Jan 20, 2016

New Instructions For Attorney-Advisor Decision

     Social Security has issued new instructions for Attorney-Advisor (AA) decisions (also called Senior Attorney decisions0 after claimants requests a hearing before an Administrative Law Judge (ALJ). The idea is that clearly meritorious claims would be quickly approved by AAs. The AAs would not deny any claims. If the AA couldn't approve a claim, the claimant would still get an ALJ hearing. The point of the AA decisions is to help reduce the backlog of pending requests for hearings.
     The AA decisions have been around for many years. Since 2010 when Republicans gained control of the House of Representatives there have been few AA decisions. Not coincidentally, the hearing backlog has mushroomed. The AA reviews conducted in recent years seemed to me to be a waste of resources. I would get a call from an AA saying they were reviewing a case. The AA would ask for certain pieces of medical evidence and demand that the evidence be submitted in two weeks or less. That's completely unreasonable. Most medical providers don't respond to requests in that kind of timeframe. When I told an AA that I couldn't get the evidence in within the timeframe they were giving, I was told that the AA couldn't hold onto the case any longer. However, it was often the case that I had already requested, obtained and submitted the records that the AA wanted suggesting that the AAs weren't reviewing the files too closely before calling. It didn't seem to matter what records were submitted or how strong the case was. We wouldn't get any action from the AAs. The AAs seemed to be almost incapable of approving a claim. They were just spinning their wheels. The agency would have been better off if the AAs were drafting decisions for ALJs.
     We'll see how these new instructions are implemented but I see no evidence in them that there will now be large numbers of AA decisions. In past years when there were many AA decisions, cases were selected for AA review based upon profiles of claims likely to be approved by ALJs. The profiles were top secret but it wasn't hard to see the pattern -- mentally ill claimants and older claimants. I though the profiles worked pretty well. I never understood why they were abandoned unless the point was to hold down the number of claims approved by AAs. The new instructions suggest to me that cases will not be selected for review based upon profiles. Here are the selection criteria in the new instructions:
  • New and material evidence is submitted;
  • There is an indication that additional evidence is available;
  • There is a change in the law and regulations; or
  • There is an error in the record or another indication that a fully favorable decision may be warranted.
      I suppose the "another indication that a fully favorable decision may be warranted" language would cover profile selection but I can't think of a reason why they wouldn't say they intend to use profiles. The first two criteria could be used to cover virtually any case with a pending request for hearing. Reviewing virtually all cases wouldn't be a good thing. There's too much effort wasted on cases where the AAs can't or won't issue a favorable decision.
     The instructions suggest that there will be a two level process. One person will hand select a case for AA review and then another will actually do the AA review. That's labor intensive. The instructions carefully forbid an AA from actually reviewing a case that he or she has selected for review, suggesting a process that almost requires that two AAs agree before an AA decision is issued.
     It looks like there won't be that many AAs participating in the process. Only those selected to a national "team" will be allowed to participate. The instructions themselves say the "team" is a "small group."
     After an AA decision is issued there will be four different levels of "quality review" which suggests a deep uneasiness with AA decisions.
     It still looks like the agency thinks that holding down the number of disability claims approved is far more important than dealing with its hearing backlog. I hope to be pleasantly surprised but I'm not expecting much from this. Meanwhile, the hearing backlog continues to grow.

33 comments:

Anonymous said...

currently the group of senior attorneys (national adjudication team) includes 20 members. They just announced (yesterday) that the team is expanding to 50.

Yes, you are right, the selection of cases is fairly stringent and the actual output is quite low (the attorneys I know on the team draft 3-5 fully favorable decisions per week) as compared to a line attorney that would be expected to draft 10 fully favorable decisions per week.

It also means these "easy" cases, which are being processed slowly, are not getting to ALJs.

Anonymous said...

The agency employs between 400 and 500 senior attorneys who are a grade higher and paid significantly more without additional recognizable job duties. Even if we have the extensive quality checks, every senior attorney should be doing this.

Anonymous said...

There's a very good reason why a SAA is not allowed to review (i.e., pay) a case he/she has selected for review - to prevent a Huntington-type situation (collusion between rep and decision-maker) from happening again.

Anonymous said...

Charles has correctly detailed the history of AA decision-making. In the earlier years if the record wasn't complete enough, but the case was strong, the AA's would call our office and tell us what additional possible evidence they believed they required to be able to grant a fully favorable decision--and the time frame was longer than 10 days or 2 weeks. Needless to say, we busted our behinds to get that evidence and submit it.

Charles has also correctly pointed out why the more recent efforts at the AA review process (and I'd add re-reconsideration and the national review groups) would not work. From all of these programs that the higher-ups in SSA instituted, my office had only 2 or 3 favorable decisions--the people in these programs could have better spent their time drafting decisions or working up cases for ALJs. The programs failed BECAUSE 10 DAYS OR TWO WEEKS IS TOO SHORT A TIME TO PROCURE ANY UPDATED RECORDS!

If the new AA review places such short time requirements, THEN THIS NEW PROGRAM WILL FAIL JUST AS BEFORE! WHY? BECAUSE HIPPA GIVES TREATMENT PROVIDERS 30 DAYS TO RESPOND TO A RECORDS REQUEST! Now why is that so difficult for SSA administrators to get that fact through their thick skulls?

Additionally, I'd recommend that the AA's be allowed to award decisions with amended onset dates. Several times when we were contacted, the workers doing re-recon would say that they had no power to take amended onset dates. If they would indicate a reasonable onset beside the alleged one, most of my clients would agree; after all, that is what the ALJs will ram down the claimants' throats today. Why not save the time and expense of a hearing?

Anonymous said...

Hey, I got an idea, how about the Reps sending in Medical records timely and submit a brief noting how the case can be paid?? Also, there won't be 2 attorneys working on the case. In the past they have always had the Master Docket people pull the cases that match the criteria/profile. I am sure that will continue. Also, there is a new Flag, one that will flag cases with over 1,000 pages of medical records. I am sure those will be going to the AA panel to be reviewed...

Anonymous said...

Enlighten me why would SAA case review lead to Huntington? why is rep/judge collusion less likely than rep/SAA collusion? Huntington was a judge and a HOCALJ right?

Anonymous said...

I don't think people outside the Agency appreciate how much Huntington spooked the Agency into doing things differently, primarily by emphasizing that claims should be paid only after full hearings and not on the basis of OTR requests or attorney advisor only reviews or 5 minute-no-testimony-taken hearings.

Anonymous said...

I wondered how long it would take until someone turned this around and argued that this was all the fault of reps. Congrats 12:08 - it only took five replies.

Tim said...

If SSA was spooked about Huntington because of the reps, why would that effect OTRs on those claimants who haven't hired a rep? Sounds more like they don't trust their attorneys and ALJs. In either case, it results in punishing claimants that had absolutely nothing to do with it!

Anonymous said...

I hear what Charles and commenters are saying about 10 days or two weeks being too short a timeframe to track down some piece of MER a SAA asks for.

HOWEVER, in my experience as a SAA doing OTR reviews, I only called for proposed AAODs (the majority of all calls) and for very specific MER that should have already been there. You know, like a shred of paper documenting the end-stage renal disease the claimant has (or chronic hemodialysis she has been engaging in for months!) been afflicted with for months, or a copy of a VA 100% disability rating that was gotten months before, or treatment notes from sources you knew or should have known about from treatment dates MONTHS in the past.

Your gripe about getting reasonably-unknown/unrequested MER turned around in two weeks is legitimate, but only when you are speaking about evidence that you reasonably did not already know about or possess. And--again, this is only anecdotal--the calls I made as a SAA were much, much more often involving MER of the type that should have long since been submitted.

Anonymous said...

I worked a 6-month detail in the Virtual Screening Unit. I was required to screen dozens of cases per week. I can't recall ever calling a rep for additional MER. I did call asking for an MSS or amended onset dates. I had fairly good luck with this. We were limited in how long we could hold a file. It may've been 2 weeks, but we could ask for additional time with a justification. Because we were subjected to heightened scrutiny of every decision we wrote, I tended to shy away from going too far out on a limb in things like the benefit of the doubt. My pay rate was way low. Our SAA program at my home HO was never particularly vibrant and since the changes in the regs, however long ago that was, I've only been asked to screen a couple/few files. Next, as to not picking our own files to review. When the SAA program started anew, we were encouraged to root around in the unassigned cases and have at it. Unfortunately we had a couple of attorneys who ended up assigning themselves the "easy" pays. Likewise for many years our writing workload wasn't assigned, but those days are also long gone, as the cream of the UNWR was often skimmed off, leaving just the UAFF's, etc.

Anonymous said...

Interesting comment 3:22 made about SAA's being encouraged to root around in the unassigned cases, and attorneys assigning themselves the "easy" pays. That appears to be almost identical to what Judge Daugherty did in the Huntington ODAR. The great majority of his DORs appear to have been "easy" grid cases pulled out of the unassigned caseload. And he sure ran up his numbers for Astrue points.

Anonymous said...

Sort of, 4:17, except Daugherty most often only looked at the "easy" unassigned cases that Cohn's office first alerted him to.

There's a little ODAR old wives' tale that, if true, might have had some hand in all the SAA OTRs back in the 2000s and very early 2010s. You see, at least on some previous iterations of the ALJ application/exam, an attorney with only or mostly only ODAR experience would get a very low score on the section that grades one's prior legal experience. However, because of how that section of the test was set up and graded, that ODAR attorney could get herself a better score for her past legal experience than what she would normally get as an attorney advisor and even senior attorney advisor if she could truthfully say she spent enough of her time during a certain term adjudicating OTRs.

Nobody talks about that much, but my sense from speaking to a number of tenured senior attorneys is that a lot of SAAs thought this strategy would work and did a whole lot of OTRs before the program was scrutinized and shut down.

Anonymous said...

Lots to unpackage here, but note that the history of the AA (I call them SAAs) contained in the HALLEX is incomplete.

Back in the day, SAAs in any HO could pay cases on their authority. How these were selected varied by office. Generally a manager would submit cases to SAAs for review if new evidence came or an OTR came in and it looked like it might be a pay. The SAA reviewed it and paid it or not. In the Astrue/Sklar era the VSU was created (as mentioned by a poster above). The VSU administrators used algorithms to identify potentially favorable cases and then sent them to be reviewed by a centralized group attorneys. Meanwhile, SAAs in HOs continued to review cases for potential OTRs. At that time HO SAAs and VSU SAAs could do amended onset dates.

This changed by 2013. Mantras like "pay down the backlog" became a concern for some. Then Huntington happened. At the same time review of SSA OTR Decisions noted a precipitous drop in the agree rate, from ninety something (which had been consistent for many years previous) to the low 80's if I recall. There was no explanation for this drop, nor much explanation as to what criteria was being used.

New orders were given limiting the SAAs. SAAs could not work mental limits into RFCs and only "full range" RFC findings were allowed. So if your guy had semiskilled work history or light/sed work history, that pretty much precluded them getting paid (since said skills might be transferable). Selection of the cases could no longer be handled by local management either. SAAs could review cases at local suggestion and then recommend an ALJ pay them, but as the saying goes "ain't nobody got time for that." So that was essentially the end of HO SAAs paying cases. As far as I know, the VSU ended around that time.

This was the "minor" change noted in the above HALLEX - the creation of the NSU. They now essentially controlled which cases would be reviewed for payment. I never knew anyone on the NSU and it seemed fairly nonfunctioning. In the meantime, additional levels of "Quality review" (QR) both pre and post effectuation were implemented/expanded. Since these are number driver functions, lots of potential OTRs were reversed before they got out the door. By 2014 SAA adjudicatory was dead.

Last year the NAT started, with 20 attorneys in the country. They essentially function like the VSU did, only with lots of "QR." I think a potential favorable gets looked at least twice beyond the SAA paying the case. QR and AC remand stats, while not officially part of one's performance review, are nonetheless looked at as determining your worth (along with, as always, the overall numbers). The NAT SAA I know allegedly sometimes went weeks without paying anything.

That said, this expansion (which is part of a greater initiative by the current DC to reduce the backlog - "CARES," and which I cannot believe has not yet been leaked to Mr. Hall by whoever his sources are) is welcome and hopefully a return to restoration of real adjudicatory authority for SAAs. IMHO, Mr. Hall's assessment that SAAs would be better used writing decisions is simply not well thought out.

I note that I have never heard of a SAA being even accused of engaging in any quid pro quo or other unseemly arrangement a la Huntington. None of the SAAs I know would risk their jobs, much less their license, for whatever piddly crap a claimant's rep could offer them. It seems to me SAAs are being thrown under the bus for the supposed sins of Astrue in "paying down the backlog," and the Huntington backlash. Taking away the ability to amend onset dates is a huge handicap that I simply cannot see being justified.

Of course the real problem is what it has always been - inadequate funding and an ALJ selection process that makes no sense as applied to SSA. Ahhh but that is a story for another day my friends.

Anonymous said...

Thanks for the well-thought out and detailed response, 12:13

Anonymous said...

Every time we see something like this there are a hosts of posts complaining about the duplicate evidence in the file. SSA employs people to "Exhibit" the file. One of the duties is to NOT place duplicates in the Exhibited file. Somebody is dropping the ball. I do not buy that all Reps are sending duplicates constantly, maybe some but not all, if SSA was diligent in getting the documents this would be less of an issue.

Perhaps we can make it easier for you. After the brief we can write up the decision and put it in the EF for you as well. If you like we will carry it over to the ALJ.

Senior attys go to SSA for the income and security. Many have experience on the other side as one time reps. They quickly succumb to a slower pace and a moral high ground position, "when I was a rep my claims were perfect the brief was so good they framed them and the process was pure spun gold and unicorn hair from my office." Hey ALJ and Sr Atty you are doing the same job as a state DDS worker. You just do it slower and use bigger words to justify your bloated salary.

Anonymous said...

Comments from 1/21/16 12:13 AM are on point, especially the part about the Compassionate and Responsive Service (CARES) plan. Think of CARES as ODAR's Plan F to reduce the hearings backlog and processing times. There are several elements of CARES that have been announced to ODAR employees. One interesting element is that ODAR informed employees that Appeals Council Administrative Appeals Judges will conduct hearings for certain cases. The full details of the plan, as in how they will hold ALJ hearings without an ALJ, have yet to be shared. Stay tuned...

Anonymous said...

CARES sounds like its possibly a retread of past failed plans. I guess I'll withhold ultimate judgment until we learn more about it.

And just because you title something as being compassionate and responsive does not make it so. SSA has been throwing around that phrase for the past 25 years or more along with "world class customer service."

Anonymous said...

9:35 wrote "Perhaps we can make it easier for you. After the brief . . ." Speaking from my "moral high ground position", I can count on one hand the number of "briefs" I've seen in files in the last year or so in my HO. I don't know any claimant's reps to ask, but I often wonder what it is they offer in the process. With a couple of exceptions, many reps appear unprepared, offer little in the way of substantive questioning of the IME's or VE's, or heaven forfend either a pre hearing let alone a post hearing brief. But, at the end of the day, it doesn't really matter, as after my 8 hours, I'll just pack up my spun gold, unicorn hair, big words, and bloated salary and head on home.

Anonymous said...

1:39PM January 21, 2016 noted the absence of briefs in most cases.

I will try not to paint with too broad a brush...but I seldom do a pre-hearing brief. Frankly, I just got tired of writing briefs which were frequently (always) disregarded. Either at the hearing or in the decision, it became clear that the ALJ had no idea what my brief had covered, discussed, etc.

I came to the conclusion that it was more effective to discuss issues at the hearing rather in a brief. If the issue is in some way more substantial than can be covered during the hearing, I use a post-hearing brief.

Just one possible explanation for the lack of briefs.

Anonymous said...

@935

as to the issue of duplicates in the case record: the job of organizing the case file is the job duty of SCTs. The vast majority of these employees are middle aged, women, vets with barely a high school diploma/GED. In the private sector, 90% would be fired within a week, but here in the good ole gov't, you can't get rid of them absent an act of congress. We try to hire better SCTs, but the vet preference rules leave us with few options. On the rare occasions, when a young, eager beaver slips through the cracks and makes a BQ list, we hire them. Just to see them transfer out to a better job within a few months, bc the SCT job is horrifically tedious, with no promotion opportunities.

Anonymous said...

Why does the SA have to tell the Representative what evidence is needed to make a case an OTR? Shouldn't you already have some clue what evidence is needed to determine someone is disabled. Stop thinking the agency will do your work for you and all you have to do is show up at the hearing. Your number one job should be to try and make sure a hearing does not take place, that would benefit everyone involved.

Anonymous said...

@ 3:20 PM I think you are misguided in your criticism when it comes to the issue of the OTR. The rep can't issue the OTR, so the question is what does the SA thinks is lacking from the record to support the OTR. The rep likely feels that the file already contains sufficient evidence to support the issuance of an OTR.

@ 3:10 PM I too rarely do a pre-hearing brief. One of the ODARs I routinely deal with has a standing Order for briefs which I initially followed in every case. But once it became clear that either (a) the ALJ hearing the case wasn't even reading it, or (b) the ALJ was using it as a tool like in an adversarial proceeding to limit issues, I began to just submit a pretty boilerplate type of brief. Then I just stopped doing them except in cases where there was a specific issue I felt needed to be thoroughly fleshed out before the hearing. I never got any criticism in the cases where ones aren't submitted. I frequently submit post-hearing briefs to address issues which come up during the course of the hearing either related to medical opinions (why a treating source should be given greater weight than a State agency doc who last saw the file 2 years ago or the consultant who saw the claimant for 15 minutes and had no records to review)or VE testimony.

Dan Smith said...

@ 4:12

What is wrong with an ALJ trying to limit the issues? Just curious

Anonymous said...

Dan: 4:12 here. The issue is that the nature of the administrative review process is non-adversarial and, as such, claims should be adjudicated in a non-adversarial manner. The Social Security Act is remedial or beneficent in purpose, and, therefore, is to be broadly construed and liberally applied.

There has to be a fair playing field at the start of the hearing. If we are able to depose or submit interrogatories to VEs and MEs before the hearing, then we can play by the adversarial rules. But it can't just be one sided in favor of the Agency. I may have a suspicion as to what an ME or a VE may testify to in a hearing but I can't be certain. So why should we limit issues before we start the hearing when we don't know what the issues necessarily even are yet?

Anonymous said...

Huntington involved an alj - not a senior attorney. The aljs - Daugherty - was assigning himself cases involving claimants represented by Eric Conn. The alj then wrote fully favorable shell decisions. If anything -The agency should be spooked by aljs and their weird interpretations of "judicial independence."

Anonymous said...

Hey reps, how many times have you had an ALJ say, "didn't see the brief in the file." You write an OTR brief, I have had them vanish from the EF. POOF! gone. I did an OTR on EVERY claim for 5 years, and no one ever read.

I am sorry that it is the reps fault that SSA cant do its own job. You have responses above that say the duplicated and exhibiting is substandard because of the people at SSA, but it is still the reps fault.

Yep. Lawyers.

Anonymous said...

I used to write a brief every time. That was when I felt like the hearings were non adversarial.
I started realizing that the ALJs would use my brief as a way to easily crap on every piece of favorable evidence without reading the file.
If the ALJ doesn't crap on every piece of favorable evidence (and actually ignores entire lines of evidence), I have a decent ground for appeal.
I will write a brief for a fair ALJ. I will make his or her job easier. I will not write a brief for an ALJ that hates claimants.

Anonymous 42 said...

If we are being honest, all of us involved in the process can do better generally -- claimants can be more upfront with their representatives about medical sources, work activity, etc. [I am always amused by the (infrequent) cases where the claimant testifies he is working and the representative is visibly surprised]; representatives could do a better of job of providing the necessary information in a timely fashion; DDS could do a better job of reviewing cases and documenting their determinations; support staff at ODAR could do a better job of working up files; the writers could do a better job of ensuring the decision is as legally sufficient as possible and drafted in a timely manner; the ALJs could do a better job of being prepared and making coherent decisions; the AC could do a better job of reviewing decisions and documenting its findings. [I am sure people can think of other things that certain groups could do better].

None of us are perfect. In my years with ODAR, I have seen very good hardworking representatives and some very lousy representatives; I have seen ALJs who put in long hours and try to reach the correct decision and some who seemed to be "phoning it in." I have seen competent support staff and not so competent support staff. We just have to try to do the best we can and try to catch and correct any errors made before the case reaches us.

Anonymous said...


Nice positive spin 6:36, and I agree. But the post was about new instructions for AA decisions. I doubt it will be effective. Four quality reviews! I worked for many years in the agency in "quality reviews" - state, regional and national. I have never seen so much hubris. Many reviewed result in returns back to the source thats are patently absurd and regionally biased and rebutted. So many hours are spent in back and forth. If there are 4 quality reviews, nothing will move but the bowels of the reviewers.

When the initiatative for AA writers was in place I received a few calls for more evidence, but not one allowance. I read in the case documents file prior to the hearing what back and forth went on. Waste of time and money. If SSA really wanted to increase these AA decisions, they could. I am convinced these folks could handle an OTR. But I suspect it's more a threat to the ALJs. If AAs can pen the decisions, it will make some (especially the outliers) nervous.

Finally, I agree with the above re: OTRs. I submitted one on every case, two weeks prior to hearing with updated medical and still do unless the ALJ is one who has sold her soul to the ranks of outlier denials. A competent representative can write a decision for an ALJ if that ALJ takes the time to read it. Many do. But like most initiatives, I fear this will go nowhere. Hope springs eternal.

Anonymous said...

I'll joint 2:38 in applauding 6:36. Spot on.

I've been inside and outside and followed this board for many years and have concluded that there are two types of people in SSA/rep world - those who point fingers at the other side and those who realize we are all part of a singular process who, by helping each other, can better do our jobs and help the public we serve.

Briefs/Dupes, both red herrings. Mistakes happen, dupes happen - that's life. Be a professional and don't cry about it like a petulant child. Briefs are a waste of time 99% of the time and are nothing more than a road map for the writer to appeal proof the decision. If you find a Judge who is actually persuaded by them, great. If you are Judge who needs a brief to figure out whether to pay a case, you should quit.

2:38 is also right about QR 99% of it is a waste of time. Just another Now as a SAA I saw some SAAs pay what I felt were a high number of cases. But that's something that can be fixed on a case-by-case basis, or something more nuanced, like no more paying cases on 96-8/96-9 "sustained basis" rationales. Shutting down the entire SAA program was an egregious mistake, and every day we see the pending go up as a result.

Anonymous said...

I am amazed by these comments. Having senior attorneys review claims on the record is a win-win for everyone and there's no arguing that. You can nitpick all you want, but if your concern is really for the claimant you would be begging the agency to increase the senior attorney program. Little do you know that senior attorney continue to review cases OTR and make recommendations to ALJ who either agree with the recommendations and rubber stamp their signatures to a decision written and developed entirely by the senior attorney or give the senior attorney a thumbs down, hold a hearing and then routinely pay the case based on the senior attorney's original's recommendation. It's time to stop playing games here and for everyone to come clean. This isn't rocket science people!

Jahirul Islam said...

This is very nice blog for all the attorney. My brother FSBO attorney chicago. I will suggest him this blog. And I also know that it will help him very much.