The National Organization of Social Security Claimant's Representatives (NOSSCR) is having a conference in Philadelphia this week. Unfortunately, I am unable to attend. Eric Schnaufer was kind enough to take notes on the general session this morning. We'll start out with his notes, which I have edited slightly, on the presentation of Professor Harold Krent, the Dean of the Law School at the Illinois Institute of Technology Chicago-Kent School of Law:
Prof. Harold Krent spoke about his investigation for the ACUS [Administrative Conference of the United States], but not on behalf of the ACUS. The ACUS has not deliberated. The goal was for ACUS deliberations before the end of the calendar year. But that may not be possible. Krent stated that would have a draft in the late summer. His report will be sent to the ACUS and SSA. Then the ACUS will deliberate.
His investigation focuses on understanding inconsistencies in ALJ [Administrative Law Judge] adjudication, the character of ALJ hearings, and judicial review. He will not address State-agency adjudication or the Medical-Vocational Guidelines.
Prof. Krent will investigate whether various factors impact ALJ allowance rates: the pool of claims from the State agencies, the underlying health and poverty of the region, a “small town” bias, the elimination of reconsideration, etc. The statistical analysis is “very difficult.” The differential allowance rates on their face do not tell the “whole story.”
Prof. Krent stated that the Agency has not studied the differential allowance rates for VTC [Video Tele-Conference] and in-person hearings, if any. The significance of VTC hearings for the correctness of adjudication is unknown. Prof. Krent stated that there was no procedural due process right to in-person hearing. Prof. Krent believed that VTC was the “wave of the future.” (Prof. Krent was sympathetic to the Agency’s name removal policy. The Agency was “adamant” about this policy. It prevents “forum shopping.”)
Prof. Krent stated that the Agency has no data on whether allowance rates are associated with particular MEs [Medical Experts] and VEs [Vocational Experts]. The Agency does not track outcomes by the name of the ME or VE.
The Agency does not know how long hearings last or the correlation between the length of the hearing and the result. The CALJ [Chief Administrative Law Judge] should investigate the consistency of the length of hearings.
Prof. Krent stated that the recent public discussions had reduced the allowance rates. Thus the publication of allowance rates were “not such a bad thing.” The CALJ should address low and high allowance rate ALJs.
Prof. Krent does not know whether the newer ALJs with Agency experience adjudicate claims differently than longstanding ALJs with more “trial” experience.
Prof. Krent suggested that the Agency provide ALJs with generalizations about adjudicative outcomes given claimant characteristics.
In federal court, the fifty-percent relief rate was consistent over many years. Federal courts grant relief for new evidence in only five percent of cases. The top two reasons for granting relief in court are the treating-source rule and inadequate consideration of mental limitations in terms of functional capacity. There is significant variation from district court to district court in terms of relief.
The Appeals Council is looking at 2,000 cases per year post-effectuation. There were more errors in favorable than unfavorable decisions.