Sep 30, 2008

A Snide Comment

I started not to post anything about this, but I think it is worth mentioning. Here are some excerpts from the California Appellate Report blog by Shaun Martin, professor of law at the University of San Diego (USD), about the decision of the Ninth Circuit Court of Appeals in Crawford v. Astrue:
I'm somewhat appalled that an attorney -- especially a potentially not-very-good one -- can take a hefty amount of attorney's fees from a client in a totally simple case. The opinion here involves three cases from the law firm run by Lawrence D. Rohlfing (in Santa Fe Springs), which does social security cases and that contracts with its clients for the statutory maximum of 25% of the past-due benefits award. In the first case, an attorney affiliated with Rohlfing's firm -- Brian C. Shapiro -- spent less than 20 hours (in addition to less than five hours of paralegal time) in simple proceedings and obtained an award of $123,891.20, twenty-five percent of which would be $30,972.80. In other words, over $1500 an hour. Not bad for someone who's a 1997 graduate of Whittier Law School. Similarly, in the second case, another 1997 graduate of Whittier, Young Cho, also spent less than twenty hours (and less than five hours of paralegal time) to obtain an award the 25% contingency of which would be around $20,000.00. And in the final case, Denise Haley, an older graduate of Loyola Law School, worked 25.5 hours (plus 1.1 hours of paralegal time) to get an award the 25% contingency of which would be over $43,000; in other words, around $1700/hour. And, remember, these are not tough cases -- they're social security matters, and ones that (tellingly) take around 20 hours total to resolve. ...

Do I feel the same way about other lawsuits -- say, a difficult and hotly contested medical malpractice action? Honestly, no. There, for some reason, even if the attorney ends up making $1000+ an hour, I feel like they may well have earned it. But social security matters -- and ones that take less than a couple dozen hours at that? There's just some part of that that feels different to me.
Notice the extreme degree of condescension here even when the author knows essentially nothing about the field of law or its economics or the people involved? I wonder if Professor Martin feels like he is slumming by teaching at the USD. I guess that USD must have a much more highly highly regarded law school than Whittier or Loyola, but California readers may be able to help on that one.

I could write a good deal on the subject, but the bottom line is that attorneys are hardly eager to do federal court work in Social Security cases. Only a relatively small percentage of attorneys who represent Social Security claimants administratively even want to do the federal court work. I think a reasonable person might wonder if adequate economic incentives are in place to attract attorneys to this field of practice. Basically, if it is so easy and so lucrative, why do so few attorneys get involved? I would suggest that is is because of decisions such as Crawford.

Apparently, this is not the first time that Martin has made comments that others found offensive. Professor Martin does not allow comments on his blog, but you can e-mail him.

Results Of Last Week's Unscientific Poll

Do you think that the proposed bailout of financial markets currently being negotiated between Congress and the White House is a good idea?
Yes (24) 36%
No (43) 64%

Total Votes: 67

Sep 29, 2008

Drafter Of Social Security Legislation Dies

From the Washington Post:
Lawrence E. Filson, 85, former deputy legislative counsel for the U.S. House of Representatives and the principal draftsman of all the major Social Security laws between 1954 and 1989, died Sept. 21 of complications from Alzheimer's disease at the Collingswood Nursing and Rehabilitation Center in Rockville. ...

He drafted the original Medicare, Medicaid and Supplemental Social Security laws. ...

Sep 28, 2008

Different Standards At VA And Social Security Raise Questions

The Oregonian newspaper is running a story on the difficulties that many veterans declared 100% disabled by the Department of Veterans Affairs (VA) have in obtaining Social Security disability benefits. Like many newspapers, the Oregonian is going multi-media in its online edition. You can see the video piece they prepared for this article.

Sep 27, 2008

Congress Passes Continuing Resolution

Congress has passed and sent to the President a continuing funding resolution. The current fiscal year ends on September 30. Without this bill, most of the government, including Social Security would have shut down. The continuing resolution allows agencies to continue spending at the same rate as in fiscal year 2008 until March.

Sep 26, 2008

Election Assistance Commission Writes About Database Shutdown Issue

I had posted yesterday about Senator Feinstein's letter about the voter registration problems that will be caused if Social Security shuts down its Social Security number database for three days in October. The United States Election Assistance Commission has now written the Commissioner about the same issue.

My Comments On Representation NPRM -- Part III, Confusing Definitions

Social Security's Notice of Proposed Rule-Making (NPRM) on the representation of claimants worries me, largely because it is so poorly drafted that I do not know what it means. I am laying out my concerns over several posts. Today's topic is the definitions included in the NPRM. Here are the ones that concern me:
Entity means any business, firm, or other association, including but not limited to partnerships, corporations, for-profit organizations, and not-for-profit organizations. ...

Principal representative means an attorney who meets all of the requirements of § 404.1705(a), an individual other than an attorney who meets all of the requirements of § 404.1705(b), or an entity that meets all of the requirements under § 404.1705(b), who has been appointed to represent you in dealings with us and who is responsible for disseminating information and requests from us to you and your other representatives, if any.

Professional representative means any attorney, any individual other than an attorney, or any entity that holds itself out to the public as providing representational services (see § 404.1735) before us, regardless of whether the representative charges or collects a fee for providing the representational services.

Representative means an attorney who meets all of the requirements of § 404.1705(a), an individual other than an attorney who meets all of the requirements of § 404.1705(b), or an entity that meets all of the requirements of § 404.1705(b), whom you appoint to represent you in dealings with us. For purposes of §§ 404.1740 through 404.1799, the term representative also includes an attorney or a non-attorney whom you have not appointed as your representative under the previous sentence but who works for or on behalf of an appointed representative and helps represent you in your claim before us.
If I understand this correctly, I am simultaneously a principal representative, a professional representative and a representative, while my law firm is simultaneously an entity, a principal representative, a professional representative and a representative! Was someone trying to write this in as confusing a way as possible? How can a corporation be any kind of representative? That takes a flesh and blood human being. What is the point of all these definitions and what is the difference between them? I have read the entire NPRM in the Federal Register and I do not comprehend what was intended. How did something so poorly drafted get through Social Security's vetting process?

And to repeat a concern that I have already written about, why is there no definition given for "representational services", a key term in the NPRM?

You may comment on this proposal online and I encourage you to do so.

SSA Sends Regulatory Proposal To OMB -- Apparent Intent To Cut Back Benefits

The Office of Management and Budget, which is part of the White House, must approve all proposed regulations before they go in the Federal Register. Social Security just sent over a package that would "... clarify the definition of 'good cause' and change the protective filing date for title II from 6 months to 60 days to mirror the policy in title XVI. " The change from six months to sixty days is obviously intended to cut benefits. Something tells me that the change in the definition of "good cause" is not designed to help claimants.

SSA Admits Scheduling Hearing Early Due To Pressure

Take a look at this report from WSAV in Savannah about Larry Kirkland, a Social Security disability claimant. The reporter asks a spokesperson for Social Security why Mr. Kirkland's hearing was scheduled almost immediately after the reporter became involved in the case. The response from the Social Security spokesperson, was, "Uh, well, from my understanding there was also some Congressional interest in the case."

I am happy for Mr. Kirkland, but what about all those other claimants who are not the subject of a television report? When Mr. Kirkland is allowed to jump ahead of them in line, they just get pushed back. That is just not fair.

My crystal ball is cloudy, but this looks like the sort of thing that a Social Security Commissioner would allow only if he were not planning to stay around much longer.

My New TV Ads

I may regret doing this but here are three new television ads that my firm has recently started running. They were produced by Gary Davis Media. Do not blame Gary for the spokesman's weaknesses!

Sep 25, 2008

Major 9th Circuit Decision On Attorney Fees

The Ninth Circuit Court of Appeals has issued an important opinion in Crawford v. Astrue, holding that:
We read Gisbrecht not to prohibit a district court from making lodestar-type calculations, but only from relying exclusively on such calculations and refusing to consider the contingent-fee agreement. Here, the district court noted that Gisbrecht controls, and considered the contingent-fee agreements. The district court, however, concluded that substantial reductions in the fees under those agreements were necessary for the fees to meet the statutory standard of reasonableness. Those rulings complied with the requirements of Gisbrecht.

Unlike the dissent, we do not read the Supreme Court’s Gisbrecht opinion as mandating any particular procedure or format that the district courts must follow in determining a reasonable attorney fee in social security cases. The Court did not, as the dissent apparently concludes, prescribe that in every case the district court mechanically must begin its analysis with the twenty-five percent contingent fee and then make any reduction in that amount that appears appropriate in the particular case.

As we have noted above, what Gisbrecht held was that “§ 406(b) does not displace contingent-fee agreements within the statutory ceiling; instead, § 406(b) instructs courts to review for reasonableness fees yielded by those agreements.” 535 U.S. at 808. The methodology by which a district makes such reasonableness determinations is for that court to select in the exercise of its sound discretion. In making these determinations, it would be preferable for a district court to begin with the contingency-fee agreement and decrease from there, rather than increase from a lodestar calculation. It does not seem to be an abuse of discretion, however, to use the latter approach as long as the court takes the necessary factors into consideration.

I am not going to the trouble of explaining this. If you do not understand it, you probably would not care anyway.

Employment Levels At Social Security

The Office of Personnel Management has released figures showing the number of employees at federal agencies as of June 2008. Below is the June 2008 figure for Social Security with the numbers from earlier dates for comparison. Note that the number of employees at Social Security went up by 5.2% between March and June of this year and are back to the same level they were when Democrats became the majority party in Congress.
  • June 2008 63,622
  • March 2008 60,465
  • December 2007 61,822
  • September 2007 62,407
  • June 2007 62,530
  • March 2007 61,867
  • December 2006 63,410
  • September 2006 63,647
  • September 2005 66,147
  • September 2004 65,258
  • September 2003 64,903
  • September 2002 64,648
  • September 2001 65,377
  • September 2000 64,521
  • September 1999 63,957
  • September 1998 65,629

Continuing Funding Bill Passes House Of Representatives

The House of Representatives has passed a Continuing Resolution (CR) to keep the government operating until appropriations bills can be passed. This will allow government agencies to spend money at the same rate as under the 2008 appropriations acts, which expire on September 30. until March 6, 2009. There had been hope that Social Security would be allowed to spend money at a higher rate than that, but, as best I can tell, Social Security did not receive such a dispensation from the House of Representatives.

My Thoughts About NPRM On Representation -- Part II, Mandatory Direct Deposit

I am still wading through Social Security's Notice of Proposed Rule-Making (NPRM) on the representation of claimants. I see many problems. Here is my second installment on this subject.

The proposal would make direct deposit of fees for representing claimants mandatory. Most attorneys I know would be delighted to receive their fees by direct deposit, except for one problem. How would they know which direct deposit goes with which client? The Department of the Treasury is not sending enough information with direct deposits to allow identification of the client involved. This is already a pain when we deal with payments under the Equal Access to Justice Act (EAJA), but we receive far fewer of those checks. The current maximum fee, after deduction of the user fee is $5,221. If I receive a direct deposit for $5,221 I have no idea what client the fee is for. Social Security's response to this question to this point seems to have been "Uh, uh, uh, why don't you ask Treasury?" I find that attitude unhelpful.

Treasury is not the one proposing this regulation. I am not sure how much clout Social Security will have in getting Treasury to resolve this problem, but I am pretty sure that it is more clout than I and others who represent Social Security claimants will have with Treasury. Social Security needs to get this resolved before they make direct deposit of fees for representing claimants mandatory.

You may comment on this proposal online and I encourage you to do so. This is a major proposal. Everyone who represents Social Security claimants needs to be studying it carefully and submitting comments.

Totalization Agreement With Denmark To Go Into Effect

Social Security is publishing a notice in the Federal Register tomorrow that a totalization agreement with Denmark goes into effect on October 1, 2008.

Update. It has not been published in the Federal Register.

Social Security And Voter Registration

Social Security is planning to take its Social Security number database offline for routine maintenance from October 10 to 13. This is a matter of concern to the California Secretary of State because California is using the database to verify voter registration. Apparently, eleven other states would be similarly affected. Senator Feinstein has written to the Commissioner of Social Security to ask that the maintenance be delayed until after voter registration closes.

UNUM Trial To Begin

From a press release:
Trial begins today in federal district court in Boston against insurance giant Unum Group (NYSE: UNM - News) on whether Unum is dumping tens of thousands of disability claims onto the overburdened Social Security system, costing the government millions of dollars.

The court is hearing a "qui tam" lawsuit brought by a whistleblower on behalf of the federal government involving Unum's alleged practice of requiring claimants to file first for Social Security Disability Insurance benefits even when they clearly didn't qualify. If they didn't apply to Social Security, Unum would cut their benefits.

Social Security has much stricter criteria for disability benefits than private insurers. To qualify for disability payments from private insurers, people must be unable to perform their current job; to qualify for Social Security benefits, a claimant needs to be unable to work at all.

"Our lawsuit exposes a practice that creates additional burden on an already overwhelmed Social Security program and also hurts taxpayers," said Colette G. Matzzie, a Washington, D.C., attorney with Phillips & Cohen LLP, which represents the whistleblower. "We're confident that the court will find merit in our case."

Sep 24, 2008


Strategic Plan Released

The Social Security Administration has released its new strategic plan for fiscal years 2008 to 2013. The document shows that the agency's workload will increase significantly in coming years. I see some laudable goals for improved customer service. However, I see no plan that has any hope of coping with the current workload, much less an increased workload. On the whole, this is not a plan. It is hardly a fig leaf to cover the lack of a plan.

The plan does indicate that Social Security plans to spend money to encourage people to save. That is another laudable goal, but such a program could also be used to scare people about the future of Social Security, which, probably, is the reason for the program.

NPRM On Representation -- Part I

I keep trying to wade through Social Security's Notice of Proposed Rule-Making (NPRM) on the representation of claimants. The proposal seem problematic in many respects. I will lay out the problems I see in several posts.

The most serious concerns I have relate to the following language in the proposed regulations (emphasis added):
Direct payment to entities. We will only make direct payment to an entity that provides the following attestations in its request for direct payment of fees:

(1) The entity must attest that it is in possession of a signed statement from each attorney or non-attorney who has performed any representational services for the claim in question that includes the following:

(i) The attorney or non-attorney has performed all representational services on behalf of the entity,

(ii) Any fees paid pursuant to the services the attorney or non-attorney have provided should be paid directly to the entity, and

(iii) The attorney or non-attorney representative receives compensation for the services provided directly from the entity.

(2) The entity must attest that all individuals who have provided representational services on the claim in question are individuals who qualify for direct payment under the Act or the direct payment demonstration project, as defined in § 404.1717.
First, this talks about a signed statement from "each attorney or non-attorney representative" and about "all individuals who have provided representational services" which I would take to mean that Social Security recognizes that at a law firm or other entity representing Social Security claimants more than one person may be working on a client's case. So how does one explain the part that says that there must be an attestation that "The attorney or non-attorney has performed all representational services on behalf of the entity"? This would mean that only one person at a firm must do all the "representational services" on the case or the firm would be ineligible for fee withholding. This is contradictory. I cannot figure out what Social Security means.

Second, what does this "representational services" language mean? The proposed regulations include a list of definitions of terms used. I will talk about those confusing definitions later but "representational services" was not given any kind of definition, even a confusing one. This is a key term. Without knowing what Social Security means by "representational services", I do not know what they mean by this proposal. If a legal assistant who works for me calls Social Security about a payment issue, is that a "representational service"? If so, my firm is not eligible for direct payment of a fee unless that legal assistant qualifies under the ongoing experiment in non-attorney withholding. What if I were to send that legal assistant to the hearing? (I would not do this, but others have.) Would that be a "representational service"? Where exactly is the dividing line here? I wonder if Social Security failed to define "representational service" because they did not know how.

Third, what does the "in possession of a signed statement" language mean if one of my firm's employees leaves to take a job with another firm and gives that firm a "signed statement"? Does the departure of an employee who has worked on a case automatically mean that my firm no longer has that person's signed statement. Can an employee withdraw his or her signed statement? Does each employee who has worked on a case have the ability to prevent my firm from receiving a fee after he or she leaves? Employees who quit or get fired can sometimes be spiteful. That sounds scary to me.

You may comment on this proposal online.

Last Week's Hearing -- E-Pulling Worries And Schieber Gets Religion

The National Council of Social Security Management Associations (NCSSMA), an organization of Social Security management personnel has posted a summary of what transpired at last week's hearing before the House Social Security Subcommittee. Here are a couple of excerpts, with my comment in brackets and bolded:
Across the board, in response to this question, there seemed to be a real concern with ePulling, in that as of right now, it is adding work that is not allowing SSA to make any headway. ...

Mr. Schieber [Chairman of the Social Security Advisory Board (SSAB)] also added that the current outcome is a result of a cut in resources, and an increase in claims. He hinted that if some of the money that was put into special initiatives would have been funneled into budget resources, for possible hiring, we may have had a slightly different outcome when it comes to decreasing the disability hearings backlog. [But the SSAB was a big backer of the "special initiatives", such as former Commissioner Barnhart's Disability Service Improvement plan! It is good to see Schieber finally seeing the light. The current leading example of a "special initiative" is E-pulling.]

Regs Sent To OMB

All agencies must submit proposed new regulations to the Office of Management and Budget (OMB) for approval before publishing them in the Federal Register. Social Security has recently submitted the following proposal to OMB:
SSA proposes to amend our Supplemental Security Income (SSI) regulations by making technical revisions to our rules on income and resources. These revisions are based on the Consolidated Appropriations Act of 2001, Section 519, (Pub. L. 106-554), the Economic Growth and Tax Relief Reconciliation Act of 2001, section 203 (Pub. L. 107-16), the National Flood Insurance Act of 1968, section 1324 (Pub. L. 109-64), and the Energy Employees Occupational Illness Compensation Program Act of 2000, section 3646 (Pub.L. 106-398). We also plan to amend the SSI home exclusion rules to extend the home exclusion to individuals who leave a previously excluded home based on evidence of domestic abuse.

Sep 23, 2008

McCain On Social Security

I recently posted an Obama ad criticizing John McCain on Social Security. I have not seen any corresponding McCain ad. Here are some McCain's statements on Social Security from On The Issues:
  • John McCain supports supplementing the current Social Security system with personal accounts--but not as a substitute for addressing benefit promises that cannot be kept. John McCain will reach across the aisle, but if the Democrats do not act, he will. No problem is in more need of honesty than the looming financial challenges of entitlement programs. Americans have the right to know the truth and John McCain will not leave office without fixing the problems that threatens our future prosperity and power.
  • Q: What about Social Security?

    A: Look, what Americans need is some straight talk. Every man, woman and child in America needs to know it's going broke, and we've got to do the hard things. We've got to fix it for the future generations of Americans. Don't we owe that to young Americans today? I say we do. It's got to be bipartisan. And you have to go to the American people and say we won't raise your taxes. We need personal savings accounts, but we got to fix this system.

  • Q: Back in 2005, you said you could support an increase in Social Security taxes as part of a compromise. Do you stand by that?

    A: As part of a compromise, if you come up with a benefit, I can accept almost anything, but it's got to be part of a compromise. Am I for raising anybody's taxes? No, I am not. I am unalterably opposed to doing so. I will not support a tax increase; it's off the table, certainly, now.

I was unable to find anything about Social Security on the offical McCain website. It appears that Social Security is a subject that John McCain would rather not talk about.

Big COLA Coming

The consumer price index that is used to determine the cost-of-living adjustment senior citizens will receive from Social Security in 2009 was released today and the change for August 2008 over August 2009 is still looking like the COLA will be an increase in the range of 6 percent, the largest since 1982. The change for August is 5.9 percent.

Social Security Alumnus Involved In Bailouts

James Lockhart was Deputy Commissioner of Social Security earlier in the Bush Administration. Lockhart left Social Security to become head of OFHEO. Never heard of OFHEO? It regulated Fannie Mae and Freddie Mac. I think you have heard of them lately. Apparently, Lockhart is getting little blame in the recent debacle with those institutions. He is one of the people testifying before the Senate Banking Committee today on the President's proposed $700 bailout of Wall Street.

Congress Passes SSI Extension For Elderly And Disabled Refugees

From the Capitol Insider, put out by the Disability Policy Collaboration:
The SSI Extension for Elderly and Disabled Refugees Act, H.R. 2608, cleared the House on September 17 by a voice vote. The next step is signature by the President. The House had originally passed the bill in July 2007, but the Senate passed an amended bill August 1, 2008. The House acted last week to pass the Senate version, clearing it for final enactment. The bill would temporarily extend the 7-year SSI eligibility period for refugees, asylees, and certain other humanitarian immigrants (including victims of human trafficking) to 9 years for the period October 1, 2008 through September 30, 2011. In order to qualify for the extension, certain noncitizens would be required to sign a declaration indicating that they have made a good faith effort to pursue U. S. citizenship. The 2-year extension would also apply retroactively to those noncitizens whose SSI had previously ceased due to the expiration of the 7-year period. The legislation would be effective October 1, 2008, with the 9-year eligibility period reverting back to a 7-year period after September 30, 2011. A more detailed summary of the bill is available on the Social Security Administration’s website:
You can sign up to receive the Capitol Insider by e-mail.

Obama Plan For The Bureaucracy

Some excerpts from a blueprint for change in the bureaucracy issued by the Obama for President campaign:
  • Move Workers from Bloated Bureaucracies to the Frontlines: In many areas of the federal government there is too much Washington bureaucracy – too many layers of managers, and too much paperwork that does not contribute directly to improving the lives of the American people. At the same time, there are too few workers on the front lines in local offices across the country. We need more resources and better tools for food inspectors at the Food and Drug Administration, for nurses at VA hospitals, for air traffic controllers and baggage screeners, and for immigration border control agents. Barack Obama will thin the ranks of Washington middle managers, freeing up resources both for deficit reduction and for increasing the number of frontline workers.
  • Cut Federal Spending on Contractors by at Least 10 Percent: Barack Obama will reform federal contracting and reduce the number of contractors, saving $40 billion a year.
  • End Abusive No-Bid Contracts and Minimize the Use of Cost-Plus Contracts: In 2006, the federal government spent $206.9 billion on contracts awarded without full and open competition, up from $67.5 billion in 2000. Barack Obama will require each federal agency to defend each of its noncompetitive contracts to the Office of Management and Budget. In addition, cost-plus contracts have increased more than 75 percent under the Bush administration. These contracts are vulnerable to waste because they provide no incentive to control costs. Obama will encourage the use of fixed-cost or incentive-based contracts and when cost-plus contracts are necessary, force agencies to use mitigating procedures like incentives tied to performance goals and cost savings.

Sep 22, 2008

Contract For SoBran

From a press release:
SoBran, Inc., a leader in advanced warehousing support and services, today was awarded a multi-million dollar contract by the Social Security Administration (SSA), to manage three Maryland warehousing facilities -- shipping, receiving, inventory, distribution and administrative services for millions of pieces of critical information, spread throughout. ...

Using an innovative Radio Beacon Warehouse Management System (WMS), radio-frequency identification (RFID) tags and readers, scan tunnels and portals, hand held wireless bar code scanners and related technologies, the team will oversee the movement and storage of benefit payment and services forms, publications and other information serving millions of Americans.

The SSA stores much of these materials and other assets in its main Supply Building warehouse, an 80,000-square-foot building at SSA headquarters in Baltimore, MD, and in two nearby supporting warehouses, a total of 380,000 square feet and more than 25,000 bin locations. The three locations process approximately 100,000 to 130,000 line items each year with an average daily volume of approximately 416 line items.

Sep 21, 2008

Things Are Very Different At The RRB

The New York Times is reporting that the Railroad Retirement Board (RRB) is approving 98% of the disability claims they review. The definition of disability is different, but still, that is stunning. I guess that is why I virtually never get a call asking for representation on an RRB case.

Sep 20, 2008

Benefit Eligibility Screening Tool

The Social Security Administration has created an online benefit eligibility screening tool. I have not checked it out exhaustively, but it was able to identify the possibility of a disabled adult child claim for an older widow or widower, a possibility that would be missed by the average Social Security employee (no offense, guys -- I was looking for something that would be hard to catch).

Sep 19, 2008

SSI Stats Released

The Social Security Administration has released its monthly statistical package for the Supplemental Security Income (SSI) program.

Sep 18, 2008

Obama Ad On Social Security

Congress Passes ADA Restoration Act

The New York Times reports that Congress has passed and sent to the President the Americans with Disability Act (ADA) Restoration Act. The Act explicitly overturns several Supreme Court decisions. The Act says that "Nothing in this Act alters the standards for determining eligibility for benefits under State worker’s compensation laws or under State and Federal disability benefit programs." I remain concerned about the long term effects of the ADARestoration Act upon the Social Security disability programs, particularly when the Social Security Administration finally deals with the obsolesence of the Dictionary of Occupational Titles (DOT). There may be an effect even if all involved deny that there was an effect. There is a fair amount of hypocrisy in the world and even more self-delusion.

Pressure Works

From the St. Petersburg (FL) Times:
The head of the Social Security Administration has announced new steps to reduce the backlog of disability claims cases in the Tampa Bay area.

The South Florida office will serve some areas formerly handled by Tampa but are closer to Fort Lauderdale. In-person and video hearings will continue to be offered at the agency's Fort Myers and West Palm Beach remote sites.

Social Security Commissioner Michael J. Astrue outlined the new procedures in a letter to Rep. Kathy Castor, a Tampa Democrat who introduced a bill on July 14 to address the national backlog of disability claims.

The bill would require that a hearing be held within 60 and 75 days from the date of the request, and that a final verdict be given no more than 15 days after a hearing. Rep. C.W. Bill Young is among the co-sponsors.

Indecent Exposure At Social Security Office

From the Rocky Mountain News:

Federal security officers responding to reports of a man exposing himself to a woman and her daughter in a Social Security office in Denver on Wednesday arrested an ex-convict on parole for attempted murder.

Federal Protective Service officers were alerted at the Social Security office near 16th and Champa streets about 1:05 p.m., said Carl Rusnok, a spokesman for Immigration and Customs Enforcement. ICE oversees the protective service.

Officers took into custody Herbert L. Towery, 67, for investigation of indecent exposure, Rusnok said.

Errors In Workers Compensation Offsets

A recent report from Social Security's Office of Inspector General (OIG) on workers compensation offset computations will come as no surprise to attorneys who represent Social Security claimants -- or to any Social Security employee who regularly deals with workers compensation issues. The computations are complex and Social Security makes plenty of mistakes. Some excerpts from the OIG report:
A-04-07-17078 - Alternate Format

Workers injured on the job may qualify for DI [Disability Insurance] benefits in addition to benefits under Federal and State workers' compensation (WC) programs. However, combined DI and WC benefits could result in workers receiving more in disability payments than they earned before they became disabled. To prevent this, Congress enacted the WC offset provision under section 224 of the Act, which requires that SSA adjust DI benefits based on an offset formula set forth in that provision of the Act.

While SSA adjusts DI benefits based on an offset calculation, to protect DI beneficiaries with a continuous WC offset against inflation, SSA is required to re-compute the beneficiary's average current earnings (ACE) [a figure used in computing the workers compensation offset] on a triennial basis. This recalculation is known as a triennial redetermination (REDET). A REDET may result in increased benefits ...

A-04-07-17078 - Alternate Format

In 2006, SSA identified 36,177 DI claims that required a REDET. As of June 30, 2007, SSA had completed 21,976 REDETs, from which we selected a random sample of 250 DI claims for review. To determine whether the REDETs were accurate, we

  • reviewed all available documentation for independent proof of current WC rates,
  • calculated the WC offset based on the current proven WC benefits data,
  • compared the total benefits paid to the total benefits owed, and
  • obtained SSA's review and comments for each payment error. ...
A-04-07-17078 - Alternate Format

SSA did not always accurately process and calculate the 2006 REDETs in our sample. In total, 24 (9.6 percent) of the 250 sampled DI claims we reviewed had payment errors. Of the 24 claims, 19 had payment errors totaling $219,610 related to the WC offset calculation. Based on this error rate, for the 21,976 REDETs in our population, we estimate approximately 1,670 DI claims totaling about $19.3 million had payment errors related to the WC offset calculation. The five remaining claims, totaling $53,320, had DI processing errors unrelated to the WC offset calculation.

Also, 16 of the 24 REDET claims had payment errors that continued after August 31, 2007. Fourteen of these errors were related to the WC offset calculation, and the remaining two were unrelated to this calculation. Based on the number of continuing errors, we estimate that for the 12 months following our audit period, approximately 1,406 claims had payment errors totaling about $4.8 million.

Sep 17, 2008

Is E-Pulling E-Failing?

I had posted this earlier, but it was hidden in a much longer item. Let me pull it out for emphasis. From the statement of Kathy Meinhardt, Principal Executive Officer for Federal Managers Association Chapter 275, Social Security Office of Disability Adjudication and Review, Federal Managers Association (FMA), Minneapolis, Minnesota to the House Social Security Subcommittee:
Much of ODAR’s promise of increased efficiency is tied to the success of the ePulling initiative. According to the IG report, the pilot is being expanded to five hearing offices and the NHC. Rollout to additional offices is dependent on the performance of the software at the pilot locations. Minneapolis is one of those five hearing offices. We are only eight weeks into the pilot, but at this point, the process has been very time consuming and has slowed the staff down by more than 50 percent. We at FMA believe that many staffing decisions are being considered assuming the success of this initiative. We would caution that its success and ability to deliver significant numbers of folders for ALJ review anytime in the near future is overly optimistic.

Aftermath Of Ike In Houston

Social Security representatives will be prepared to issue immediate payments to residents who cannot reach their mailboxes to get their benefit checks, officials say.

Approximately 20,000 paper checks are due to people receiving Social Security benefits from the affected areas on Wednesday.

Although mail delivery is returning to the majority of the impacted locations, many of the people who evacuated may not be able to return home to get their checks. Social Security representatives are prepared to issue immediate payments from any of their open offices.

However, Social Security officials announced the following offices will be closed on Wednesday, September 17:

• Angleton
• Beaumont
• Conroe
• Galveston
• Houston Downtown
• Houston Northeast
• Houston Northwest
• Houston Southeast
• Houston Southwest
• Houston Teleservice Center
• Pasadena
• Port Arthur
• Office of Disability Adjudication and Review Hearing Office, Houston Downtown
• Office of Disability Adjudication and Review Hearing Office, Bissonnet
• Office of Inspector General, Houston

Sep 16, 2008

Written Statements To Social Security Subcommittee

Some excerpts from some of the written statements for the House Social Security Subcommittee hearing today -- and I am only trying to excerpt what is new, rather than giving you the flavor of the statements. I have added a few of my comments in brackets:

Frank Cristaudo, Chief Administrative Law Judge:
Our present target, which we continually review based on the most current productivity and workload data, is to have a judge corps of 1,250 by the end of next year. [calendar year or fiscal year?] However, in light of an unanticipated increase in filings, we are now considering whether to adjust that target upwards and will keep Congress apprised if we need to hire additional judges and support staff. [Might the election results have something to do with that?] We will be monitoring our workloads and receipts carefully in the coming months so that, budget permitting, we will be poised to hire as many additional judges as circumstances warrant. We lose approximately 60 judges a year to attrition, so to reach our goal of 1,250 judges, we will need to hire about 100 - 125 new judges in FY 2009, as well as sufficient staff to support them.

... we are also developing a quality assurance program for the hearing process. Regional personnel will have responsibility for overseeing the in-line quality process, which will include reviews of attorney adjudicator decisions, decision drafts, case pulling, and scheduling. This program will be implemented in FY 2009 after the necessary system enhancements are put in place.
Patrick O'Carroll, Social Security Inspector General:
... it is important to understand that the backlog is not the result of a lack of dedication or commitment on the part of SSA or any of its employees, nor of the Administrative Law Judge (ALJ) corps, though it falls on all of these parties to join in seeking solutions. ...

We looked again at the 95 ALJs in our study of fiscal year 2007 who issued fewer than 200 case dispositions. We found that of these 95, one was Judge Nancy Griswold, the Deputy Chief ALJ, who certainly had other issues occupying her time. Similarly, five of these 95 ALJs were Regional Chief ALJs.

Another 13 of these 95 ALJs were new to their jobs (and thus had a significant learning curve), were part-time employees, or were on extended leave during the year. And another 54 of these ALJs either retired, separated, resigned, or passed away during fiscal year 2007. This left 22 ALJs who produced fewer than 200 dispositions. Ten of these 22 ALJs were union officials who, under the collective bargaining agreement, had officially authorized union responsibilities. We interviewed the ten union officials as part of our study.

We then interviewed the twelve remaining ALJs, each of whom issued between 150 and 200 dispositions during fiscal year 2007.

Through our interviews, we found that internal factors—unquantifiable factors internal to each ALJ—were significant contributors with respect to disposition productivity. In fact, our interviews with Regional Chief ALJs (RCALJ) revealed that work ethic and motivation were one of the main factors that contributed to high or low productivity. One of these interviews even revealed an ALJ who remained unmotivated despite oral and written counseling, a written directive, and a reprimand.
Sylvester Schieber, Chairman of Social Security Advisory Board:
It is possible, with an appropriate statutory change, to reconcile the interests of the public to receive an independent decision with a process that is consistent and efficient. But this process must have three key features: clear performance expectations, accurate and timely performance measures, and incentives that encourage the judges to reach the performance expectations. ...

We therefore recommend that Congress consider changing the law to permit better performance measurement while also protecting the ALJs’ decisional independence. A key feature of a new law would be well-defined performance criteria set in advance so all parties know what it being expected of them. [Michael Astrue's desire?]
Ron Bernoski, President, Association of Administrative Law Judges:
Social Security has consistently over-estimated the benefits of technology at the administrative law judge level and has often implemented the technology before it has been ready for general use. Further, technology does little to assist the judge or reduce the time we spend doing our work. We still need to review the case before the hearing, conduct the hearing, prepare the hearing decision instructions, and edit the draft decision. The Agency is now claiming that technology will reduce the number of staff employees needed to support administrative law judges. This claim has not yet been certified therefore policy cannot be based on hoped for benefits of the new technology. ...

“Shortcuts” such as “Streamlined” folders and scheduling cases before they are worked up are more often counterproductive. A “streamlined” claim file is one which is not worked up, i.e., prepared for hearing. Duplicates of often hundreds of pages of exhibits are not removed. Exhibits are not identified, placed in chronological order or even numbered. This allows the support staff to spend less time in preparing a case record. However it requires that the judge, and the writer, and medical experts and the representative to spend far more time reviewing the record. Scheduling cases before work-up will not alleviate ALJs having insufficient cases for hearing. The cases will still need to be worked up before the hearing.

House Social Security Subcommittee Hearing Today

The House Social Security Subcommittee is holding a hearing today at 10:00 Eastern Time "on the Performance of Social Security Administration Appeals Hearing Offices." You can watch it online.

Your Tax Dollars At Work

A photo sent in by a reader

Social Security Contracting Over The Years

Courtesy of here is a summary of the total amounts spent by the Social Security Administration for contractors in recent fiscal years (FYs), with the percent change from year to year:
  • 2000 $483,881,742
  • 2001 $533,685,696 +10%
  • 2002 $567,777,205 +6%
  • 2003 $542,115,565 -5%
  • 2004 $708,751,407 +31%
  • 2005 $848,600,487 +20%
  • 2006 $810,847,838 -4%
  • 2007 $746,276,332 -8%

Large Class Action Centified

From a press release:

Judge Certifies Class of Three Million Visually Impaired Beneficiaries in Social Security Administration Lawsuit

On Thursday, September 11, 2008, Judge William Alsup of the U.S. District Court for the Northern District of California granted class certification in a disability rights action in which plaintiffs argue that the Social Security Administration (SSA) fails to provide its communications in alternative formats that would enable people with visual impairments to have equal access to SSA programs as required by federal disability civil rights laws and the U.S. Constitution.

The case is scheduled for trial in April 2009. Attorneys for the plaintiffs include the Disability Rights Education and Defense Fund; Heller Ehrman LLP; the National Senior Citizens Law Center; and Disability Rights Oregon (formerly the Oregon Advocacy Center). ...

Sep 15, 2008

AALJ Using Publicist

Business Wire has a press release from the Association of Administrative Law Judges (AALJ) about the upcoming testimony of the AALJ President, Ron Bernoski, to the House Social Security Subcommittee. The press release is of no consequence. What is of consequence is that it appears that the AALJ is using a publicist. I should have noticed this last month when the AALJ issued another press release.

Waiting In Omaha

KETV in Omaha, Nebraska is running a story on the backlogs at Social Security. You can watch the TV story online. Here is a bit from the transcript of the story:
The bureaucratic red tape bogging down the Social Security system results at times in beneficiaries dying before they get their benefits, said an Omaha attorney. "A year ago, I had three people commit suicide. That just rips you up, said Tim Cuddigan, an attorney specializing in social security disability cases. He said the backlog is not because people are cheating the system. And it's not because they don't qualify for benefits. It's that Congress hasn't adequately funded Social Security for 15 of the past 16 years, Cuddigan said. ...

On Tuesday, the House Ways and Means Committee will hold a hearing on the performance of Social Security's appeals hearing offices.

Hearing Processing Time Report

The latest issue of the Social Security Forum, published by the National Organization of Social Security Claimants Representatives (NOSSCR) is out and it contains a July 31, 2008 report on Social Security's hearing backlogs. The pages are reproduced to the left. Click on each one to see it full size.

Compare the state of the national backlog over time:
  • January 25, 2007 -- 508 days
  • May 25, 2007 -- 523 days
  • July 28, 2007 -- 528 days
  • August 31, 2007 -- 523 days
  • November 30, 2007 -- 500 days
  • February 29, 2008 -- 511 days
  • May 30, 2008 -- 523 days
  • June 27, 2008 -- 529 days
  • July 31, 2008 -- 530
So why does Chief Administrative Law Judge Cristaudo tell a newspaper that things are getting better? Obviously, they are getting worse. It seems to me that the Chief Administrative Law Judge should either be frank with the media or just not talk with the media. This misleading statement demeans him and his office.

Results Of Last Week's Unscientific Poll

If the election were held today, who would get your vote for President of the United States?

Robert Barr, Libertarian Party (4) 3%
John McCain, Republican Party (45) 30%
Ralph Nader, Independent (2) 1%
Barack Obama, Democratic Party (101) 66%

Total Votes: 152

Top Social Security Contractors

Courtesy of FedSpending.Org, here is a list of the the Social Security Administration's top contractors for fiscal year (FY) 2007, which ended on September 30, 2007:

IBM CORP.$37,325,409
CA INC$22,209,200
WESTAT INC$19,952,405
SOFTMART, INC.$17,858,501
AHTNA INC$15,555,044
AT&T INC.$11,684,532
MAXIMUS INC$10,484,015

Written Statement Of Federal Managers Association For House Social Security Subcommittee Hearing

The Federal Managers Association has been kind enough to send me a copy of the written statement that Kathy Meinhardt, their Principle Executive Officer, will give tomorrow to the House Social Security Subcommittee. I have bolded some parts that seemed particularly important to me. Please note the highly negative early report on e-Pulling.
Chairman McNulty, Ranking Member Johnson and Members of the House Ways and Means Subcommittee on Social Security:

My name is Kathy Meinhardt and I am here today representing the nearly 800 managers in the Social Security Administration’s (SSA) Office of Disability Adjudication and Review (ODAR) in my role as Principle Executive Officer for the Federal Managers Association Chapter 275. Please allow me to take a moment and thank you for this opportunity to present our views before the Subcommittee. As federal managers, we are committed to carrying out the mission of our agency in the most efficient and cost effective manner while providing necessary services to millions of Americans.

I currently serve as the Hearing Office Director for the Minneapolis, Minnesota ODAR office, a position I have held since 2000. From 1991 – 2000, I served as the hearing office manager in the same office. I have been working for the Social Security Administration for nearly 35 years and in my years with SSA, I have supervised both claims and service units, aided in the expansion of the nationwide 1-800 number system, coordinated information technology growth, and addressed labor management relations issues. Throughout my career, I have worked in various SSA offices serving a variety of needs in Minneapolis, St. Louis, Northern Virginia, Milwaukee, Chicago and New Haven. Please keep in mind that I am here on my own time and of my own volition representing the views of FMA and do not speak on behalf of SSA.

Established in 1913, the Federal Managers Association is the largest and oldest association of managers and supervisors in the federal government. FMA was originally organized to represent the interests of civil service managers and supervisors in the Department of Defense and has since branched out to include some 35 different federal departments and agencies including many managers and supervisors within the Social Security Administration (SSA). We are a nonprofit, professional, membership-based organization dedicated to advocating excellence in public service and committed to ensuring an efficient and effective federal government. As the ODAR Managers Association of the FMA, our members and their colleagues are responsible for ensuring the successful administration of Social Security’s disability determination process and providing needed services to American customers.

As you are keenly aware, the Social Security Administration plays a vital role in serving over 160 million American workers and their families. Each month, SSA pays out benefits to 48 million beneficiaries. Over seven million low-income Americans depend on the agency’s Supplemental Security Income (SSI) program to stay afloat in a cost-inflating world, and nearly 7.2 million disabled Americans receive benefit payments through Social Security Disability Insurance (SSDI). At a February 28, 2008 hearing before the House Appropriations Committee, Commissioner Astrue testified that SSA’s productivity has increased over 15 percent since fiscal year 2001. Considering the magnitude of its mission, the Social Security Administration does a remarkable job administering critical programs.

In the Office of Disability Adjudication and Review, however, there currently exists a backlog of over 767,500 requests for a hearing. It now takes over 525 days to process a typical request for a hearing and these delays tarnish SSA’s otherwise strong record of service to the American public. At the beginning of 2002, SSA had 468,262 pending hearing requests. In six years, that number increased to over 767,000, despite the fact that dispositions are at record levels. Although clericals in hearing offices prepared 472,168 cases in FY07, claimants submitted almost 580,000 new requests during the same period. The files simply awaiting preparation for review by an Administrative Law Judge (ALJ) at the close of August 2008 totaled 450,852 cases, an increase of 12,354 cases since the beginning of fiscal year 2007. Unless something is done to reverse this trend, the number of files awaiting decisions could realistically reach one million by 2013 with the aging Baby Boom generation.

As managers and supervisors within ODAR, we are acutely aware of the impact these backlogs are having on our ability to deliver the level of service the American public deserves. I am here to confirm what you’ve heard several times before - that the ongoing lack of adequate staffing levels and resources have contributed to these backlogs. If these inadequacies continue, clearing the backlogs will be impossible and service delivery will continue to deteriorate.


By way of background, when a request for a hearing is received at a local Social Security office, it is automatically propagated to our computer system by a case intake employee in ODAR who adds ODAR-specific coding such as ALJ assignment, site of the hearing and the representative involved. Basic screening is done to ensure timeliness of filing, verify procedural issues are met, and determine the need for critical or expeditious handling. An acknowledgement is prepared and in some offices, a CD is burned and bar codes are prepared to send to the claimant or representative.

If staffing allows, ALJs or attorneys will screen the cases for anything that might qualify it as an “on the record” (OTR) decision. This allows for cases to be decided favorably and paid without a hearing based on the evidence in file. However, such cases are rare and if an OTR is not possible, the electronic record will await preparation for ALJ review. As noted earlier, there are almost 451,000 files in this status as of the end of August. The national average for this period of inactivity is 209 days. In the Dallas region, a file will wait only 82 days on average, but in Kansas City, the wait is an average of 301 days. In all but 71 offices, the wait for folder preparations exceeds the national average. These delays are simply due to the volume of work coming in and the lack of staff to tackle it. Additionally, receiving duplicative information from the claimant also taxes the staff. During all stages of the process, evidence is received in paper form or electronically and often times in both formats. Each piece of evidence creates workload items which must be filed and documented by ODAR staff.

Cases are generally worked in hearing request date order. Those cases deemed critical or dire in need may be given preference. The “workup” of the file involves a support person who reviews and orders the evidence, identifies each exhibit, obtains the jurisdictional documents, and provides a brief summary of the evidence in file. Currently, a pilot project dubbed ePulling is underway designed to automate this process. As a pilot office, I can tell you that at this stage, the process has more than doubled folder preparation time. However, this is not atypical for a pilot project and hopefully as the program moves forward and enhancements are made, we will see the average savings of 1.5 hours per case that our agency leadership is claiming.

Once the file is completed and the exhibit list is prepared, it is referred to an ALJ for review and scheduling instructions. It is then scheduled for hearing based on the individual ALJ instructions. Scheduling requires coordinating the schedules of the ALJ, the claimant, the representative, medical and vocational experts, a reporter and hearing room availability. The claimant and representative must be given a Notice of Hearing at least twenty days in advance of the hearing and these hearings can be done in person, by video in the local hearing office, a permanent remote site, or in a temporary remote site, such as a hotel or local government office.

After the case has been heard, the ALJ can make a decision or order supplemental records and a consultative examination if necessary. Once the ALJ has all the evidence and testimony needed to make a decision, he/she will write instructions for the decision writer. At the end of August, there were almost 25,000 cases nationally in which an ALJ had made a decision but was waiting for an attorney or paralegal to draft the decision.

When the written decision is completed, it is made available for the ALJ to review, edit, return for redraft if necessary, and then electronically sign. At this point, the electronically signed case sends an alert which allows the support staff to print, mail and code the case to completion. It is my understanding that this mailing process will be shortly automated to send the decision to a central mailing site. Once the decision is mailed and the coding is complete, we have a disposition.


We at FMA appreciate the attention both the Subcommittee and Commissioner Astrue are placing on examining the reasons for the backlog and addressing remedies to the problem. ODAR began fiscal year 2008 with 438,498 pending cases awaiting preparation for a hearing. In all likelihood, those cases will realistically wait at least one year before any action is even initiated to prepare the cases for review and hearing in front of an Administrative Law Judge. In August, processing times across the nation ranged from a low of 389 days in the Boston region to a high of 712 days in the Chicago region. The American public deserves better service.

Within ODAR, production is measured by the number of dispositions completed per day by an Administrative Law Judge. In FY05 and FY06, this record-level figure was 2.2 dispositions per day per ALJ. Thus far in FY08, ALJs have gone even further and averaged 2.28 dispositions. At the end of January 2007, SSA employed 1,088 ALJs, and dispositions in FY07 totaled 547,951, 31,000 less cases than were received in the same time period. For the current fiscal year through August, receipts totaled 541,259 while only 520,408 dispositions were completed. This amounts to a net gain of over 20,000 cases.

Earlier this year, hiring letters went out to Administrative Law Judges SSA plans to employ this fiscal year and already 189 judges have been hired in FY08. A total of 189 new ALJs could translate into an additional 94,500 – 132,300 dispositions if each ALJ issued 500 – 700 dispositions per year, as requested by the Chief ALJ in October. While this is certainly a step in the right direction, Administrative Law Judges alone will not solve the problem. Without additional staffing, the current level of prepared work would be distributed among more judges, essentially resulting in the same dispositional outcome. Without adequate support staff to prepare cases for the judges, both existing and new, we will not achieve an increase in hearing dispositions. The report issued by the SSA Office of the Inspector General in August agrees. The ALJs interviewed by the IG stated the main reason not enough hearings were scheduled was because there was insufficient support staff to prepare cases. The report also states that Hearing Office Directors believed staff ratios have a significant impact on productivity and processing times. The report concludes that SSA must hire additional staff to support the ALJs and accordingly ODAR is filling 230 staff positions. We are encouraged by this, but in order to maintain an adequate ALJ to staff ratio in each office, several hundred more staff will have to be hired.

In recent years, however, budgetary constraints have forced the agency to hire additional Administrative Law Judges without providing adequate support staff to prepare the cases for hearing. We recognize that the Commissioner is trying to address the backlog by adding these judges; however, additional ALJs without the supporting clerical staff to prepare cases in a timely manner will not solve the problem. By following in his predecessor’s footsteps, Commissioner Astrue will encounter the same problems – no matter how many new judges come on board, without clerical staff to prepare cases for them and write the decisions the backlog cannot be addressed.

Undoubtedly, adequate clerical support is necessary to prepare cases for hearing, as well as staff to write a disposition after the ALJ has made his/her decision. As it stands, hearing offices do not even have the staff to accommodate the current judges, let alone enough staff to process the over 49,000 new cases the Office of Disability Adjudication and Review receives each month. If receipts remained flat, over 767,000 cases will remain pending, more than one-third of which are over 365 days old. At the beginning of FY07, ODAR had over 63,000 cases which were over 1,000 days old, a number which was both unacceptable to the agency as well as the American people it serves. Commissioner Astrue identified these cases as ODAR’s number one priority and this backlog has since been eliminated. FMA applauds the Commissioner for his efforts and the new attention being paid to the 900 day old cases. ODAR began FY08 with 135,000 900 day old cases and is now down to 4,000. According to the IG, ODAR is on target to eliminate these cases by the end of the fiscal year. We are committed to working with the Commissioner as he tackles this challenge. In FY09, it is our understanding that ODAR will target the cases that will reach 850 days old within the fiscal year. There are over 191,000 cases that meet this criteria and it is our belief these targets are indicative of a national processing time average that is unacceptable.

With the aging Baby Boom population, it is reasonable to assume that receipts will continue to out-pace dispositions. As the requests for hearings continue to rise, more is demanded from ODAR staff on all levels. The bottom line is that the hearing offices lack sufficient staff to process the work on hand, much less even begin to work on new cases. In fact, the IG reiterates this point several times throughout his report. It is evident that under the best case scenario, the current staffing levels in ODAR barely maintain the status quo. That means that the backlog stays the same and processing times continue at a rate which exceeds 500 days.

The accepted staff to ALJ ratio is roughly four and one half production staff per ALJ. However, this only ensures productivity necessary to handle incoming work, not the backlog. For offices with heavy backlogs, the four and one half to one standard is inadequate. The interviews mentioned in the IG report disclosed that quality and composition of staff also impacts productivity. Management and administrative employees should not be included in these figures, as they are not the employees performing the production work on hearing requests.

The solutions to the backlog problem start with adequate staffing levels and timely budgets which will allow us to address the pending cases. As of last month, just over 767,000 requests for a hearing were pending. However, it is worth noting that the agency can reasonably process 450,000 – 550,000 cases during a given fiscal year. As such, the actual “backlog” at this point is around 300,000 cases.

As noted earlier, a trained, productive ALJ with adequate support staff should be able to produce about 500 – 700 dispositions in a given year. However, the IG reported that only 64 percent of ALJs were on track to meet this goal in FY08. The report also acknowledges that support staff ratios are a factor in ALJ productivity and processing times. Hearing Office Directors confirmed this finding. With a national average of 4.46 staff per ALJ, it is not surprising that 63 percent of the offices on the top half of the productivity scale had a staff ratio higher than the average.

Average pending cases per ALJ range from a low of 414 in the Boston region to a high of 775 in Seattle. Seven regions average over 600 pending cases per ALJ, four of which exceed 700. Individual offices range from a low of 262 pending cases per ALJ to a high of 1,528 and thirteen offices exceed 1,000 cases per ALJ. On a national level, processing times range from 389 days in Boston to 712 in Chicago. At the end of August, 24,810 decisions that have been made by the ALJs are simply waiting to be drafted by a decision writer. Decision writing pending, measured in the number of days it would take to complete the work, ranges from 8 days in Boston to 28 days in San Francisco. Fifty-five offices listed on the ranking report have less than ten days work while 37 have more than thirty days work on hand. Greenville has six months of writing pending, indicating a disturbingly low number of decision writers and support staff. In my office alone, over 750 cases have been decided by the ALJs, but the decisions have yet to be written due to a lack of staff to do the work. The significant imbalances in the workload and the electronic nature of our work provide opportunities for sharing resources among offices. It is our belief that this is an underutilized resource.


SSA has undertaken 37 initiatives to achieve each of the four aspects of Commissioner Astrue’s plan to eliminate the backlog. The Commissioner should be applauded for his commitment to delivering a level of service acceptable to the American public. The first of these is Compassionate Allowances, a concept that has been introduced in a variety of iterations over the years. The concept is admirable; however, we expect that this will have little impact on our pending cases.

The Commissioner also laid out a number of initiatives that are designed to Improve Performance. As already noted, there are over 191,000 cases that will age to 850 days in FY09, which means almost 33 percent of the work to be completed in FY09 will be from this very aged category and far from an acceptable processing time. Additionally, giving adjudication powers to attorney advisors has the benefit of adding to dispositions; however, it redirects the work of these very skilled attorneys from reviewing and advising ALJs on the most difficult cases and makes them unavailable for decision writing. In many instances, these employees are not replaced with others to do their original tasks and those tasks go undone or are redirected to others who are already overburdened.

The third aspect of the Commissioner’s plan is to Increase Adjudicative Capacity through Streamlined Folder Assembly, which has made additional folders available for hearings as evidenced by the 21,600 cases prepared using this method between October 2007 and April 2008. It has been expanded to the electronic folder, but this process was optional for the ALJs and requires additional review time on their part because of the “rough” nature of the preparation.

The introduction of the National Hearing Center (NHC) has the potential to greatly expand the agency’s capacity to redirect the resources where the cases are. It is our understanding that installing video centers in heavily impacted parts of the country so that the claimant can go to a video center in order to have his/her case heard by the NHC or other Hearing Office via video is the goal. We believe the potential for delivery of service with this process is huge. However, we would caution that in order to hear these cases, we still need staff to prepare, schedule and draft decisions. Without adequate staff support, the NHC will have no cases to hear.

Along the same lines, additional video equipment has the potential to expand the number of video hearings. In fact, in some impacted areas, we understand that stand alone video sites are being built that will allow assistance to be provided from around the country. However, we must not forget that without adequate staff to prepare cases, additional capacity is a moot point. Furthermore, regulations allow the claimant and their representative to opt out of the process, and our business process also allows the ALJs to opt out. The process only works when you have parties that will use it.

Increasing Efficiency with Automation and Business Processes is the fourth aspect of the Commissioner’s plan. There are a large number of initiatives under this aspect. The greatest percentage of case files are now in the electronic folder format. Although there remain many cultural and training challenges, we believe this will ultimately provide for an efficient process. Much of ODAR’s promise of increased efficiency is tied to the success of the ePulling initiative. According to the IG report, the pilot is being expanded to five hearing offices and the NHC. Rollout to additional offices is dependent on the performance of the software at the pilot locations. Minneapolis is one of those five hearing offices. We are only eight weeks into the pilot, but at this point, the process has been very time consuming and has slowed the staff down by more than 50 percent. We at FMA believe that many staffing decisions are being considered assuming the success of this initiative. We would caution that its success and ability to deliver significant numbers of folders for ALJ review anytime in the near future is overly optimistic. Successful implementation of eScheduling would certainly free up additional individuals whose services could be used to complete other tasks, including folder preparation. Given the complicated nature of the scheduling process which takes into account many schedules and many individual scheduling preferences, we believe this will be a difficult challenge.

The temporary service area realignments went a long way to adjusting some of the imbalances in the workloads. We believe that the electronic nature of our cases provides us with significant opportunities to expand this concept to individual work categories. Any office with excess writing or pulling capacity should have that capacity redirected to offices with significant backlogs. No office should be allowed to process their work in an average of under 300 days when there are 42 offices who are processing their work in 600 days at best.

The Electronic Records Express initiative also has significant promise and needs to be implemented as soon as practical. While representatives have the ability to submit records using this process, currently they do not have access to the files via a secure Web site. This requires the local office to provide CDs with the evidence and we believe results in significant duplicate submissions since they cannot confirm what evidence is on file.

Many reports are available to provide enhanced management information. Additionally, management training has been improved. These initiatives are certainly supported by FMA, as management of the workload is enhanced by trained employees and adequate tools. However, the critical issue once again is the lack of adequate staff to actually do the work. We know what needs to be done; we simply do not have enough people to do it. Furthermore, management is not allowed to hold employees accountable for production standards, making ongoing performance measures a challenge.

Ultimately, this is a numbers game. Should Congress define what it considers to be an adequate level of service, we believe the agency can define what we need to get there. None of the initiatives outlined above, whether alone or combined, is the silver bullet that will eliminate the backlog. We either have to slow the cases from coming in at the front end which would require significant changes in legislation, or we have to provide more capacity on the back end. The challenge is yours.


To enable SSA to meet the goals set forth in Commissioner Astrue’s four-pronged approach to eliminating the backlog, Congress must approve a sufficient level of funding for the agency. The Continuing Resolution (CR) signed into law in March 2007 was severely inadequate to address both the staffing and backlog problem at SSA for fiscal year 2007, despite the meager increase SSA received above the fiscal year 2006 appropriation. Between 2001 and 2007, Congress has appropriated, on average, $180 million less than the President has requested each year. The value of this differential is equivalent to processing an additional 177,000 initial claims and 454,000 hearings. In the ten years prior to fiscal year 2008, Congress has appropriated nearly $1.3 billion less than the President’s request. Without a doubt, this has had a devastating effect on the services provided to the American public, as evidenced by the situation we are in today.

Recognizing the needs of SSA, Congress appropriated $150 million above the President’s request for FY08 in an effort to bring down the backlog. Congress should be applauded for their commitment to serving the American people in this capacity. In fact, it is this increase which is allowing the agency to hire the additional 189 ALJs.

The President requested $10.327 billion for SSA’s administrative expenses in FY09, only $100 million below Commissioner Astrue’s request and six percent more than Congress appropriated this fiscal year. Furthermore, the House Budget Resolution (H.Con.Res. 312) recommended an additional $240 million for SSA’s administrative expenses. Ultimately, the House Labor/HHS/Education Appropriations Subcommittee allocated $100 million over the President’s budget for SSA’s salaries and expenses, while the Senate Appropriations Committee approved only $50 million above the President’s request. We applaud these efforts.

To remedy the unprecedented backlog situation, Congress should at a minimum pass the President’s 2009 budget request of $10.327 billion for SSA’s Limitation on Administrative Expenses account. Under his budget, the agency would be able to process 85,000 more hearings in FY09 than in FY08. In FY06 and FY07, SSA replaced one worker for every three that retired. The President’s budget will allow for a 1 to 1 replacement ratio. While this will not allow us to eliminate the backlog immediately, we will be able to make significant strides to reducing it. However, as the 110th Congress draws to a close and speculation over a long-term CR begins, we are once again faced with a situation where we will be forced to take a step back, instead of moving forward.

In addition to having an immediate impact on the current backlog, underfunding the Social Security Administration will negatively impact every service area of the agency. Staffing at SSA will soon reach its lowest level since 1972; however, SSA today has nearly twice the number of beneficiaries it had in 1972. SSA officials estimate that more than 40 percent of its 65,000 employees will retire by 2014. Reversing this trend is a necessary step to reducing the backlog.


While the President’s budget request for FY09 is a start, it is certainly not a cure all solution. Throwing money at the problem will not fully solve it without a well-trained, dedicated staff of federal employees willing to avert a crisis in the coming years. We believe this is the workforce we have now, strengthened under the leadership of former-Commissioner Barnhart and Commissioner Astrue. By fully funding the President’s request, we can continue this tradition.

In this era of shrinking budgets, SSA has attempted to maximize its use of scarce resources to provide the best possible service to the American public. The challenges faced by the managers and supervisors are not short term; they are a demographic reality. The same citizens putting stress on the Social Security trust fund because they are approaching retirement are also entering their most disability-prone years. ODAR is struggling to handle the current workload and will be hard pressed to manage the anticipated increase in hearing requests without additional staff.

We are the men and women who work with disabled Americans everyday. We see people of all ages come in and out of our offices seeking the services they depend on for survival from the Social Security Administration. We are committed to serving a community of Americans in need, but we need you to provide us with the necessary resources to help them. Thank you for your time and consideration of our views and I am happy to answer any questions you may have.