Yesterday I received word through the National Organization of Social Security Claimants Representatives (NOSSCR) that the number of hearings Social Security has scheduled for July and August is down more than 30%. We are told that they will try to schedule more hearings if we'll agree to hearings being held without receiving the notice period required by the agency's regulations and agree that the hearings be held either by telephone or video.
I've got three questions:
- Why has the agency scheduled so many fewer hearings this summer? It's not like they're run out of cases to schedule.
- If the problem were merely scheduling, why is it necessary to put pressure on claimants to accept telephone and video hearings? If you're doing in person hearings, you're doing in person hearings.
- Will there be a continuing effort to cram telephone and video hearings down the throats of destitute claimants by scheduling those hearings far more quickly?
19 comments:
I'll be honest, I was skeptical of phone/video hearings at the beginning but now prefer them to in-person hearings. 90% of my clients prefer these types of hearings too because they can participate in the comfort of their home and save the gas money and time traveling to a hearing. More importantly, I have not seen any meaningful decline in awards. At this point, I'm only recommending in-person hearings for clients with minimal records that have credible presentations of their illness (i.e. tremors, severe swelling, etc.).
On a side note, the remote hearings have helped my firm save a lot of money dedicated to travel, gas reimbursement, etc. to offset the decline in the average fee award. Margins will get tighter if we go back to the way things were pre-COVID. I prefer this method.
I couldn't agree more with 9:27AM. If anything, I've seen our award percentage take a slight uptick, not the other way around as I had thought. I really think they should give the claimants the option moving forward. Is there any rumor that this is even on the table?
Just a guess but they’re probably trying to schedule more video/phone hearings to be able to spread out the load.
This would allow ALJ’s from anywhere to help with overburdened areas and such. Who knows though, that kinda makes too much sense so that’s probably not it at all.
No mystery here. During the evaluation period through September 30, the MOU with the Judge's union limits the requirement for in person hearings. However, other methods do not have such restrictions, thus the request to fill available ALJ hearing dates with OVH and teleconference hearings are being made. Given the short notice (less than 75 days) claimants can opt to have their cases heard earlier by agreeing to the waiver. Going forward after the evaluation period will probably involve more negotiations, as it pertains to telework and hearing schedules. Stay tuned.
I couldn't agree more about feeling like they are trying to ram these hearings down our client's throats by requesting waiver of the 75 day notice. SSA forced the 75 day notice requirement upon itself in an effort to reduce post hearing records. Now they want us to waive this notice requirement but are unwilling to waive the 5 business day rule as part of that process. Why should my client give up a substantial right because SSA can't figure out how to schedule cases properly?
I have received no explanation as to why these phone/video hearings couldn't have been scheduled with at least 75 days notice. It is not like they have burned through all the claims where claimants have agreed to phone/video.
I agree 100% with @9:27. There are some of our clients that need to have in-person hearings, but the overwhelming majority of them are better off having a video or phone hearing. 25 months of data shows that approval rates have not been negatively impacted by phone and video hearings. I am as shocked as anyone with this, as before the pandemic it was very clear that clients were significantly less likely to win if their hearing was held with a National Hearing Center judge. Luckily, the rank and file ALJs who have not followed that negative trend and nearly 100% of them approve cases at the same rate (or slightly higher) that they did pre-March 2020.
I watch data on this like a hawk and I'll be the first to sound the warning alarm if approval rates dip with these phone and video hearings. But, as I stated, 25 months of data shows that this is working out to be advantageous for both my clients and my firm.
Charles, it's pretty clear why there appear to be fewer hearings right now. Over the last 2 years, any claimant that no-showed for their hearing could not have their case dismissed. The current regulations require that an in-person hearing be held before a dismissal can be issued. OHO has scheduled an enormous amount of in-person hearings over the next 5 months for all of these no-show claimants. This, in turn, has impacted the number of hearings scheduled for claimants with representation.
No one is forcing you to waive 75 day notice. This is just an opportunity to get a few more hearings scheduled over the next 5 months until scheduling gets back to normal.
I had been very uncertain and doubtful about the use of either video or telephone hearings as an alternative to in-person hearings throughout my 47 year career --- until the summer of 2021 when I reduced my resistance and agreed to a series of video hearings. I found the results to be comparable to in-person hearings. I remain unconvinced with regards to use of a telephone connection in lieu of in-person settings or video format.
One thing I never understood was sending a 75-day waiver before even scheduling a hearing. I don’t want to waive notice, then have OHO schedule my hearing without adequate notice. Surprise, your hearing is tomorrow, or next week, or two weeks from now. And you still need to comply with the five-day rule. Good luck. I’m happy to waive notice when they work with me to schedule hearings, but centralized scheduling still schedules hearings on days you say you are not available.
We can certainly have a discussion on the merits of waiving the 75 day notice, but at this point, I don't think there's data to suggest that claimants are worse off for having phone and video hearings as an option.
In fact, a large majority of my clients have been thrilled to not have to travel (sometimes hundreds of miles) to a hearing office, find (and pay for) parking, go through security, wait in a crowded waiting room and then face a judge in person. For those with mental health issues, or limited support systems, this was very taxing. For many remote locations, all of that effort was being put forth only to ultimately have a VIDEO hearing anyway. Phone and video should remain a permanent option going forward.
Bingo. I have full dockets in July/August, for the first time since before the pandemic.
I also agree with Barnabas (9:27). Telephone and video hearings are much more efficient and practical. I have yet to have any client ask for an in person hearing. My approval rate is also higher with remote hearings, but, as 11:21 notes, we need to watch the data carefully.
I was also very pleasantly surprised by the consistency in allowance/denial rates with phone and video hearings. I was very skeptical at first but always left the decision to the client. I'm a small solo practitioner so I can have those types of conversations. I will say there are exceptions however. We have a judge here in Phoenix, Judge Isherwood, who was consistently at a 40% allowance rate prior to the pandemic, year after year. That dropped to 21% in the first year of phone/video hearings and is currently at a 9% allowance rate. The most recent month was a 3% allowance rate with 1 favorable decision and 28 unfavorable decisions. It's hard to attribute it to other causes given the timing.
I don't have a problem with phone hearings most of the time but schedule them! I was hoping that this summer wouldn't be a repeat of last summer.
I would have agreed with all of the comments for agreeing to phone hearings until recently. I just had over a dozen cases assigned to low paying and hostile ALJs outside of my OHO and in NHCs. That is why I never agreed to VTCs in the past. I never get average or above average ALJs when they are assigned outside of the regular OHO. If they keep pulling this crap they will be back to blanket requests for in person only.
I wonder if it has anything to do with physical distancing requirements. The FOs are limited with regard to how many people can be in the waiting room at once, seems it would apply to OHO too. You can schedule more hearings if you don’t have to stagger the times.
Holding hearings by video with the NHC, particularly the collection of Judges they had assembled in Chicago. was the primary reason I refused the video hearings. With hearings being held by regular line ALJ's particularly when they are scheduled with ALJ's from the home office for the claimant, I have not seen a particular problem. I still do not accept telephone hearings as I continue to believe these are fundamentally unfair but I have learned that even if scheduled as a phone hearing, the system will permit changing it to a video hearing with a few days notice required.
Going forward, except in unusual cases, I plan to agree to review with my clients but generally agree to video, not telephone hearings where no in person hearing is scheduled. For the reasons others have noted, my clients seem to like it better, it certainly save on my travel and waiting time since I can get work done while waiting even if the hearing is delayed, and there does not seem to be a substantial difference in outcomes.
And, yes the Agency was not particularly honest about their plans to move in this direction anyway when hearings were suspended by COVID but frankly, I don't think anyone believed them when they said this was only a temporary, emergency measure. But not liking their motives and their deception is no reason to not go along with a process that may well end up being better, or at least not worse, for all.
ALJ here -- My rates have remained the same (about 2/3 favorable or partially favorable). From what I can tell on our monthly reports, the other ALJ's have at least maintained their usual rates too. Like many of you referenced, I think our office's favorable rate ticked up slightly.
The phone and video hearings work great for me. They're more convenient for everyone involved, especially the attorneys and claimants. The MS Teams video has generally been quite good. I've had attorneys submit photographs of physical impairments that ordinarily don't translate well over the phone. The system generally works for us.
To echo other comments, I have to admit that I was very pleasantly surprised by the positive results I have been getting with the phone/video hearing option. I was very skeptical at the start believing that an in-person hearing was almost always preferred in order to present the most persuasive case to the ALJ. However, as a solo located in SoCal, pre-Covid this required a significant expenditure of time and money just traveling to and from the multiple OHOs scattered across California, Arizona, and Nevada. Subsequently, the time that I have saved from not being "in transit" has allowed me to focus more on working up my cases and spending more quality time at home when not working. Consequently, my win rates continue to rise to the mutual benefit of my clients and my bottom line. I hope the Agency will continue to provide the option on a large scale going forward.
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