The Springfield, Ohio News-Sun is running a piece on Social Security's horrendous hearing backlog. It's always good to see these pieces but they seldom contain any information that's not already well known to regular readers of this blog. Here's a few nuggets of news from this piece:
Judge Marilyn Zahm, the [Administrative Law Judge] association’s president, said each case is a very labor intensive process ...
Zahm said the size of the case files has exploded in recent years, particularly as new regulations have been added. As a result, up to 30 percent of the files now contain more than 1,000 pages of medical evidence, she said.
“Do you have any idea how long it takes to review 1,000 pages of medical evidence?” said Zahm. “We are the only adjudicatory body that I’m aware of that allows such loose requirements for representatives.”
A work analysis study commissioned by the Association of Administrative Law Judges in 2014 found it would take a judge more than seven hours to process and render a legally sufficient decision on a case containing 652 pages, the national average for that year.
But with an expected quota of at least 500 dispositions a year, a judge would have available only 2.5 hours per case, the study found. ...I doubt that the rapid increase in the size of Social Security disability claim files registers with Social Security management. They never look at these files. It's all very abstract to them. The increasing file size matters. It takes more Administrative Law Judge (ALJ) time and it takes more time for those of us who represent Social Security disability claimants. ALJ productivity standards need to be adjusted. The fees paid to those who represent Social Security disability claimants need to be adjusted.
32 comments:
The increase in number of papers of medical evidence is due to two reasons, in my opinion. One, the expansion of Medicaid (Obamacare) has allowed more people to see a doctors and present evidence for a disability claim. Two, the "submit everything" requirement is causing attorneys to, well, submit everything. For example, prior to this rule, when we received a large stack of records from a client's hospital visit, we'd parse through the records and only submit the records that we knew were actually relevant: generally intake, discharge, and objective testings. Now, we'll just submit the entire stack of records because we don't want to be accused of withholding evidence, even though half of the records submitted have no relevance in the claim.
We were recently advised of a new "1000 page initiative" at ODAR which allows an ALJ to send out a file containing more than 1000 pages of evidence to have a summary sent back to them, sparing them of the necessity to actually read the file.
Just another indication that all SSA cares about is quantity and not quality.
Definitely an inaccurate characterization of the 1000+ page initiative - summarization of the file includes highlights to opinion evidence and particular objective medical findings, as well work history and other factors of note. Doesn't replace file review, but is a supplement which can help expedite it.
I also disagree with the "30 percent now contain more than 1000 pages of medical evidence" - while the number is increasing, it is definitely no where close to 30 percent. This is also tied to an increasing number of doctors using computer software, many of which have a significant number of "filler" pages, but are still significantly faster (IMO)to review than the handwritten scribble of days of old. The tie to the rep's new submission requirements may effect some files, but a lot of reps were submitting everything they received in the past anyways, so I think that is a small percentage of the change. As more and more people obtain insurance under the Affordable Care Act, I do think that will increase file size going forward (don't know if we've really seen the effects of that in the hearing office yet), but it also hopefully will prevent some claims from getting here, as people will have access to the care they need to remain part of the workforce.
I would agree that the all evidence rule has been the major reason for increasing file sizes. Most commonly sought treatment providers (Kaiser, Sutter, VA, etc.) document their patients' records in such a way that even a single follow-up visit is going to generate a dozen pages of "evidence" where only 1 or 2 pages are actually going to be relevant to the judge's consideration (e.g. showing objective/clinical findings, providing diagnoses, or giving a discussion of objective tests/reports).
That said, in my practice we also submit everything regardless. I only redact duplicates when given explicit instructions by the ALJ ON-RECORD in order to protect the claim, because judge's are fond of complaining about dupes but less willing to intervene when a rep gets investigated by OIG or a claim is remanded by AC.
Now, the "1000 page initiative" is definitely going strong here for my clients in the Bay Area. Most judges won't even have reviewed the file at all -- just read off a cheat sheet typed up by some overworked Attorney Adviser or chump from DDS. They do the same for questions during the hearing. And it's funny when I cite to the record something major, like a surgery, or a recent MRI, or some tender point testing, and they need to take 30 minutes to figure out where it is/what I'm talking about. Because their cheat sheet is about as useful as a fish on a bicycle. It's a damn shame.
Our State Bar requires attorneys to store closed files for at least 6 years after the last client contact. I've noticed a tremendous thickening of the files in the last 7-9 years.
All of the previous comments are correct as to some of the factors involved in increasing the file size. In my office, I KNOW what the biggest factor has been--the increased waiting time for hearings. These days, I'm less likely to represent claimants who lack sufficient resources to obtain medical treatment or who lack access to charity care clinics which provide at least SOME medical treatment. Now that it's going to be 2 1/2 to 3 years (or even more) from the time the claimant applies to the time of the claimant's ODAR hearing, my clients who have access to medical care are receiving more treatment in the elapsed time. Warning: The files are going to get thicker as waiting times increase.
Another factor for my clients' files being thicker is that, in today's ODAR environment of denial, I'm more selective as to the SEVERITY OF IMPAIRMENTS suffered by potential clients. Thus, there are more records from more specialists than from family practitioners. With the ACA requirements for physicians to give access to other practitioners, the same MRIs, CT scans, and lab results are now seen in several accumulated records.
I also KNOW that the "submit everything" requirement has had a big influence. As the hospitals and clinics have outsourced the copying of medical records, these copy services pay their employees by the number of copies made, so the inflated records which we receive is half garbage such as the patient's property inventory and pages and pages of nurses' notes, etc. that lack relevance (this is despite the records request which requests only the "abstract." I had previously culled these extraneous records out of the files before submission to ODAR.
However, coupled with the "submit everything" rule is the distrustful attitude of the new ALJs who don't recognize that ethical and professional advocates submit all relevant information, even if it does not strengthen the case and then deal openly with it. These ALJs are turning the hearings into truly adversarial contests. While the ethical offenses of the "mills" have gotten a lot of attention, I and most of my colleagues have always respected the office of judges before whom we've appeared. If an ALJ treats me as a respected professional colleague, I'll knock myself out to make the ALJ's job as easy as possible. But, if a given ALJ treats me with suspicion or talks down to me as if I'm attempting to hoodwink him/her, then that ALJ gets the entire blob of paper to examine, and he/she can see that I'm submitting everything. I used to remove the duplicate lab results and imaging reports to which I've referred above, but some of these ALJs have noticed "missing pages" from the page sequence of the copy service, so they will also see the same MRI 5 times in various records.
10:38 AM said: "Definitely an inaccurate characterization of the 1000+ page initiative - summarization of the file includes highlights to opinion evidence and particular objective medical findings, as well work history and other factors of note. Doesn't replace file review, but is a supplement which can help expedite it."
While the 1000 page initiative my be purported to serve the function you describe, the reality is that it being used by ALJs as a replacement for reviewing files. The situation ZJE describes of ALJs simply working from a cheat sheet is becoming more an more common, particularly with low paying ALJs who truly could care less what is happening in a claim. They ask the same set of questions in every single claim, act surprised when a claimant provides any type of information regarding treatment, procedures, etc., and then pose the DDS RFC as the only hypo to the VE.
"Do you have any idea how long it takes to review 1,000 pages of medical evidence?” said Zahm. “We are the only adjudicatory body that I’m aware of that allows such loose requirements for representatives."
Wait, what? Medical records are longer, so who let all these representatives in the building? What is the connection between "loose requirements for representatives" and 1000 page cases? Cases are long because of agency overreaction and one-size-fits-all policies that fit nobody but somehow placate the bureaucrats.
I like how the association commissioned a study that shows that ALJs are not doing their jobs. This foolishness would make for a good episode of the Simpsons. If it really takes that long, then do your actual job and decide fewer cases.
The agency was really onto something by hiring younger judges with a proven record of unquestioning allegiance to do as they are told, even when they know it is not right. Judges who will play ball if they want to move up the ladder. Judges that depend on the income and know they are worth less in the private sector. Older judges are too hard to manipulate and control.
"The agency was really onto something by hiring younger judges with a proven record of unquestioning allegiance to do as they are told, even when they know it is not right. Judges who will play ball if they want to move up the ladder. Judges that depend on the income and know they are worth less in the private sector."
Bravo.
Completely agree with 4:22. There shouldn't really be much doubt that the explosion in pages is due to
1. Electronic record keeping and
2. SSA's prohibition on attorneys reducing medical records to workable, relevant evidentiary exhibits.
Judge Zahm (believed to be honorary title because she doesn't actually hear cases)also employs her typical unassailable logic in attributing the problem to claimant representatives. She is a bad joke.
Wonder if this takes into account how much the writer of an ALJ decision takes to write a decision.
Assume the ALJ reads some of the record. But I also assume ALJ hands off the detailed analysis of the record to a writer. They pretty much do all the work for the ALJs outside of conducting the hearing.
I redact NOTHING. Everything I have goes in. If an ALJ asks me to cull, I respectfully him or her that they don't have the authority to make a request for me to violate the Regs
This is spot on! So very true!
@ Matt
Don't the rules allow the adjudicator to expressly permit things not to be submitted? I never interpreted the all evidence rules as precluding that.
Re: the 1000 page rule. It assumes that aljs were actually reading the record, which may not be a reasonable assumption. As one commentator mentioned, if you make a reference to the record, and it takes an alj 30 minutes to find it, the logical conclusion is that the alj did not read the record and instead arrived at the hearing totally unprepared. How common is that?
8:30 PM,
Yes, the adjudicator can ask the representative to refrain from submitting certain evidence. The amended regulation actually states that evidence should be submitted in its entirety "unless you previously submitted the same evidence to us or we instruct you otherwise." The final rule notice in the Federal Register discusses this point. When representatives insist that the new regulations prevent them from weeding out duplicative evidence, they're just being passive-aggressive and, in many cases, probably haven't even bothered to read the fine print.
There may be some truth in what 10:56 says. I will do everything I can to work with a fair ALJ including a brief with cited exhibits and all medical in and developed 2 weeks before a hearing. I have had ALJs from ODARs around the country thank me for my briefs and development in the last 10 years.
As for the 85% plus outlier denial ALJs, I have no respect for them because they have abandoned their charge. These ALJs are going to deny the case anyway. Let them cull through and connect the dots then distort the facts. I also will raise appropriate hearing objections, request CEs, aggressively cross exam, make sure I have at least one witness, request post hearing briefs - basically do whatever I can to make it harder for these individuals to deny cases that are allowances. And I do this using the fine print in the regulations. These outliers don't deserve a cake walk. If that is passive aggressive, so be it.
The 1000 page initiative is a good idea in theory. In practice however, we still have to review the record. We do not know the senior attorney who prepared the summary and do not know the quality of work he/she performs. I cannot speak for other judges but I have found the summaries to be helpful but I still review the files completely and find much information that the senior attorney missed in the review. The summary probably decreases the time for my file review by 15-20 minutes. File review is the most important part of an ALJ's job and it cannot be short-cut by any SSA executive's pet project of the week.
“We are the only adjudicatory body that I’m aware of that allows such loose requirements for representatives." We allow your Mom or Aunt to be your Rep. I don't care how many pages of medical evidence there is, as long as I get a "GOOD" brief before the hearing. I don't mean listing the impairments and then stating, obviously this meets 1.04. I have never found a claimant's condition to meet a listing with a statement like that. There are preambles to each listing and Rep's should read them before making such stupid claims. I mean a brief that says the claimant is limited to less than 2 hours walking based upon Dr. Smith's medical records date 3/27/2014 at Ex. 3F, pp. 63. If you can't find limitations in the record that document and support the claimant's disability, why do you expect me to? You come in with a smoking gun and some relationship to the AOD or amend it, you will win. It's not rocket science people.
So a properly Exhibited file, done in house by SSA would make things better for everyone. Yet the EF looks like a trash bin. SSA quick to point the finger, but if they did the work they are paid to do this issue would resolve itself.
And I offer that if the Rep's did their job and prepared proper brief's it would resolve itself!!
The brief topic has been beaten to death. I could retire if I had $5 for every time I have had an ALJ say, "I would have approved this if there was a brief" and then it is pointed out that it is in the EF.
Sorry son, that dog wont hunt.
I would prefer to present my client's claim at a hearing before a low paying ALJ (which more and more are becoming) without having submitted a brief. Why should I give the ALJ a road map for finding a way to manipulate my client at a hearing so he can deny the claim. I'd rather he be unfamiliar with the file. I can go about putting on my case, making my record for the eventual appeal to follow, and force the ALJ to deal with the issues by way of the decision, without having the luxury of being prepared at the hearing to work toward a denial.
Example, if I have a treating source opinion that is work preclusive, why point it out to the ALJ pre-hearing? They will only seek to manipulate the claimant's testimony to support not giving this opinion controlling weight. Where you there when Dr X completed the form?, Did Dr. X ask you how much you could lift, etc?
I will just present the opinion as a hypo to the VE. Frequently I find that the ALJ will ask what the basis for my hypo is. When I point out the TS opinion, they are surprised, and have already completed the examination of the claimant at that point.
These comments are among the best I have read in a while.
unfortunately they also reveal the hostility that has developed between the reps and the ALJs mainly because of outside pressure. I miss the days when there was respect between the bar and the bench and the goal was to get to the truth and approve deserving claims and follow the regs. Now most ALJs see the whole thing as a game or a show and they care more about the script than the truth. When they can deny a case that has three medical source statements directing approval and two consultive exams that are favorable to the claimant then we know which side is following the regulations. its almost time to replace the whole system with a roulette wheel.
@5:55 is right on! I've been practicing for 26 years. After my first few years, I began to be able to predict with about 85% reliability which cases would be strong and which would be weak--with almost any ALJ except a few "outliers" at both extremes. Until about 2012, my annual win rate was 90% +/- 5%. Increasingly since 2012, I have absolutely NO IDEA as to what is now a "good" case and a "bad" case--there is NO CONSISTENCY within the system or EVEN WITH THE SAME ALJs, except that almost all cases will be denied by certain ALJs despite any evidence presented. I now have to tell clients that the BIGGEST SINGLE FACTOR--even more so than what is in the medical records--is the bias of the ALJ before whom they will appear.
The commenting Agency employees who assail attorneys and older ALJs in this blog don't appreciate the fact that practicing attorneys quickly become astute as to what cases are "good" or "bad," especially when one wins or loses in a contingent fee system. Years ago, I also did criminal, family law, and civil cases in state and federal courts. Any capable trial attorney quickly learns to "read" judges and to give them what they want so the client will "win" the case. Despite what the SSRs and Listings say, there is presently NO judicial standard that attorneys can use to prepare "winning" cases. To use an old military term, the system is completely FUBAR!
If cases were approved earlier in the process the judge's case loads would not be so big. So much of the process is counter productive and creates the backlog.
6:37 PM,
What if we just did away with DDS and ALJs, and used the Function Report as the RFC assessment? It would basically be a one-step evaluation based entirely on the honor system.
Appeals council is denying claims as fast as they can to get the numbers down.
Why don't we just let the claimants approve their own claims? I mean according to most comments on here, no one applies for disability if they can work. There's no fraud and no malingering. Am I missing something?
It is true, as one person stated, that "If cases were approved earlier in the process the judge's case loads would not be so big." But rep/attorney fees would not be so big either.
So aljs and reps - they're all heavily invested in keeping the top-heavy alj system going. If cases were correctly approved early in the process, how would reps and aljs earn a living? Their very livelihood depends on all the mistakes made earlier in the process.
Meanwhile, ODAR backlogs accrue, claimants wait, the ODAR operating budget hemorrhages money and ODAR cries poor mouth to Congress and tries to do whatever it thinks Congress wants it to do with the hope of getting more money to hire more aljs, and on and on and on...
The system in general is dysfunctional at all levels. DDS ALJS Appeals Council and even Field Offices have been markedly hostile in recent years. DDS are better trained than ALJs. DDS meets and equals medical listings, but they still deny more than in past years. Most ALJs don't even schedule MEs anymore (when’s the last time an ALJ allowed a case meeting a listing?). ALJS as a rule are still trying to do their jobs, but the outliers have destroyed the profession. And the Appeals Council has taken the last safety net away. THAT component is the most responsible for crashing the system in my opinion and I have been on both sides as a SSA employee and a Claimant Representative for decades. The AC allows all the bias below to prevail with no consequences. Nothing’s been done because the Commissioner has no incentive and little understanding. Congress, led by Republicans has taken one corrupt ALJ and Representative and started a war against claimants and their representatives. The public doesn't understand SSA Disability nuances, much less care. It will take a hands on Commissioner, perhaps even President to turn this around. A Process Unification scenario and diminished hostility all around is what's needed.
In the meantime, I am winning 70% instead of 90%. I also take initial and Reconsideration claims as many of these folks have been out of work a year before they seek a representative. You can achieve a fully favorable allowance on those cases. A claimant who has been out of work for a year applies and is allowed in 5 months. That is 17 months or 12 months of back pay. Reconsideration obviously increases the fees also. And a representative does not need all allowances to be 6K. While ALJs are more a roll of the dice these days, the majority are not outliers and a strong case presented well is still viable. I refuse to give up on this profession, regularly write my congressman and read this blog and others. The pendulum will swing back to a more neutral position, but it will take time.
Apparently, I missed some of the fun that continued on...
@9:44 AM: 70% is pretty good depending on your region! I really feel bad for my the reps in Texas, Oklahoma, and Arkansas. Or the ones in Appalachia where many claimants can't even get treatment. Still, I find DDS to be FAR and ahead less well trained than even the worst ALJs. DDS can't even get a nonmechanical application of the grids right. Whereas I have regularly seen ALJs in Oakland, San Jose, San Rafael, San Francisco, Sacramento, Fresno, Billings, SLC, and even Dallas grant a case where the ME gives a listing. (In the rare case that you get a decent ME who provides one. Typically, I find ME's assigned more often when the file is extremely thick or the impairments uncommon, like my PCV clients.)
@11:37 PM I can't speak to the judge's motivations but it certainly isn't to delay cases -- it seems mostly to be to DENY cases. As for us reps, we absolutely have no desire to delay cases. Standard fee agreements include a fee petition with a rider for a fee paid out in a different amount if the claim does not result in back-due benefits. Even then, there will still be back pay for most cases since onset is always after application date and even a smooth administrative process takes enough time to get a fee from. But, more importantly, where do you get this kind of craziness from? Reps are among THE ONLY ONES leading the charge against the corruption of these cases. For my practice, I'd LOVE to have cases paid sooner. I can then pump out a volume practice much easier, work my staff less harshly, and have my clients suffering less from the extreme wait time they go through only getting sicker, poorer, and more unhappy.
@9:13 AM Are you trolling? As someone said above, the brief issue has been beaten to death. Judges either don't read them, use them to deny a case, or were going to grant/deny already without it. I do briefs as a matter of course only to have all my objections and issues in writing in case the judge refuses to let me do my job. As far as objective evidence: what do you with a fibro case then? Are you like the 80% of other judges that ignore 12-2p and say, where's the objective evidence of fibro? Or obesity making impairments worse than they might otherwise be as in 02-1p? Or what about claimants that can't get good treatment or even any treatment but the regs say you shouldn't discount their cred just because of that? Or that the treating doctor deserves more weight even in the absence of specific findings related to a certain limitation under HALLEX, SSR, and CFR? I can't speak to what cases you adjudicate but ask any rep who's been practicing for more than a few years and you'll have a significant number of cases that have been appealed because the judge refused to accept the evidence on its face or the requirements of the regulations. Sorry, but it really seems like you're trolling.
what about the ALJ Forum? If that's representative of the caliber of people attracted to the job, no wonder the system is a mess! They seem for the most part silly, shallow, and insecure. Others sound smugly self satisfied --and why not - they get to feed from the government trough. Who would want his or her life held in the balance by one of them. Kudos to the reps for their commitment to claimants.
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