Everything changes when the ALJ asks: "Counsel, will your client agree to a new on-set date for her disability?
Your client has been living on nothing for at least two years waiting to have a court date. She hasn't been able to work. She doesn't feel well. She has treated with her doctor for years and for 80% to 90% of the time done everything the physician has asked. The treating physician has treated your client on a regular basis, and she has consistent complaints concerning her impairment. The physician had access to all of your client's treatment records. He has provided several medical opinion letters - all of which are in the court file and all have clinical and diagnostic support. The physician's opinions on the whole are consistent with the record. The problems are mostly subjective complaints although an objective basis exists for the complaints. The reviewers from the Department of Disability review have found your client able to work.
At the hearing the medical expert has rendered an opinion that disagrees with the treating physician, and comments from the Judge and her general attitude of avoiding the treating physician's reports, leave you feeling that the judge will indicate that the treating physician is not credible and the state reviewers and the medical expert provide the "true" description of the client's situation.
Waiting for a resolution of her case, she has borrowed money from every relative who she could talk to to meet her day to day expenses. She feels entitled to benefits since she has spent years and years working and paying into the system. As far as you can tell, she did only one thing wrong, she drew this judge.
After a hearing, a call comes into the office from the judge's clerk; the judge wants a new on-set date and indicates acceptance will result in resolution of the case. The judge's clerk indicates that the date chosen was xmonth, day and year on which the client's condition worsened. On review of the evidence there is no medical report, at or near that date, nothing substantial stands out!
You know the reason the judge is making the request. By volunteering to a new on-set date the judge will be able to publish a fully favorable decision. An appeal to the Appeals Council from a fully favorable decision will most likely not be overturned or sent back to the judge. Success on an appeal of a case so settled is very, very slim.
Issues to Discuss
The new on-set date means a much smaller past due amount for the client. It means a longer wait to qualify for insurance. It means that the attorney's fees (for which only the attorney is concerned) are reduced, or in some cases eliminated. It does guarantee benefits into the future. For the client, how many months will need to pass before the client makes up her loss?
Some clients immediately say take the deal -- "I don't care about loss of back benefits, I need money now!"
Others, say this is terrible, " I am being held hostage", one client wanted me to report that she was being blackmailed into a settlement. "The judge's offer is a threat; take less or take nothing." The client, in many cases, is in a panic. She wants to meet with the Judge. She wants to call other attorneys for advise. She wants to know what to do. She wants some guarantees of success.
When this situation arises these and other questions need to be discussed with the client, and they need to be fairly discussed even if an acceptance of the deal substantially reduces, or wipes out the attorney's fee. (The judge's offer on many occasions raises an appearance of conflict between the attorney and client simply by the effect it will have upon fees).
1. What is the strength of the case? Is there evidence to overcome a judge's finding on credibility?
2. What was the Judge's method of choosing the amended on-set date? Has the judge given a clear explanation?
3. Is the receipt of on-going benefits, more of a benefit to the client then getting what she deserves at a later date? Many people are so desperate by the time the hearing rolls around, that realistically they have no choice but to accept the amended date.
4.What has been your past experience on appeal in Federal Court, i.e. how many good cases went by the wayside.
5. If you turn down the amended date, will the Judge still find your client disabled at least on the date she has indicated disability occurred? It is one of the obligations of the ALJ to base the decision on evidence offered at the hearing, and if the evidence in the ALJ's mind is that disability occurred but at a different date from the claimed on-set, that should be reflected in the decision.
6. In many cases the offer is fair and a reasonable method of settling the case, but in the rare case it does not appear fair or based upon the evidence, and the judge, for whatever reason does not provide a good explanation for the new on-set date.
The attorney wants to tell the client to refuse the offer and let the judge decide the case -- "From what I have seen, this case has a very good chance on appeal". In reality, it isn't if you have a good case for an appeal, it is how will your client survive for another two or more years waiting on an appeal.
What if, for all your good intentions and review of the evidence, you lose? All the good advise and wishes, will not be of much help to the client. An appeal into Federal Court, draws the U.S. Attorney's office into supporting the judge and the decision. Having appealed numerous cases into Federal Court, I know that there is no guarantee, no matter how good the case seems to the attorney, that it will result on a win. Worse, in some cases, it results in a remand back to the same judge for retrial on errors found by the Court.
I have been in that position before and I have received a new decision that basically said, "I reviewed the errors and find, I am still correct, the claimant is still not disabled." We were five years into the case by that time. It went back up to Federal Court and the second decision was affirmed.
I have been before judges who really struggle with these cases and I feel that when he or she makes the offer, it has been thought through and is offered as a lifeline to the claimant. They explain their thought process and I can clearly see the occurrence that resulted in the Judge thinking a new on-set date should be used, other cases not so much.
Life moves on. As you can tell, I ABSOLUTELY HATE IT WHEN A JUDGE PUTS ME IN THIS POSITION, knowing the procedure upon a denial always leaves the client in a very difficult position.
No comments:
Post a Comment