Terrie Gruber was recently appointed to head Social Security's Office of Disability Adjudication and Review (ODAR). The agency's Administrative Law Judges (ALJs) work at ODAR. Gruber spoke today at the National Organization of Social Security Claimants Representatives (NOSSCR) conference in Denver. I am not attending this conference but I'm told by someone who is attending that Gruber told those attending the NOSSCR meeting that ODAR would begin to reduce its hearing backlog in Fiscal Year (FY) 2017 which begins on October 1, 2016. She thought the agency could eliminate the hearing backlog by FY 2020. She said "We can't hire our way out of this."
First, ODAR could definitely hire its way out of the backlog if it were given enough money. It's just that there's no prospect of this happening. Second, it would be a big step forward if ODAR could just keep the backlog from growing in the current FY. I don't know how likely this is. ODAR would need a lot of money for overtime and it would need permission to aggressively use the Senior Attorney program and to encourage ALJs to issue on the record reversals. They would also need the cooperation of other components of the agency for a strong re-recon program. I'm not going to explain Senior Attorney, re-recon and on the record reversals here. Let's just say that these are ways of diverting strong cases for special reviews which can result in the strongest claims being approved quickly. To do this, the agency will have to get over its fear of being accused of paying down the backlog. Gruber has said things to the Washington Post indicating the agency is getting past this concern but we'll have to see what actually happens on the ground. Finally, talk of eliminating the backlog by 2020 is almost pathetic. I'm sure that there's plenty of desire to do so. Given the means, I'm sure the agency will do so. It's just that achieving this goal will take plenty of hiring which takes money and no one can fully predict the agency's operating budget for the current FY much less its operating budget for FY 2020.
ReplyDeleteThe article refers to OIG’s September 2015 report on SSA that found “four lingering reasons: The number of requests for hearings has increased, the federal judges who hear appeals have become less productive, there are fewer attorneys on staff who could decide cases without going through the lengthy hearing process and fewer judges overall.”
Gruber says her goal is to get to a 270-day wait by fiscal 2020, which she defines as eliminating the backlog. Wow, she set the bar low. Sklar would not have considered that eliminating the backlog.
So few understand that OIG report (or SSA's staffing).However, here is a suggestion from one who read it. Cut the AC in half, put those attorneys (or whoever is occupying a desk and allegedly reviewing cases) under ODAR, assign them to ALJs and have them do some accountable work. Long gone are the days when senior attorneys were utilized or the AC accountable. The ALJs are taking heat here also from a Congress who is spending millions on fantasy fraud land which will make no real difference, while like millions are waiting for hearing. There is so much ignorance out there that it will take someone, maybe Sanders, to develop a vision for a reasonable time frame and a disciplined agency. It’s depressing.
The AC is already under ODAR. Otherwise, agree that the AC is essentially not worth the money it is costing the taxpayers to operate. But isn't the same true for the ALJs? Public policy makers and experts have been concerned for years that maintaining a system requiring thousands of SSA ALJs (at about $200k a year each when factoring in benefits) is unsustainable. The value they provide simply does not offset their cost.
ReplyDeleteRecent unconfirmed info from fairly reliable sources is that rehired annuitant administrative appeals judges are pulling in over $20,000 a month between their pensions and their salaries for part-time work in the AC. That's about $65000 more than what a member of Congress earns, right? Because this is public money, verification should be available through the FOIA. Sweet deals reserved for the favored few are discouraging to the majority rank and file, who get treated like pieces of AC "data."
The AC is just fundamentally inefficient, and the services it provides are not even legally required under the Act -so you're right that the AC employees could be better utilized elsewhere to help implement the Act more efficiently -- but what do you do about the ones with a financial and professional interest in maintaining the status quo in order to keep their power and position?
I'm no fan of the ac but the agency needs a check against inconsistent alj decisions. Without ac review you'd have even more chaos in terms of outlier judges, disparate findings on adjacent periods of alleged disability, you name it. We cannot let the federal courts bring odar in line because they are just as inconsistent.
ReplyDeleteThe AC is just as open to stilted and erroneous interpretations of the law as the next guy. Like it or not the law recognized that with the passage of the Administrative Procedures Act, which as the Supreme Court has noted was modeled on SSA's appeals process and its quasi-independent hearing process. The black box review that is the Appeals Council is not the answer. Warts and all, the ALJ hearing protects a claimat's right to due process
ReplyDeleteGruber should take note. As someone who has worked both for SSA and then, as a claimant representative for decades, I have more disdain for the AC than any other component.
ReplyDeleteThe AC is no "check" at 15% remand rates. They are too "busy" to explain why they take no action on appeals. When SSA essentially prevented SSI claimants appeal rights it was to protect, the AC. Subsequently, thousands of subsequent SSI claimants lost the right to file a new initial claim while proffering an appeal. Why? Because the AC was too busy. Doing what, well they don’t have to explain their production so we don’t know.
At least ALJs are required to proffer a decision. Not so, with the garbage received after waiting a year for an AC appeal. I have been representing claimants for many years, most ALJs work hard. The outlier ALJs are obvious frauds who have failed to provide the duty they took an oath to uphold - fair and unbiased decisions. Some outliers are past their due date. However, as a group they are far more responsible that the AC.
What do you do about the AC bureaucrats with a financial and professional interest in maintaining the status quo in order to keep their power and position? You speak truth to ignorance. You educate your congressional representatives, claimants and friends. In addition, you hold SSA accountable. Let your congressional representative know that dissolving the AC, transferring that entire staff to assist in hearings, would completely reduce the backlog in one year. I sent that very note, with OIG references and references from this site, to my congressional representative months ago. Otherwise, there will be the same posts on this site year after year. Claimants will be denied due process and taxpayers required to foot the bill for an unaccountable and unnecessary star chamber. There is no reason one component should be allowed to remain unchecked in its incompetency.
No one here is defending the AC's ridiculous wait times or ineffectiveness. But these problems do not prove there's a fundamental flaw in the idea of an AC itself, given their huge lack of funding. That's like saying the long wait time for a hearing means we should get rid of ALJs and hire tons of cheaper examiners instead. The last post about not tolerating an unchecked, incompetent component applies as much to the ALJs as to the AC.
ReplyDeleteMost people lose sight that the backlog and the average wait time are different even though they are related. It'd be irrelevant that the backlog is 1 million deep if everyone gets their due process hearing and final AC review in a few weeks rather than a few years, right?
Aljs have been asked to adjudicate 500 cases a year ( I am not an ALJ). AC has no accountable standard. ALJs on average allow 40- 50% of cases. The AC dismisses 85% of cases. And where in the world does the lack of funding statement come from about the AC. With their lack of statistical relevance, I would argue any funding is excessive. But they have not had a lack of funding, ever that I can recall.
ReplyDeleteAre you saying the AC is properly funded when they routinely turn around review requests a year later? I don't know, I'm genuinely interested to hear your opinion.
ReplyDeleteFor those slamming ALJ's, do you really want the DDS as the first and final decision maker?? They are fast, right? Go ahead, go for it. I dare you.
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