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Aug 22, 2011

The Real Problem Is Appeals Council Backlogs

     In the wake of Social Security Ruling 11-1p which seeks to prevent claimants from filing a new claim while an old one is pending before the Appeals Council, I thought I would check on my firm's oldest pending Appeals Council cases. We have one that was filed on January 8, 2009 and another filed on April 28, 2009.
     A claimant is supposed to wait over two and a half years for Appeals Council action without the possibility of filing a new claim? Social Security claims that it is trying to stop an abusive practice, but isn't the real problem the backlog at the Appeals Council? Take that away and there is little incentive to file a new claim while an appeal is pending at the Appeals Council.
     By the way, any numbers you get out of the Appeals Council on their backlogs are misleading. For many years, maybe decades, the Appeals Council has followed a practice of shoving the easy ones out the door as quickly as possible. If an unrepresented claimant files a request for Appeals Council review, it gets denied quickly, at least in Appeals Council terms. If a represented claimant files a request for Appeals Council review but the attorney or representative gives no specific reason for the appeal, it gets denied quickly. However, if the claimant is represented and gives good reasons why the Appeals Council should reverse or remand the case, expect it to take at least a year.

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  • 10 Comments:

    Anonymous Anonymous said...

    And, in those areas that have done a good job at reducing the backlog of ALJ hearings, what is going to happen when claimants opt to file a new claim, rather than wait on the AC? If you can get a new hearing in less than a year, why take a chance on waiting 18 months to 2 years with the AC? Will they just be trading a backlog at the AC for a new backlog at the hearings level?

    10:57 AM, August 22, 2011  
    Anonymous Anonymous said...

    I suspect one consequence of 11-1p will be lawyers "tanking" RRs, in an attempt to get the case into court as quickly as possible so the claimant can refile a new application. The whole thing is Kafkaesque. As with many other policies tried by SSA in the past to change the appeals process, the real victim, besides the claimants, will be Federal Magistrates who have to deal with appeals that should have never gone to court in the first place.

    11:30 AM, August 22, 2011  
    Anonymous Anonymous said...

    with a bad budget and no hiring for the foreseeable future, i would start telling your claimants that it will be quite a while longer before they get a decision. A year maybe considered speedy. It's not right, but it is what it is....

    9:19 PM, August 22, 2011  
    Anonymous Anonymous said...

    the entire process at odar is a travesty. dds works relatively well at getting the obvious cases cleared (and those not so obvious but with good medical evidence). initial and recon take what, a couple months at most? then everything grinds to a halt at odar, where you wait a year plus for an alj hearing, a couple months for a decision, and years upon years for the a/c to deny review.

    tell me though, is a well-argued a/c RR really worth it? does it ever lead to anything but the standard denial that lacks any explanation? i wholeheartedly agree with mr. hall: the new SSR and any other related measures are unnecessary if odar would just get its act together.

    2:08 AM, August 23, 2011  
    Anonymous Anonymous said...

    A well-argued request for review can lead to a remand, but you never really know if you got the remand b/c of your argument or just the luck of the draw, so you are right 2:08 a.m.

    You know, there is a concept in admin. law of futility of exhaustion of administrative remedies. That's the standard used to get cases heard as class actions; the idea is that you simply cannot hear individual administrative claims alleging systemic failures. Usually the concept is reserved for those claims which do allege systemic harms, but I wonder if one could use the same theory to vault over the AC and go straight to court? Probably not, but it might be worth considering.

    9:45 AM, August 23, 2011  
    Anonymous Anonymous said...

    "the entire process at odar is a travesty"

    That's one opinion. I happen to think that people applying for disability benefits that are not truly disabled is a MUCH greater travesty. Much like the justice system that works hard to ensure innocent people are not put in jail, I think that ODAR should work even harder (even if it takes longer) to ensure that innocent taxpayers are not forced to bear the burden of paying disability claims to people who can work (even if that work is as a surveillance system monitor and even if they can't really work at that job because there are no openings).

    11:30 AM, August 23, 2011  
    Anonymous Anonymous said...

    Anon at 11:30 a.m.: you simply cannot expect the average citizen to understand the system well enough to know whether they are entitled to disability or not. You have people deemed disabled for workers' comp, then told that they are not disabled for SSD - how are they supposed to know, going in, that the two programs are so vastly different? Lots of people want temporary disability and apply, not knowing that they must be disabled for at least a year. Lots of people have doctors who tell them they can no longer work, but have no idea that this only means they can no longer work at the job they are currently doing. Doctors don't know this, either. Then there's the client who is told over and over again by potential employers that he can't get hired because of a medical condition, what is he supposed to think but that he is disabled? Then there are the grid rules. A person can be not disabled one day, but disabled the next day because of their age. Also, I have lots of clients that tell me they just want some help till they get back on their feet, fully intending to return to work when they are recovered from an accident or illness. You just can't lay the burden on the unsophisticated public. The only other thing that could be done is for claims reps to screen people before they apply, and that deprives folks of due process, too. Come up with a better way to prevent unfounded claims other than blaming disabled or sick folks from trying to get some financial help.

    12:33 PM, August 23, 2011  
    Anonymous Anonymous said...

    "you simply cannot expect the average citizen to understand the system well enough to know whether they are entitled to disability or not."

    Yes I can. I do expect that. I expect people to know that disability means that you can't do ANY job. It seems pretty simple.

    10:52 AM, August 24, 2011  
    Anonymous Anonymous said...

    Must have ruffled the feathers of Mr. Hall as my post discussing the various ways the public learns about the disability process (including some of the questionable or inscrupulous sources or suggestions for trying to gain benefits) appears to have been removed.

    6:11 PM, August 24, 2011  
    Anonymous Anonymous said...

    i am 2:08 am, in response to 11:30 am. i am not advocating approving more people regardless of the merits of their case. i am only saying the time it takes to reach any decision takes way too long at ODAR.

    1:48 AM, August 25, 2011  

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