideal hearing experience for all concerned. If you undertake representation after the scheduling of a hearing, but a month or more prior to the actual hearing date, do not expect to receive an automatic postponement. Most ALJs will assume that if you agreed to perform legal services after the issuance of the Notice of Hearing, you did so with the intent of appearing at the hearing. If you plan to amend the onset before the hearing, please notify the ALJ in advance. This allows for a more pointed pre-hearing review of the case by the ALJ. In addition, advise the ALJ as to why the amended date is appropriate, such as cases where the claimant was able to work at SGA levels prior to the amended onset date, but has not been able to since. When you will require testimony of multiple witnesses in addition to the claimant, it is helpful to tell the Hearing Office in advance. Most ALJs try to stay on a schedule that will accommodate multiple hearings during a typical workday, often varying from four to sometimes as many as eight hearings per day. Notifying the Hearing Office in advance allows an ALJ to either make some adjustments in the schedule for that day, or perhaps otherwise schedule your particular claimant for another day that will allow more time for all necessary witnesses. Most ALJs schedule hearings to maximize the resources of ODAR and other components. Try to focus on issues that will help the ALJ decide the basic question of the maximum the claimant can do, physically and mentally, for most work-like tasks. How much can they lift and carry, can they go up and down stairs and ramps, can they climb a ladder, and how far can they walk before resting? How long can they sit in a reasonably comfortable chair, can they stoop, crouch, kneel and crawl? Can they reach with both arms as well as use both hands normally and, if not, what problems do they have? Can they drive and shop? Can they handle their own money or balance

4 a checkbook? How do they get their news, via newspaper, television or the internet? How do they get along with others? Has he or she lost employment as a result an inability to get along with others, such as members of the public, co-workers or supervisors? Have they had good results in completing their assigned tasks in the past while working? In short, what the ALJ wants to know is how well the claimant will perform in a typical workplace, day in and day out. Is there a history of missing work or calling in sick? While this type of testimony is crucial, you will not need to belabor the points. Once you have painted the basic picture of the type of employee the claimant would likely be STOP! Sometimes, you can tell just by looking at the ALJ that he or she has heard enough, and is ready to move forward with VE testimony. Obviously, you do not want to fail to elicit testimony you feel is crucial. However, from a purely rhetorical standpoint, why risk irritating or exasperating the person making the decision? I do recognize that ALJs are not supposed to ever be irritated or exasperated, but you should assume we did in fact hear the testimony and would just as soon not hear it again, with only a slightly different slant. If your client has an active contagious disease not apparent form the record, such as MRSA infection or tuberculosis, please advise the Hearing Office in advance to allow for possible precautions or alternatives in holding the hearing. When a claimant has prior filings, there is not always an automatic right to reopen the prior case, and you should be prepared to show good cause for reopening where appropriate. If there are issues of substance or alcohol abuse, address whether such use or abuse is material. In doing so, it is helpful to be familiar with standards the ALJ uses in such cases. See, POMS DI Adjudicating a Claim Involving Drug Addiction or Alcoholism (DAA), DI Evaluating Cases Involving Drug Addiction and Alcoholism (DAA), and SSR 13-2p). In questioning experts, be respectful. Keep in mind that as far as the ALJ is concerned the experts supplied by ODAR for the hearing meet the agency qualifications and requirements for offering expert opinions in the hearing process. Being disrespectful to any expert is simply inappropriate. Of course, you have a right to ask briefly about their qualifications, if you think that is necessary for a proper appeal, but it is unlikely that you will be convincing the particular ALJ in that hearing that the expert is unqualified, so establish what you need and move on. In terms of some representatives who routinely subpoena the VE s sources of information, work papers and any other documentation they may use, I as I believe most ALJs, will routinely deny the subpoenas, pending a showing at the hearing that the claimant truly requires the information for a full and fair hearing. Generally, if questioning of the VE goes on ad infinitum on sources of information or methodology used, I will interrupt and advise the representative that if they require even more time, I will postpone the hearing to a later date to allow them several hours on the subject, if that is what the representative and claimant prefer. In doing so, I tell them that I generally allow about an hour maximum for a hearing, and my experience has shown that, in most cases, that is adequate. I point out that other claimants are waiting for hearings that day and I cannot allow more time for the VE cross-examination. So far, I have not had such a representative take me up on the postponement, but on the other hand, I a want to be sure they were afforded the opportunity.

5 As ALJs, we should grant a degree of latitude in the cross-examination of experts. However, I do not think we should allow such questioning to dominate the hearing. After all, the ultimate issue is, in most cases, is simply whether the claimant, in light of all reasonably credible evidence, can perform fulltime employment on a sustainable basis. While the questioning of medical, psychological and vocational experts always sheds some light on the ultimate issue, there are times when it ventures into matters that are more of an academic interest and not particularly helpful in focusing on the claimant s residual functional capacity. In questioning experts, I suggest that most ALJs prefer you phrase questions in terms of hypotheticals, which you think reflect the claimant s residual functional capacity. This is particularly true as to vocational experts. In other words, if you have sized up your claimant both physically and mentally, state at what exertion level you think the claimant can function, (sedentary, light, medium, heavy, etc.), and then specify how much they can lift and carry on an occasional basis and how much frequently. How long do you assert the claimant can sit as well as stand and walk, combined, one time, or in an 8-hour workday? What postural limits do they have, if any? How do they do with stair or ladder climbing? How do they do reaching, pushing, pulling with arms and legs? Are there any manipulation, visual or communication limits? Do they have to avoid any particular environmental situations (dust, odors, hazards, noise, etc.)? For a mental or pain standpoint, or both, does the claimant have any limits on concentration, persistence and pace? In other words can they do tasks that are detailed or complex, (like writing correspondence, preparing bids for work to be done, etc.) or are they limited to only simple, routine and repetitive tasks, like putting an item in a machine and pushing a button on a repetitive basis? Asking a Vocational Expert to read a medical record and then asking if that person could do a specific job is not appropriate because you are asking the expert to interpret the document. Thus, you need to use a hypothetical that describes the worker about whom you want the VE to comment. At least, that is my view on the subject. Although ODAR hearings are not subject to a strict application of the rules of evidence, nevertheless, the rationale supporting the rules of evidence can be in play. For example, answers to a series of only leading questions will receive far less weight than answers to open-ended questions.

6 Submission of Evidence Keys to Submission of Evidence after 3/20/15 A claimant and representative must inform us about or submit ALL known evidence that relates to whether or not he or she is disabled, subject to two narrow exceptions Must submit favorable AND unfavorable evidence, in its entirety, received from ANY source, unless the claimant previously submitted the same evidence or we instruct otherwise. The exceptions protect oral and written communications protected by the attorneyclient privilege, and documents protected by the attorney work-product doctrine. Relates has its ordinary meaning -- anything with a logical or causal connection. A representative must help obtain the information or evidence that a claimant must submit. A representative who fails to do so could face sanctions. The revised regulations explicitly require the representative to assist the claimant in submitting ALL required evidence. ODAR staff should refer any suspected violations to OGC in accordance with HALLEX I The Hearing Office and ALJ should assist the claimant in developing evidence, as necessary Attempt to develop any additional evidence following usual procedures in HALLEX I When closing the hearing, specifically ask about any additional evidence, and follow usual post-hearing development procedures to obtain it (HALLEX I ). A claimant is only required to submit or inform the Appeals Council about evidence that relates to the period on or before the ALJ decision The AC will make a reasonable effort to obtain the evidence unless it was previously identified, or Part 405 Rules apply in Region One. The AC will follow procedures analogous to the hearing level in developing the evidence, as described in detail in new HALLEX section I

7 Hearings, Appeals and Litigation Law (HALLEX) Manual HALLEX I-2-1 Prehearing Analysis and Case Workup Audience: ODAR HQ and ODAR Field Users Program: All Programs Summary: This transmittal amends Hearings, Appeals and Litigation Law (HALLEX) manual chapter I-2-1 to reorganize information regarding how hearing office staff develops evidence due to a recent change in regulations on the submission of evidence. Specifically, we moved information previously in HALLEX I to section I and deleted HALLEX I We also updated and reorganized the information in HALLEX I HALLEX I-2-5 Obtaining Evidence Audience: ODAR HQ and ODAR Field Users Program: All Programs Summary: This transmittal amends Hearings, Appeals and Litigation Law (HALLEX) manual chapter I-2-5 to reorganize information regarding how hearing offices develop evidence due to a recent change in regulations on the submission of evidence. Specifically, we updated information in HALLEX I and I , and we created two new sections, HALLEX I and I HALLEX I-2-6 Conduct of Hearings Audience: ODAR HQ and ODAR Field Users Program: All Programs Summary: This transmittal amends section I of the Hearings, Appeals and Litigation Law manual to add information regarding how administrative law judges conduct hearings based on new regulations on the submission of evidence. HALLEX I-3-2 General Workup and Analysis Procedures Audience: ODAR HQ and ODAR Field Users Program: All Programs Summary: This transmittal adds section I to the Hearings, Appeals and Litigation Law manual to provide information regarding how the Office of Appellate Operations develops evidence due to a recent change in regulations on the submission of evidence.

8 BEST PRACTICES FOR CLAIMANTS REPRESENTATIVES Social Security Administration The Office of Disability Adjudication and Review The Office of the Chief Administrative Law Judge

9 N T R O D U C T I I O N BEST PRACTICES FOR CLAIMANTS REPRESENTATIVES We are pleased to publish the newly reformatted Best Practices Handbook for claimants representatives. It is our hope that all claimants representatives will use this handbook as a practice aid when advocating and appearing before the Office of Disability Adjudication and Review. The Office of Disability Adjudication and Review is one of the largest administrative adjudicatory systems in the world. The claimants who appear before us may feel overwhelmed by the legal and administrative requirements associated with pursuing a Social Security claim. Therefore, it is important for those most closely associated with this effort to work together in a collegial and professional manner to make this process as efficient as possible. It is to this end that we publish this handbook so that we can successfully fulfill our joint mission to provide the best possible service to the public. Frank A. Cristaudo Associate Chief Administrative Law Judge Social Security Administration Office of Disability Adjudication and Review January 2011

10 TABLE OF CONTENTS In General 4 Prior to an Administrative Law Judge Hearing 5 At an Administrative Law Judge Hearing 8 After an Administrative Law Judge Hearing 9 Actions Before The Appeals Council 10 T A B L E O F C O N T E N T S

11 I N G E N E R A L IN GENERAL 1.01 Obtain as much information as possible from our website. This is a general rule for all dealings with SSA. At the hearing level, the majority of claimants are represented, and we encourage our employees to cooperate as much as possible with requests for information or assistance from representatives. However, every personal contact with hearing office personnel precludes the employee from performing other responsibilities relating to other hearing requests. Every five minutes that is saved on individual claims converts to thousands of saved hours that can be devoted to processing other claims Timely submit the form SSA-1696 and fee agreement. If applicable, obtain and submit withdrawals and waivers from prior representatives to avoid possible delay in payment Establish a good working relationship with hearing office staff and management. You should participate in periodic group meetings with the Hearing Office Chief Administrative Law Judge and Hearing Office Director in the offices in which you practice. Open dialogue allows both representatives and hearing offices to exchange suggestions as to how to improve service in the local area Timely alert the hearing office of any change of address or phone number for either yourself or the claimant. This would help reduce duplication of effort by hearing offices when notices are sent to either individual. 4

12 1.05 Submit updated form SSA-827 with the request for hearing. If the hearing office needs to request information on short notice for a possible on-the-record (OTR) decision or a dire need review, or for any other reason, it is very helpful to have updated release forms already in the file Even if a case is pending at the hearing level, a form SSA-1695 should be submitted to the SSA field office, not the hearing office. This form deals solely with payment to the representative and contains personal information, including a representative s Social Security number. If a SSA-1695 is received at a hearing office, it is immediately forwarded to the SSA field office for processing. Submitting this form to the SSA field office initially would significantly reduce the time hearing office staff spends forwarding documentation, and reduce the likelihood that the form will either be lost or improperly associated with the claimant s file. PRIOR TO AN ADMINISTRATIVE LAW JUDGE HEARING Under 20 CFR and , claimants have an existing duty to submit additional evidence with a Request for Hearing or within 10 days of submitting the request. Therefore, we encourage all representatives to review the file and submit evidence as early in the hearing process as possible. Do not wait until the case is scheduled to submit evidence. ODAR is aggressively screening cases for potential on the record situations and updated evidence is helpful in identifying cases that may be reversed without the need for a hearing. At the same time, we also encourage representatives to be mindful of hearing office resources required to burn CDs, and ask that representatives not request excess copies of CDs. P R I O R T O A N A D M I N I S T R A T I V E L A W J U D G E H E A R I N G SUBMITTING EVIDENCE 2.01 Do not submit duplicative evidence. This is a problematic and time consuming issue dealt with at the hearing level, and significantly delays preparation of cases for hearing. Hearing office staff often spend several hours on any given case sorting out duplicate evidence. The sooner a case is prepared and exhibited, the sooner the case can be scheduled. 5

13 P R I O R T O A N A D M I N I S T R A T I V E L A W J U D G E H E A R I N G 2.02 Submit evidence as far in advance of the hearing as possible, using ELECTRONIC RECORDS EXPRESS. Up to 200 pages at one time can be faxed into the electronic folder using the fax number and bar code supplied with the Acknowledgment of Hearing notice. However, we do recommend smaller submissions when possible (less than 30 pages), as smaller exhibits open more quickly. Early submission (more than 10 working days before hearing) allows hearing office personnel to exhibit the evidence and ensures that the claimant s copy of the file includes a copy of all the evidence that has been received. It also gives the ALJ time to review all the evidence, and helps to ensure that all relevant evidence is timely provided to experts scheduled to appear at hearing Before faxing evidence, check to ensure the evidence you are submitting matches the claimant. This simple precaution would significantly reduce the time hearing offices spend contacting representatives and re-associating evidence with the appropriate file Make sure the barcode is the first item faxed in order to ensure proper identification of all records. If you do not have a barcode for a particular case, please ask the hearing office to provide you with one. Bar codes may be photocopied and used more than once Submit a cover letter with the evidence identifying what is being submitted and the date of the evidence. Submitting evidence with a cover letter and the dates of the evidence will assist hearing office staff in identifying duplicates and in exhibiting the records Avoid submitting voluminous evidence at the last minute. This does not provide sufficient time for hearing office staff to associate the evidence with the file, or provide the ALJ and experts adequate time to review the evidence When faxing evidence from different sources into the electronic folder, separate sources by placing a bar code as the first document for each source and submit in chronological order. This assists hearing office staff in reviewing the evidence for duplicates and in exhibiting the records. 6

14 2.08 Do not submit medical evidence with non-medical documents such as appointment of representative forms or fee agreements. Medical and non-medical documents should be submitted separately. Because these documents are included in different sections of the folder, it requires more time to separate documents if they are submitted together. ISSUES TO ADDRESS AND SUPPORTING EVIDENCE 2.09 When possible, obtain a medical source statement from a treating source which identifies the limitations imposed by the claimant s impairments. Submit with supporting evidence or direct attention to supporting evidence already in the file. Treating source statements can greatly assist an ALJ in assessing Step 3 of the sequential evaluation and the claimant s residual functional capacity Deal with employment (substantial gainful activity, unsuccessful work attempts, sheltered work environments, etc.) and earnings issues in a pre-hearing memorandum or at the hearing. Be sure to distinguish long term disability, vacation, or bonus pay which may appear as earnings after alleged onset Deal with worker s compensation issues in a pre-hearing memorandum or at the hearing. If there has been a settlement, provide appropriate proof Submit concise pre-hearing briefs whenever possible. This assists an ALJ in preparing for the hearing. SUBMITTING ON-THE-RECORD (OTR) REqUESTS 2.13 Clearly label an OTR request OTR request, and submit as early as possible (but only when a request is appropriate). OTR requests are not appropriate in every case, and should only be requested when a favorable outcome is supported by the evidence in the record Identify evidence that supports the OTR. OTR requests should include a concise summary at the beginning of the brief outlining the argument, followed by a more detailed explanation specifically directing the reviewer s attention to evidence supporting a favorable decision. P R I O R T O A N A D M I N I S T R A T I V E L A W J U D G E H E A R I N G 2.15 Make sure evidence supports onset date. Onset issues are the most frequent reason an OTR request cannot be granted. 7

15 A T A N A D M I N I S T R A T I V E L A W J U D G E H E A R I N G 2.16 Use FIT templates to submit OTR requests. A CD of these templates is available from hearing office personnel. WORkING WITH ATTORNEy ADJUDICATORS 2.17 When contacted, work with attorney adjudicators to expedite decisions in appropriate cases. Attorney adjudicators review and screen cases for an OTR. Currently, attorney adjudicators have the authority to issue a fully favorable decision OTR when it is warranted. If you are contacted by a hearing office attorney regarding substantial gainful activity or onset issues in a particular case, discuss the matter with the attorney to see if the issue can be resolved without the need of a hearing. SUBMITTING DIRE NEED, TERMINAL ILLNESS REqUESTS, OR INFORMATION REGARDING INCARCERATED INDIVIDUALS 2.18 Notify the hearing office when the claimant has a terminal condition, is homeless, or is in dire need, and include appropriate documentation supporting these allegations. Notifying a hearing office of these circumstances can significantly expedite the processing of a case, if the allegation is supported. The criteria and reference links for critical case processing can be found in our provisions in HALLEX I (Critical Cases) With the request and documentation supporting the allegation, submit updated evidence supporting the claim for an OTR review. If a dire need case can be awarded without the need of a hearing, this works to the advantage of the claimant and the hearing office If claimant is incarcerated, provide the hearing office with the address of the facility and the release date. There are many difficulties that arise when an individual who has requested a hearing is incarcerated. For example, if an in-person hearing must be conducted, there are varying rules and procedures depending on the facility in which the claimant is incarcerated. Some claimants are transferred after a hearing has been scheduled but before the hearing has been held. For these types of reasons, it is very important that the hearing office is apprised at all times of the status of an incarcerated claimant. SCHEDULING HEARINGS Do not request postponements unless essential. Be flexible with providing dates and times for hearings, and request postponements in writing in a timely fashion wherever possible. When you have already agreed to the time of a scheduled hearing, avoid requesting a postponement.

16 2.22 When representing a child, be prepared to have someone available to look after the child, if possible, after he or she testifies or if he or she does not testify. Representatives should avoid keeping the child in the hearing room when it will disrupt the hearing process or is otherwise not appropriate. AFTER AN ADMINISTRATIVE LAW JUDGE HEARING 3.1 Submit post hearing evidence as soon as possible, with a written brief identifying how the evidence supports a favorable decision. This will assist the ALJ in reviewing the records and appropriately focus attention on the information supporting your arguments, resulting in the issuance of a timely decision. 3.2 Whenever possible, submit fee petitions within 60 days of a decision or as soon as possible after services have been terminated or withdrawn. Submitting fee documents within this time frame will have a significant impact on the time a representative waits for payment. This reduces the number of follow ups necessary to determine if a fee petition is going to be submitted, allowing the ALJ to act on the fee authorization at an earlier date. It reduces the likelihood that funds withheld for direct payment will be released to the claimant, and reduces the wait time if administrative review of an authorized fee is requested. A F T E R A N A D M I N I S T R A T I V E L A W J U D G E H E A R I N G 9

17 A C T I O N S B E F O R E T H E A P P E A L S C O U N C I L ACTIONS BEFORE THE APPEALS COUNCIL 4.1 If requesting a copy of the record, submit a clear request. The request should be clearly stated at the beginning of your correspondence to facilitate support staff screening and action on your request. 4.2 Submit any additional evidence or comments with the request for review. For internal review and association purposes, submitting all evidence at the same time would be very helpful. 4.3 If you have additional evidence, explain how it is material to the period at issue. In regard to new evidence, the Appeals Council applies 20 CFR and Contentions should be specific. It is always a good practice to concisely focus your arguments for a reviewer. We recommend using 2,000 words or less if possible. 4.5 Contentions do not need to include a recitation of the jurisdictional history or evidence generally, unless related to a specific point of contention. The record is already before the Appeals Council. 4.6 Cite to the record. Include page numbers of exhibits. 4.7 Do not make automatic, multiple requests for the status of a request for review. You can verify that the Appeals Council has received the request through your local Social Security office, local hearing office or by calling our Congressional and Public Affairs Branch staff ( ) or our general inquiries staff at our toll-free telephone number ( ). 4.8 Be specific in requesting an extension of time. Requests for extension of time should explain how much additional time is needed and why the request should be granted. 10

18 A C T I O N S B E F O R E T H E A P P E A L S C O U N C I L 11

19 Social Security Administration SSA Publication No