OHO Workload Analysis Report

     This was obtained by the National Organization of Social Security Claimants Representatives (NOSSCR) and published in their newsletter, which isn't available online:

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     I'll draw your attention to four things:

• The agency had, on average, 51,444 hours of overtime per month in fiscal year (FY) 2017, which ended on September 30, 2017, but only an average of 35,869 hours per month in October and November 2017. That's 30% less. This hurts productivity. Why the reduction in OT? It's the appropriations situation. The federal government, including Social Security, is operating on a continuing resolution rather than a real appropriation. They're supposed to be spending at the FY 2017 rate. That's already a reduction in spending power because of the effects of inflation. However, the Senate is threatening to cut Social Security's operating budget below the FY 2017 level in absolute terms. I'll speculate that Social Security is being cautious and is only spending at a rate consistent with the Senate appropriations bill. The first thing that gets cut is OT. If the agency gets the same dollar amount as in FY 2017 (which, again, is, in effect, a cut because of the effects of inflation), expect a sudden surge in overtime. In general, Social Security is addicted to OT. They can easily turn the OT spigot on and off allowing them to quickly adjust to the ever changing appropriations situation. That's no way to run a business. OT costs more. OT reduces productivity. You can only assign so much of the blame to Congress. If you're still using a lot of OT even in a bad budget situation, as is the case now, you need to hire more employees. Yes, they take time to train but you need more employees. By the way, it's not just OHO that depends on OT. There's beeen a noticeable slowdown throughout the agency since October 1.
• The senior attorney decisions have gone down from nearly nothing in FY 2017 to completely nothing in October and November.
• The number of Administrative Law Judges (ALJs) available was only 1481 as of November. Social Security likes to talk about all ALJs they're hiring. They don't like to talk about the fact that all they're doing is replacing ALJs who retire, quit, become disabled or die.
• The Office of Hearings Operations (OHO) staff is having trouble adjusting to its new name. This report is labeled "ODAR Workload and Performance Summary." By the way, seriously, don't pronounce OHO as Oh-Ho. That  pronunciation has very unpleasant connotations for Spanish speakers.

Caseload Analysis Report

     Posted in the newsletter of the National Organization of Social Security Claimants Representatives (NOSSCR), which is not available online.

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     Note the large increase in overtime hours beginning in February. Note also that the Senior Attorney decisions are down to a pathetic total of 18 in April! If you want to know whether Social Security is taking its hearing backlog seriously, pay attention to the Senior Attorney decisions. Should Democrats take control of the House of Representatives in 2018, expect that number to soar.

ODAR Numbers

     Below is the Workload and Performance Summary for Social Security's Office of Disability Adjudication and Review (ODAR) for the month ending February 24, 2017. Click on it to view it full size. The National Organization of Social Security Claimants Representatives (NOSSCR) published this in its newsletter, which isn't available online.
     I noticed a number of things:

• New appeals are declining
• Overtime went up greatly starting in December
• Backlogs are going up
• Senior attorney decisions are minimal (see the footnote of the summary)

New Instructions For Attorney-Advisor Decision

     Social Security has issued new instructions for Attorney-Advisor (AA) decisions (also called Senior Attorney decisions) after claimants requests a hearing before an Administrative Law Judge (ALJ). The idea is that clearly meritorious claims would be quickly approved by AAs. The AAs would not deny any claims. If the AA couldn't approve a claim, the claimant would still get an ALJ hearing. The point of the AA decisions is to help reduce the backlog of pending requests for hearings.

     The AA decisions have been around for many years. Since 2010 when Republicans gained control of the House of Representatives there have been few AA decisions. Not coincidentally, the hearing backlog has mushroomed. The AA reviews conducted in recent years seemed to me to be a waste of resources. I would get a call from an AA saying they were reviewing a case. The AA would ask for certain pieces of medical evidence and demand that the evidence be submitted in two weeks or less. That's completely unreasonable. Most medical providers don't respond to requests in that kind of timeframe. When I told an AA that I couldn't get the evidence in within the timeframe they were giving, I was told that the AA couldn't hold onto the case any longer. However, it was often the case that I had already requested, obtained and submitted the records that the AA wanted suggesting that the AAs weren't reviewing the files too closely before calling. It didn't seem to matter what records were submitted or how strong the case was. We wouldn't get any action from the AAs. The AAs seemed to be almost incapable of approving a claim. They were just spinning their wheels. The agency would have been better off if the AAs were drafting decisions for ALJs.

     We'll see how these new instructions are implemented but I see no evidence in them that there will now be large numbers of AA decisions. In past years when there were many AA decisions, cases were selected for AA review based upon profiles of claims likely to be approved by ALJs. The profiles were top secret but it wasn't hard to see the pattern -- mentally ill claimants and older claimants. I though the profiles worked pretty well. I never understood why they were abandoned unless the point was to hold down the number of claims approved by AAs. The new instructions suggest to me that cases will not be selected for review based upon profiles. Here are the selection criteria in the new instructions:

• New and material evidence is submitted;
  
• There is an indication that additional evidence is available;
  
• There is a change in the law and regulations; or
  
• There is an error in the record or another indication that a fully favorable decision may be warranted.

      I suppose the "another indication that a fully favorable decision may be warranted" language would cover profile selection but I can't think of a reason why they wouldn't say they intend to use profiles. The first two criteria could be used to cover virtually any case with a pending request for hearing. Reviewing virtually all cases wouldn't be a good thing. There's too much effort wasted on cases where the AAs can't or won't issue a favorable decision.

     The instructions suggest that there will be a two level process. One person will hand select a case for AA review and then another will actually do the AA review. That's labor intensive. The instructions carefully forbid an AA from actually reviewing a case that he or she has selected for review, suggesting a process that almost requires that two AAs agree before an AA decision is issued.

     It looks like there won't be that many AAs participating in the process. Only those selected to a national "team" will be allowed to participate. The instructions themselves say the "team" is a "small group."

     After an AA decision is issued there will be four different levels of "quality review" which suggests a deep uneasiness with AA decisions.

     It still looks like the agency thinks that holding down the number of disability claims approved is far more important than dealing with its hearing backlog. I hope to be pleasantly surprised but I'm not expecting much from this. Meanwhile, the hearing backlog continues to grow.

Gruber On Backlogs

     Terrie Gruber was recently appointed to head Social Security's Office of Disability Adjudication and Review (ODAR). The agency's Administrative Law Judges (ALJs) work at ODAR. Gruber spoke today at the National Organization of Social Security Claimants Representatives (NOSSCR) conference in Denver. I am not attending this conference but I'm told by someone who is attending that Gruber told those attending the NOSSCR meeting that ODAR would begin to reduce its hearing backlog in Fiscal Year (FY) 2017 which begins on October 1, 2016. She thought the agency could eliminate the hearing backlog by FY 2020. She said "We can't hire our way out of this."

     First, ODAR could definitely hire its way out of the backlog if it were given enough money. It's just that there's no prospect of this happening. Second, it would be a big step forward if ODAR could just keep the backlog from growing in the current FY. I don't know how likely this is. ODAR would need a lot of money for overtime and it would need permission to aggressively use the Senior Attorney program and to encourage ALJs to issue on the record reversals. They would also need the cooperation of other components of the agency for a strong re-recon program. I'm not going to explain Senior Attorney, re-recon and on the record reversals here. Let's just say that these are ways of diverting strong cases for special reviews which can result in the strongest claims being approved quickly. To do this, the agency will have to get over its fear of being accused of paying down the backlog. Gruber has said things to the Washington Post indicating the agency is getting past this concern but we'll have to see what actually happens on the ground. Finally, talk of eliminating the backlog by 2020 is almost pathetic. I'm sure that there's plenty of desire to do so. Given the means, I'm sure the agency will do so. It's just that achieving this goal will take plenty of hiring which takes money and no one can fully predict the agency's operating budget for the current FY much less its operating budget for FY 2020.

It's OK With Me If You Pretend This Is New -- As Long As You Do It!

     From the Federal Eye column in the Washington Post:

When The Post dug into the backlog for disability benefits at the Social Security Administration a year ago, it discovered that the line was approaching one million applications long. The number of people in this queue was so large that it exceeded the population of six different states.

Since then, the line has only gotten longer, according to a new report...

In July, Social Security replaced the two officials in charge of the appeals office, shifting them to other jobs at the agency in favor of new leadership to tackle the backlog.

Three months later, the new head of the office says she is “putting the finishing touches” on a plan to reduce the number of pending cases and speed the system up.

Terrie Gruber said in an interview that her goal is “compassionate and responsive” service to applicants for disability benefits ...

"We’re committed to new ways of doing business,” she said.

One of the biggest changes will include better triage of cases, so many don’t ever get to a lengthy hearing before a judge. New, electronically-generated data has helped the agency determine which appeals could be screened by attorneys and federal claims examiners, who can make decisions themselves, faster than judges, Gruber said. The number of attorneys is being increased.

When cases do go before judges, a new initiative is assigning support staff to arrange the files in better order, getting rid of duplicate medical documents and evidence that take a long time for judges to sort through. ...

A primary goal is hiring more judges, Gruber said, about 1,800 to 1,900 by fiscal 2018, an increase of about 400. Also, she is making use of new technology to enhance the quality of video hearings in remote locations where there are no judges, and improving support staff’s communications with judges when video hearings are involved.

A new pilot program is creating “pre-hearing” conferences at a handful of  local Social Security offices, so applicants who don’t have attorneys can know what to expect when a judge hears their case.

     The statement that these plans show that the agency is "committed to new ways of doing business" is ridiculous. That doesn't mean I disagree with the plans. It's just that there's virtually nothing new here. I'm actually an enthusiastic supporter of the pre-hearing screenings part and I'd love to see more ALJs hired. The rest is harmless. Let's go through the elements of the plan:

• New, electronically-generated data has helped the agency determine which appeals could be screened by attorneys and federal claims examiners, who can make decisions themselves, faster than judges. This is just the revival of the Senior Attorney and re-recon programs that have been used successfully in the past. Social Security certainly didn't have to replace Glenn Sklar to do this since he supervised the exact same programs in the past. This can make a significant difference. They never should have been dropped. The only reason they were dropped was concern that the agency would be criticized for "paying down the backlog." By the way, ALJs, this is your Bat Signal. It's now OK to issue on the record reversals.
• [A] new initiative is assigning support staff to arrange the files in better order, getting rid of duplicate medical documents and evidence that take a long time for judges to sort through. There's nothing new about this. Support staff has been "pulling" exhibits for at least 37 years. I know. I've been involved with Social Security disability for 37 years. It wasn't new when I started. I don't know why this would even be listed. I can't imagine anything they could be planning that would be new. If anything, ALJs ought to be hearing cases on unpulled files! Yes, ALJs, that's been done before. No, I don't like cases being heard with unpulled files but I'm quite willing to put up with them if we can just get more cases heard. People are waiting two years for hearings. This is a horrible situation that demands urgent action. When cases are heard with unpulled files, the exhibits are eventually pulled, but only if it's going to be a denial.
• A primary goal is hiring more judges, Gruber said, about 1,800 to 1,900 by fiscal 2018, an increase of about 400. They're been saying something like this for at least twenty years. It seems like the Office of Personnel Management (OPM) always makes it impossible for the agency to hire as many ALJs as Social Security says it wants to hire. At least that's what Social Security has claimed.  I've never fully bought into OPM being the villain. I've always suspected that the real reason more ALJs aren't hired is that the agency's budget is way too tight and decisions have been made to devote resources elsewhere. I suspect that the agency uses OPM as its fall guy. I'm pretty sure that there are plenty of names on the ALJ register who could be hired almost immediately if the agency really wanted to hire them.
• A new pilot program is creating “pre-hearing” conferences at a handful of  local Social Security offices, so applicants who don’t have attorneys can know what to expect when a judge hears their case. Pre-hearing conferences haven't been done lately but they may date back a quarter-century. So claimants can know what to expect? Hardly. The primary reason for holding these pre-hearing conferences for unrepresented claimants is to weed out those who don't show up. Send them a show cause notice and then dismiss their cases when they don't respond. Dismissing these cases earlier makes the average numbers look better but it really doesn't reduce the workload by much. Many ALJs already schedule hearings for unrepresented claimants five minutes apart on the assumption that most won't show up. What may be new here is that the agency is talking about doing pre-hearing conferences at local Social Security offices.  Could it be field office personnel doing the pre-hearing conferences?

Big Downturn In Senior Attorney Decisions In Recent Years

     I had recently wondered about the state of the senior attorney advisor decision program at Social Security. The newsletter of the National Organization of Social Security Claimants Representatives (NOSSCR) (which is not available online) has some numbers on senior attorney advisor decisions:

• FY 2012: 37,423
• FY 2013 18,625
• FY 2014 1,872

New Rules On Partially Favorable Attorney Advisor Decisions

From today's Federal Register:

We are revising the procedures for how claimants who receive fully favorable revised determinations based on prehearing case reviews or fully favorable attorney advisor decisions may seek further review. We are also revising our procedure to provide that we will notify claimants who receive partially favorable determinations based on prehearing case reviews that an administrative law judge (ALJ) will still hold a hearing unless all parties to the hearing tell us in writing that we should dismiss the hearing request. These changes will simplify our administrative review process and free up scarce administrative resources that we can better use to reduce the hearings-level case backlog.

Attorney Advisor Decision Program Extended

From today's Federal Register:

We are extending for 2 years our rule authorizing attorney advisors to conduct certain prehearing procedures and to issue fully favorable decisions. The current rule will expire on August 10, 2011. In this final rule, we are extending the sunset date to August 9, 2013. We are making no other substantive changes.

By the way, I have not been seeing attorney advisor decisions lately. Is this merely a local phenomenon or are their fewer attorney advisor decisions nationally?

Why?

Social Security has just withdrawn a proposed amendment to its regulations that would have made permanent the authority of some of its senior attorneys to issue fully favorable decisions on appeals of disability claims.

No More Sunset For Attorney Advisor Program

The Office of Management and Budget (OMB), which is part of the White House, has posted this summary of a proposed regulation change which Social Security has filed:

On July 13, 2009, we extended until August 10, 2011 the final rule that authorizes attorney advisors to conduct certain prehearing procedures and to issue fully favorable decisions. We now propose to eliminate the sunset date for the attorney advisor program. The attorney advisor program has proved to be successful, with claimant's decisions being processed more efficiently, which has helped to reduce the agency's backlog. The success of the program has resulted in approving benefits in a timelier manner.

Social Security must obtain OMB approval before posting this in the Federal Register.

Attorney Advisor Program Extended

From today's Federal Register:

We are extending for two years our rule authorizing attorney advisors to conduct certain prehearing procedures and to issue fully favorable decisions. The current rule is scheduled to expire on August 10, 2009. In this final rule, we are extending the sunset date to August 10, 2011. We are making no other substantive changes.

Attorney Advisor Rules Adopted Without Change

The Social Security Administration published final rules for the program that allows some attorney advisors employed by the agency to issue fully favorable decisions after claimants request a hearing. Previously, the program had been operating under interim rules.

First Reports Of Senior Attorney Decisions

I have not yet seen one myself, but late today I heard multiple reports of senior attorney decisions received from different hearing offices in North Carolina.

Lisa De Soto At NOSSCR Conference

Lisa De Soto, Social Security's Deputy Commissioner for the Office of Disability Adjudication and Review (ODAR), spoke today at the National Organization of Social Security Claimants Representatives (NOSSCR) conference in St. Louis. Here are some points that I picked up from her presentation, with my comments in brackets:

• There were 18,000 cases remanded with 8,600 allowances under the "informal remand" [or re-recon] process in the fiscal year that ended September 30, 2007.
• ODAR has 144,000 cases that have been waiting for a hearing for 900 days or more. [Good Lord, that is a huge number.]
• ODAR has 1,045 Administrative Law Judges (ALJs) on duty now. [I believe that is down about 50 in the last six months or so -- ordinary attrition.]
• The new register from which ALJs can be hired should be available later this month.
• Only 92 additional staff members are to be hired to support the ALJs. [Since ODAR hiring along with all Social Security hiring is frozen as a general matter, this means that the support staff at ODAR will decline over the course of this fiscal year, since 92 will not be enough to replace ordinary attrition.]
• De Soto does not expect the new ALJs to be able to produce many decisions until near the end of this fiscal year (September 30, 2008).
• De Soto plans a November 1, 2007 "kickoff" for the Senior Attorney program.
• By the end of this month, ODAR will send out "guidance" to the ALJs to require them to hear and decide 500-700 cases per year.
• De Soto also mentioned the 11 actions brought before the Merit Systems Protection Board (MSPB) against ALJs this year and promised to "keep it up."
• She expects rules to be issued soon to require 75 day notice of ALJ hearings and to require that all evidence be submitted five days before ALJ hearings. These new rules will also "close the record" after an ALJ decision.
• ALJs at the new national hearings center at ODAR headquarters will supervise the attorneys who write the decisions for them. [This makes these ALJs supervisory personnel who would be ineligible to join a union. Was there an anti-ALJ flavor to her remarks? Absolutely.]
• If the national hearings center works, there may be an expansion to regional hearings centers.
• Currently there are 160,000 "unpulled" cases at ODAR. [If you do not know what "unpulled" means, well, the subject may not be important to you anyway.] Social Security has signed a contract for "e-pulling" of files. E-pulling should begin nationally by June 2008.
• The pilot for a program to allow attorneys to review online the files of their clients should begin in June 2008.
• By October 2008, ODAR should have many new things in place.
• De Soto favors an expansion of video hearings. De Soto refused to answer a question asking whether she expects local hearing offices to "wither away." I do not mean that she evaded the question. She said specifically that she was refusing to answer the question. [My congratulations to the person who asked this question.]
  
• De Soto said that she would not eliminate the right of a Social Security claimant to refuse a video hearing.
  

Slow Start For Senior Attorney Program

On August 9 Social Security adopted regulations allowing its senior attorneys to issue fully favorable decisions. I have not yet seen any staff instructions on the senior attorney program nor any sign that the program is being implemented anywhere. Creating the instructions should be a snap. Merely dust off the old instructions, make a few changes and you have what you need. There ought to be some training, but the process is not that difficult. Why should it take so long to get going?

I can think of one possible explanation why things seem not to be moving. If attorney time is diverted to doing the senior attorney decisions, there will be less attorney time that can be devoted to writing decisions for Administrative Law Judges, creating a backlog there. In other words, the senior attorney program may not amount to much until more attorneys are hired and trained, because otherwise the agency is just borrowing from Peter to pay Paul and will get little if any boost in productivity.

Senior Attorney Program Reinstated

Effective today, Social Security has reinstituted the Senior Attorney program. The announcement appeared in today's Federal Register. Here is a summary from the notice:

... we are permitting attorney advisors, under managerial oversight, to conduct certain prehearing proceedings to help develop claims, and issue fully favorable decisions in appropriate claims before a hearing is conducted. We expect that this change will help us reduce the very high number of pending cases at the hearing level by enhancing claims development before the hearing and by permitting attorney advisors to issue fully favorable decisions in appropriate claims.

The Senior Attorney program was in effect some years ago and was quite helpful in reducing a much smaller backlog at that time. The new regulations put a two year limit on the Senior Attorney program, although the regulation states that this time could be shortened or lengthened. It is most unlikely that Social Security will work off its hearing backlog in the next two years.

Federal Register Alert

Each day the Office of Federal Register posts brief summaries of items they have received for publication in the Federal Register the next day. Here are two interesting items from Social Security that just showed up on this list. I know no more than I can glean from this bare description, but the first one sounds like senior attorney decisions.

Social security benefits and supplemental security income:

Federal old age, survivors, and disability insurance and aged, blind, and disabled--

Attorney Advisory program; amendment, E7-15422 [SSA-2007-0036]

Social security benefits and supplementary security income:

Federal old age, survivors, and disability insurance and aged, blind, and disabled--

Attorney Fee Payment System extended, eligible non-attorney representatives fee withholding and payment procedures, and past-due benefits definition, E7-15242 [SSA-2006-0097]