Can you introduce witness evidence at the disability hearing?

Recently, I had a prospective client come into the office to have me review his denial of benefits and determine if I would handle an appeal.  He indicated that  his other representative told him that no witnesses would be allowed in his case.  I have had experience with an Administrative Law Judge who limited the number of witnesses, provided that witnesses submit their testimony by written submission, but I had never run into a ALJ who said, “No witnesses”.

So what are the rules?   A good place to start is at 20 C.F.R. § 404.916. Disability hearing—procedures.

“(b) Your procedural rights. We will advise you that you have the following procedural rights in connection with the disability hearing process:

(1) You may request that we assist you in obtaining pertinent evidence for your disability hearing and, if necessary, that we issue a subpoena to compel the production of certain evidence or testimony. We will follow subpoena procedures similar to those described in § 404.950(d) for the administrative law judge hearing process;

(2) You may have a representative at the hearing appointed under subpart R of this part, or you may represent yourself;

(3) You, or your representative, may review the evidence in your case file, either on the date of your hearing or at an earlier time at your request, and present additional evidence;

(4) You may present witnesses and question any witnesses at the hearing;”

Lay witness testimony can be submitted by written letter, sworn affidavit or testimony at a hearing.   Which method to use depends a lot on the witness.  If the witness is well spoken, over a lengthy period of time, s/he had had close contact to claimant, and can testify in a direct manner concerning detailed information, it might be preferable to have live testimony. Other cases may be better submitted by written statement or affidavit.

Why do I emphasize a credible individual? Many times your witnesses will not be allowed to be in the hearing room when you are questioned and testify.  After you have completed your testimony the Administrative Law Judge will allow your witness to testify. If, in an attempt to help you win your claim,  your witness exaggerates, lies, or provides inconsistent information from what the claimant testified to, the testimony in the eyes of the judge may hurt the claim.

There are some instances in which calling a witness can be helpful. A judge might want to hear from a witness for a claimant who because of his/her impairment cannot fully testify on his/her own behalf. For example, claimants who have faulty memory, speech impediment, mental or emotional issues that make claimant lose control.
In fact, a judge may ask to receive testimony from a close friend or family member present at the hearing – even if you hadn’t intended for them to be a witness!  This is generally done when the judge feels that the claimant, for whatever reason, is unable to elaborate well enough on a particular subject.

In the end, the judge will decide whether or not a witness will be allowed. Your attorney will be able to advise you on the matter in order to provide the best outcome for your claim

You should select one or at most two people and each of your witnesses should be able to talk about what you can and cannot do, what activities you have trouble with, how your work performance has suffered, how your personal life has suffered, and the hope is that the witness(es) can shed additional light upon the effects of your impairment on your life. Remember, what you are trying to accomplish at a hearing is proving that  you cannot do work that you did in the prior fifteen years and that you cannot adjust to other work because of your medical, psychological condition(s), and your disability must also last, or be expected to, or has lasted for at least one year (or result in your death).

Once you have selected your witnesses, you should contact the Social Security Administration or hearing office right away to let them know. If you do not inform them ahead of time, your witnesses may not be allowed, or your hearing may be delayed.

Notwithstanding the foregoing, I like to have witnesses provide written statements for submission into claimant’s file.  It gives me an opportunity to review what is being presented, and it provides the author with an opportunity to include everything they think is relevant.

I have found that in many cases, submitting a written letter is more helpful than having a witness provide live testimony. It gives the Administrative Law Judge an opportunity to examine the written evidence before the hearing.
A nice thing about a written statement, it gives time for the author to express all that is considered important.  Life testimony doesn’t  provide any second thoughts or do-overs after a hearing.  After testifying, many times witnesses’ stated regrets for things not said.
Finally, hearings are generally set on a pretty tight schedule. Each hearing is scheduled for a short period of time, i.e., one hour  to one hour and a half.  It helps everyone by getting the testimony before the Judge in the time allowed.

Lastly, I like written statements because, at the hearing you know the testimony is in the record and you need not worry about it if the witness doesn’t testify; if the witness doesn’t appear; or if the witness falls apart on the stand or will not stop talking and puts material into the record that damages the case.

Disclaimer: Blogs posted herein are intended neither as legal advice, nor do they create nor attempt to create an attorney-client relationship. The person viewing my blogs is admonished that an attorney-client relationship may only be created with the express consent to the parties to it.

The Vocational Expert

You are attempting to obtain social security disability benefits.  You were denied on your initial application and on reconsideration.  You now arrive at the hearing; in the hearing room you are introduced to the judge, the judge’s clerk and reporter, the medical expert if one is present and then you are introduced to the Vocation Expert.  Why is that person in the room?  What is the expert’s function?  What information on vocations is the expert allowed?

Seeing that that ALJ has called on a vocational expert means, one good thing, apparently you haven’t already lost!  A vocational expert is not necessary if the Medical Vocational Guidelines apply (‘the grid’).  If the grid applies, it mandates a finding of disabled or not disabled based upon the criteria applicable to the individual applicant (20 C.F.R. Part 404, Subpart P, Appendix 2).[1]

In all other cases, vocational expert testimony would be appropriate.  Since the grid does not apply, the ALJ will need the expert’s assistance on the issue of whether or not a claimant is employable.

Before I continue, it is important to understand that the older the claimant is, the better chance of success under the grid rules or testimony of a vocational expert.  The system is geared to individuals 50 years of age or older (even more favorable if the claimant is over 55 years of age).  The older the claimant the less vocational adjustment he/she will be required from past employment into other work.

The hearing covers five areas of consideration, substantial gainful activity, severe impairment, listings, residual functional capacity, ability to return to former work, and ability to do any full time work in the regional or national economy.

It is in steps four and five that the vocational expert’s testimony is relevant, to-wit, can the individual do any past relevant work, if not, is there work in the national economy that can be performed on a full time basis.  The Vocational Expert’s expertise, experience and testimony will usually assess the claimant’s ability to work based upon past work, performed in the prior 15 years, medical limitations, claimant’s education and age.

Vocational expert’s testimony assists when: (i) there are significant non-strength limitations that exist and make application of the grid inappropriate; (ii) there is a question as to the existence and nature of skills that claimant can be transferable to other work (An important and frequent issue that the vocational expert can address); (iii) a claimant’s limitations because of an impairment preclude performance of a full range of work activity at a given level of exertion.  If a claimant has such limitations, it is up to the vocational expert to determine if, in his/her opinion, claimant can perform some occupation(s) at the specific level of exertion with his/her limitations.

Given the importance of the Vocational testimony to the outcome of a case, how do you judge the vocational expert?

A place to start may be the credentials of the expert.  A problem is that credentials needed by a person presenting as a vocational expert are not specified in any regulation or agency rule.  My experience is that the vocational expert called to testify generally is an individual trained in rehabilitation counseling, such as a qualified rehabilitation consultant, or someone trained in industrial psychology.  Most have had years of experience.

Clients frequently ask about the various jobs that a vocational expert refers, many which the client does not recognize.  The regulations provide sources that provide, what social security will accept, reliable job information.  The regulations specifically cite several sources such as:   the Dictionary of Occupational titles, which is published by the Department of Labor; Census reports published by the Bureau of the Census, Occupational Analysis published by Social Security and various state publications.

It is sometimes fruitful to inquire of the vocational expert as to whether or not he/she has ever placed any individuals in the jobs identified?  Are you still placing people in jobs as part of your day to day work? Have you recently placed anyone into a job, you have now identified, who had impairments similar to claimant?  Although it is not unheard of an ALJ cutting off such questions if the expert’s testimony is based upon approved source material.

An interesting question is can the ALJ take into account provisions of the American’s with Disabilities Act (ADA)in ruling on whether or not the claimant is employable.  Under provisions of the ADA an employer must make reasonable accommodations for an employee’s disability.  Can the ALJ ask the vocational expert whether or not with reasonable accommodations made for the claimant’s disability, is the claimant employable?

Such was the issue in Eback v. Chater, 94 F.3d 410 (8^th Cir. 1996).  The Court’s holding was that it was inappropriate --

“This rationale is faulty for numerous reasons, the most significant of which is that a determination of relevant jobs existing in the national economy in significant numbers must be based on an assumption that the employer would be willing to make accommodations under the ADA. The Associate Commissioner of Social Security issued a statement that the ADA and the disability provisions of the Social Security Act have different purposes and have no direct relationship to each other.

[The inquiry into other available jobs] is based on the functional demands and duties of jobs as ordinarily required by employers throughout the national economy, and not on what may be isolated variations in job demands (regardless of whether such variations are due to compliance with anti-discrimination statutes or other factors). Whether or how an employer might be willing (or required) to alter job duties to suit the limitations of a specific individual would not be relevant because our assessment must be based on broad vocational patterns ... rather than on any individual employer's practices. To support a ... finding that an individual can perform "other work," the evidence ... would have to show that a job, which is within the individual's capacity because of employer modifications, is representative of a significant number of other such jobs in the national economy.” @ 412 (underlining added)

The vocational expert testimony in many cases can result in finding of disability or not disabled.  It is important that the evidence relied upon by the vocational expert, is all the evidence, that any hypothetical question put to the expert is based upon the whole record.  Good luck!

Disclaimer: Blogs posted herein are intended neither as legal advice, nor do they create nor attempt to create an attorney-client relationship. The person viewing my blogs is admonished that an attorney-client relationship may only be created with the express consent to the parties to it.

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[1] The grid presumes that an individual can perform a full range of work at one of three levels of exertion, sedentary, light, and medium. Once the level of exertion is determined, the grid applies specific criteria—age, education, pervious work experience, skills, no skills, skills that are transferrable and skills that are not to determine if a finding of disabled or not disabled apply.  In general, the use of the grid is limited to impairments that result in only exertional limitations, i.e. if only strength activities are involved.

Attorney's ethics and disclosure of adverse evidence

The issue is simple to state: Is there a legal obligation on the claimant's attorney, in a social security disability case, to disclose adverse information that has come into the attorney's knowledge?

A social security disability hearing is not the typical trial. It is non-adversarial hearing¹, claimants need not be represented by counsel, there is no separate government attorney to advocate against claimant, and the Administrative Law Judge who proceeds over the matter, questions the claimant, is to be impartial and is the adjudicator the facts.

The claimant carries a burden during the adjudication process of proving that s/he is disabled and qualifies for benefits.² This burden on the claimant does not remove the burden placed upon the ALJ to, under the applicable regulations, to ensure that the claimant’s complete medical history is developed for at least the twelve months preceding the month in which the claimant filed his application. 20 C.F.R. §§ 404.1512(d).³

In representing the claimant and meeting the obligations imposed by regulation, there is a question; under what circumstances does the claimant and their representatives have an legal obligation to disclose adverse evidence to SSA? What if adverse evidence, is an adverse medical report from a personal injury or workers compensation action, or old reports which are counter to the majority of other evidence in claimant's file, does it have to be disclosed?

20 C.F.R. § 1320a-8(1)(C) provides a penalty for anyone who makes a statement for use in determining eligibility for disability benefits and:

“omits...or otherwise withholds disclosure of ...a fact which the person knows or should know is material to a determination of (eligibility for)...benefits...if the person knows or should know, that the statement or representation with such omission is false or misleading or that the withholding of such disclosure is misleading.” (italic added)

The foregoing is the current law, it is not very clear in what is required. Clearly there could have been a regulation put into effect that made a crystal clear requirement on disclosure of adverse information.

The present regulation, in my opinion, is clear that claimant and his/her representative provide evidence that support the disability claim. The claimant carries the burden of coming forth with sufficient evidence to support a claim for benefits. What seems unclear is the same burden placed on the claimant and his/her representative to produce evidence adverse to a finding of disability.⁴

The directive in the regulation that directs that the claimant is to produce “everything that shows that you are blind or disabled”, does not seem to endorse production of adverse evidence. Is there somewhere else to look for assistance?

Further reading of the regulation provides and additional directive to the claimant. A claimant must provide “medical and other evidence that can assist social security in determining “whether you are disabled.” That section of the regulation could be read to mean that the claimant produce adverse information.

The attorney representing a claimant must interpret the regulation in relation to the ethical obligations owed to his client. The attorney has a duty to zealously represent his client to the best of his ability. Disclosure of adverse information could be viewed as a violation of the attorney's (state imposed) ethical obligation to the client, unless there is a direct federal mandate for disclosure.⁵ I found none. Congress adopted the Social Security Protection Act of 2004, unfortunately it did not clearly require an attorney to disclose adverse information. The best that can be said is that the attorney cannot withhold a fact that the attorney knows or should know is material to a determination of whether the claimant is entitled to benefit.⁶

Adverse medical examinations in personal injury and workers compensation cases are not obtained for the claimant's benefit, for his treatment, or care, they are obtained by a representative of an insurance company trying to defend a claim made for injuries suffered by the claimant. Many times the expert's opinion favors the payer of the expert's charges and is in no manner an unbiased report. So such reports always rise questions for an attorney in the social security setting.

SOMETHING NEW!!!!
Social Security has proposed rulemaking @ 79 Fed. Reg. 9663 (Feb.20, 2014) which deals with th subject matter of this blog.

Proposed:  20 CFR §§ 404.1512(a) and 419.912(a) You must 'inform' us about or submit all evidence known to you that relates to whether or not your are blind or disabled.

The current rule requires a claimant "to prove to us that you are blind or disabled."

Apparently social security wanted to emphasize that it is not shifting the responsibility to develope the record to the claimant.

So what is proposed for the claimant's responsibility?  Under the above noted proposed sections under (c) for each is stated that: You must inform us about or submit all evidence known to you that relates to whether or not your are blind or disabled.  When you submit evidence from another source, you must submit that evidence in its entirety. 

Under a proposed change to the rules governing representative's responsibility there is a requirement to help to obtain the information.

This will be an interesting change and one wonders how it will work once put into effect.  We have an ALJ who issues a pretrial order directing that all evidence be submitted before the hearing.

Clearly, under the proposed rule that is an invalid/improper order.  It is not claimant's responsibility nor counsel to obtain records, at most there is an obligation to inform about such evidence.  If counsel has obtained adverse medical information, there appears to be no obligation on him/her to submit the evidence only to inform social security of the author of the records.  If social security does not obtain the records, that is a breach of its duty to develop the record.  It is an all other nothing issue.  If parts of the record are helpful and parts not, if the claimant wants that material submitted, all of the records must be submitted.  If the records are not helpful, a disclosure of the medical source is all that is required of claimant.

I could see some benefit in a close case, in which there is only one source that has any adverse evidence to disclose the source and see if the records are obtained prior to the hearing.  If they are nothing is lost, if they are not, the claimant's case benefits.

 

I had come to the decision to disclose adverse information, now if the new regulation becomes law, the decision may be to disclose but not turn over evidence.

Another reason to consider disclosure but not production is the cost to obtain the medical reports. If social security obtains the records, it does so at its cost.  Lastly,  the proposed regulation removes my prior reason I had settled upon to submit adverse evidence, such as, would a later discovery or disclosure during the hearing (as when the ALJ asks at the hearing if all evidence has been submitted) hurt the client's case? Or, if the ALJ discovers that evidence was available and not presented, it will that adversely affect how the judge views the attorney's presentation? These worries are rendered meaningless under the proposed regulation, since the burden to develop the record is clearly upon social security, disclose of the medical provider(s) is all that is requested of the claimant or counsel.

Under the proposed regulation, clearly support is given to my prior opinion that a pre-trial 'discovery order' by an ALJ, is improper. I had come to that opinion based upon portions of the HALLEX, the regulation and case law, arguing:

First, we have the regulation which describes an administrative hearing, 20 C.F.R. 404.900 --

“(b) Nature of the administrative review process. In making a determination or decision in your case, we conduct the administrative review process in an informal, nonadversary manner. In each step of the review process, you may present any information you feel is helpful to your case...”

The HALLEX, (Hearings, Appeals and Litigation Law Manual) is a publication from the Social Security Administration's Office of Disability Adjudication and Review (ODAR). ODAR administers hearings for people seeking reviews of their applications for disability benefits. HALLEX contains policy statements for carrying out the SSA's guiding principles.

Section I-2-5-14 deals with obtaining Medical Evidence from a Treating Source or Other Medical Source. It provides procedures under which the ALJ or social security staff can request such information from claimant or representative. There is no provision for directing a formal order at the claimant his/her representative to provide such evidence.

Section I-2-5-24 deals with claimant Fails or refuses to submit Evidence or undergo a Consultative Examination or Test. You would think that if there was a desire to use a formal order to facility discovery it would be under the situations covered by this section of the HALLEX, but again, there is no directive to use such a procedure.

There are cases, though directly not on point, do give some guidance. Britton v. Astrue, No. 07-1547(2008 7^th Cir.). The dealt with claimant's counsel's demand for information from the vocational expert. The Court in dicta noted:

“We recognize that the lack of pretrial discovery in Social Security hearings can make the task of cross examining a VE quite difficult....But refuse to endorse a system that drags out every social Security hearing to an interminable length.”

20 C.F.R. 405.334 is a new regulation dealing with prehearing statements, although not specifically on point, this regulation deals with the ALJ requesting that prehearing statements be submitted.  The regulation as drafted has no enforcement provision.  This would seem to enforce the lack of enforcement over an order directing disclosure of all evidence.

The proposed regulation clearly puts the burden on social security to develop the record, i.e. collect the evidence.  Such a pre-trial order is contrary to the regulation.

These are difficult issues and I assume will be dealt with on a case by case basis, because every case is different and presents different challenges for the attorney trying to obtain benefits for a client he believes to be disabled.

1Heckler v Campbell, 461 U.S. 458 @461 (1983); 20 CFR 404.900

220 C.F.R. § 404.1512(a)

3 Hilsdorf v. Commissioner of Social Security, 724 F.Supp.2d 330 (E.D. NY. 2010) citing Rosa v. Callahan, 168 F.3d 72, 79 (2d Cir. 1999). An ALJ must engage in a reasonable effort to obtain the treating source records

420 C.F.R. § 404.1512

5Professional Responsibility and Social Security Representation: The Myth of The State-Bar To Compliance With Federal on Production of Adverse Evidence, Robert E. Rains, Cornell Law Review Vol. 92:363

6See footnote #4

A Short History of Attorney's Fees and Social Security

In a prior blog, I spoke to the history of social security. Here the issue is the history of the attorney fee process as the social security law developed.
As to administrative proceedings, the 1935 Social Security Act made no provision for attorney’s fees. 49 Stat. 620 (1935). It was four years later that Congress amended the Act to permit the Social Security to prescribe maximum fees attorneys could charge for representation of claimants before the agency. Social Security Act Amendments of 1939, 53 Stat. 1360.

"Sec. 206.

The Board may prescribe rules and regulations governing the recognition of agents or other persons, other than attorneys as hereinafter provided, representing claimants before the

Board, and may require of such agents or other persons, before being recognized as representatives of claimants that they shall show that they are of good character and in good repute, possessed of the necessary qualifications to enable them to render such claimants valuable service, and otherwise competent to advise and assist such claimants in the presentation of their cases.

An attorney in good standing who is admitted to practice before the highest court of the

State, Territory, District, or insular possession of his residence or before the Supreme Court of the United States or the inferior Federal courts, shall be entitled to represent claimants before the Board upon filing with the Board a certificate of his right to so practice from the presiding judge or clerk of any such court.

The Board may, after due notice and opportunity for hearing, suspend or prohibit from further practice before it any such person, agent, or attorney who refuses to comply with the Board's rules and regulations or who violates any provision of this section for which a penalty is prescribed.

The Board may, by rule and regulation, prescribe the maximum fees which may be charged for services performed in connection with any claim before the Board under this title, and any agreement in violation of such rules and regulations shall be void.

Any person who shall, with intent to defraud, in any manner willfully and knowingly deceive, mislead, or threaten any claimant or prospective claimant or beneficiary under this title by

word, circular, letter or advertisement, or who shall knowingly charge or collect directly or indirectly any fee in excess of the maximum fee, or make any agreement directly or indirectly to charge or collect any fee in excess of the maximum fee, prescribed by the Board shall be

deemed guilty of a misdemeanor and, upon conviction thereof, shall for each offense be punished by a fine not exceeding $500 or by imprisonment not exceeding one year, or both.”

Discussions in Congress concerning the possible adoption of the 1939 amendments, indicated that Congress thought that there would very little need for counsel in agency proceedings. H.R. Rep. No.728, 76th Cong., 1st Session, pp. 44—45 (1939); S. Rep. No. 734, 76th Cong., 1st Session, p.53 (1939).

"While it is not contemplated that the services of an agent or attorney will be necessary in presenting the vast majority of claims, the experience of other agencies would indicate that where such services are performed the fees charged therefor should be subject to regulation by the Board, and it is so provided." H.R. Rep. 728, supra, at 44-45; S. Rep. 734, 76th Cong.,

1st Sess. 53 (1939).  
Although Congress authorized regulation of attorneys practicing before the social security,it  did not lift the bar on assignment of benefits, I,e, it did not authorize the withholding of fees. Section 406 as added to Title II in 1939 simply authorized the Board to regulate the practice of claimants' representatives and provided that "(t)he Board may, by rule and regulation, prescribe the maximum fees which may be charged for services performed in connection with any claim before (it)" (Section 201, 53 Stat. 1372;  42 U.S.C.
(1940 ed.) 406).

Under the 1939 amendments, the Board established a maximum fee of $10, permitting a higher fee only by petition to the agency. 20 CFR § 403.713(d) (1949).
Presently over 80% of claimant's requesting disability benefits from Social Security are represented and attorney's fee can be withheld and assigned to the attorney in a successful case. Fees are now assessed on a contingent basis and the amount of fee paid (by withholding from claimant's total award) is usually 25% of any back due benefits to a maximum of $6,000.00 (it is the lesser amount paid to the attorney). With a small fee paid to social security, the attorney's fees can be withheld and directly paid to the attorney.