The common wisdom is that claimants receive the same decision whether their hearing is in person, over the telephone and by video but do we really know? We think we know that the rate at which claimants were approved did not decline, at least to a significant extent, when the pandemic began and the switch was made to telephone hearings but do we know this for sure? I don't recall ever seeing any numbers from the Social Security Administration. A 2% difference probably wouldn't be enough to be noticeable without numbers from a database but a 2% change is not insignificant for a claimant. For that matter, numbers from the beginning of the pandemic are not the same as numbers from the current environment in which claimants can choose the method, although maybe "choose" should be in quotes since many law firms and other representing claimants -- and not just national firms -- always advise phone or video, mainly because it's more convenient for them. I doubt that the differences between phone, video and in person are great but we ought to get the numbers.
I have to say, though, that there will be confounding elements to the numbers, if we ever see them. In person is now the default mode. That's where a claimant ends up if he or she doesn't make a choice but unresponsive claimants certainly get denied at a higher rate than claimants who choose a method for their hearing. Also, the selection of video is one generally made by better educated claimants. Their chances of success may be different than for less well educated claimants who can only do telephone hearings. Yes, many, perhaps most, Social Security disability claimants lack the technical skills to download an app, register with the app and then access the app when the time comes for their hearing. There's also the problem that those who live in small towns and rural areas are more likely to select telephone or video since they have to travel farther for an person hearing than those who live in urban areas. Rural and urban claimants don't necessarily get approved at the same rate. Rural claimants, on average, have lower educational levels and less access to health care than their urban cousins.
I don't know about numbers by manner of appearance. I did once hear from a representative in a national firm long before COVID that their firm routinely opted out of video hearings because their internal statistics showed a higher favorable percentage from ALJs in offices that hold in-person hearings than from those that do not, regardless of the manner of appearance on the case. In other words, they used video declination as a means of avoiding the NHC.
ReplyDeleteI still struggle to find a rational basis for denying individuals the right to an in-person hearing when they have a change of residence. When SSA implemented this exception to the right to an in-person hearing in 2014, the reason they provided was that "We are aware of situations in which a representative instructed claimants to report a change of address, which was not a change of residence, so that cases would be reassigned to a different hearing office with higher allowance rates." Please note that they use the term representative in the singular. One representative, one. And instead of addressing the issue with that one representative, SSA changed the regulations for all claimants. I am not sure that is a sufficient rational basis, although I am unaware of anyone who has challenged it.
ReplyDeleteYou're correct that it will be difficult to analyze because it is multifactorial. Individualized factors could certainly play a role as well. There is an ALJ in Phoenix who dropped from 46% in FY 2019 (consistent with years prior) to 12% in FY 2022 during the course of the pandemic and the onset of phone and video hearings. Hard to say it's attributable to anything other than the change in hearing format. He is the exception rather than the rule, but I'd be surprised if he were the only one.
ReplyDeleteThere is no surprise of the disability disparities, which is also evident in education and health outcomes. The stratification has increased in the past 50 years, and it is only going to widen. The middle class is going extinct.
ReplyDeleteI'd rather have an ALJ who is more likely to approve my case. Of course, if you get a phone "hearing" with an NHC ALJ... hopefully you live in a "friendly" Federal Court district. Some circuits will rubber stamp any denial.
ReplyDeleteAs for the stats, I would want to see month by month approval rates by ALJ. Hard to see if there was a trend otherwise. If most ALJs were more willing to approve in the beginning (of Covid) but, that wained and the ALJ returned to something close to or even below their previous in-hearing approval rates, it could skew the results and therefore not give an accurate prediction going forward.
The agency has publicly available data for ALJ dispositions broken down by fiscal year and month available on its website. It doesn't show the manner of appearance for the cases, but since all cases in FY 21 were virtual hearings, and the vast majority of cases in FY22 were also virtual hearings, by comparing earlier years you can at least get some idea of whether the switch to virtual has changed a particular ALJ's award rate. It's certainly not perfect, and it would be better now that we're doing more of a mix of hearings to have hard data, but this is what's available now.
ReplyDeleteAnd not actual numbers were harmed in answering this post. Not a one.
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