No, I Don’t Think That SSA Can Solve Its Lucia Problem By Having The Appeals Council Deny All The People Who Filed Lucia Objections

      I’ve already heard some colleagues say that the new Social Security Ruling giving the agency’s response to the Supreme Court opinion in Lucia v. SEC means that the agency thinks it can solve its Lucia problem by having the Appeals Council itself issue de novo decisions in the cases. There are a couple of problems with this. First, the Appeals Council isn’t set up to issue thousands of de novo decisions. Second, and more important, the Social Security Act says that claimants are entitled to hearings. If you’re agreeing that the hearing that was held was constitutionally invalid, how do you get around giving the claimant a new hearing? There’s a lot of wishful thinking at Social Security. I hope they’re not so far gone that they think they can get away with that. I think the language that some are pointing to about the Appeals Council issuing decisions is only intended to allow the Appeals Council to issue fully favorable decisions in a few cases.

     I have to mention that after Lucia came down I told everyone who would listen that we should be filing Lucia objections in every case pending at the Appeals Council.

Priority Processing At The Appeals Council -- What A List!

     This month's issue of the newsletter (not available online) of the National Organization of Social Security Claimants Representatives (NOSSCR) has an article prepared by the Social Security on priority processing at the Appeals Council, which has a huge backlog. Here's an excerpt:

A list of the Appeals Council-level cases with newly submitted evidence is generated several times a week. A group of employees has started screening the listed cases to see if they meet any of the 21 circumstances below. If so, the branch chief receives the case and assigns it for priority processing. The circumstances are:

(1) Age 55
(2) Any indication or report of death
(3) Hospice, nursing care, or claimant cannot care for personal needs
(4) Intensive care unit for more than 3 days
(5) Hospitalization for more than 7 days
(6) Transplant notes (kidney, heart, heart/lung, liver or bone marrow, etc.)
(7) Transplant waiting list
(8) Cancer with poor or no response to treatment
(9) Cancer that has spread to other areas/
(10) Coma
(11) Heart attack or myocardial infarction
(12) Stroke, or cerebral vascular accident
(13) Prescribed use of home oxygen 
(14) Prescribed use of wheelchair
(15) VA disability rating of 70% or more
(16) Letter or notice approving other forms of disability payments
(17) Medical report(s) of a terminal prognosis
(18) Dialysis or End Stage Renal Disease (ESRD)
(19) Blood transfusion(s)
(20) Bed or home confinement
(21) Very rare, unusual, or compassionate allowance diagnoses

Although attaining the age of 55 is on the list, it is not necessary to submit additional evidence of a claimant’s age as SSA also screens for this. If the claimant has died, representative correspondence to that effect is sufficient. NOSSCR is working with SSA to obtain written documentation of this practice.

To verify that the Appeals Council knows a client meets one of the 21 circumstances, call the Congressional and Public Affairs Branch at 1-877-670-2722 or fax Appeals Council Ombudsman Terry Jensen at 703-605-8691.

Cases that meet one of the 21 circumstances still should not be decided in less than 25 days unless the Appeals Council obtains permission from the claimant or representative to make a faster decision. See adjacent article on this page for more information.

     This is a far more extensive list of types of cases to be expedited than is used at the Administrative Law Judge level. Why shouldn't these cases by expedited at all levels?
     I think the existence of these lists of types of cases to be expedited demonstrates the pressures caused by backlogs at Social Security. This isn't about helping people who are hurting. They're trying to expedite the cases that would make for good newspaper or television pieces on the suffering caused by the backlog.

Shutdown Questions

     Some questions about the shutdown, for anyone who can answer them:

• What was it like in the office when employees came in Tuesday to be officially told they were furloughed?
• Am I correct that the next scheduled payday for most federal employees is October 11? Whatever the date is, it's important. No federal civilian employee gets a paycheck until the shutdown ends, even if they've been working through the shutdown.
• What's it like for Administrative Law Judges (ALJs) and others working in mostly deserted offices?
• If you've been furloughed, how are you spending your time so far?
• Is there some word on the street about when or if the employees furloughed at the Office of Disability Adjudication and Review (ODAR) will be called back to work despite the shutdown? Is there any risk that instead of calling the other ODAR employees back that the ALJs will be sent home instead? I think we can all agree that it's impractical to have the ALJs working without support staff for more than a short time.
• Has there been a problem with claimants not showing up for hearings and appointments, thinking that Social Security is completely shut down?
• The Appeals Council receives lots and lots of faxes. The fax machines I'm familiar with print out received faxes. If the fax machine runs of paper, the fax machine stores the fax in its memory but that memory is finite. Faxes can be lost if the machine runs out of paper and memory. The faxes coming into the Appeals Council won't stop. Will there be someone there to stock the fax machines with paper? Is there sufficient memory to cover days, maybe weeks, of faxes?
• The Office of General Counsel (OGC) has to process lots of attorney fees under the Equal Access to Justice Act (EAJA). I'm afraid I know the answer, but will OGC be able to process these during the shutdown? More generally, how will OGC discharge its core responsibilities with something like 90% of its staff furloughed? There must be scheduled hearings, trials, settlement conferences, oral arguments, etc. Is OGC just getting all of these continued?
• For employees still at work, are there bottlenecks caused by the large number of furloughed employees?

Remand Assignment Policy Documents

As I come across them, I have been trying to upload to Scribd documents concerning Social Security policy over the years. Below are some documents showing Social Security policy on which Administrative Law Judge (ALJ) is assigned a case remanded by the Appeals Council or the federal courts. Should it be the same ALJ who heard the case the first time or a different one? This policy has changed over the years.

History of Remand Assignment Policy

ACUS Wants To Help

From a Request for Proposals issued by the Administrative Conference of the United States (ACUS):

The study should particularly address the following issues: ...

• The impact of SSA’s treating physician rules on the role of courts in reviewing SSA disability decisions. The study should consider measures that SSA could take to reduce the number of cases remanded to it by courts.
• The role of the SSA Appeals Council in reviewing cases to reduce any observed variances in ALJ’s decisional outcomes, hearing lengths, and application of agency policies. Legal and empirical consideration should be given to the efficacy of an expansion of the Appeals Council’s already existing authority to conduct more focused reviews of ALJ decisions; how the Appeals Council can select cases for review; when review should take place (i.e. pre- or post-effectuation); and the scope and manner of review. 
• Additional measures that SSA could take to identify and address issues posed by “outlier” ALJs, in order to reduce the observed variances, and to reduce other irregularities and improve quality in ALJ decisions. ... 

The Conference will provide a consulting fee of $15,000 for the study plus a budget for expenses.

What Is The Point Of The Appeals Council?

     In its current form, does the Appeals Council have any legitimate function? The Appeals Council usually takes at least a year and often much longer. It reverses only about 5% of the decisions it reviews and remands only about 20%. I have never seen any rationality in Appeal Council decisions. Frequently, review is denied even though the Administrative Law Judge (ALJ) decision has obvious, severe defects. This is not just my judgment. Social Security's Office of General Counsel (OGC) clearly agrees with me. Often, after attorneys file civil actions is Social Security cases, OGC takes a voluntary remand because they know they cannot defend the ALJ decision. This probably happens in 25% or more of cases. The remands and reversals that do come out of the Appeals Council seem almost to have been selected at random.

     Does the Appeals Council serve any purpose other than to delay and frustrate claimants who want to obtain review of ALJ decisions? To put it another way, I ask myself the question: "If you could waive Appeals Council review and proceed directly to District Court, would you?" The answer to me is obviously "yes."

    The question of whether the Appeals Council should be abolished has been around a long time. It has usually been coupled with the question of whether reconsideration should be abolished. However, reconsideration does not waste nearly as much time as the Appeal Council and, in its own way, is not nearly as irrational as the Appeals Council. 

     The calls to abolish the Appeals Council were pretty loud before 1999 when claimants were allowed to file new claims while cases were pending at the Appeals Council. In fact, the pressure was so bad at that time that Social Security employees often refused to enforce the policy that sought to prevent a claimant from filing a new claim while an appeal was pending. The 1999 decision to allow a claimant to file a new claim and an appeal released much of the pressure. The issuance of Social Security Ruling 11-1p, which seeks to prevent a claimant from filing a new claim and an appeal, bottles up that pressure once again. This time I think the pressure will build more rapidly because the Appeals Council is even less effective than it was in 1999. As of 1999, if I remember correctly, the Appeals Council was remanding in something like 30% of cases. It's now about 20%, making the Appeals Council even more useless than it was in 1999.

Poll

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Emergency Message On New Claims While Appeal Pending Does Not Help

Social Security has issued a new Emergency Message (EM) on the new Ruling which seeks to prevent a claimant from filing a new claim while an old claim is pending on appeal. The EM does not expand upon the Ruling in any meaningful way. It does not even address the question of what to do about cases where a new claim and an appeal are both already pending.

SSR 11-1p Not Intended To Affect Cases Where New Claim And Appeal Already Pending

I am hearing that Social Security has decided not to apply Social Security Ruling 11-1p, which prohibits the agency from taking a new claim while an old one is pending on appeal, to cases where a new claim and an appeal are already pending. I am also hearing that there will be an Emergency Message to Social Security employees on this new procedure shortly, perhaps today. Since it may be some time before this Emergency Message appears on Social Security's website, I would appreciate it if someone could forward a copy to me. I don't think this is intended to be any sort of secret.

Staffing Problem At Appeals Council

Here is an e-mail I received today from an employee at my law firm:

Appeal was fax’d to AC [Appeals Council] on  5/17/11, I followed up on 6/8/11 and there was no record of it. I followed up again yesterday and was told it was still not input. I said I will fax again and she said I should not fax again because it is taking 7 – 8 months to input.  Really

Early Reports On E-File Access At The Appeals Counci -- It's Not Working

I have heard from several attorneys who have tried to access e-file at the Appeals Council. No one seems to be able to access e-files there.

E-Folder Access At Appeals Council

The National Organization of Social Security Claimants Representatives (NOSSCR) has sent out a notice to its members that Social Security has extended E-folder access to the Appeals Council. Attorneys who have E-folder access can now access their clients' files online when they are at the Appeals Council level.

I have not used this yet. I wonder if it will be possible to access the recordings of Administrative Law Judge hearings through the E-folder.

Pre-Effectuation Reviews Of ALJ Decisions

From Emergency Message EM-10090:

This message provides case processing information to Field Offices and Processing Centers on cases selected for review by the ODAR [Office of Disability Adjudication and Review] Appeals Council (AC) Quality Review Branch (QRB). ODAR AC/QRB is instituting a pre-effectuation review of ALJ [Administrative Law Judge] favorable and partially favorable decisions. They have already pulled approximately 50 cases for their initial review. The AC/QRB expects to sample approximately 3500 cases per year, equally divided among all regions, when at full capacity.

It is only fair to note that this will be a review of less than 1% of ALJ favorable and partially favorable decisions.

Happy 70th Birthday Appeals Council

A belated Happy 70th Birthday to Social Security's Appeals Council, which was established in January 1940!

Problems At The Appeals Council

An e-mail I received from a legal assistant at my firm:

No surprise, but just received this from Barbara Hunt, Chief, Congressional and Public Affairs Branch [at the Appeals Council]:

“The Council has received an unprecedented number of requests for review and as a result, is experiencing lengthy delays in the processing of its cases. Although the average processing time for the Council is about 13 months, it is not unusual to find delays of about 30 months”

I have found that they are only answering the phones in the morning. The afternoon calls go to a “general mailbox” which, from my experience, is equivalent to a black hole. I have yet to get a call back from messages left there.