From a recent report by Social Security's Office of Inspector General (OIG) on the agency's National Hearing Centers (NHCs):
During FYs [Fiscal Years] 2010 and 2011, ODAR’s [Office of Disability Adjudication and Review] 5 NHCs processed more than 56,000 hearings to assist backlogged hearing offices with older cases. The Chicago Region transferred the highest number of cases during this period, about 50 percent of all cases the NHCs received. These transfers allowed the Chicago Region to address case backlogs while new hearing offices were being constructed to permanently address workload needs. We found the ALJs [Administrative Law Judges] working in the NHCs had a higher than average disposition rate that may have related to such factors as (1) a higher decision writer-to-ALJ ratio, (2) how attorneys are supervised, (3) the lack of travel to remote sites, (4) useful pre-hearing briefs, and (5) the processing of NHC remands at the hearing office level. However, the NHCs identified a number of challenges that may limit the effectiveness of the NHC model, including (1) availability of video capacity, (2) difficulties scheduling experts, and (3) claimants declining video hearings. The assisted hearing offices we contacted stated case transfers to the NHCs led to fewer pending cases and improved processing times. The hearing offices also had a few concerns, including their processing of NHC remands as well as the extra work related to declined video hearings.
The OIG report does not try to evaluate the NHCs versus their alternative, which would have been adding ALJs to traditional hearing offices where office space was available and using the excess capacity to help out backlogged offices.
Also of interest is a statement that Social Security is considering having NHC ALJs travel to hearing sites to hold hearings for claimants who decline video hearings. I suppose that Social Security may be re-evaluating this since they are no longer advising claimants of which ALJ will hold the hearing. There is also a statement that since January 3, 2012 remands from a NHC ALJ decision will be sent back to the NHC ALJ rather than being assigned to an ALJ at the ODAR office with jurisdiction over the area.
By the way, Social Security doesn't even know how many claimants are declining video hearings with NHC ALJs. From what I hear from other attorneys, I think that number has gone up dramatically since Social Security started withholding the identity of the ALJ until the day of the hearing.
I, for one, never declined a video hearing in the past, especially when I knew the ALJ's name and could check his/her stats. Now that it's a crap shoot, I think I'll advise all my clients to decline the video hearing and wait for their local office to take over. The lack of an NHC ALJ to really see my client and interact with them personally is a big enough detriment, but to add in the uncertainty of the ALJ on top is too much. Not to mention that in my experience the NHCs have wildly varying pay rates among ALJs.
ReplyDeleteWhen enough reps do that, it will be only a matter of time before video hearings will be deemed by law to satisfy a request for a "face to face" hearing. It already works way in the FS (SNAP) program, TANF, and Medicaid, and when challenged, it will ultimately not be seen as a procedural due process violation under the Matthews test.
ReplyDeleteI don't think filling vacancies at hearing offices can keep up with the pace of hearings. The reason is ALJs find some locations more desirable than others (big surprise). Just read the ALJ forums and you will see people already planning their exit strategies and transfers before even getting hired. I am not saying I agree with the policy but expanding the NHCs is the only way to quickly meet the surging demand. Of course the key to their effectiveness is resolving the legality of requiring video hearings when too many claimants opt out.
ReplyDeleteHello. I work for the SSA OIG. The link to the report you have is incorrect. Could you please change it to http://oig.ssa.gov/audits-and-investigations/audit-reports/A-12-11-11147. Thank you very much.
ReplyDeleteOne wrote, "The lack of an NHC ALJ to really see my client and interact with them personally is a big enough detriment [...." Really? We don't "see" them when holding VTC hearings?! What are we supposed to "see"? Interacting with the clt and his/her rep via VTC is not "personal"? So, how personal should we get? Should we need to all meet at a local bar, have a drink, and "discuss" the claimant's disability issues? Will the claimants' bar ever realize that decisions are made (or should be made) based on all of the evidence (objective - medical and other record) and subjective (testimony of the claimant, lay witnesses, and experts) and not on how a person looks like (whatever that means), walks in or out, cries, displays aches and pains, etc, etc. - and all that makes no difference (or should not make a difference) whatsover whether s/he appears via VTC or physically in the same room with the judge. One can truly hope the agency will abolish a "right" to object to a VTC hearing, courts will back that up, and eventually, maybe 10-15 years from now, have exclusively VTC hearings. Technology goes forward and ones who can't or don't want to keep up will stay behind or get out the way. This applies to judges and reps alike.
ReplyDeleteWhat the claimant looks like, how he/she walks, sits, stands, squirms, should not matter, but it absolutely does. I have seen ALJs discussing in decisions how the claimant looked, e.g., the claimant's apparent lack of discomfort at the hearing was given weight when reaching an adverse conclusion regarding the claimant's credibility. An ALJ at a video hearing often does not see the claimant enter or leave the room, so they don't get to see the claimant limping to a chair or getting up painfully after sitting a bit. They can't see someone's leg or hands shaking due to severe anxiety or maybe a neurological condition. Too much gets missed in videos. In an ideal world, ALJs would not take into account what someone looks like in certain cases, but right now they definitely do, and if they are going to do that, the in-person hearing allows for the most comprehensive viewing and evaluation of the claimant.
ReplyDeleteAnon 8:34, this is Anon One here. You're missing one huge detail that I thought was obvious but clearly wasn't: EYE CONTACT. I believe that an ALJ should always be able to look a claimant right in the eyes. Eyes don't lie even when claimants do. Anybody who thinks they can look into a claimant's eyes through a VTC hearing is a bald-faced liar. And for my money, every single NHC ALJ I've ever had has never even bothered to look up from their notes when questioning claimants. I know you guys see lots of claimants, I get that, but they're more than just numbers and tests. They are real people who wait 2 years to get a reasonable decision on their claim and then the TV judge who hears their case (literally) can't even bother to look at them? And even if he/she did, they couldn't even look them in the eyes.
ReplyDeleteTHAT is why I find VTCs....difficult.
There seems to be only anecdotal evidence that attorneys decline a video hearing and choose an in person hearing because of a denial oriented judge. There were 56000 decisions and 1000 declinations-this seems to be occurring less than 2 % of the time. Seems like an over reaction to withhold the names of all judges in all ODARS based on this.
ReplyDelete@8:34.. I wish I knew your name so I could refuse to appear before you.
ReplyDelete9:45 is right on.
Paper doesn't tell the whole story and video doesn't help much.