The most recent issue of the newsletter of the National Organization of Social Security Claimants Representatives (NOSSCR), which is not available online, has an article prepared by Social Security's Office of Appellate Operations Staff on the exception process at the Appeals Council. Generally, a claimant may not file a new claim for disability benefits while an old claim is pending at the Appeals Council. However, there is an exception process where there is evidence of a new critical or disabling condition. Here's a table from the article showing just how infrequently the agency finds grounds for an exception:
Does it seem outrageous to you that any claimant could file a new claim while an old one is pending at the Appeals Council? What do you think about the fact that the Appeals Council sits on most cases for well over a year and often over a year and a half yet denies review something like 80% of the time? It almost seems like the delay is intentional, just to make taking a case to the United States District Court less appealing. Whether it's intentional or not, that's the effect. I don't think that's appropriate.
24 comments:
You can't file a new claim unless you meet certain exceptions. For example, you would have to claim a condition different than what you have already claimed to file a new application.
SSA floated this scheme in 2011 due to an increase in claims. In 2012 claims fell 2.62%. Subsequently claims have decreased every year. By the end of 2015 claims continued to decline falling to 2.95%, https://www.ssa.gov/oact/STATS/dibStat.html).
As claims have fallen, denial for review has increased. Not surprisingly, Appeals Council Staff have increased. With a 20% remand rate, their work is statistically meaningless. They remain accountable to no one.
The implicit reason for disenfranchising thousands of applicants (the majority poor, SSI claimants) annually has diminished. But as with most things at the Appeals Council; numbers don’t matter. Feeding the bureaucracy with less work and more adversarial hubris is the result, if not the goal. Inappropriate? Yes, and shameful.
@10:15 AM,
BRAVO! From the 30+ year Senior Attorney who has also made the same observations.
The Appeals Council is a disaster, thanks to the current leadership. They have built a huge empire on sand while the rest of the appeals process (i.e., hearings) struggles. The request for review is unnecessary, particularly since there is another review (albeit not on the books) that takes place when a court case is filed called the request for voluntary remand process. Every case is looked at before the agency goes forward to defend. In essence it does exactly what the request for review does. So why does the process need a request for review?
Posner threatened to Sanction SSA for their constant ignoring of the law. It would be nice to see that happen.
Posner is the only one who is knowledgeable enough to sanction. His oral hearings and written critical decisions are a thing of beauty. He can hardly maintain himself when SSA attorneys attempt to defend the actions of ALJs (and the AC/DC who should have remanded crap when it is crap). Can't help but think if Astrue was still big dog, he would at least try clean up the droppings.
Unfortunately the following has become common place.
1. Receive a defective denial from a "deny everybody" ALJ.
2. Appeal to the Appeals Council and spell everything out with appropriate citation to authority.
3. The AC sits on it for 1.5 years only to send out a one page letter saying they declined review.
4. File in District Court.
5. Call the assigned US Attorney to tell them why it should be remanded and they respond that they will check with the Commissioner.
6. Assigned US Attorney responds with "At this time the Commissioner believes the claim is defendable."
7. Spend a weekend writing a brief with the original Appeals Council arguments.
8. Sit back as the Commissioner requests at least two extensions to file a reply brief.
9. Receive phone call from assigned US Attorney stating that the Commissioner wishes to stipulate remand.
10. If lucky, get claim approved at new hearing after claimant suffered an extra 2 to 3 years.
11. If unlucky, repeat steps 1 through 10.
This should be criminal.
The AC is a well-funded operation that has tripled in size since 2008, largely because it was crowned as the best component to do quality review.
Astrue was a big part of it. As the executive director Pat Jonas told a Congressional subcommittee in 2012:
...of all the important improvements we have made or plan to make at the AC, none is more important than the recent creation of the DQ. In 2008, we presented Commissioner Astrue with a plan that would allow us to gather comprehensive data on the quality of our hearing decisions. Recognizing an obvious need, Commissioner Astrue established a workgroup in 2009, which led to the establishment of DQ in September 2010.
Isn't that how the AC has been able to maintain high funding to open new offices in expensive luxury office buildings, buy new furniture, hire and promote hundred of attorneys -- while other components outside the DC-Baltimore area operate on shoestring budgets?
Some day, when the star chamber AC collapses under the weight of its own celestial matter (i.e. data), the 100k fed guy and the 30+ year senior attorney will wonder whatever they can complain about next.
The AC either throws decisions down large flights of stairs, and determines which cases to review based on that; or draw numbers out of a fish bowl. According to Oversight hearings done in the last few weeks, some EPA official spent most days watching porn in his office. I wonder what the hell the AC people do all day? It sure isn't efficiently deciding cases!
SSA's strategy is delay, deny and hope they go away! Why would that be different at the AC level than at the other levels? And when denied, denied, denied... those pesky claimants just want to reapply? Does SSA know why? Or, would knowing why require them to change?
I am actually pleasantly surprised at the percentage of times the AC actually grants an exception, it is much higher than I would have believed. The sad part of the graph is the very small number of exceptions being sought by reps/clmnts.
Perhaps the low number is not a reflection of the actual number being requested but only the number the AC has become aware of. I know when I have requested exceptions (and actually had a few granted) it took numerous calls to the local office to follow up on the requests, and in at least one case, involvement of our Area Director's office before the AC even acknowledged that an exception had been requested.
Making the local office the point of contact for requesting and following up on the exceptions seems ridiculous to me, but I only follow the rules, I don't make them.
To Anon 5:51 5/23/16
AMEN! You nailed it.
Now if we could get Congress to give a damn, perhaps we could do something more than complain. I am sending my congressional representatives time frames and summaries of AC actions. While it is not much, it is something. Too many lives have been ruined by this component of SSA.
10:18 PM stated, "Some day, when the star chamber AC collapses under the weight of its own celestial matter (i.e. data), the 100k fed guy and the 30+ year senior attorney will wonder whatever they can complain about next."
I am the 30+ years Senior Attorney. In case you missed other comments from me on this blog, I am not a perpetual complainer, nor is the Appeals Council the only issue I have spoken up about. As I indicated in a previous comment last week, perhaps if others like me had spoken up much sooner about such critical issues from our years of hands on experience with the Agency, and brought attention to changes we believe are needed to address the 1+ million backlog of cases, something would have been done before the backlog reached the point where it is today.
As one can easily discern from your comment and those similar to yours on this blog, there is a common theme which permeates through each of them, and that is the notion that management and top Agency heads are recalcitrant to any suggestion the decisions they are making, many of which are self-serving, are causing, or substantially contributing to the problems the hearings process is facing.
What profoundly comes across in these comments is retaliatory disgust toward any employees who have chosen to speak up. If you want us to change, I recommend you address the ABUSIVE management and prohibited personnel practices which are routinely and illegally engaged by managers in some of your hearing offices, which has been brought to your attention numerous times, but top Agency heads and officials repeatedly refuse to address.
5:01 05/23 "Posner is the only one who is knowledgeable enough to sanction." Please. He's the judge that admonished an ALJ for not ordering an MRI to further develop the record.
Social Security people seem to think Posner doesn't understand Social Security law. It's an easy way to shift focus away from the real problems, one of which is the embarrassingly sloppy ALJ decisions that Posner has to review.
In ODAR, at the hearing level, if a case cant be reviewed and an unfavorable decision drafted in 8 hours, that's too bad because that's all the time SSA management allows for writers to review the evidence, listen to the hearing recording, sort out instructions, draft the decision, and update the electronic status to move it along the production line to the ALJ for final review. Ali's get a fraction of that time (maybe a half hour at most?) to review the draft and send further along the production line for someone to mail.
Taking longer than 8 hours = negative performance rating, no bonus, no promotion.
A decision a day keeps management off your back.
Social Security management won't admit there is anything fundamentally diseased about the factory production culture in the hearing offices. It's easier to shift the focus to Posner and how confused he is about Social Security law.
If you hang around Falls Church long enough you get the clear sense that only the Appeals Coucil in its resplendent glory knows how to properly apply the law and policy. Arrogant doesn't come close to describing their view of the world.
Posner might be a great federal judge when it comes to law and economics, but he has no idea what the substantial evidence standard is, and gives district court judges throughout the 7th Circuit the impetus to ignore the fact that ALJ's should be given deference as to their view of the facts. People are complaining about the AC (of which I'm part) but at least I try to bend over backwards to not substitute my judgment for the ALJ's when it comes to an ambiguous record. You may disagree, but when I make a recommendation to remand, there are generally multiple significant errors in the decision (moderate social functioning with no corresponding limitations, completely unsupported step 4 findings, etc.) And if you disagree and think the AC has issued a legally unsupportable remand, there are alternatives to challenge the same back.
Pull the remand data--for every questionable remand order, there are 10 where the AC remanded because the ALJ decision didn't address and opinion at all or its entire analysis of an opinion was something along the lines of "given great weight because it is consistent with the longitudinal record as a whole." I am an ODAR person who doesn't have that much love for the AC, but the data (which I'm looking at right now) don't lie--the overwhelming majority of remands are for really serious mistakes.
So 320 you want the same analysis of an opinion in a ff as you do in an uf? Sure I use to do that but now all I hear is 8 and 4, 8 and 4. So between very poor instructions and ever multiplying records, now you want due diligence on FFs? What world are you living in? It is certainly is not one with the cadence of 8&4, 8&4.
The data may not lie, but what about the people manipulating it? Who trusts them?
8&4 - that's the hearing office mantra that claimants and their reps need to know. And at the AC, it's even less - expectation is roughly 20 minutes per case. Otherwise, mediocre performance eval, no promotion, no bonus, no nothing.
All this "8 & 4," and management's obsession with production numbers and quotas, easily lends itself to creating an abusive, micromanaging, bullying, know where and what every employee is doing at any given time whether it be by monitoring keystrokes on laptops, or a$$'s in seats workplace, which exists in several hearing offices.
Management, however, is oblivious of this, has been for years and show no motivation to change it. It's a fundamental flaw in managing
and leadership, and directly opposite from OPM's emphasis on having an engaged Federal workforce, and managers and SES leaders with emotional intelligence.
This old style of managing has not been effective for years, and by insisting on managing in this manner, Agency leaders are out of touch. Change is needed at the top.
Completely Agree 1:41 PM, May 27, 2016
As far as 10:37 AM, May 26, 2016
The temerity to suggest Posner, one of the greatest jurists alive, has no idea of the substantial evidence standard; is not indicative of the typical administrative law judge. But quite characteristic of those without a clue.
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