Jul 20, 2015

Hearing Backlog Balloons

     You ought to click on the image below, which is a recent Caseload Analysis Report from Social Security's Office of Disability Adjudication and Review (ODAR), and then print it out. It's worth studying and you can't really study it other than by printing it out; at least, I couldn't. This report was reproduced in the newsletter (not available online) of the National Organization of Social Security Claimants Representatives (NOSSCR).  
     Here are some highlights of the report:
  • In Fiscal Year (FY) 2015, which began on October 1, 2014, through the date of this report, which is the end of May 2015, ODAR received an average of 3,046 requests for hearing per day but disposed of an average of only 2,647 a day, which means that they could only process 87% of their workload. 
  • Because ODAR couldn't handle its workload, the average processing time shot up from 422 days to 491 days in just seven months. 
  • The number of cases pending over 365 days increased from 242,999 at the beginning of the FY to 343,801 as of the end of May. 
  • At the rate things are going, in less than two years the average processing time will be over two years.
  • The number of ALJs being hired is little more than the number retiring, quitting and dying. How many times have I heard Glenn Sklar, the head of ODAR, talk about the number of ALJs the agency is hiring and say "Help is on the way"? 
  • The amount of overtime available to ODAR has gone down. It averaged 32,339 hours per month in FY 2014 but only averaged 27,950 hours per month in FY 2015 through the end of May. Why is the agency relying upon so much overtime anyway? Why not just hire more employees? One answer is that in the short run new employees give little additional productivity. They have to be trained and to become proficient at what they do. Another answer is that the agency is fearful about its future appropriations. It doesn't want to hire new employees, train them and then have to furlough them.
  • Don't miss the footnote to the report. During the time period covered by this report, attorney advisors issued a whooping 438 decisions. There were only 58 cases pending before attorney advisors as of the report date. Talk about a token effort! If Social Security were serious about holding down this burgeoning backlog, it could really crank up the attorney advisor program but they're worried about what Republicans in Congress would think and they're worried about the Disability Insurance Trust Fund so they do nothing.
     We could use less happy talk from Social Security about how "help is on the way" and more frank talk about just how bad things are now and how much worse they're going to get if ODAR doesn't get a bigger operating budget. There's no point pretending that things are getting better when it's obvious that things are getting dramatically worse.
     Even without a bigger operating budget, ODAR could make things a little better if it could get over its fear of being accused of "paying down the backlog." Does anybody who really knows how things work at Social Security think there would be anything wrong with letting attorney advisors approve 10% or even 20% of the incoming requests for hearing? Select claimants 55 and older as well as claimants with a diagnosis of schizophrenia or multiple sclerosis or a rheumatic disorder or something such and let the attorney advisors look at them. They'll approve 60% of them but those cases would be approved by ALJs eventually anyway. These are real people who are being put through hell for no reason.

35 comments:

Anonymous said...

Yeah, we're at 17-20 months for hearings at all the ODARs we handle. The calls from desperate claimants waiting for their hearings are increasing as well. I agree with the point about the lack of attorney advisor decisions. It's so difficult to get an obviously disabled or even terminal claimant approved without a hearing. We keep hearing the same reason: "they're looking at our decisions and we don't want them reversed/sent back." The pressure from above needs to be lessened or the stories of 2 year SSD hearing backlogs will again start appearing on newspaper front pages.

Anonymous said...

2 things. The number of ALJ's being hired is 500 over 2 years. The retirement rate is around 100 per year, so that does leave and excess of hires over retirees. If you have drop dead pay cases that a Senior Attorney could pay, do a succinct brief and send it to the assigned Judge. We are all trying to get our numbers up and we love On the record cases. If supported with a good brief, I will pay them in a minute. Do your work.

Anonymous said...

A part of the reason for overtime over hiring has to do with the cost of additional benefits (i.e. insurance, pension).

Anonymous said...

to piggy back on 9:20...

It is exactly about not paying to bring on employees who you'd have to keep forever even if applications drop a few years later or the backlog dries up or whatever. That desire is compounded by what someone said earlier--with Congress being so bad at getting budgets done timely and regularly (and with the bicameral house being dominated by folks who want to gut SSA's budget), even if SSA thought they would need x many more employees for the long run, they are hesitant to do too much hiring. Remember that the last thing our top brass wants to do is furlough people--if a future budget was bad and SSA hired too much (even if the hires were needed), we'd be like DoD people taking a few days off the next time there was a budget hiccup.

Finally, note that in ODAR-land staffing levels are based on number of ALJs since the agency sees ODAR employees as support staff for ALJs. Our budget people have a ratio of staff/ALJ they like to see. Since hiring ALJs has been so slow going (thanks OPM!!!!), we haven't brought on all the judges we planned on. Fewer judges hired --> fewer support staff needed --> hiring slows down.

Anonymous said...

agree with 9:10...i work in an office with 12 judges, I consistently here from many of them that they will gladly pay cases that include a well-reasoned brief. As noted, the ALJ's all feel some sort of pressure to move cases, but are consistently thwarted in their efforts by ongoing postponements, unprepared reps and massive (irrelevant) MER.

Anonymous said...

I am interested in knowing to what extent are the ALJ decisions being reviewed. Is it a quality review similar to the dds level? Or is it the normal appeal council appeal review? Also are past hearing level applications being reopened under Quality review if permitted under administrative finality?

Anonymous said...

9:10 and 12:33: while I'll take you at your word that your offices "gladly pay cases," that has certainly not been our experience. Even with a well reasoned brief, ALJs and their staffs tell us that they're afraid of being reviewed. Or, they will agree to award benefits on the record without a hearing, but only with amended onset dates that deplete the claimant's back benefits. I've had multiple cases where the claimant will leave work with complaints that eventually lead to a diagnosis of cancer consistent with the previous complaints. The ALJ will agree to award benefits as of the date of the dx of cancer, but not before, as if the cancer magically appeared as of that specific date.

Anonymous said...

@ 9:10 and 12:33 I would love to know what hearing offices you are in. I have problems getting OTRs approved for my clients even when they are on dialysis, dying and close to retirement age. I submit OTRs, MER and doctor opinions on my OTRs who are reviewed by senior attorney advisors who do not have the brass to approve on the record. I literally have to call and fuss for the case to be escalated for an ALJ to review. I understand that ODAR is overworked and I sympathize but please don't forget that there are good reps out here who are trying very hard to help clients as well.

Anonymous said...

I have been representing claimants for 40 years. ALJs are absolutely NOT granting OTRs, except rarely. I know there are some outstanding ALJs who stick to their guns and try to grant them, but there has been a major sea change and these days it is hard to justify the time to work up an OTR request when the chance of it being granted is so minimal.

Anonymous said...

@9:10 and 12:33. I have almost stopped writing OTRs except for terminal clients because no one will pay the cases without a hearing. I recently had a case where I'd written two OTRs and a hearing brief about my client's very severe condition, only to go to the hearing and have the ALJ stop the hearing about 3 three minutes into my questioning when he realized what was going on with my client. Apparently, the hearing had provided the ALJ the time he so desperately needed to actually glance at my briefs and review the case file. I have had multiple other instances where the ALJs will hold a hearing and then tell me at the end that they are paying the case based on the arguments in my OTR, which was submitted 10-14 months before the hearing. I'm not convinced that most ALJs even look at the cases prior to the day of the of hearing. Maybe it's not their fault and maybe they're overworked and understaffed, but the backlog and poor quality of what is actually coming out of the ODARs is cause for concern.

Anonymous said...

The Senior Attorney Program is no longer the teriffic program it was when it originally began in 1995 and immediately achieved success in reducing the backlog. Recently, the top brass gutted the original intent and purpose of the Senior Attorney Program, which was to allow experienced Senior Attorneys to screen cases for potential O-T-R decisions, negotiate obvious settlements with counsel over onset dates, etc., and accept calls from counsel seeking to settle potential O-T-R cases in an effort to reduce the backlog while at the same time providing necessary exprience for Senior Attorney's who wish to become ALJ's. I have been a Senior Attorney since its original inception in 1995 and speak with first hand knowledge.

Senior Attorneys in the ODAR offices are no longer supposed to issue O-T-R decisions. Rather, they are to concentrate on writing more complex ALJ decisions and performing research requested by ALJ's. A SMALL group of Senior Attorneys has been established in the newer National Hearing Centers (NHC) to exclusively perform the original intent and purpose of the Senior Attorney Program, i.e., screen cases for potential O-T-R's, write brief reviews of the cases that cannot be paid O-T-R, and negotiate with counsel on cases which have the potential to be decided O-T-R. The NCH Senior Attorneys are few in number and as a result, unable to make a dent in the backog.

Another reason the Senior Attorney Program has been substantially curtailed is because it was not traditionally well supported by the ALJ's or the AALJ's. This is nothing more than a power thing, however, i.e., many ALJ's simply could not stand the fact that Senior Attorney's were allowed to issue O-T-R decisions and felt their authority was somehow being usurped. It was also a "numbers" issue insofar as many ALJ's believed the easiest cases they could process were taken from them by the Senior Attorney's, and the Agency's sweatshop production mentality and unrealistic numerical goals certainly did not help. In addition, many ALJ's were upset the most experienced and talented Attorneys were not writing more decisions for them because of the Senior Attorney work they performed. Unfortunately, ALJ's who were former Senior Attorneys have not proven to be assertive advocates on behalf of the Senior Attorney Program once they become ALJ's.

Finally, the Senior Attorney Program has also been gutted in response to the recent scandals and Republicans in Congress who are far too concerned that many SSA disability applicants are being paid who should not.

Anonymous said...

Does nobody read these boards? Senior attorneys aren't dissuaded from issuing OTRs--we are absolutely prohibited from doing so. Have been for a few months. The year before that change, we could only pay meets/equals or if the claimant would grid at the full range of an exertional level (even if we had nonexertional lims) considering PRW and transferrable skills. So essentially we haven't been paying for a year plus now.

As to the "ALJs won't issue OTRs even for my dying clients on dialysis (which so easily meets a Listing the substantive discussion takes two lines)," the only time I've seen SAAs and ALJs not willing to do OTRs is when the AOD (or DLI in Title II cases...) is a million years before dialysis started and there was nothing significant until shortly before the renal function completely tanked and required dialysis. I find it really, really hard to believe that ALJs are en masse not OTR'ing claimants undergoing chronic dialysis absent those or similar situations since kidney disease only gets worse and a meets 6.03 decision is about the easiest decision there is to write.

Anonymous said...

Thanks for the inside scoop, 4:34. What you say is sad, but all your points make total sense. I especially can see, from the claimant attorney perspective, that ALJs wouldn't want to relinquish the "easy cases" that help pad their numbers. It's also sickening to think that Conn and his ilk have damaged the SAP program.

By the way, it's comments like 4:34 that keep me reading this blog every day.

Anonymous said...

4:34's post is so full of misinformation I'm crying over here. For starters, the few SAAs doing the year long detail for OTRs are not at or from the NHCs (I suppose if there are SAAs at the NHCs, one or more could have been selected for the detail)--the detail picked up folks from odar offices across the nation. Second, like it's been noted over and over again, SAA adjudicatory authority was curtailed because our agree rate is bad and the chief actuary got antsy that we were paying tons of folks who shouldn't be paid and imperiling the trust fund. Trust and believe the top brass would love nothing more than anyone issuing more (quality) decisions and they wouldn't let some crybaby ALJs feeling like their turf was being encroached upon change their course of action.

Anonymous said...

I am the 4:34 poster and what I said is absolutely correct. So, I did not go into more detail about how the Senior Attorney's working under the umbrella of the NHC's were selected. Duh...Where else do would any reasonable person think they came from? Moreover, that has nothing to do with the substance of what I said. I hope you cry yourself a good one idiot. I am LMAO.

Anonymous said...

Agree w/ Anon 2:04: Most ALJs do not seem to look at the file until the hearing. This would work if most of the cases are not OTR worthy. I still draft cases that are OTR worthy knowing full well they will not be granted prior to a hearing. But they are just that, worthy of being granted prior to the hearing.

Like the argument about looking at claimants over 50 first. This would help a lot w/ the backlog if ODARs just had the guts to grant these cases.

Anonymous said...

8:13, we are given the file about a week prior to the hearing to review. If an OTR request comes in and support staff brings it to my attention I will certainly look at it immediately. As far as amended onset dates? That is where I get over 50% of my pay cases. Why would I pay a case that was turned down twice already because the medical evidence didn't support it? Regulations require that we have to have SUPPORTING documentation to pay a case. If the first supporting documentation is a dx of cancer, so be it. Prior to that the record supports fatigue and achiness and headaches. Trust me, there are enough people trying to scam the system and we are not allowed to pay a case on testimony alone. Severe impairments must be established by authorized medical sources. I find a lot of the Reps haven't looked at the record as much as I have. Read your record and submit a brief. Don't blame the Judge. The burden of proof is on the claimant. Do your job.

Anonymous said...

Anon 8-13

83-20 Read it. Learn it

Anonymous said...

5:25pm You are delusional. 4:24 is right on point.

9:19 pm, judges like you crack me up. You need supporting documentation that makes the claimant's allegations credible, to read the regs any other way is specious at best. If a claimant has been complaining of fatigue, headaches, minor infections as well as general malaise and then is diagnosed with cancer at some relevant point thereafter, you have your supporting documentation back to the time of the originating complaints. "It is reasonable to assume ..."

I suppose you are also the same the judge who will find a claimant disabled as of the date of a confirming MRI rather than the date that the credible complaints of back pain or whatever began.

I hope that I misunderstood your post, and if I did, I apologize. However, if I didn't, then you are missing the forest for the trees and harming a lot of people in the process.

To you Madam, I say, Do YOUR job.

Anonymous said...

for those complaining about OTR's not being granted, remember, at least one person has already denied your case (DDS) based on the record. While it is possible that the evidence does support a FF decision, it is more likely that the facts are in the "gray" area and require a hearing/credibility analysis to flush out.

Anonymous said...

7:01, here ya go: SSR83-20 "POLICY STATEMENT: The onset date of disability is the first day an individual is disabled as defined in the Act and the regulations. Factors relevant to the determination of disability onset include the individual's allegation, the work history, and the medical evidence. These factors are often evaluated together to arrive at the onset date. However, the individual's allegation or the date of work stoppage is significant in determining onset only if it is consistent with the severity of the condition(s) shown by the medical evidence." Notice "by the medical evidence"?? Read it and weep. Another thing, I don't think any ALJ is going to reasonably assume more than 6 months at the most and usually closer to 2-3 months prior to the date of a firm diagnosis. I am telling you what it takes to get a case paid, why argue with me? Do a brief, know your stuff, amend the onset date if needed, and don't get your feelings hurt when you don't get paid on a 32 year old that has 3 kids at home they need to take care of with a bad back and headaches and no supporting documentation.

Anonymous said...

Anon 7:01

You seem to have missed this part

"Precise Evidence Not Available -- Need for Inferences

In some cases, it may be possible, based on the medical evidence to reasonably infer that the onset of a disabling impairment(s) occurred some time prior to the date of the first recorded medical examination"

There are other suggestions too. Over reliance on when a medical report is written, or an MRI is done, is just a failure to fully understand what evidence means.

And, I am not upset when your imaginary 32 year old with three kids with complaints and no medical treatment is denied. I am upset when ALJ's make foolish statements that reflect a lack of understanding of SS Rulings assuming that they can make assumptions on arbitrary cut offs like " 6 months at the most and usually closer to 2-3 months prior to the date of a firm diagnosis". 83-20 also discusses getting a medical opinion as to onset in such cases. It does not suggest ALJ's make it up as they go along.

I do my job. I want you to do yours according to your own rules.

Anonymous said...

8:51: "Read it and weep?" This isn't a game we attorney reps are playing: these are real peoples' lives. We're not arguing the 32 yr old with a bad back and headaches (which, by the way, no credible rep would take such a case to hearing). We're talking the cancer, dialysis, or back fusion cases that are only being paid as of a definitive diagnosis or MRI, not when the problem existed much earlier. In the cancer case I described above, when I explained to my client that the ALJ will only allow an award starting the month prior when she was diagnosed, instead of a year back when she left work due to the complaints that led to the cancer diagnosis, she tearfully told me to accept it. However, she said that she was going to be evicted for she was counting on that back pay to catch up on the back rent she owed that wasn't paid because she wasn't working. When I tried to explain this fact to the ALJ, he wouldn't budge saying that he didn't want his decision to be reviewed. Don't forget that there are real people being affected by these decisions.

Anonymous said...

Ok guys, I don't by the crap about "not wanting their decisions to be reviewed". It's all about numbers. If a case of mine comes back from the AC, it is another number for the books. As far as amended onset dates, after the testimony and the Rep has made his spiel, I will say, Counselor, the problem I see with your case is that there is no supporting documentation until... Have you discussed an amended onset date with the claimant? Would you care to step out for a minute? Further, a lot, and I do mean lot of AOD's are based upon the day the factory closed, the day I was laid off, the day I went to jail, it goes on and on. Very seldom do we have catastrophic disease process cases. When was the last time you had a listing case? They are in front of us because they are not clear cut cases. It is your job to show us the smoking gun and when it was severe enough to warrant disability, not discomfort.

Anonymous said...

An area that I find reps do any extremely poor job on, which would greatly improve the chances of having a case paid from the AOD: contacting the claimant's last employer, and getting a certified statement from this employer attesting to functional limitations which resulted in the claimant's firing/quitting.

I would estimate that less than 1% of cases have any type of documentation from the claimant's former boss.

Have fun screaming 83-20 all you want, but if there's no treatment note anywhere near the AOD, you're getting a later onset. Burden is on the claimant do prove disability during the entire time period alleged. 404.1512(c)

Johnny Cash said...

@11:22AM. Have you ever tried to get an employer to make a statement about why an employee was fired or quit? Employers, particularly those with legal departments, won't offer up any such statements for fear of ADA suits or other problems. I would venture to guess that the 1% of cases you see those statements in are from mom and pop family run businesses. Those are the only people I have had any success getting anything more than start and stop date and earnings info from.

Anonymous said...

The sad fact is that,in my experience as an ALJ,the vast majority of reps are incapable of writing a persuasive OTR request that addresses all of the issues that need to be addressed before an OTR can be issued. Whenever I have said something similar in the past, several commenters got upset, so let me say this: if you care enough about your practice to frequent this site, I am probably not talking about you. But here is the problem: I hold 50 hearings a month, sometimes more. I spend a great deal of time preparing for those hearings. If I get an OTR request that is half baked, lazy, and clearly does not address the issues that need to be addressed, I am not going to take time out from getting ready for scheduled hearings to review the file in the case that has not yet been scheduled. This is especially true if the F section is of typical size, over 500 pages. I just don't have the time. I will look at that case when it is scheduled. I am not going to grant an OTR request without reviewing the file to determine whether the assertions of the rep are accurate or supported. The biggest issues I see that are not addressed in OTR requests are: onset; earnings after onset; transferability of skills; step 4 issues; DAA issues; compliance issues; credibility issues. No rep has ever addressed the state agency opinions or rationales or argued why they should be accorded little weight; generally they are simply ignored. Way too often, the OTR request consists of little more than a citation to a ridiculously completed checkbox physical abilities questionnaire and an unsupported, lazy argument that it should be accorded controlling weight.

Anonymous said...

Or implies that the claimant meets a listing and they are not even close. One needs to read the introductory to the Listing to obtain all of the necessary info for meeting a listing in that category. Being blind in one eye does not meet a listing. Using a cane does not meet a listing. Having problems with a non-weight bearing joint does not meet a listing. Another good one is to bring in a foreigner that has been here 20 years, has worked as a taxi driver or had their own auto mechanic shop and then try to convince us that they are illiterate. If the Reps would spend half the time preparing for cases as they do trying to confuse the issues, they would win more. And has anyone ever gotten anywhere attacking VE numbers? I had one the other day where I gave a deny RFC and the rep attacked the VE for 10 minutes about numbers, finally saying, "Ok if I had 100 cars in a parking lot and they were red, white, blue and yellow, would you say 25%.." That is where I stopped him. I asked if there was anywhere in the records that supported stricter limitations than I had used in my RFC. He said no. He never asked the VE a hypo. Malpractice the way I see it...

Anonymous said...

I am always amazed by comments of SSA employees such as 8:34 who seem to give full credibility to DDS Agency Reviewers who have never examined the claimant and who even attack the credibility of the very rare consultative examiner whose physical or mental exam strongly supports disability, along with treating records. What I cannot understand is why DDS cannot grant disability to the multiple sclerosis claimants whose physical exams show definitive dysfunctional symptoms of MS and are accompanied by MRIs of the brain and/or cervical spinal cord which provide clear "objective" evidence of lesions in the white matter. I've had ALJs scratch their heads after 5 minutes into the hearing and state, "Why didn't DDS grant this obvious case?" I've always regarded these cases as "easy" wins. I suppose I should be grateful that DDS denies such obvious cases, so I can make a living by doing hearings. However, because of the 2-3 year wait, at least 50% of my clients have lost their homes before finally getting a bit of relief.

By the way, very few ALJs at the ODAR where 95% of my hearings are done will even consider an AOD that leaves the claimant with more than 6-12 months of past-due benefits after the waiting period. In 75-80% of the cases, they "force" an amended onset date which guts benefits--and the amended onset dates seldom make any sense from a medially objective perspective. Of course, my now destitute client jumps for any financial relief whatsoever. I've had cases that I was itching to resist modifying the onset date and appeal (even with the lousy percentage chance of prevailing at the Appeals Council), but the case belongs to the claimant--not to me, and they are just tired of fighting.

Anonymous said...

@ 5:42 anon, the reason DDS does not grant a vast majority of multiple sclerosis cases is because they know that approvals will be audited, and denials are never audited. So to avoid the dreadful "quality review", they feel safer denying a legitimate claim and letting the ALJ handle it. Its a big giant "hot potato" game.

There is some fraud issues going on with Social Security, such as denying legit claims. DDS will be exposed, just as the VA was exposed. Veterans have died because of the VA scandal, just as Social Security claimants are dying as they appeal their denials. One whistle blower will bring the house down.

Anonymous said...

Thanks, 11:03! I've long suspected that to be the case.
--5:42

Anonymous said...

http://www.latimes.com/nation/la-na-social-security-disability-20150722-story.html

Anonymous said...

So you are a DDS worker. You have a case that should be a approved, but according to the documents below, you know that your approvals will be audited. You also know that if they audit your approval

-one THEY believe should be a denial,

you will be subject to corrective action as punishment for approving a claim. (keep in mind that They NEVER audit denials.) So it doesn't take rocket science to pick what you will do with each file that comes across your desk. It much easier to say "not my problem, let the ALJ figure it out".

2009
https://web.archive.org/web/20111020141626/http://ssa.gov/legislation/PER%20fy09.pdf

2013
http://www.ssa.gov/legislation/PER%20fy13.pdf

Anonymous said...

Took only 7 months for a favorable AC appeal recently (and boy did they school the ALJ who was wrong on all facets of law). Still, I been waiting since 1995 even though have 6 doctors and MRI's that say I neurologically disabled from genetic birth defects since age 15.

Nerve Damage said...

Yes it's been a "fun" year... with help from my attorney I finally got to the point where I'm waiting for a hearing with an ALJ. I was diagnosed with relapsing multiple sclerosis in 2007 and continued working until the spring of 2015 when my symptoms effected my ability to do my job. I've been told by everyone EXCEPT for the social security office that I should have been approved already. Instead, they have denied me twice and now I'm waiting for this hearing. I'm hoping that it gets approved prior to the hearing as finances are obviously tight. Hopefully they can find a way to speed up the process for people in the future... especially people like myself who would prefer to be working if they could...