Friday, August 29, 2008
Tuesday, August 26, 2008
Top 10 Things Not to Say to Newly Minted ALJ
1. You'd look better without the robe.
2. Can I buy you lunch? I'd like to give you the 411 on your Hearing Office.
3. You don't know anything about disability, do you? I know a lot. Pay attention.
4. This is one job you can't get by sleeping around. Or can you?
5. Here's a box of my business cards. Give a card to any unrepresented claimant who appears before you.
6. Did you learn anything at "ALJ school" other than the per diem amount? [snicker] "ALJ school" [snort], what a joke.
7. Can I copy your "ALJ school" materials?
8. Just a minute. Just wait. This is how I like to conduct cross-examination.
9. The Appeals Council does not allow that. You can't do that.
10. I thought that affirmative action was illegal.
2. Can I buy you lunch? I'd like to give you the 411 on your Hearing Office.
3. You don't know anything about disability, do you? I know a lot. Pay attention.
4. This is one job you can't get by sleeping around. Or can you?
5. Here's a box of my business cards. Give a card to any unrepresented claimant who appears before you.
6. Did you learn anything at "ALJ school" other than the per diem amount? [snicker] "ALJ school" [snort], what a joke.
7. Can I copy your "ALJ school" materials?
8. Just a minute. Just wait. This is how I like to conduct cross-examination.
9. The Appeals Council does not allow that. You can't do that.
10. I thought that affirmative action was illegal.
Friday, August 22, 2008
Sixth Circuit Aug. 22, 2008: Can't Make This Up
Today, the Sixth Circuit decided Bowie v. Commissioner of Soc. Sec., -- F.3d --, No. 07-2125 (6th Cir. Aug. 22, 2008) (uscourts.gov), now a leading mechanical application of age categories in a borderline situation case. See 20 C.F.R. 404.1563 (2008)
Notes
1. The Sixth Circuit made a huge mistake. It talked about the claimant's age "[a]t the time of her administrative hearing." A claimant's age on the date of an oral hearing is legally irrelevant. The claimant's age on the date of his or her oral hearing has absolutely positively no legal significance. None. Nada. Null. Zip. Zilch. Zero. It has as much legal significance as the day on which the claimant ate three Quarter Pounders With Cheese in ten minutes.
2. This is the most important borderline situation mechanical application case since Daniels v. Apfel, 154 F.3d 1129, 1133 (10th Cir. 1998). In Bowie, the Sixth Circuit applied two of its well-known rules: (1) ALJs don't have to say anything about anything, and (2) claimants are not disabled. Imagine at oral argument: "Counsel, why shouldn't we affirm the District Court's judgment under our longstanding, well-known rule that claimants are not disabled? Is Ms. Bowie a claimant? If she is, then she is not disabled. Period. End of story."
3. Practitioners in all Circuits including the Tenth need to know about Bowie. The Agency will attack Daniels in the Tenth Circuit with Bowie. Bowie also arguably requires the claimant to jump up and down about the mechanical application of age categories in a borderline situation. Start jumping up and down.
4.HALLEX, § II-5-3-2. This is the most important HALLEX case since Moore v. Apfel, 216 F.3d 864 (9th Cir. 2000). Practitioners in all Circuits need to read Bowie for its discussion of the HALLEX. By saying this I am not saying that Bowie is correct. I am saying that practitioners need to read Bowie. Practitioners should be relying on the HALLEX in litigation even in the Ninth Circuit. See Parra v. Astrue, 481 F.3d 742 (9th Cir. 2007), cert. denied 128 S. Ct. 1068 (2008).
5. And the claimant did not even have a representative!
Notes
1. The Sixth Circuit made a huge mistake. It talked about the claimant's age "[a]t the time of her administrative hearing." A claimant's age on the date of an oral hearing is legally irrelevant. The claimant's age on the date of his or her oral hearing has absolutely positively no legal significance. None. Nada. Null. Zip. Zilch. Zero. It has as much legal significance as the day on which the claimant ate three Quarter Pounders With Cheese in ten minutes.
2. This is the most important borderline situation mechanical application case since Daniels v. Apfel, 154 F.3d 1129, 1133 (10th Cir. 1998). In Bowie, the Sixth Circuit applied two of its well-known rules: (1) ALJs don't have to say anything about anything, and (2) claimants are not disabled. Imagine at oral argument: "Counsel, why shouldn't we affirm the District Court's judgment under our longstanding, well-known rule that claimants are not disabled? Is Ms. Bowie a claimant? If she is, then she is not disabled. Period. End of story."
3. Practitioners in all Circuits including the Tenth need to know about Bowie. The Agency will attack Daniels in the Tenth Circuit with Bowie. Bowie also arguably requires the claimant to jump up and down about the mechanical application of age categories in a borderline situation. Start jumping up and down.
4.HALLEX, § II-5-3-2. This is the most important HALLEX case since Moore v. Apfel, 216 F.3d 864 (9th Cir. 2000). Practitioners in all Circuits need to read Bowie for its discussion of the HALLEX. By saying this I am not saying that Bowie is correct. I am saying that practitioners need to read Bowie. Practitioners should be relying on the HALLEX in litigation even in the Ninth Circuit. See Parra v. Astrue, 481 F.3d 742 (9th Cir. 2007), cert. denied 128 S. Ct. 1068 (2008).
5. And the claimant did not even have a representative!
Wednesday, August 20, 2008
Top 10 Reasons to Attend NOSSCR LA Conference
10. Make sure associate actually attends workshops.
9. Pre-nuptial agreement with spouse to provide two out-of-town shopping
sprees per year.
8. Burning desire to complain in person about cost of conference hotel.
7. Cat's away, mice will play.
6. Prove ability to micromanage office via Blackberry / cell phone.
5. Use-or-lose travel budget.
4. Must tell high Agency officials that a particular ALJ denies too many
claims.
3. Live in Sandusky.
2. Use frequent flyer miles before worthless.
1. Apply for asylum in Blue State.
9. Pre-nuptial agreement with spouse to provide two out-of-town shopping
sprees per year.
8. Burning desire to complain in person about cost of conference hotel.
7. Cat's away, mice will play.
6. Prove ability to micromanage office via Blackberry / cell phone.
5. Use-or-lose travel budget.
4. Must tell high Agency officials that a particular ALJ denies too many
claims.
3. Live in Sandusky.
2. Use frequent flyer miles before worthless.
1. Apply for asylum in Blue State.
Tuesday, August 19, 2008
Typology of Conference Attendees Who Ask Questions
This is a typology of NOSSCR conference attendees who ask questions.
Me Too!: At a workshop about a specific kind of medical impairment, e.g., a mental impairment, this attendee tells the workshop that he or she has the impairment and gives details about his or her experience with and recovery from the impairment. (The attendee proves by his or her question that he or she has actually not recovered.)
Aware of Obvious: At the plenary session, this attendee asks a high Agency official if the Agency has considered the utterly obvious, e.g., that raising taxes could generate more revenue. (Imagine that attendee back at home telling his or her spouse that the Bush administration is now on the right track given the attendee's guidance.)
Wasn't Listening: At a workshop, this attendee asks the very question a workshop presenter already addressed directly. For example, if a speaker said that the Agency would "request but not require" a certain procedure, the attendee asks the presenter if the Agency would "require" that procedure. (Imagine this attendee an ALJ hearing cross-examining an Agency expert asking exactly the same questions the ALJ already asked.)
Oooh, Oooh Can't Wait: At a workshop, this attendee can't wait to ask his or her question at the designated time at the end of the session. Five minutes into the workshop, the attendee blurts out his or her question that was supposed to be reserved for the question-and-answer session at the end of the workshop.
Can Hear Him- or Herself Quite Well: This attendee does not use the microphone despite repeated instructions to use the microphone. This attendee can hear him- or herself quite well, thank you.
Seen on TV: This attendee does not pose a question, but states that the workshop topic was addressed in popular culture, e.g., in a 60 Minutes story.
War Story With No Point: This attendee instead of asking a question provides a rambling summary of a case he or she handled with no relevance to the workshop except insofar as it pertains to disability.
Me Too!: At a workshop about a specific kind of medical impairment, e.g., a mental impairment, this attendee tells the workshop that he or she has the impairment and gives details about his or her experience with and recovery from the impairment. (The attendee proves by his or her question that he or she has actually not recovered.)
Aware of Obvious: At the plenary session, this attendee asks a high Agency official if the Agency has considered the utterly obvious, e.g., that raising taxes could generate more revenue. (Imagine that attendee back at home telling his or her spouse that the Bush administration is now on the right track given the attendee's guidance.)
Wasn't Listening: At a workshop, this attendee asks the very question a workshop presenter already addressed directly. For example, if a speaker said that the Agency would "request but not require" a certain procedure, the attendee asks the presenter if the Agency would "require" that procedure. (Imagine this attendee an ALJ hearing cross-examining an Agency expert asking exactly the same questions the ALJ already asked.)
Oooh, Oooh Can't Wait: At a workshop, this attendee can't wait to ask his or her question at the designated time at the end of the session. Five minutes into the workshop, the attendee blurts out his or her question that was supposed to be reserved for the question-and-answer session at the end of the workshop.
Can Hear Him- or Herself Quite Well: This attendee does not use the microphone despite repeated instructions to use the microphone. This attendee can hear him- or herself quite well, thank you.
Seen on TV: This attendee does not pose a question, but states that the workshop topic was addressed in popular culture, e.g., in a 60 Minutes story.
War Story With No Point: This attendee instead of asking a question provides a rambling summary of a case he or she handled with no relevance to the workshop except insofar as it pertains to disability.
Monday, August 18, 2008
Worst Appeals Council Letter (Real & Imagined)
The absolute worst letter to the Appeals Council (arguing that it should grant a claimant's request for review) I have ever read alleged that the ALJ "sexually intercoursed" the claimant. Really.
Click here for an imagined worst letter to the Appeals Council.
Click here for an imagined worst letter to the Appeals Council.
Friday, August 15, 2008
14 Types of SSA OGC Attorneys
Typology of Social Security Administration (SSA) Office of General Counsel (OGC) Assistant Regional Counsel (ARC) Attorneys (Non-Supervisory)
1. ARC With a Conscience: This ARC has a conscience; the longest such an ARC has worked for SSA OGC is 2 pay periods.
2. ARC Snotty Unawares: This ARC has a snotty attitude, thinking that he or she has a real job when he or she is picking up legal trash. Thinks plaintiffs' attorneys are low life and does not hesitate to let them know that.
3. ARC Republican: This ARC seethes with hatred and contempt for anyone who applies for benefits or who assists such a claimant. This ARC actually likes his or her job -- he or she gets paid for foaming at the mouth against malingerers, fakers, alcoholics, drug addicts, minorities, and welfare mothers, i.e., the only kind of claimants this ARC ever encounters.
4. ARC Waiting for Next Buyout: This ARC works if at all in a coma-like state waiting for the next buyout offer.
5. ARC Total Bulls***: This ARC spews nothing but bulls***. Believes his or her grandiose bulls*** smells fine. Compare ARC Lie-O-Matic.
6. ARC Lie-O-Matic: This ARC lies about anything and everything and expects the courts and plaintiffs' attorneys to accept those lies as gospel. "We never agree to that." "The Appeals Council never allows that." This ARC does not realize that plaintiffs' attorneys know that he or she is just making it up, i.e., the ARC thinks opposing counsel actually believe him or her.
7. ARC Duped: This ARC actually believes what his or her supervisor says. (Also thinks WMDs were found in Iraq.)
8. ARC This is a Great Job for a Working Mom: This ARC adores her position as ideal women's work -- no responsibility to take home, flex time, work at home, maternity leave, not rated based on amount of work produced, affirmative action for women, and lunch breaks long enough for shopping.
9. ARC Too Tired to Litigate: This ARC is too tired to litigate. He or she is too tired to rebut a plaintiff's arguments, object to an adverse report and recommendation, etc. Every settlement offer is a take-it-or-leave-it offer because the ARC has no stamina for negotiations. Writes a merits motion for summary judgment in 3 hours.
10. ARC I am Too Good For This Job: This ARC is temporarily at SSA OGC until he or she obtains a job worthy of his or her intellect, skills, and character.
11. ARC Waiting to Become ALJ: This ARC realizes the only way out and up of SSA OGC is to Office of Disability Adjudication and Review as an SSA Administrative Law Judge (ALJ). Does whatever is needed to earn the points necessary to become an ALJ.
12. ARC Refugee: This ARC arrived at SSA OGC's doorstep as a refugee from the private sector. Everything in SSA OGC is tolerable given the reality of firm practice.
13. ARC I Hate My Supervisor: This ARC's entire life is miserable because he or she hates his or her supervisor. Really despises the supervisor.
14. ARC Did Legal Research -- Once: This ARC did legal research -- once. Was rebuked for doubting supervisor's explication of the Law and warned that future legal research would be considered insubordination.
1. ARC With a Conscience: This ARC has a conscience; the longest such an ARC has worked for SSA OGC is 2 pay periods.
2. ARC Snotty Unawares: This ARC has a snotty attitude, thinking that he or she has a real job when he or she is picking up legal trash. Thinks plaintiffs' attorneys are low life and does not hesitate to let them know that.
3. ARC Republican: This ARC seethes with hatred and contempt for anyone who applies for benefits or who assists such a claimant. This ARC actually likes his or her job -- he or she gets paid for foaming at the mouth against malingerers, fakers, alcoholics, drug addicts, minorities, and welfare mothers, i.e., the only kind of claimants this ARC ever encounters.
4. ARC Waiting for Next Buyout: This ARC works if at all in a coma-like state waiting for the next buyout offer.
5. ARC Total Bulls***: This ARC spews nothing but bulls***. Believes his or her grandiose bulls*** smells fine. Compare ARC Lie-O-Matic.
6. ARC Lie-O-Matic: This ARC lies about anything and everything and expects the courts and plaintiffs' attorneys to accept those lies as gospel. "We never agree to that." "The Appeals Council never allows that." This ARC does not realize that plaintiffs' attorneys know that he or she is just making it up, i.e., the ARC thinks opposing counsel actually believe him or her.
7. ARC Duped: This ARC actually believes what his or her supervisor says. (Also thinks WMDs were found in Iraq.)
8. ARC This is a Great Job for a Working Mom: This ARC adores her position as ideal women's work -- no responsibility to take home, flex time, work at home, maternity leave, not rated based on amount of work produced, affirmative action for women, and lunch breaks long enough for shopping.
9. ARC Too Tired to Litigate: This ARC is too tired to litigate. He or she is too tired to rebut a plaintiff's arguments, object to an adverse report and recommendation, etc. Every settlement offer is a take-it-or-leave-it offer because the ARC has no stamina for negotiations. Writes a merits motion for summary judgment in 3 hours.
10. ARC I am Too Good For This Job: This ARC is temporarily at SSA OGC until he or she obtains a job worthy of his or her intellect, skills, and character.
11. ARC Waiting to Become ALJ: This ARC realizes the only way out and up of SSA OGC is to Office of Disability Adjudication and Review as an SSA Administrative Law Judge (ALJ). Does whatever is needed to earn the points necessary to become an ALJ.
12. ARC Refugee: This ARC arrived at SSA OGC's doorstep as a refugee from the private sector. Everything in SSA OGC is tolerable given the reality of firm practice.
13. ARC I Hate My Supervisor: This ARC's entire life is miserable because he or she hates his or her supervisor. Really despises the supervisor.
14. ARC Did Legal Research -- Once: This ARC did legal research -- once. Was rebuked for doubting supervisor's explication of the Law and warned that future legal research would be considered insubordination.
Thursday, August 14, 2008
Top 10 Things (for Claimants' Attorneys) Not Taught in Law School
Top 10 Things (For Social Security Claimants' Attorneys) Not Taught in Law School
1. On a daily basis, backup on reliable media and offsite all electronic files. Your server/hard drive will fail.
2. To a significant extent, you can get away with not keeping abreast of legal developments in Social Security law. Professionalism, not fear of sanction by a tribunal, is the main reason attorneys keep abreast of changes in the law.
3. How to obtain the cooperation of medical professionals to provide relevant and convincing reports, i.e., the fundamental task in representing claimants.
4. You are as effective and your firm as profitable as your staff is courteous and efficient.
5. There will be misunderstandings with tribunals, other attorneys, and clients that will never be corrected. You may be a jerk who is misperceived by some as a saint. You may be a saint who is misperceived by some as a jerk.
6. Some tribunals and some clients will have no idea what you are saying; you are just as much a fiduciary as an advocate.
7. Very little dishonesty, unethical conduct, and generally bad behavior is punished or even acknowledged. Most dishonesty, unethical conduct, and generally bad behavior is "under the radar" or "off the books."
8. FedEx next-business-day delivery is not necessarily next-business-day delivery if there is bad weather in Tennessee; United States Postal Service Express Mail next-day delivery works almost all, not all, of the time; and United States Postal Service Priority Mail is very reliable so long as the packages are packed and labeled properly.
9. You might not be paid for a very long time, and you will be unfairly stiffed by clients whom you have served well.
10. You are expected to return phone calls quickly, and you should return phone calls quickly.
1. On a daily basis, backup on reliable media and offsite all electronic files. Your server/hard drive will fail.
2. To a significant extent, you can get away with not keeping abreast of legal developments in Social Security law. Professionalism, not fear of sanction by a tribunal, is the main reason attorneys keep abreast of changes in the law.
3. How to obtain the cooperation of medical professionals to provide relevant and convincing reports, i.e., the fundamental task in representing claimants.
4. You are as effective and your firm as profitable as your staff is courteous and efficient.
5. There will be misunderstandings with tribunals, other attorneys, and clients that will never be corrected. You may be a jerk who is misperceived by some as a saint. You may be a saint who is misperceived by some as a jerk.
6. Some tribunals and some clients will have no idea what you are saying; you are just as much a fiduciary as an advocate.
7. Very little dishonesty, unethical conduct, and generally bad behavior is punished or even acknowledged. Most dishonesty, unethical conduct, and generally bad behavior is "under the radar" or "off the books."
8. FedEx next-business-day delivery is not necessarily next-business-day delivery if there is bad weather in Tennessee; United States Postal Service Express Mail next-day delivery works almost all, not all, of the time; and United States Postal Service Priority Mail is very reliable so long as the packages are packed and labeled properly.
9. You might not be paid for a very long time, and you will be unfairly stiffed by clients whom you have served well.
10. You are expected to return phone calls quickly, and you should return phone calls quickly.
Wednesday, August 13, 2008
LA Disability Conference Workshops
NOSSCR's next conference is in Los Angeles.
Smog: Mother's Milk or Step-Mother's Curse
Before Beijing and Mexico City, there was Los Angeles. This workshop addresses the relationship between smog and asthma, including whether there is good smog and bad smog. Free inhalers for all attendees.
Southern Cal Psychosis: Reality Testing for Claimants' Representatives
Don't know whether Entourage is a scripted drama or a scripted reality show? Don't know whether your life is scripted? Don't know whether cell-phone implants exist? This workshop explains whether Southern Cal reality is real and how to tell the difference.
Gotcha: What TMZ Teaches Claimants' Representatives
You see it every evening. TMZ takes video of an inebriated B-list celebrity waiting for a valet to bring his or her car. This workshop explains what TMZ teaches claimants' representatives about proving disability claims, including the importance of the walk through the Office of Disability Adjudication and Review parking lot before and after a hearing.
Busted: Disability and Cosmetic Surgery Gone Wrong
Cosmetic surgery is often not. In this workshop, leading cosmetic surgeons and psychiatrists discuss the disabling effects of the absence of beauty after cosmetic surgery. Required attire: sunglasses and head scarves.
Screenwriting for Claimants' Representatives
Every claimant has a story. You have retold thousands of stories to ALJs. The problem: NO ROYALTIES!. This workshop explains how to convert claimant case histories into a marketable screen play.
Earthquakes, Fires, and Mud Slides: What You need to Know
You always wanted to move to California. Your mother and grandmother told you that you would not want to live there given the earthquakes, fires, and mud slides. This workshop addresses your anxiety about those natural events. Earthquake and fire drills included.
Same-Sex Marriage Before Armageddon: Selected Issues
Is Armageddon certain given same-sex marriage? In this workshop, panelists address, among other issues, whether Armageddon can be averted by amending the Social Security Act to recognize same-sex partnerships without using language God would find inflammatory.
Smog: Mother's Milk or Step-Mother's Curse
Before Beijing and Mexico City, there was Los Angeles. This workshop addresses the relationship between smog and asthma, including whether there is good smog and bad smog. Free inhalers for all attendees.
Southern Cal Psychosis: Reality Testing for Claimants' Representatives
Don't know whether Entourage is a scripted drama or a scripted reality show? Don't know whether your life is scripted? Don't know whether cell-phone implants exist? This workshop explains whether Southern Cal reality is real and how to tell the difference.
Gotcha: What TMZ Teaches Claimants' Representatives
You see it every evening. TMZ takes video of an inebriated B-list celebrity waiting for a valet to bring his or her car. This workshop explains what TMZ teaches claimants' representatives about proving disability claims, including the importance of the walk through the Office of Disability Adjudication and Review parking lot before and after a hearing.
Busted: Disability and Cosmetic Surgery Gone Wrong
Cosmetic surgery is often not. In this workshop, leading cosmetic surgeons and psychiatrists discuss the disabling effects of the absence of beauty after cosmetic surgery. Required attire: sunglasses and head scarves.
Screenwriting for Claimants' Representatives
Every claimant has a story. You have retold thousands of stories to ALJs. The problem: NO ROYALTIES!. This workshop explains how to convert claimant case histories into a marketable screen play.
Earthquakes, Fires, and Mud Slides: What You need to Know
You always wanted to move to California. Your mother and grandmother told you that you would not want to live there given the earthquakes, fires, and mud slides. This workshop addresses your anxiety about those natural events. Earthquake and fire drills included.
Same-Sex Marriage Before Armageddon: Selected Issues
Is Armageddon certain given same-sex marriage? In this workshop, panelists address, among other issues, whether Armageddon can be averted by amending the Social Security Act to recognize same-sex partnerships without using language God would find inflammatory.
Tuesday, August 12, 2008
21 Types of Administrative Law Judges
1. Administrative Law Judge (ALJ) Speed Chess: Move on counsel, I have a hearing at 1:30 p.m.
2. ALJ Primrose Path Arm Twister: Mr./Ms. Claimant, you just testified that you took a regular retirement. Mr./Ms. Claimant, you agree, don’t you, that you could have continued doing your last job if you had not retired? Don’t you? Don’t you? Don’t you?
3. ALJ Slumming in Disability: Disability adjudication is beneath me. The Agency is beneath me. The representatives are incompetent. The decision writers are stupid. The clerks are retarded. I am too good for this job.
4. ALJ Cab Driver Stepping Stone: This is just a temporary gig for me. I’m going to do real law for another Agency just as soon as....
5. ALJ Semi-Retirement: Some attorneys retire to golf. Some have heart attacks or liver disease and die. Some achieve stratospheric heights within the profession. I have taken semi-retirement with the Social Security Administration.
6. ALJ You Dumb Rep: You are the dumbest attorney I have ever met. How could you be so dense?
7. ALJ Mr./Mrs. Social Security Administration: That’s not how WE do it. OUR program has rules for that.
8. ALJ I’m Disabled Too: I have headaches too. I work. So can you. I have back pain too. I work. If you are disabled, then so am I, but I come to work. If I can work, why can’t you?
9. Doctor ALJ: An ejection fraction means this.... That laboratory test has no correlation with.... Dr. Medical Expert, isn’t it true that this objective finding shows that....
10. ALJ Browbeating Berater: So you me to take care of you just like your mother took care of you. You are worthless, aren’t you? You are worthless because you cannot work and expect me to give you a handout. Did I mention that you are worthless?
11. ALJ I Hate People: I hate you Mr. Claimant. I hate you Mr. Hearing Monitor. I hate you Mr. Representative. I hate you Mr. Vocational Expert. I also hate you Mr. Medical Expert. Did I forget someone?
12. ALJ Objective Medical Evidence: Everything depends on objective medical evidence. Without objective medical evidence, you are not disabled. Objective evidence, got that? Let me state that again: objective evidence.
13. ALJ Trust Fund Tight Wad: The Commissioner has given me responsibility for safeguarding the Trust Fund. I can’t just give benefits to anyone. I must make sure that EVERY claimant is extra-special triple disabled before I can award benefits. That’s fair, right? You wouldn’t want me to give benefits to you if you weren’t disabled, would you?
14. ALJ Seen Enough: That’s all I need, counsel. I will get a decision out to you as soon as possible. I wish you the best Mr./Ms. Claimant.
15. ALJ Mr. Flirt: Comes alive whenever he has a chance to flirt with an attractive (in the ALJ’s view) representative or vocational expert.
16. ALJ Chip on the Shoulder: I am having a Bad Life. Do me a favor -- shut up.
17. ALJ Having a Bad . . . Career: I am here only because I was mistreated elsewhere.
18. ALJ Monty Hall: Let’s Make a Deal. Ask your client to amend his/her onset date to the millisecond after the claimant’s date last insured....
19. ALJ Up Yours Appeals Council: It will be a cold day in Hell when I let those panty waists at Appeals Council tell me what do to. Do I have to repeat myself? NOT DISABLED.
20. ALJ Perry Mason: This ALJ relishes the discovery of some hidden truth in the record. Ah ha! You were working under the table for your uncle! ALJ Perry Mason is frequently wrong, thinking that the claimant was an abuser of narcotic pain medication when the exhibit showing abuse was from another claimant or patient.
21. ALJ Insider Boys Club: This ALJ is pals with the vocational and medical experts. Before, during, and after the hearing, the ALJ has a pleasant chit chat with the vocational expert and medical expert as though the claimant and the representative are not even in the room and as though an administrative hearing is not immensely important to the claimant.
2. ALJ Primrose Path Arm Twister: Mr./Ms. Claimant, you just testified that you took a regular retirement. Mr./Ms. Claimant, you agree, don’t you, that you could have continued doing your last job if you had not retired? Don’t you? Don’t you? Don’t you?
3. ALJ Slumming in Disability: Disability adjudication is beneath me. The Agency is beneath me. The representatives are incompetent. The decision writers are stupid. The clerks are retarded. I am too good for this job.
4. ALJ Cab Driver Stepping Stone: This is just a temporary gig for me. I’m going to do real law for another Agency just as soon as....
5. ALJ Semi-Retirement: Some attorneys retire to golf. Some have heart attacks or liver disease and die. Some achieve stratospheric heights within the profession. I have taken semi-retirement with the Social Security Administration.
6. ALJ You Dumb Rep: You are the dumbest attorney I have ever met. How could you be so dense?
7. ALJ Mr./Mrs. Social Security Administration: That’s not how WE do it. OUR program has rules for that.
8. ALJ I’m Disabled Too: I have headaches too. I work. So can you. I have back pain too. I work. If you are disabled, then so am I, but I come to work. If I can work, why can’t you?
9. Doctor ALJ: An ejection fraction means this.... That laboratory test has no correlation with.... Dr. Medical Expert, isn’t it true that this objective finding shows that....
10. ALJ Browbeating Berater: So you me to take care of you just like your mother took care of you. You are worthless, aren’t you? You are worthless because you cannot work and expect me to give you a handout. Did I mention that you are worthless?
11. ALJ I Hate People: I hate you Mr. Claimant. I hate you Mr. Hearing Monitor. I hate you Mr. Representative. I hate you Mr. Vocational Expert. I also hate you Mr. Medical Expert. Did I forget someone?
12. ALJ Objective Medical Evidence: Everything depends on objective medical evidence. Without objective medical evidence, you are not disabled. Objective evidence, got that? Let me state that again: objective evidence.
13. ALJ Trust Fund Tight Wad: The Commissioner has given me responsibility for safeguarding the Trust Fund. I can’t just give benefits to anyone. I must make sure that EVERY claimant is extra-special triple disabled before I can award benefits. That’s fair, right? You wouldn’t want me to give benefits to you if you weren’t disabled, would you?
14. ALJ Seen Enough: That’s all I need, counsel. I will get a decision out to you as soon as possible. I wish you the best Mr./Ms. Claimant.
15. ALJ Mr. Flirt: Comes alive whenever he has a chance to flirt with an attractive (in the ALJ’s view) representative or vocational expert.
16. ALJ Chip on the Shoulder: I am having a Bad Life. Do me a favor -- shut up.
17. ALJ Having a Bad . . . Career: I am here only because I was mistreated elsewhere.
18. ALJ Monty Hall: Let’s Make a Deal. Ask your client to amend his/her onset date to the millisecond after the claimant’s date last insured....
19. ALJ Up Yours Appeals Council: It will be a cold day in Hell when I let those panty waists at Appeals Council tell me what do to. Do I have to repeat myself? NOT DISABLED.
20. ALJ Perry Mason: This ALJ relishes the discovery of some hidden truth in the record. Ah ha! You were working under the table for your uncle! ALJ Perry Mason is frequently wrong, thinking that the claimant was an abuser of narcotic pain medication when the exhibit showing abuse was from another claimant or patient.
21. ALJ Insider Boys Club: This ALJ is pals with the vocational and medical experts. Before, during, and after the hearing, the ALJ has a pleasant chit chat with the vocational expert and medical expert as though the claimant and the representative are not even in the room and as though an administrative hearing is not immensely important to the claimant.
Monday, August 11, 2008
More Articles re: "Tropic Thunder" (Movie)
Google news has 100s of stories about disability groups finding "Tropic Thunder" not funny.
Late Night Jokes re: Social Security
Click here for Leno/Letterman/Maher jokes about Social Security.
Sunday, August 10, 2008
"Tropic Thunder" (Movie) Not Funny, Say Disability Groups
Michael Cieply, "Groups Weigh Boycott of `Tropic Thunder'" (Aug. 10, 2008) (nytimes.com). "A coalition of disabilities groups is expected as early as Monday to call for a national boycott of the coming film `Tropic Thunder' because of what they see as the movie’s open ridicule of the intellectually disabled."
Saturday, August 9, 2008
17 Types of Claimants' Attorneys
1. Attorney Nutty Litigator: This claimants’ attorney is a nutty litigator. He or she has sued his or her associate, his or her neighbor’s dog, an SSA Deputy Commissioner, the local ODAR Hearing Office Manager, and his or her shadow.
2. Attorney NOSSCR Elder Statesman: This claimants’ attorney has been a NOSSCR member since its founding. Advice and opinions saturated with wisdom. No known detractors. No skeleton in closet.
3. Attorney Held Together By Office Manager: This claimants’ attorney is his or her clients’ attorney only in name. The attorney is held together by his or her office manager. The office manager is the attorney. The office manager does everything representation requires other than sit at the hearing table. ODAR, the attorney’s spouse, and medical professionals talk almost exclusively to the office manager.
4. Attorney ODAR Backlog Too Long To Retire: This claimants’ attorney has been planning to retire but the delay for hearings makes the back benefits too attractive to forego.
5. Attorney Mensch: This claimants’ attorney is a Nice Fellow/Gal. Married for thirty-four years to same spouse. Children rush home on holidays. Just happens to practice Social Security law. Would do anything with equal skill, honor, and dedication.
6. Attorney Never Lost a Case: This claimants’ attorney has literally never lost a single case. Before taking on a client, the attorney has a fully developed evidentiary record. Once a fully favorable decision is an absolute certainty, the attorney signs the client up. Handles about twenty claims a year.
7. Attorney Past His/Her Prime: This claimants’ attorney has lost his or her edge. Prone to tell stories in ODAR waiting rooms about life before the Grids. Does not cite a case decided after 1985. Cites SSR 88-13. instead of SSR 96-7p.
8. Attorney Pain: This claimants’ attorney says one and only one thing. “Judge, this is a PAIN case. PAIN. This is a PAIN case Judge.” Talks about PAIN even when claimant has none.
9. Attorney I Am Successful: This claimants’ attorney tells everyone that he or she is very, VERY successful, financially, professionally, sexually.... This attorney attends NOSSCR conferences, but does not attend workshops. Instead, he or she prowls the lobby, telling anyone passing by, “I already know everything.”
10. Attorney Scumbag Sleazeball Lying Sack of S***: (Only a man.) This claimants’ attorney knows only larceny and lies. Steals from claimants, his secretary, his siblings, and the corner convenience store. Lies with the ease and enthusiasm of a psychopath. Lies about anything and everything. His receptionist’s main duty is to lie to callers about attorney’s whereabouts. Divorced three times. Fired by each of his divorce lawyers. Stiffed them first.
11. Attorney Extra Super Overachiever: This claimants’ attorney does perfectly three times as much as ordinary claimants’ attorneys. Four patented inventions in manufacturing. On board of directors of three non-profit organizations. Triathlon coach. Has Ph.D. in Linguistics.
12. Attorney Vietnam: The defining fact for this attorney is what he did during Vietnam. Where did he serve? Why didn’t he serve?
13. Attorney Proof of Non-disability: This claimants’ attorney has more disabilities than 80% of his or her clients. Doesn’t take offense when the non-disabled ask him or her how he or she can be so accomplished. Knows that 98% of claimants’ attorneys don’t really know what disability is.
14. Attorney Pickled: This claimants’ attorney drinks so much that he or she must avoid smokers and carpets for fear of ignition.
15. Attorney Republican: This claimants’ attorney tells anyone and everyone at the drop of a hat that he or she is a REPUBLICAN. Just because the attorney works 60 hours each week helping poor people get government benefits doesn’t mean that the attorney is a Democrat. And, just for the record, this attorney is philosophically and politically opposed to giving poor people government benefits. Just for the record.
16. Attorney Tightwad: This claimants’ attorney is cheap, cheap, cheap. Shops at garage sales and Goodwill for suits, shirts, shoes, and, yes, even underwear. Plunders dumpsters for boxes – Bankers boxes are an extravagance. Brown bags lunch. Walks ten blocks to avoid paying for parking. Uses metal folding chairs in office. For special occasions, drinks microwaved instant coffee from cheap hotels and sweetener swiped from Dunkin’ Donuts.
17. Attorney Advertiser: This claimants’ attorney does two things – advertise and screen clients. The business model is based on generating new clients, doing minimal record development, and using low-paid attorneys and non-attorneys to do mini-dog-and-pony shows. Attorney is very wealthy and secretive.
2. Attorney NOSSCR Elder Statesman: This claimants’ attorney has been a NOSSCR member since its founding. Advice and opinions saturated with wisdom. No known detractors. No skeleton in closet.
3. Attorney Held Together By Office Manager: This claimants’ attorney is his or her clients’ attorney only in name. The attorney is held together by his or her office manager. The office manager is the attorney. The office manager does everything representation requires other than sit at the hearing table. ODAR, the attorney’s spouse, and medical professionals talk almost exclusively to the office manager.
4. Attorney ODAR Backlog Too Long To Retire: This claimants’ attorney has been planning to retire but the delay for hearings makes the back benefits too attractive to forego.
5. Attorney Mensch: This claimants’ attorney is a Nice Fellow/Gal. Married for thirty-four years to same spouse. Children rush home on holidays. Just happens to practice Social Security law. Would do anything with equal skill, honor, and dedication.
6. Attorney Never Lost a Case: This claimants’ attorney has literally never lost a single case. Before taking on a client, the attorney has a fully developed evidentiary record. Once a fully favorable decision is an absolute certainty, the attorney signs the client up. Handles about twenty claims a year.
7. Attorney Past His/Her Prime: This claimants’ attorney has lost his or her edge. Prone to tell stories in ODAR waiting rooms about life before the Grids. Does not cite a case decided after 1985. Cites SSR 88-13. instead of SSR 96-7p.
8. Attorney Pain: This claimants’ attorney says one and only one thing. “Judge, this is a PAIN case. PAIN. This is a PAIN case Judge.” Talks about PAIN even when claimant has none.
9. Attorney I Am Successful: This claimants’ attorney tells everyone that he or she is very, VERY successful, financially, professionally, sexually.... This attorney attends NOSSCR conferences, but does not attend workshops. Instead, he or she prowls the lobby, telling anyone passing by, “I already know everything.”
10. Attorney Scumbag Sleazeball Lying Sack of S***: (Only a man.) This claimants’ attorney knows only larceny and lies. Steals from claimants, his secretary, his siblings, and the corner convenience store. Lies with the ease and enthusiasm of a psychopath. Lies about anything and everything. His receptionist’s main duty is to lie to callers about attorney’s whereabouts. Divorced three times. Fired by each of his divorce lawyers. Stiffed them first.
11. Attorney Extra Super Overachiever: This claimants’ attorney does perfectly three times as much as ordinary claimants’ attorneys. Four patented inventions in manufacturing. On board of directors of three non-profit organizations. Triathlon coach. Has Ph.D. in Linguistics.
12. Attorney Vietnam: The defining fact for this attorney is what he did during Vietnam. Where did he serve? Why didn’t he serve?
13. Attorney Proof of Non-disability: This claimants’ attorney has more disabilities than 80% of his or her clients. Doesn’t take offense when the non-disabled ask him or her how he or she can be so accomplished. Knows that 98% of claimants’ attorneys don’t really know what disability is.
14. Attorney Pickled: This claimants’ attorney drinks so much that he or she must avoid smokers and carpets for fear of ignition.
15. Attorney Republican: This claimants’ attorney tells anyone and everyone at the drop of a hat that he or she is a REPUBLICAN. Just because the attorney works 60 hours each week helping poor people get government benefits doesn’t mean that the attorney is a Democrat. And, just for the record, this attorney is philosophically and politically opposed to giving poor people government benefits. Just for the record.
16. Attorney Tightwad: This claimants’ attorney is cheap, cheap, cheap. Shops at garage sales and Goodwill for suits, shirts, shoes, and, yes, even underwear. Plunders dumpsters for boxes – Bankers boxes are an extravagance. Brown bags lunch. Walks ten blocks to avoid paying for parking. Uses metal folding chairs in office. For special occasions, drinks microwaved instant coffee from cheap hotels and sweetener swiped from Dunkin’ Donuts.
17. Attorney Advertiser: This claimants’ attorney does two things – advertise and screen clients. The business model is based on generating new clients, doing minimal record development, and using low-paid attorneys and non-attorneys to do mini-dog-and-pony shows. Attorney is very wealthy and secretive.
Classic: Don't Touch Me I'm on Disability.
Perhaps the paradigmatic joke about disability is the "Don't touch me, I'm on disability" joke. There are many versions of this joke. Here's one:
A blind Irishman walks into a bar. Hearing that Jesus is at one of the tables in back, he says to the bartender, "Draw me a Guiness and send one to Jesus while you're at it."
A few minutes later, a wheelchair-bound African-American guy rolls in. He sees Jesus and tells the bartender to get him and whiskey and send one back to Jesus.
Next a redneck in a neck brace enters, buys himself a Budweiser and sends a can over to Jesus.
On his way out, Jesus stops to thank each man. He touches the Irish guy, curing him of blindness. "Thank you Jesus, now I can see!" Then he touches the African-American man, who rises from his wheelchair, now able to walk. He approaches the redneck, who backs away saying, "Please don't touch me. I'm on disability."
A blind Irishman walks into a bar. Hearing that Jesus is at one of the tables in back, he says to the bartender, "Draw me a Guiness and send one to Jesus while you're at it."
A few minutes later, a wheelchair-bound African-American guy rolls in. He sees Jesus and tells the bartender to get him and whiskey and send one back to Jesus.
Next a redneck in a neck brace enters, buys himself a Budweiser and sends a can over to Jesus.
On his way out, Jesus stops to thank each man. He touches the Irish guy, curing him of blindness. "Thank you Jesus, now I can see!" Then he touches the African-American man, who rises from his wheelchair, now able to walk. He approaches the redneck, who backs away saying, "Please don't touch me. I'm on disability."
Friday, August 8, 2008
(The Onion Archive 2005) Bush Attacks Social Security
Bush Launches Preemptive Attack On Social Security (The Onion, March 30, 2005).
Thursday, August 7, 2008
Top 10 Agency Excuses
1. We could not have anticipated recent events. (Use this excuse when events were not only predictable but certain, e.g., demographic changes and retirement of Agency personnel.)
2. We know about that problem and are working on it. (Use this excuse especially if there is no realistic expectation that the problem will ever be solved.)
3. Identifying the problem is a big part of the problem. If critics would just shut up and if the news media would get back to its proper business (following Paris and Britney), Agency personnel, especially senior management, could get back to work.
4. The private sector has problems too. (Use this excuse when the Agency tries to limit the private sector from serving the public and when inefficiencies particular to government are at issue.)
5. Federal courts interfere in Agency functioning. (Use this excuse particularly when a federal court finds that the Agency is not following its own mandatory rule.)
6. Agency programs are too complex. The Agency cannot be expected to do things right. If Congress wants the Agency to get things right, it should eliminate or truncate Agency programs. (Use this excuse especially when the Agency itself plans to complexify program rules.)
7. Agency policy does not mean what it says. (Use particularly when Agency policy means exactly what it says.)
8. Anyone dumb enough to rely on the assumed competence of the Agency deserves to be harmed by the Agency's incompetence.
9. The critic uses strong language; the critic is insensitive to the feelings of Agency employees, especially senior Agency officials and Agency adjudicators.
10. No claimant was ever erroneously denied benefits. Until an award of benefits is made, all prior denials of benefits are correct. (Use this excuse particularly when the earlier denials of benefits were outrageous.)
2. We know about that problem and are working on it. (Use this excuse especially if there is no realistic expectation that the problem will ever be solved.)
3. Identifying the problem is a big part of the problem. If critics would just shut up and if the news media would get back to its proper business (following Paris and Britney), Agency personnel, especially senior management, could get back to work.
4. The private sector has problems too. (Use this excuse when the Agency tries to limit the private sector from serving the public and when inefficiencies particular to government are at issue.)
5. Federal courts interfere in Agency functioning. (Use this excuse particularly when a federal court finds that the Agency is not following its own mandatory rule.)
6. Agency programs are too complex. The Agency cannot be expected to do things right. If Congress wants the Agency to get things right, it should eliminate or truncate Agency programs. (Use this excuse especially when the Agency itself plans to complexify program rules.)
7. Agency policy does not mean what it says. (Use particularly when Agency policy means exactly what it says.)
8. Anyone dumb enough to rely on the assumed competence of the Agency deserves to be harmed by the Agency's incompetence.
9. The critic uses strong language; the critic is insensitive to the feelings of Agency employees, especially senior Agency officials and Agency adjudicators.
10. No claimant was ever erroneously denied benefits. Until an award of benefits is made, all prior denials of benefits are correct. (Use this excuse particularly when the earlier denials of benefits were outrageous.)
Wednesday, August 6, 2008
ALJs Who Testify for Their Experts
There are about 500,000 Administrative Law Judge (ALJ) hearings each year. I review a minute fraction of them. However, I have never read a hearing transcript where the representative fought with the ALJ over whether the ALJ could essentially testify for his or her medical expert or vocational expert. I fully appreciate that with a cooperative expert, it is difficult to put the genie back in the bottle. I also appreciate that a cooperative expert might very well tag team the representative or even retaliate against the representative for questioning the ALJ's questioning.
Scenario 1
ALJ: Dr. Smith has been previously sworn. Dr. Smith, consider yourself under oath. Given the objective findings, wouldn't it be reasonable to restrict the claimant to light work with no overhead reaching?
Dr. Smith: Of course, Your Honor, a light RFC is eminently reasonable. The very touchstone of rationality. May I be excused? My watch shows it's time for lunch.
Scenario 2
ALJ: Dr. Smith has been previously sworn. Dr. Smith, consider yourself under oath. Wouldn't it be reasonable in light of the objective findings to restrict the claimant to light work with no overhead reaching?
Claimant's Representative: Objection, Your Honor. Can't we just get Dr. Smith's medical opinion? You have basically told Dr. Smith the RFC you prefer. I have had hearings with you and Dr. Smith for years. Without exception, he ratifies as "reasonable" whatever RFC you suggest. He is a human echo chamber. But Dr. Smith should not be your echo chamber, mouthpiece, or sock puppet. Just ask him for his opinion about RFC. Don't ask him whether your proposed RFC is "reasonable."
ALJ: OK, Dr. Smith, what do you yourself believe is the claimant's RFC?
Dr. Smith: Based upon my independent review of the record and conclusion that the record is devoid of any significant objective findings, a medium RFC with overhead reaching would give the claimant every benefit of the doubt. So, in essence I don't agree with your suggested RFC for a limited range of light work.
Scenario 1
ALJ: Dr. Smith has been previously sworn. Dr. Smith, consider yourself under oath. Given the objective findings, wouldn't it be reasonable to restrict the claimant to light work with no overhead reaching?
Dr. Smith: Of course, Your Honor, a light RFC is eminently reasonable. The very touchstone of rationality. May I be excused? My watch shows it's time for lunch.
Scenario 2
ALJ: Dr. Smith has been previously sworn. Dr. Smith, consider yourself under oath. Wouldn't it be reasonable in light of the objective findings to restrict the claimant to light work with no overhead reaching?
Claimant's Representative: Objection, Your Honor. Can't we just get Dr. Smith's medical opinion? You have basically told Dr. Smith the RFC you prefer. I have had hearings with you and Dr. Smith for years. Without exception, he ratifies as "reasonable" whatever RFC you suggest. He is a human echo chamber. But Dr. Smith should not be your echo chamber, mouthpiece, or sock puppet. Just ask him for his opinion about RFC. Don't ask him whether your proposed RFC is "reasonable."
ALJ: OK, Dr. Smith, what do you yourself believe is the claimant's RFC?
Dr. Smith: Based upon my independent review of the record and conclusion that the record is devoid of any significant objective findings, a medium RFC with overhead reaching would give the claimant every benefit of the doubt. So, in essence I don't agree with your suggested RFC for a limited range of light work.
Tuesday, August 5, 2008
What a Claimants' Representative Will Be Doing in Ten Years
1. Waiting for ERE web site to work.
2. Bitching about the backlog.
3. Pushing up daisies near a strip mall.
4. Reminiscing about the Good Ole Days when $5,300 could buy more than a tank of gas.
5. Retired, using zombie computers to make crank VOIP calls to B & B.
6. Selling NOSSCR memorabilia on eBay, including complete set of mint condition tote bags.
7. Fifteenth year of planning to start your own law firm.
8. Still promising yourself that you will read at the Process Unification SSRs.
9. Selling Orlando real estate with an ocean view.
10. Trying to hire paralegal who can speak English.
2. Bitching about the backlog.
3. Pushing up daisies near a strip mall.
4. Reminiscing about the Good Ole Days when $5,300 could buy more than a tank of gas.
5. Retired, using zombie computers to make crank VOIP calls to B & B.
6. Selling NOSSCR memorabilia on eBay, including complete set of mint condition tote bags.
7. Fifteenth year of planning to start your own law firm.
8. Still promising yourself that you will read at the Process Unification SSRs.
9. Selling Orlando real estate with an ocean view.
10. Trying to hire paralegal who can speak English.
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