The other night as we waited for dinner to be served at Twin Trees, our favorite pizza & spaghetti joint, we noticed Judge Judy on the TV screen in the corner. We talked for a few minutes about why people agree to have their cases aired on this tacky show, then our salads arrived and we turned to the task at hand, enjoying crumbly blue cheese dressing with fresh greens.
All during the time I was hearing cases in St. Louis, I only conducted a handful of hearings using video-tele-conferencing (VTC). SSA started using VTC about five years ago. Its use has spread as the technology improved. Beginning in late 2007 SSA began to open what it calls “National Hearing Centers” that only hold VTC hearings. I believe every hearing office in the country now has several courtrooms with VTC equipment and the Hearing Office Chief Judges have desktop VTC equipment. We are told more such gear is on the way. Is this the inevitable wave of the future?
The general argument for conducting hearings by VTC is that it is an efficient way to do business. I'm suspicious of this argument. The whole point of holding hearings is to fashion a just application of the law to a complex factual situation. Of course, there are better and worse ways to perform this task, but efficiency can not be the primary goal, justice is.
There are, however, three serious issues that need to be addressed in the SSA hearing system. The primary problem is that a short-sighted hiring freeze during the last ten years created an enormous backlog of hearing applications such that many people are waiting more than two years to have their case decided. This backlog is not evenly distributed across the country. Historic staffing patterns and the new hires of the last three years have created some geographic areas with enough judges to effectively reduce the backlog while other areas are still significantly under-served. Having a group of judges that can “virtually” go anywhere to hear cases by VTC is one way to provide extra hearings where there are inadequate local resources.
The second problem is the vast size of our country and the annoying fact that a fair number of people insist on living far from urban centers. SSA pays travel costs for those who live more than 75 miles from a hearing office, but many people live considerably further away or can not realistically travel a long distance to a hearing. To deliver hearings to these folks most hearing offices operate remote hearing sites. At the Syracuse ODAR there are five such sites in Utica (60 miles east), Binghamton (70 miles south), Watertown (70 miles north), Corning (100 miles southwest) and Ogdensburg/Canton (130 miles northeast). The logistical problems of holding remote hearings can be formidable especially if travel involves crossing one of the most persistent snow belts in the US. The relative ease of holding hearings by VTC becomes especially attractive when faced with a three hour drive in a snow storm.
The third problem is related. The more rural areas obviously have a smaller number of cases. To justify the expense of a hearing trip a fair number of cases must be accumulated. This means that rural folks wait longer than urban folks for their day in court. “Average processing time” seems always to be longer for remote sites. This was true in St. Louis and is true here in Syracuse. When cases have to be rescheduled for any reason the wait is always longer at remote sites. Use of VTC hearings allows a day with a smaller number of hearings to be held anytime, anywhere, or so the argument goes.
Each of these arguments for use of VTC has some merit. I don't oppose some use of VTC, but I personally don't want to use it very much. The reason is simple: TV is a poor substitute for real life. The main reason to even hold hearings in Social Security cases is to allow the claimant a full and fair opportunity to explain why they deserve benefits. As they explain their case to me, I must decide whether what they say makes sense given the medical and other evidence in the case file. To do this I must find ways to get the claimant to talk honestly and openly with me, and I must ask a lot of probing questions to really find out what is happening in the claimant's life. Over my career I've learned how to effectively question people. Good questioning requires a lot of give and take spontaneously informed by what happens during the conversation. Many times I learn things about the claimant that the claimant's lawyer doesn't know. Many times people tell me or show me things during the hearing that completely change my mind about whether or not they deserve benefits.
Such probing questioning can be done by VTC. I've done it, but the effort required is quite a bit higher than in face to face hearings. In even the best VTC there is a short delay between every question and answer that breaks the flow. Sometimes the connection goes down, the screen freezes or the audio cuts out. The big screen TVs are good but it's completely impossible to effectively observe the small details like oil or dirt under the fingernails, or the smell of alcohol. Many claimants don't respond at all well to a TV judge, especially claimants with a mental illness. Back when I represented claimants, I had a client with mental illness who told me she couldn't truthfully answer the questions of ALJ at a VTC hearing because she was just too scared by the lady on the TV. For all these reasons, so long as I have a choice not to use VTC for my hearings, I'm going to opt not to do so.
In some ways, VTC hearings are not positive. To see and smell, an ALJ and claimant must see each other face-to-face. I agree claimants alleging mental impairments may be put at ease much easier in a face-to-face setting. I get the uneasy feeling that the video hearings conducted by the National Hearing Centers are only concerned with pushing through numbers of hearings, and not that concerned with the quality of the hearings or with diligent attention paid to process and rights.
ReplyDeleteIt is unfortunate that rural areas get the dirty end of the stick when it comes to waiting times. But video hearings can help ease that by the scheduling old cases a few at a time as necessary. For those claimants who cannot even travel to a remote site for a video hearing, telephone hearings are an option, although not the best of all options.
One particular problem that some hearing offices may have is when VE's and ME's are scheduled. Some offices do not have a sufficient number of VE's or ME's in a particular specialty. That necessitates using VE's and ME's from another hearing office. Personally, I feel VE's and ME's are often over-used by ALJ's who are fearful of remands, or who cannot, or refuse to, use the "three hat" method.
Perhaps one of the simplest ways to obtain sufficient and legally defensible medical evidence is to obtain a Medical Source Statement from the claimant's treating physician with at least one year of supporting progress notes and laboratory or diagnostic techniques. Often, attorneys will submit everything but the MSS. Some ALJ's will shoot from the hip and extrapolate an RFC from the evidence and testimony, but I believe the MSS is the best way to go. If I were an ALJ, I would obtain an MSS at the earliest possible step in the process - even before a hearing.
It is an absolute shame that when a consultative examination is conducted, a Medical Source Statement is not completed. Such a properly completed form would go a long way to helping DDS' properly evaluate a case.
Another problem is claimants who cannot provide a detailed listing of the sources of their medical treatment. Often, the DDS is at a loss to obtain updated medical records because of the poor quality of claimants' recall of their medical sources, and the DDS' seeming inability to locate and contact such sources.
So, until the next time, happy adjudicating.
I agree with your views of VTC completely. 15 years as a claimant representative leads me to confirm your opinions in toto. Worse however, IMHO, is the use of telephone appearances by experts. Not only are the visual cues of credibility lost, but one cannot even be sure the expert is staying focused on the hearing. They could be watching TV, completing medical records, reading a book, etc. And, while VTC was adopted with proper notice and comment, telephone appearances were adopted by fiat and forced on the claimant population.
ReplyDelete