Monday, September 19, 2011

Aarestad v. Commissioner

I know, unpublished opinions are not precedent and don't matter much.  Unless of course you are one of the litigants in an unpublished opinion.  Aarestad v. Commissioner is a bad decision.

Aarestad applied for widow's benefits.  The Court held that she "worked only sporadically before the alleged onset of disability (which suggests that her decision not to work was not based on disability) ..."  Did I mention that Aarestad applied for widow's benefits?  Of course she worked sporadically.  She and her deceased husband made a socio-economic decision that she not work because not everyone has abandoned the one-income household model.  Some couples don't have to send both people back to work.

There are clear advantages to a single income household.  Not only the obvious with raising children but also in the mundane day-to-day of living.  If both people work, the chores of cooking, cleaning, and laundry mean that one or both members of the family are working not 40 hours per week but more like 60 hours per week.  That usually defaults to the wife, which is why married men live longer than their bachelor friends and married women don't live as long as their single friends.  Life expectancy is how we make plans.

There is a discrete difference between a lifetime of sloth and a legitimate sociological choice that is in the cultural norm.  A history of sloth can form a legitimate basis for discounting a claim of disability.  A legitimate choice to live on the wages of one partner in the marriage while the other stays home is not a history of sloth or a legitimate basis for discounting the surviving spouse's testimony.

A rule of law is based on the assumptions that under-gird that rule.  Failing to recognize the nuances of the rationale behind a rule of law is dangerous not only to the person involved but to future cases.  The infection starts in misapplication in unpublished opinions, spreads into published opinions, and pretty soon the law becomes absurd.  Charging the stay-at-home partner for a life decision that finds solid cultural and sociological underpinnings is an attack on the social fabric and the family.  The Court needs to divorce itself from the dangerous path that Aarestad takes.  Whether she otherwise deserved to win is a different story but piling on bad reasons is the kind of hyperbole and exaggeration that we all find "not credible."  

Saturday, September 17, 2011

Social Security Ruling 11-1p

Effective July 28, 2011, the Social Security Administration (SSA) reverted back to an old policy that forbade claimants from filing new applications while they appealed an Administrative Law Judge (ALJ) decision to the Appeals Council (AC).  The policy change is found in Social Security Ruling 11-1p.  Claimants for benefits enjoyed the option of filing a new claim for benefits while pursuing an older claim before the Appeals Council when the agency changed its policy in 1999.

It wasn't just largesse that that pushed SSA to allow the new claim filing in 1999.  It was then taking the AC about 3 years to decide whether to grant or deny review of an ALJ decision.  The wait for 3 years and then another 2 years to get to an ALJ on a second claim for benefits put a staggering toll on claimants whose cases teetered on the cusp.  For the chronically ill, the absence of access to medical care for 5 years or dependency on the public healthcare system was sometimes a death knell.  The 1999 policy allowed those new claims to progress through the initial and reconsideration stages during that 3 year spell at the AC.  Many of those people received benefits on the new application, a few on reconsideration, and others got in line at the hearing office to see an ALJ on that subsequent claim.  The hearing office was not supposed to decide those cases pending at the AC, although it did happen from time to time.

Under Joanne Barnhart, SSA began to take a hard look at those egregious wait times for hearings and before the AC.  When Michael Astrue took over as the new Commissioner of Social Security, that concern took concrete form.  Commissioner Astrue mandated that the hearing offices decide all cases pending more than 1000 days old and gradually reduced that "aged" case mandate to 750 days.  Average processing times have been reduced to between 186 and 504 days.  The wait at the AC has been reduced from 3 years to about 1 year.

With quicker processing times both at the hearing level and at the AC, the need for the new application policy dissipated.  Many claimants still filed new claims and got granted on those cases while old cases meandered through the administrative process.  Since the AC continued to deny review of unfavorable ALJ decision 70-75% of the time, getting that new application in early did make a big difference.

The downside for claimants filing new applications rested in the nasty tendency of the AC to take the grant of the new application with the ALJ denial of the old claim, fold them together, and send both back to the denying ALJ for a second look.  It doesn't take a rocket scientist to figure out what a lot of ALJs did with those now combined claims.  It presented a situation fraught with peril as the disabled claimant had to decide with the ALJ's permission whether to dismiss the request for hearing on the old claim to keep the new claim or roll the dice and proceed to have both cases adjudicated.  Some of these cases had explicit reopening of the second claim by the AC, others implicitly giving the ALJ permission, and some giving no hint at what the AC intended at all.  Once in a while, a claimant would receive a remand on the old case from the AC with an express affirmation of the subsequent grant.  The varied scenarios that a subsequent grant created with cases pending at the AC probably played a big part in rescission of the policy to allow the subsequent application.

As a proponent of not putting all of my client's eggs in one basket, I routinely advised my clients to reapply for benefits after filing a request for review or District Court action.  That advice as to the latter stage will continue to constitute the modus operandi of responsible representatives absent circumstances such as an expired insured status for Title II (SSDIB) benefits and no eligibility for Title XVI (SSI).  I have seen far too many times the absence of that subsequent application hurt the claimant that changed age categories or suffered medical deterioration come back and bite the claimant in the pocketbook.  That general presumption to re-file at the AC level of review now requires finesse and lawyering.

The AC will treat the submission of new evidence that does not relate to the period of time adjudicated by the ALJ to represent a protected filing date of a new application.  In practical terms, this means that representatives must submit new evidence to the AC throughout the process arguing both that the new evidence undermines the ALJ decision and that if the evidence is dated after the date of the ALJ decision that it constitutes a protected new filing date on a new claim should the AC not grant the request for review. Representatives that do not refresh the medical records before the AC or remind the AC that the claimant has now entered a new age category "and this is a protected filing of a new application" will commit material error on behalf of their clients.  The word for that error is "malpractice."  Just as attorneys and non-attorney representatives that did not advise on the filing of a new application in the past have hurt their clients, I fear that the non-diligent representatives will fail to take advantage of the rules that now require us to make the protected filing date pitch.

Sunday, September 11, 2011

Electronic Folders ... the New SSA

We now live in two worlds.  In one world, people we live in the communication age with electronics dominating our activities.  In the other world, we live in the world of paper, real paper with edges and paper cuts.  Practicing law is no different, not even with the Social Security Adminstration

When I started this journey in 1985, files were all paper.  Attorneys or their designated employee or copy service traveled to the Office of Hearings and Appeals to make copies of paper files.  This laborious task required disassembling the files, removing staples, and running the exhibits through a copy machine.  So high tech services scanned the pages, only to print them out later.  The person making the copies had to reassemble all the exhibits into the folder.  The paper folders got transferred from the field offices to the disability determination services, back again ... twice usually.  Then the file would wind its way to the OHA hearing offices.  If the case went onto review to the Appeals Council, the file got shipped off to Falls Church, Virgina.  Extraordinary delays as paper got pushed back and forth through the system. 

Enter the age of electronics and the digitization of files.  The OHA became the Office of Disability Adjudication and Review.  ODAR started sending and giving out discs with the claim files on them.  This created security issues.  To protect privacy, ODAR started encrypting discs that it mailed to the appointed representatives or to the unreprented claimants.  But now the process has turned up another notch. 

In the current age of file transmissions, representatives must sign up for the Electronics Records Epxress.  The ERE requires the erstwhile representative to log in through 3 layers of seurity to get to the client's file.  Viewing the TIF files as a photo is cumbersome and inefficient.  Reviewing the files in PDF requires a download and conversion or download as a PDF file.  The whole idea of securing the personal identifying information is a great idea but the keys for encryption on the representative end no longer comes automatically with possession of a password encrypted disc.  It requires the representative to install and operate encryption software on the end user computers. 

The whole process becomes cumbersome and costly.  Another barrier to the entry into the marketplace of representing the disabled in their pursuit of benefits denied by the federal bureaucracy.  As the federal government raises the cost of representing human beings, the federal government discourages representation.  The loser in the final analysis is the person that finds it more and more difficult to find quality representation by attorneys with new and fresh ideas.  That leaves the old guard in place with less competition from upstarts.  Having been an upstart and having been in the business long enough to be considered old guard, I like to see young people getting into the business and forcing competition. 

And that is the real problem.  Technology puts us all at risk for identity theft.  The winners in the battle agaist identity theft are the new parasitic industries that do not produce but only secure.  While we need security, the cost of security dampens the market and squeezes marginally profit businesses out.  Not a good result for the consumer ... not a good result at all.