What Happens When the Representative Submits Evidence During and Post Hearing to the ALJ?

 I continue to encourage the submission of rebuttal evidence to the ALJ.  That is best practice.  Here is what the Appeals Council said about the submission of post hearing evidence to the ALJ:

The claimant's representative submitted a brief with additional vocational evidence attached (Exhibits 27E, 28E). Although the brief and vocational evidence were exhibited in the electronic record, they were not discussed in the decision or incorporated in the exhibit list attached to the decision. The Administrative Law Judge is not required to discuss every document in the record, however, material evidence should be exhibited with the decision and the arguments raised by the representative should be considered.

AC Order remanding case to ALJ.  

Here is what a court said in a truly unpublished opinion about vigorous cross-examination of a vocational expert at the hearing:

But “[b]ecause the DOT provides only job descriptions and specifications, and not the actual hard numbers regarding the national and regional availability of the same,” VEs must —as the one here did—“utilize additional secondary sources to ascertain the numbers of positions that exist for each of the DOT codes.” Kennedy v. Colvin, 2014 WL 3695466, at *20 (S.D. Cal. July 22, 2014). Here, the VE relied on a combination of the U.S. Publishing figures—which uses numbers from the Department of Labor’s Bureau of Labor Statistics (“BLS”) and the U.S. Census—and the software program Job Browser Pro. (AR 1956, 1986). Based on those secondary sources, she explained that 50,000 toy assembler, 25,000 assembler of plastic hospital products, and 18,000 inspector/hand packager jobs existed in the national economy. (AR 1949-50).

If the facts just described were the complete state of the record, the ALJ’s reliance on the VE’s testimony to find that Mr. Buchanan was not disabled at step five (AR 44-47) would have been supported by substantial evidence. That is because “in the absence of any contrary evidence, a [VE’s] testimony is one type of job information that is regarded as inherently reliable.” Buck v. Berryhill, 869 F.3d 1040, 1051 (9th Cir. 2017). But if, on the other hand, the VE’s testimony is challenged by contrary evidence—as it was here—the conflict can sometimes trigger the ALJ’s legal duty to further develop the record. See id. at 1047, 1052. In this case, the VE testified that she obtained her numbers from two different resources, U.S. Publishing magazine and the Job Browser Pro software program. Yet when the ALJ asked her to pull up toy assembler on Job Browser Pro to confirm her numbers for that job, the VE was unable to find any job numbers for that occupation on the site. The ALJ responded that “this begs the question” where the VE obtained her numbers from. The VE replied that she “didn’t bring [her] stack of U.S. Publishing” with her. (AR 1972). But Plaintiff’s evidence presented at the hearing indicated that U.S. Publishing would not support the VE’s numbers either. Plaintiff provided conflicting job numbers from the BLS on which U.S. Publishing relies in part for its published figures. (AR 1969, 1986). Under these specific circumstances, the ALJ had a duty to develop the record further.

Contrary to Defendant’s view that the ALJ gave detailed reasons to accept the VE’s testimony, none of those reasons addressed or reconciled the core conflict between the claimant’s job numbers and the VE’s. In fact, the ALJ even incorrectly observed that the VE and claimant were relying on different sources. To the contrary, as noted above, Plaintiff’s numbers came from the BLS, and the VE’s sources—U.S. Publishing and Job Browser Pro—rely in part on the BLS. (AR 1956, 1986-87). And while a VE is generally entitled to rely on her professional judgment, nothing in the record shows that the VE did that here. The VE testified only as to two sources for her numbers, but when faced with conflicting evidence, she said nothing to reconcile the discrepancy between her numbers and claimant’s proffered numbers—whether in her professional judgment or otherwise. Thus, as a result of the unexplained and unreconciled variances in the VE’s testimony in the face of conflicting evidence and the lack of a cogent explanation from the VE on how she arrived at her numbers, the ALJ’s finding that Mr. Buchanan could perform other work available nationally in sufficient numbers was unsupported by substantial evidence. See, e.g., Buck, 869 F.3d at 1052 (reversing and remanded where “the vast discrepancy between the VE’s job numbers and those tendered by [the claimant], presumably from the same source, [was] simply too striking to be ignored”); Daniels v. Colvin, 2014 WL 794498, at *5 (C.D. Cal. Feb. 26, 2014) (remand required where VE conducted “insufficient” analysis of number of jobs allocating job numbers from broad Standard Occupational Classification category to narrowed DOT category without further explanation).

Brown v. Saul, 5:06-cv-00367-SK (C.D. Cal. Jan. 14, 2021).  

___________________________

Suggested Citation:

Lawrence Rohlfing, What Happens When the Representative Submits Evidence During and Post Hearing to the ALJ?, California Social Security Attorney (January 28, 2021) https://californiasocialsecurityattorney.blogspot.com/2021/01/what-happens-when-representative.html

Subsequent Applications and Fees -- Oh My

On June 3, we discussed the ethics and strategy behind a subsequent application while the claimant has a complaint for review pending with the federal courts -- Just Do It.  The problem for the representatives extend beyond the cutting off of the past-due benefit accumulation.  The fees get messy.

1.  The Subsequent Application Gets Paid

Whether by initial determination, reconsideration determination, or hearing, subsequent applications get paid with fair regularity.  These are cases on the cusp where reasonable minds could differ; you contend that the ALJ acted unreasonably in denying the case now pending in court.  These cases get paid, expect it.

The typical paradigm is the fee agreement process.  As long as the operative fee agreement is 25% of the past due benefits or $6,000, whichever is less, applies to the subsequent application, the fee agreement will get approved and the representative will get paid.  HALLEX I-1-2-16 states that the ALJ or the AC will approve or disapprove the fee agreement on the facts before the agency.  POMS GN 03940.038 gets into more detail but to the same result.  When the claimant receives a favorable decision on a subsequent application, SSA will approve the fee agreement and pay the withheld fees so long as the fee agreement meets the requirements and the representative is eligible.

What HALLEX and POMS do make clear is that all the cases that the claimant has constitute one case for fee purposes.  That $6,000 ceiling on the fees for the subsequent application continues to apply if and when the district court remands the case back to the agency for further proceedings.  There is no reset button and the claimant is not liable for up to $6,000 twice.  One continuous period deserves one fee.

     a. No Tiering and Same Representative(s)

The last fee agreement controls the fees in the case.  If the representative had the claimant sign a new fee agreement on filing the subsequent application, that is the fee agreement that controls all the fees.  Remember, one fee for the entire case.  All representatives must sign the same fee agreement.  The usual conditions apply.

If the fee agreement does not make an exception to the ceiling for remanded cases, the fee agreement continues to apply.  If the representative received $2,000 on the subsequent claim, the maximum that representative can get on the remanded case for agency work is $4,000.  The time to request administrative review of the fee ceiling -- that deadline is triggered by the notice of award or other payment document on the first favorable decision, the one on the subsequent application.  Absent that timely request for administrative review of the fee filed before the court remanded the case, the representative is stuck with the ceiling.  HALLEX I-1-2-14.

     b.  Tiering or Different Representatives

If the fee agreement provides for a fee without reference to a ceiling on remand, the conditions for approval of the fee agreement no longer apply.  If the claimant appoints different representatives or they all don't sign the same fee agreement, the conditions for approval of the fee agreement no longer apply.  These circumstances manifest for the first time after a favorable decision and cause a rescission of the approval of the fee agreement on the subsequent application.  HALLEX I-1-2-16. 

Whatever fee the representative received on the subsequent application, that authorization to charge and receive a fee is no more.  It is gone.  The representative now holds an unauthorized fee with all of the potential ramifications for holding an unauthorized fee.  Prudence suggests that moving that fee amount to a client trust account is the minimum required. 

All the representatives must file a fee petition with the decision maker that made the last favorable decision and order rescinding approval of the fee agreement on the subsequent application.  The representative must cover all the fees that he/she will seek to charge and receive. 

Example:

Claude Claimant goes through the process and receives a denial of review from the Appeals Council.  CC and Rachel Representative refer that case to Andy Attorney.  RR advises CC to file a new claim, which he does. 

While AA goes through the litigation process, RR presses the claim forward on the subsequent application.  CC receives a favorable decision and receives an award for $16,000 is past due benefits.  RR receives a fee agreement approval and a fee of $4,000 for her services.  AA wins the federal court action, obtaining a remand for another hearing.  The Appeals Council affirms the subsequent grant and remands the first claim to an administrative law judge to comply with the order of the court. 

On remand, AA represents CC.  The ALJ issues a fully favorable decision awarding CC a finding of disability for the earlier period and rescinding the fee agreement.  For the period not covered by the subsequent claim, SSA owes CC an additional $60,000 in PDB.  RR must now move the $4,000 to trust; she is no longer authorized to hold that fee.  RR and AA must file fee petitions to charge and receive a fee.  AA can also apply for fees in federal court, subject to the offset for any EAJA fee received.

If RR represented CC at the remand hearing without a tiered fee agreement and did not request administrative review after the favorable decision/determination on the subsequent claim, the most that RR could receive for that last hearing (and the first one that lead to the court action) is $2,000. 

It doesn't matter if AA had a tiered fee agreement, AA and RR are not in the same firm and the conditions to approve the fee agreements no longer apply.  The agency will only approve on fee agreement.  Two fee petitions will have to be filed. 

The lesson is that the subsequent application can cause fee issues later.  As we discussed earlier this month -- it is ethically required to advise the client of the advantages and disadvantages to the client of a new application.  Convincing the client not to file a subsequent claim because it makes AA's fees problematic is poor form.  Client's interests first and foremost.  We are fiduciaries and that is how fiduciaries act.