The Social Security Administration has promulgated some new rules on video hearings. Several years ago, the SSA started a video hearing process. Unfortunately, for those with MCS, they have to go the one of the SSA video centers to be able to take advantage of the service. This service is really of no help for people with MCS who are not being able to even tolerate going into the hearing office because of pollutants in the air.
Once SSA started this service, some lawyers figured out how to game the system by waiting to see what administrative law judge (ALG) was assigned and then saying that they either did or did not want a video conference hearing, causing a new ALG to be assigned. ALGs were assigned to the video rooms during certain times and not others.
SSA tried to solve this problem initially by not disclosing who the ALG until the day of the hearing. There was an outcry about this as the lawyers said they could not prepare their cases without knowing who the judge was as different judges had different procedures they used or wanted different things prior to the hearings. Consequently, this procedure was eventually abandoned.
The latest wrinkle is that a claimant now has to elect to accept the video hearing or opt for a live hearing before finding out what judge is assigned.
As is with most of my MCS clients, they have the same problem with the video locations as they would have with the hearing offices. I usually try to do their hearings by telephone conference, using the speaker phones in the hearing offices which are usually used for outside experts. I make a request for an accommodation under the Federal Rehabilitation Act. This generally works but not always.
As there are no provisions for telephone hearings in the new rules, we still do not have to make a selection if the hearing is going to be by telephone.
On another note, these cases have become much more difficult in the past few years. I attribute this to the GOP House of Representatives that was elected in 2010. They are placing pressure on the judges to not grant so many cases. There has been an exposé about one judge in West Virginia who appears to have had a cozy relationship with one particular lawyer and who grants all of the attorney’s cases.
This one bad apple is now spoiling the barrel. This has trickled down to the MCS cases, and I find that the judges are much more demanding of “objective proof” of the disability. Whereas in the past they would accept the testimony of the claimant if it was backed up by a report, records from an EI doctor, and affidavits from friends, relatives, and past employers, they are now requiring, in addition, some type of “objective testing”. (This becomes very challenging as, depending on who you talk to, there may not be any such tests available).
As a result, I have become much more selective in the cases I take and am requiring that my clients be able to go for as much testing of various types as possible and that they pay for expert medical testimony if possible for the hearings. I realize that this poses a substantial economic hardship for many, but it is unavoidable.
With the upcoming election for Senate seats, it is possible to have the Senate under the control of Republicans so that we can expect a Senate committee to join the fray in trying to hold down SSA disability claims awarded.
Commentary: Let me recount my experience of the past year in trying to help MCS’ers obtain disability benefits.
When I started doing this in 2005 (after having practiced in the disability field from 1980 to 2002), I had pretty good luck with the MCS cases. I would estimate I won over 80%.
Then starting around 2011 things started to change. For one thing, the national average for allowances by Administrative Law Judges (ALJ’s) went from the 60% to 65% range it had been at since I started practicing, to the mid 40% area. When I asked the people at our national disability representatives group (National Organization of Social Security Claimants’ Representatives or NOSSCR) about it their theory was that it represented a higher number of non meritorious claims filed by people who had lost their jobs in the recession.
The thing is that it has not gone back up and those cases should be mostly out of the system by now.
So, what is going on?
My theory is that it is the Republican House of Representatives that was elected in 2010 (and I say this as a Republican elective office holder myself).
For the past several years, Congress has been holding hearings on what they consider to be the overly generous granting of benefits by ALJ’s at SSA hearings. It is their theory that the ALJ Corps is populated by liberal ‘activist’ judges.
They have been having hearings focusing on a coupe of aberrant judges who grant 90+% of their cases, especially those involving certain lawyers in their areas. These have become the poster children for the notion that too many ‘undeserving’ people are getting SSDI and SSI benefits and that this is draining the SSA trust fund (not true, the disability fund is separate and is very solvent).
The ALJ’s are now looking over their shoulders and this has had a devastating effect on MCS cases, which have always been problematic.
The Office of Disability Adjudication and Review (ODAR) conducts Social Security Disability (SSD) hearings and Supplemental Security Income (SSI).
You can see the percentage allowance figures for all of the ALJ’s in the country by going to www.disabilityjudges.com.
When you look at the Disability Judges site,you will see the national average of allowances, and the average for the hearings office (Office of Disability Operations or ODAR), for your area. You can then click on each individual judge.
If the judge has a lower percentage than the national average, he/she is more likely than not to deny your MCS disability case, REGARDLESS OF THE EVIDENCE.
Therefore, the judge assignment is absolutely critical.
Even if you lose the hearing and file an appeal (which takes 2 YEARS), the most likely result will be that you will at best be given another hearing, WITH THE SAME JUDGE. You will therefore be locked essentially forever into a death spiral with an unsympathetic judge and no amount of effort on your part is likely to be of an avail.
Even if you are able to get another judge after an appeal (such as your judge died or retired, you moved to another area, or, after 6 to ten years of appeals and multiple hearings someone finally ordered that judge off the case), the well will already be poisoned by the bad opinion(s) that will be in your file and will be read by any subsequent judge.
As a result, I am no longer taking cases unless the following is present:
(1) You already have an ALJ assigned (ie. you are at the hearing level);
(2) You have decent medical documentation for your claim (have been seeing an EI doctor in person multiple times, have had testing done beyond regular blood work, your doctor is willing to write a report and/or testify for you by telephone at the hearing, or have been to Dr. Rea).
In the alternative, assuming again that you have the documentation, that you are willing to move to a different state if you draw a bad judge.