Below is the Social Security Newsletter Fall 2017 for the State Bar of Michigan prepared by Attorney Lewis Seward.
The following is a new Ruling effective October 4, 2017, and reprinted with NOSSCR’s permission.
SSA has published a new ruling, SSR 17-4p, effective today. The Ruling provides “guidance” on the “inform” requirement of the 5-day rule.
Specifically, under SSR 17-4p:
The Ruling sets out additional situations where SSA may refer a representative to the Office of General Counsel for a possible violation of SSA’s rules of conduct:
There are several problems with this Ruling, including the fact that many of these new rules do not appear in the regulations. In addition, although the Ruling notes, that even a “possible violation” that is referred to OGC, “does not change our duties with respect to the development of the evidence,” it fails to clearly and specifically state that the ALJ must consider all evidence, even if its submission fails to comply with the code of conduct.
A full description of SSR 17-4p will be in the September NOSSCR Forum, which NOSSCR members will receive very soon.
Reprinted with permission from NOSSCR 10/4/17.
We had our annual meeting at Henry Ford Community College on Friday, September 22, 2017. For the first time since the inception of our Social Security section, we had three esteemed panels of judges in three sessions, with the morning panel from Oak Park, Flint and Grand Rapids, i.e., ALJ's Contorer, Deming, O’Donnell and Ohanesian.
The after-lunch portion was devoted to ALJ's from Detroit, Livonia and Toledo, i.e., LaRoche, Smereka and Warner, with retired Judge English from Lansing rounding out the panel. Then, to prevent our eyes from glazing over due to administrative law overload, we had two Magistrate Judges representing the Eastern and Western Districts, i.e., Judge Green and Judge Patti.
Our new Chair, Nancy Anderson, was the moderator. She did an excellent job posing the questions to the panel. In addition to Nancy being our new Chairperson, Julie Hubbard is our new Vice Chair, Jim Rinck is our Secretary, and Samantha Ball is our new Treasurer.
There were a lot of topics discussed. The following is a synopsis of what was covered by the panels. Keep in mind the disclaimer that the opinions of the ALJ's and Magistrate Judges expressed at the seminar are their personal opinions and viewpoints and not on behalf of the Agency or Federal Court.
Several members of the ALJ panel did not think that a video hearing was any different from a live, in-person hearing. Others expressed concern that it sets up an invisible barrier where ALJs may tend to miss things, such as walking into the hearing room, as well as the loss of eye contact with claimants focused on the TV screen.
It was suggested that on cases where you sign up a claimant after they have filed their own appeal and they miss the 30-day deadline, you can file a good cause statement for being late and request an in-person hearing.
Members in the audience brought up other factors, such as claimants tend to be more comfortable with a live judge. Representatives are usually more familiar with the panel of ALJs at a hearing office, rather than a video hearing by an ALJ in a different state.
Some of the suggestions by the ALJ panel included better access to CEs and MEs at the hearing, especially for hearing offices that are outside large metropolitan areas. Others suggested that there is somewhat of an Agency pushback for requesting specialized tests which may be required to determine if a Listing is met, i.e., DLCO tests, blood gas tests, x-rays, Dopplers and neuropsych examinations. The obvious reason for the pushback is that many of these tests are quite expensive.
Regarding neuropsychological examinations, one section member suggested that she use Wayne State University, which has a neuropsychological Ph.D. program, as they are required to perform these tests as part of their training and curriculum. The University of Michigan was suggested as another possible institution that may be able to assist in obtaining a valid neuropsychological examination, which is reviewed and signed off by the university professor.
The panel reminded the section that it is five business days, or simply one week, as a deadline to submit evidence absent a letter requesting an extension to submit other records.
One of the panel members indicated that it is typical for an ALJ to have 50 or 60 cases in “Post.” Since the implementation of the Five-Day Rule, that number has been cut in half.
The majority of the discussion on this issue centered around the representative documenting the steps that were taken to explain why extra time is needed. If it becomes a pattern with a individual representative, good cause may not be found. In other words, if you are a procrastinator, you may be hurting your client if turned down by the ALJ in submitting late evidence.
There were many, which is the reason why we have section meetings in the first place. Make sure you know the reasons for a gap in the treatment in the records. Don’t wait until the hearing to ask the claimant. Our section was reminded that there are a lot of cases that could go either way, and in the end what it boils down to is, “Do I believe what the claimant is telling me?”
Claimants who tend to exaggerate (and we all know who they are) may sabotage their own case. The panel reminded us that ALJs are human and bring their background with them in the way they conduct hearings and make decisions. The panel is well aware that an identical claimant with two judges can easily have two different results.
Additional advice is do not ask a hypothetical question when there is no medical support in the record. The example is a claimant who testifies that he has significant manipulative problems, but there is no record workup about it.
It was suggested that the hearing process needs to be more standardized. ALJs should be more accountable to help the process work. ALJs who are not so technically savvy may not use the technology that SSA has made available to them.
This also includes sometimes posting the current summary of earnings or other evidence to the record that may have been overlooked or otherwise not done by the case technician.
The panel was pretty much in agreement that even a claimant living in a homeless shelter does not fit the HALLEX definition of a dire need/critical case. The specific HALLEX is I-2-1-40.
Section members were reminded that if you are making a dire need request, be prepared to be flexible, as you may get called to conduct the hearing with little notice, which includes a voluntary waiver of the 75-day scheduling rule. Also, when making the request, make sure that you have made every effort to bring the record current.
The judges on the panel do like to see a prescription for a cane or walker because they are all aware of claimants who “borrow” an assistive device from friends or relatives.
It was suggested that if you have a client with a cane or walker who is using one borrowed from another, have the client talk to the treating physician about obtaining a prescription for one. That way, if the doctor believes that it is necessary, then the prescription is basically the doctor’s acknowledgment on the use of an assistive device.
The same can be said about handicap applications from the Secretary of State. If your client has significant problems with ambulation, ask them to talk to their doctor about completing an application for a handicap permit.
The biggest complaint was exaggerated limitations. Along that line, the underlying question is whether the opinion is supported by the records. A lengthy discussion ensued regarding the use of electronic records and physicians who don’t change prior entries and therefore repeat the same erroneous finding over and over again. The ALJs are aware of this, but unfortunately it is your client who is stuck with your doctor’s inadequate records.
Regarding DLI problems, although this is basic, you need to make sure you ask when the limitations began.
The panel also talked about the use of PAs and nurse practitioners. Under the pre-March 27, 2017, Treating Source Rules, it’s a good idea to have the supervising physician also review and sign the Medical Source Statement.
Also, do not use a check-the-box form without giving space for the doctor to write in a brief explanation to his/her answer.
It is also important to note that cases filed after March 27, 2017, must contain an RFC. This is basically because everything else is reserved to the Commissioner. Of course, the RFC must have some logical basis to the medical evidence. Lastly, if you receive Medical Source Statements with words you cannot read, make sure you obtain a clarification from the physician’s office. If you can’t read it, neither can the ALJ. That also includes the signature line for the treating source.
Oak Park has its own list of suggestions that should be in Pre-Hearing Memorandums. All of the suggestions are basic common sense, such as discuss any post-onset earnings, explain gaps in medical treatment, identify all severe impairments and whether the case is a Listing or grid case.
The panel emphasized the importance of tying the key portions of evidence, i.e., MRI, EMG, etc., with the specific exhibit and page number.
Avoid the reiteration of medical evidence. Rather, focus on the key portions of the record that specifically help the judge make a finding of disability. You don’t need to say what the client is going to testify to.
Equally important is do not ignore evidence that is contrary to non-disability or otherwise not beneficial. Make sure you deal with contrary information up front. Use your lawyering skills to your client’s advantage by discussing it. Sometimes, “It is what it is.” The judge may not have to bring the topic up at the hearing if it is already explained in the brief, such as criminal activity or drug/alcohol use.
Also of importance is when amending an onset date or requesting a closed period, make sure that this is very clear in the heading of your Pre-Hearing Memorandum. Do not “hide” your request in the body of the brief. In other words, make sure it passes the fifth grade test.
The ALJs know that it is a problem that will not be corrected in the near future regarding varied testimony among VEs. The two factors that come up the most are what percentage of the work day being off task would be considered work preclusive. The other factor is the amount of days per month on average of unexcused absences in an unskilled work setting.
You may not be aware, but VEs are rotated. ALJs cannot select a VE.
Regarding the DOT, we all know it’s outdated and is not realistic. Until it is changed, that’s what we are stuck with.
Although the Agency controls the procedural part and mechanics of the hearing process, there is no interference from the Agency on Decisions. However, that being said, there is pressure from the Agency placed indirectly on ALJs relative to case adjudication monthly productivity.
From a practical standpoint, these are always welcome, but the backlog is getting so large that when you do make the request, make sure it is early.
As far as some “don’ts,” do not make the request within two weeks of the scheduled hearing or, for that matter, after the hearing is scheduled, because the Agency has to pay for the hearing monitor and VE. Unless they can fill that slot, they might as well just go through with the hearing.
Do not submit your request until you have the file worked up with the medical records submitted. Do not do an OTR request unless you specifically identify the evidence in the record that supports your position. Oftentimes, the file may not even be exhibited. Just make sure you cite the record and the date or otherwise make it easy for the ALJ to find what you are referring to in the record.
When you send in your request, make sure it is e-filed in the correct file section as an OTR request and not merely a medical records submission or attorney correspondence.
The Agency hired ALJs but did not leave enough funding to hire enough Decision writers. Further, some Decision writers were promoted or left the Agency and were not replaced. This has led to a fairly serious backlog of Decision writing. It is not just in Michigan. The panel indicated that this is a nationwide problem. It is basically “all hands on deck” to work on the backlog of written Decisions.
There are currently 41,000 pending cases in Michigan. The average processing time for a case last year was approximately 500 days and now it is 563 days. That is a little more than a year and a half.
Although this is an obvious and basic factor, make sure you ask the client questions beforehand to address issues such as work after onset date, gaps in treatment and dealing with information that may be inconsistent with the disability claim. ALJs do not like leading questions unless you ask the ALJ ahead of time. It sometimes makes the hearing flow smoother, especially with a claimant who has difficulty giving you a direct answer, or otherwise doesn’t understand the question.
Make sure you ask the clarifying questions, such as following up on the ALJ’s questions to explain your client’s answer. A good example is the amount of weight they can lift. You want to clarify how frequently and in the context of an eight-hour work day on a regular and sustained basis.
The ALJ panel was split regarding sequestering witnesses. When the witness is in the hearing room, it is obviously important to make sure the witness doesn’t reiterate testimony. The panel indicated it is quite common for an ALJ to have an incorrect perspective of the case prior to the hearing. The ALJ may change his/her point of view after hearing the testimony of the claimant or the witness.
The ALJs on the panel are okay with medical marijuana, although they will look in the record to see whether the privilege is being abused. The general consensus is they do not hold it against the claimant.
One member of the panel indicated if it takes care of their pain, so much the better, rather than using opioids and other prescription medication, which can be far worse.
This is support staff working out of their home. It has been very difficult to implement. The Agency allowed support staff to work in their homes three days a week. However, employees can work longer than an eight-hour work day, which means if they clocked enough hours, they may only come into the office one day per week.
Telework has caused increasing problems with earnings or other documents not exhibited in the file the day before the hearing. If the ALJ has the knowledge, they may have to exhibit these documents.
If you call ODAR with a question and the answer is that X employee is at home, don’t necessarily accept that as an answer. ODAR can contact that person at home.
If a post-hearing CE is scheduled, the ALJ is limited to sending the physician no more than 25 pages of records. As a representative, you want to make sure that your client also has the most salient records to bring with them to the appointment, such as a critical MRI or operative report, etc.
Regarding lengthy delays for Fee Petitions, the best advice is to call the hearing office to determine the status. If you feel you are getting the brush-off on those rare cases, contact the HOD.
In answering the question, “Do ALJs look at social media?,” the resounding answer was No. However, there is nothing stopping an ALJ from asking if the claimant is active with Facebook and other social media.
OIG Fraud Investigation Reports are always made part of the record. Although they are not very common, in most circumstances, the OIG Officer will be asked to testify at the hearing.
Own Motion Review/Quality Review. Statistically, they are about 2%-3% of the Favorable Decisions. However, this practice has been suspended because of the large backlog of cases. There are simply no resources now to perform Own Motion Review or Quality Review of Favorable Decisions.
We had the unique experience of having two District Court Magistrate Judges who routinely request oral argument when they are stipulated to. They both indicated that when oral argument is held, the Magistrate Judge plays a much greater role in reviewing the file and getting prepared for the hearing. There is very little staff preparation and therefore the responsibility rests squarely on the Magistrate Judge’s shoulders.
In contrast, when you do not stipulate to the Magistrate Judge, both indicated that the law clerk writes a draft Report and Recommendation and then the Magistrate edits the report.
The Record. The Magistrate Judges are well aware that the attorney representing the claimant in District Court is not always the one who represented the claimant at the hearing. That being said, some of the more obvious problems are the representative failing to ask the vocational expert any questions, other than maybe the obvious one, such as being off task or the number of absences per month. From their experience, it is quite common for the representative not to ask any in-depth questions.
Additionally, regarding gaps in treatment, make sure the claimant adequately testifies to the reason why there are gaps in treatment. It is not always evident in the record. They stressed how important this is because the Federal Court can only decide a case upon the evidence in the case record.
Briefing. Do not spend a lot of time on the statement of facts. You do not need to state the Sequential Evaluation Process or other boilerplate law. The Magistrates indicated that you should focus on your best issue first and get to the point. If a brief has more than three issues, you may lose credibility with the Magistrate.
Do not make undeveloped arguments. If you have an issue or topic, discuss it thoroughly and make sure to enumerate it in your list of issues at the beginning of the brief. Undeveloped arguments will not be addressed.
Avoid personal attacks on the ALJ. Avoid hyperbole. Go through your brief after it is written and strike out the adjectives and adverbs or absolutes. If you cite a fact, make sure to give the page citation site.
The Western District requires you must give the page ID. The reason for this is it is a hyperlink that the Magistrate can click on to go right to the exhibit page you cited.
Reply Briefs. Both judges on the panel indicated that they are not always very helpful. If you submit a Reply Brief, make sure it is a true Reply Brief addressing points brought out by the Commissioner that were not addressed in your brief. Sometimes, you may also need to expand on what you’ve already argued in your Initial Brief.
Regulation versus Case Law. As far as what is more controlling, both agree that the Regulations are controlling because the Commissioner is charged with upholding its own Regulations. Case law interprets the Regulations.
Additionally, when citing cases, the panel reminded the section that they only have to follow Regulations and published cases from the Sixth Circuit or Supreme Court. They do not have to follow published District Court cases or unpublished Sixth Circuit cases.
Oral Argument Tips. Consider the oral argument as an opportunity to educate the Magistrate Judge. Of course, you must be very familiar with the record. Be prepared to withdraw one or more of your weak issues. The judge wants to have a discussion about your client’s case. The judge may frame the issue differently than the representative to see if the representative agrees with the Magistrate’s interpretation of the issue.
Software called PDF Expert allows you to download the brief and exhibit record, which you can bookmark so you can readily refer to it rather than having the paper file in front of you.
Judge Patti indicated that in getting prepared for oral argument, he reads the Court transcript first, then the ALJ’s opinion, then Plaintiff’s brief, the Commissioner’s brief and any reply brief.
Treating Physician Rule. This is the most frequent issue being remanded. Listing issues are the second, although they are obviously a landmine of problems. Issues involving the RFC are the third most frequent issue to be remanded.
Least likely to be remanded are issues involving credibility and due process. However, the panel cautioned that the credibility issue deals with the ALJ misstating the evidence, is really a different issue all together.
Avoid the term “cherry picking.” This is code word for weighing the evidence.
If the ALJ gives a boilerplate, unsupported statement in rejecting a treating source opinion, or cites a 50-page exhibit with no specific pages and does not discuss the treating source opinion elsewhere in the Decision, this is clear reversible error.
Under Social Security Ruling 82-63, if a claimant does not have past relevant work, which means prisoners who have been incarcerated for over 15 years, and they are 55 or over and have at least one severe impairment, they are per se disabled.