Oct 20, 2015

It's OK With Me If You Pretend This Is New -- As Long As You Do It!

     From the Federal Eye column in the Washington Post:
When The Post dug into the backlog for disability benefits at the Social Security Administration a year ago, it discovered that the line was approaching one million applications long. The number of people in this queue was so large that it exceeded the population of six different states.
Since then, the line has only gotten longer, according to a new report...
In July, Social Security replaced the two officials in charge of the appeals office, shifting them to other jobs at the agency in favor of new leadership to tackle the backlog.
Three months later, the new head of the office says she is “putting the finishing touches” on a plan to reduce the number of pending cases and speed the system up.
Terrie Gruber said in an interview that her goal is “compassionate and responsive” service to applicants for disability benefits ...
"We’re committed to new ways of doing business,” she said.
One of the biggest changes will include better triage of cases, so many don’t ever get to a lengthy hearing before a judge. New, electronically-generated data has helped the agency determine which appeals could be screened by attorneys and federal claims examiners, who can make decisions themselves, faster than judges, Gruber said. The number of attorneys is being increased.
When cases do go before judges, a new initiative is assigning support staff to arrange the files in better order, getting rid of duplicate medical documents and evidence that take a long time for judges to sort through. ...
A primary goal is hiring more judges, Gruber said, about 1,800 to 1,900 by fiscal 2018, an increase of about 400. Also, she is making use of new technology to enhance the quality of video hearings in remote locations where there are no judges, and improving support staff’s communications with judges when video hearings are involved.
A new pilot program is creating “pre-hearing” conferences at a handful of  local Social Security offices, so applicants who don’t have attorneys can know what to expect when a judge hears their case.
     The statement that these plans show that the agency is "committed to new ways of doing business" is ridiculous. That doesn't mean I disagree with the plans. It's just that there's virtually nothing new here. I'm actually an enthusiastic supporter of the pre-hearing screenings part and I'd love to see more ALJs hired. The rest is harmless. Let's go through the elements of the plan:
  • New, electronically-generated data has helped the agency determine which appeals could be screened by attorneys and federal claims examiners, who can make decisions themselves, faster than judges. This is just the revival of the Senior Attorney and re-recon programs that have been used successfully in the past. Social Security certainly didn't have to replace Glenn Sklar to do this since he supervised the exact same programs in the past. This can make a significant difference. They never should have been dropped. The only reason they were dropped was concern that the agency would be criticized for "paying down the backlog." By the way, ALJs, this is your Bat Signal. It's now OK to issue on the record reversals.
  • [A] new initiative is assigning support staff to arrange the files in better order, getting rid of duplicate medical documents and evidence that take a long time for judges to sort through. There's nothing new about this. Support staff has been "pulling" exhibits for at least 37 years. I know. I've been involved with Social Security disability for 37 years. It wasn't new when I started. I don't know why this would even be listed. I can't imagine anything they could be planning that would be new. If anything, ALJs ought to be hearing cases on unpulled files! Yes, ALJs, that's been done before. No, I don't like cases being heard with unpulled files but I'm quite willing to put up with them if we can just get more cases heard. People are waiting two years for hearings. This is a horrible situation that demands urgent action. When cases are heard with unpulled files, the exhibits are eventually pulled, but only if it's going to be a denial.
  • A primary goal is hiring more judges, Gruber said, about 1,800 to 1,900 by fiscal 2018, an increase of about 400. They're been saying something like this for at least twenty years. It seems like the Office of Personnel Management (OPM) always makes it impossible for the agency to hire as many ALJs as Social Security says it wants to hire. At least that's what Social Security has claimed.  I've never fully bought into OPM being the villain. I've always suspected that the real reason more ALJs aren't hired is that the agency's budget is way too tight and decisions have been made to devote resources elsewhere. I suspect that the agency uses OPM as its fall guy. I'm pretty sure that there are plenty of names on the ALJ register who could be hired almost immediately if the agency really wanted to hire them.
  • A new pilot program is creating “pre-hearing” conferences at a handful of  local Social Security offices, so applicants who don’t have attorneys can know what to expect when a judge hears their case. Pre-hearing conferences haven't been done lately but they may date back a quarter-century. So claimants can know what to expect? Hardly. The primary reason for holding these pre-hearing conferences for unrepresented claimants is to weed out those who don't show up. Send them a show cause notice and then dismiss their cases when they don't respond. Dismissing these cases earlier makes the average numbers look better but it really doesn't reduce the workload by much. Many ALJs already schedule hearings for unrepresented claimants five minutes apart on the assumption that most won't show up. What may be new here is that the agency is talking about doing pre-hearing conferences at local Social Security offices.  Could it be field office personnel doing the pre-hearing conferences?

14 comments:

Anonymous said...

Judges make money, lawyers make money, meanwhile in the the DO and FO the poor CRs fall further and further behind and take the daily beating. ODAR is too fat and too lazy and needs to get the act together.

Anonymous said...

It seems like the agency devotes a lot of resources to PR type activities that try to repackage old ideas as new ones in an effort to look good. Instead of trying to look good by saying what needs to be done, look good by doing good things.

Anonymous said...

Amen!

Anonymous said...

Well it's about time the agency goes back to removing duplicate exhibits. As a Senior Attorney in an ODAR office, SSA has been paying me $50 a hour to read duplicates, instead of paying a case tech $20 an hour to remove them. It's been like this now for some years, since the original decision was made to stop culling dupes as a way of speeding up things. How's that for efficiency? Not only that, but it actually slowed things down on my end. How? Well, if I have a file with 1000 pages of evidence, I've got to look at all 1000 pages only to determine that there are actually only 300 pages of non-duplicated material. So as before it might have taken me 8 hours, now it takes twice that. Brilliant.

Anonymous said...

Charles, you're wrong about OPM. SSA isn't getting enough of the types of people it wants and needs, due to the unusual nature/demands of the SSA ALJ job, to hire from OPM. It is clear that ALJs are currently the bottle neck, and SSA would scrimp many, many other places if it had to (bad budget) to hire 250 or more ALJs each year if it had 250 suitable candidates. Buhlee dat.

Anonymous said...

@4:15 I think you might be trying to say SSA isn't able to get enough yes men out of the crop of applicants. It's hard to find enough people who think everybody who applies for benefits must be lying. The crop of former prosecutors and insurance defense attorneys is only so big.

Anonymous said...

There are many offices that have pre-hearing conferences already, for unrepresented parties. They appear to be primarily to pressure the claimant to get a representative so that the ALJs don't have to use a higher standard in reviewing the file of an unrepresented party or to dismiss cases if the claimant doesn't show for the conference.

As for pulling duplicates: Probably not a bad idea, if they are duplicates but the new "all evidence" rules insures that there will be increased submission of irrelevant junk to clog up the file.

Anonymous said...

@4:55

from what I hear, it's that the agency is having trouble finding enough people who don't/won't have the "I'm the judge!" mentality and who will do well in an environment requiring the production of 500-700 legally defensible, policy-compliant decisions and dismissals each year. But what do I know?

Anonymous said...

Anon at 9:31: An ALJ's duty is the same whether the claimant is represented or not; there is no heightened duty owed to unrepresented claimants. A Request for Hearing cannot be dismissed for failure to attend a pre-hearing conference.

We hold these pre-hearing conferences because we want to try to deal with preliminary matters without burning a precious hearing slot, move cases more quickly, get decisions out sooner.

Richard Weishaupt said...

some of these ideas, such as allowing OTRs to be made more frequently in obvious cases is a good idea. Who cares whether it's a new idea or not? If it speeds things up I'm for it!

As for weeding out duplicates, my office and that of many lawyers used to do that until the all evidence rule told us we can't do that if they are the tiniest bit different (e.g., one copy of the report is signed by the resident and the exact same report also has the attending's signature. Also now I find myself submitting maps of the hospital campus, HIPAA releases and property receipts from the ER. Finally, I'm submitting medical records that have nothing to do with the disability. All this adds clutter and slows down cases but the regulation says we have to submit it.

Finally, I come to the one thing I disagree with in your post. Dismissals are not the answer. As the period between appeal and hearing gets longer and longer people move or lose their housing, especially those applying for SSI who are often homeless or near homeless. Callously dismissing their cases is a really bad idea both from a humanitarian point of view and from a common sense point of view since many of them will just reapply, as they should if they are disabled. using personnel conferences to locate folks, encourage them to obtain a lawyer and go over the record makes a lot of sense, especially if no one has touched the case for more than a year. Having hearings ready to go will speed up the process and make for better results. Dismissing cases is not the answer.

Anonymous said...

Well said!

Anonymous said...

Oh please, nothing could be further from the truth.

Anonymous said...

Yep, Richard, those of us who live and work in the real world frequently see what you've pointed out. I keep seeing evidence that those within the SSA are living in an alternate universe.

Anonymous said...

SSA needs to look at keeping the ALJs they have, rather than treating them like dirt so that they retire as soon as possible.