Attorney Advisor Program Made Permanent

     The Social Security Administration published a notice in the Federal Register today that it is making the attorney advisor program permanent. As the notice says "The attorney advisor initiative permits some attorney advisors to develop claims, including holding prehearing conferences, and, in cases in which the documentary record clearly establishes that a fully favorable decision is warranted, issue fully favorable decisions before a hearing is conducted." 

     The problem with the attorney advisor program is that they are issuing few decisions. This is because the agency has imposed many limits and restrictions on what the attorney advisors can do. If Democrats win control of the House of Representatives in November I expect that Social Security will remove some of the limitations on attorney advisor productivity.

     By the way, if they're issuing decisions, shouldn't attorney advisors be appointed by the Commissioner?

OMB Asked To Approve Final Regs On Attorney Advisor Program

     The Social Security Administration has asked the Office of Management and Budget (OMB) to approve final regulations to make the attorney advisor program permanent.

Attorney Advisor Program Extended

     From today's Federal Register:

We are extending for six months our rule authorizing attorney advisors to conduct certain prehearing proceedings and to issue fully favorable decisions. The current rule is scheduled to expire on February 5, 2018. In this final rule, we are extending the sunset date to August 3, 2018. We are making no other substantive changes.

     However, there have been few attorney advisor decisions in recent years and none recently. If Democrats were to take control of the House of Representatives in this November's election, expect the attorney advisor program to ramp up quickly. The reason is pretty clear. Social Security officials know that Congressional Republicans don't really care about backlogs but do want as few disability claims approved as possible.

Going To Hell In A Handbasket

     Below is Social Security's Hearings Caseload Analysis Report for the first nine months of fiscal year (FY) 2016, which began on October 1, 2015. This was published in the newsletter of the National Organization of Social Security Claimants Representatives (NOSSCR). That newsletter is not available online.

     Here are some signs of just how badly things are going:

• The adjusted case receipts for the nine month time period were 746,300. The dispositions were 662,522. This means they were only able to handle 89% of the workload they received.
• They had 977,736 cases pending at the beginning of the FY and 1,121,267 cases pending as of the end of June (actually June 24, which the agency treats as the end of June). That's a 15% increase in the backlog.
• Look at the bizarre stops and starts in overtime. It went from 109.75 hours in November 2015 to 48,924.74 hours in December but then declined to 85.5 hours in March. Why? Social Security surges its overtime as soon as it gets an appropriation. That number then rapidly declines as the money starts to run out. It's boom or bust.
• Take a look at the note at the bottom. The Senior Attorney program only disposed of 732 cases in this nine month period! This is ridiculous. It's less than the productivity you'd get from two Administrative Law Judges. That number of Senior Attorney decisions could be multiplied by 100 without having causing harm. All that would happen is that the sickest claimants, the ones who will certainly be approved anyway, would be approved more quickly. The Senior Attorney program has been subjected to such extreme limitations that it cannot function. It's a waste of resources. Don't tell me that agency management cares about the backlog. They know well that the Senior Attorney program could be a huge help in holding down backlogs but they either don't care or they're adopted the attitude of many Congressional Republicans that the only good disposition of a Social Security disability claim is a denial.

Click on report to view full size

First Sign Of Re-Recons

     I heard today of a claimant's request for hearing being diverted to an "informal remand" review, also called re-recon. This is an effort to get strong disability claims approved without the long wait for a hearing before an Administrative Law Judge. This has been done in the past to help deal with the hearing backlog. 

     I have no idea how many of these will be done or what the criteria will be. I would caution that Social Security's Office of Disability Adjudication and Review (ODAR) has been doing Senior Attorney reviews, which are somewhat similar to re-recons, in the last few years but they have amounted to almost nothing because so few reviews have been done and because they have been done under such restricted standards that few claims could be approved. The Senior Attorney reviews done in recent years may have been a waste of staff time. We'll have to see if the agency has gotten past its fears of being accused of "paying down the backlog."

Senior Attorney Decisions Resuming?

     My firm has received senior attorney decisions this month in two cases from two different hearing offices. These are the first we have seen since August 2013. 

     To what extent is the senior attorney program being resumed? Had it ever gone away completely? What about re-recon? Is that coming back?

     Given the backlog, both programs should be resumed in a big way, if there is enough staffing.

Hearing Office Attorney Advisor Ability To Issue Favorable Decisions Diminished

     From a Bulletin issued by Social Security's Chief Administrative Law Judge:

In November 2013 we began a pilot: the National Screening Unit (NSU). The NSU Core Team will review and select cases eligible for the program and will distribute those cases to hearing office (HO) management for assignment to AAs.

AAs [Attorney Advisors] may review and sign fully favorable decisions only in cases selected by the NSU. AAs may screen other cases (i.e., those not selected by the NSU) at the direction of HO management, but they may only do so for the purposes of identifying potential Administrative Law Judge (ALJ) OTR [On The Record] decisions or assisting an ALJ with a hearing. ...

AAs can only issue a fully favorable decision when the case is referred by the NSU and the evidence supports the following:

• A claimant’s condition meets a listing at Step 3;
• A claimant’s condition medically equals a listing at Step 3, based on medical expert (ME) evidence;
• Applying the “special” medical-vocational profiles showing an inability to make an adjustment to other work (see 20 CFR 404.1562 and 416.962; Social Security Ruling 82-63); or
• Directly applying a grid rule in Appendix 2 to Subpart P of Part 404 (Medical-Vocational Guidelines) to find a claimant disabled at Step 5.

      This was issued to dramatically cut down on AAs issuing decisions approving disability claims. This also has the effect of reducing Social Security's ability to deal with the growing backlogs of claimants seeking a hearing before an ALJ. However, these AA decisions came to a complete where I am even before this directive.

Three Notices In Federal Register

     Three notices from today's Federal Register:

I. This final rule adopts, without change, the interim final rule with request for comments we published in the Federal Register on January 12, 2012, at 77 FR 1862. The interim final rule modified our rules so that we may send a Ticket to Work (Ticket) to Ticket to Work program (Ticket program)-eligible disabled beneficiaries. Under our previous rules, we mailed initial Ticket notices to all Ticket-eligible beneficiaries immediately after they began receiving benefits, regardless of whether they were likely to participate in the program. This change did not affect Ticket eligibility requirements.

II. 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 9, 2013. In this final rule, we are extending the sunset date to August 7, 2015. We are making no other substantive changes.

III. We are extending our pilot program that authorizes the agency to set the time and place for a hearing before an administrative law judge (ALJ). This final rule will extend the pilot program for 1 year. The extension of the pilot program continues our commitment to improve the efficiency of our hearing process and maintain a hearing process that results in accurate, high-quality decisions for claimants. The current pilot program will expire on August 9, 2013. In this final rule, we are extending the effective date to August 9, 2014. We are making no other substantive changes.

SAAs, ALJs And OTRs

     From a report by Social Security's Office of Inspector General (OIG):  

The SAA [Staff Attorney Adjudicator] Program [also known as Senior Attorney program] has contributed to both an increase in adjudicative capacity and improved average processing time. However, the number of SAA OTRs[On The Records] peaked in FY [Fiscal Year] 2010, and the decline continued through the first 5 months of FY 2013. Overall, SAA and ALJ [Administrative Law Judge] OTRs have been decreasing since FY 2008, consistent with ODAR management’s predictions. In addition, in an FY 2012 quality review, the Office of Quality Performance noticed a significant drop in its decisional agreement rate on SAA OTRs, though the Agency did not have sufficient data to determine whether the issue was specific to SAAs or more broadly related to OTRs. Finally, hearing office managers were interested in additional training and greater duties for their SAAs. Given the expected decline in SAA OTRs, which was the primary purpose of the SAA Program, SSA should decide before any future extension of the program, or expansion of the SAA corps, whether the program needs to be modified to address future hearing office workload needs. ...

The SAA Program has contributed to hearing office productivity and timeliness since its introduction in FY 2008, though SAA OTR decisions peaked in FY 2010. SAA OTR decisions decreased by 31 percent in FY 2012 and continued dropping through the first 5 months of FY 2013. OTR decisions as a percent of total dispositions, whether decided by SAAs or ALJs, also decreased over the same 5-year period, from about 17 percent in FY 2008 to about 10 percent in FY 2012. An OQP [Office of Quality Performance] quality review of FY 2012 SAA OTR decisions found a significant decrease in the decisional agreement rate from prior years. However, the Agency has not conducted similar quality reviews focused on ALJ OTR decisions, so we could not determine whether the quality issues related to SAAs specifically or OTRs in general. ...

     Social Security has employed non-ALJ attorneys for decades. They have assisted ALJs, mostly by writing decisions for them. One of their other duties has been to look for cases in which it would be appropriate to do an OTR. OTRs help get favorable decisions out more quickly to the most severely disabled people. The non-ALJ attorney would advise an ALJ that a particular case was appropriate for an OTR and, usually, but not always, the ALJ would agree and the favorable decision would be issued with the ALJ's signature. Social Security decided it would be best to eliminate the middleman -- the ALJ -- and let the attorneys, referred to as Senior Attorneys or SAAs issue the OTRs on their own authority, thereby saving the time that the ALJs had spent reviewing cases identified for possible OTR.  ALJs as a group have always objected to SAAs issuing decisions in their own right. Whatever anyone thinks of the SAA program, there's no doubt that the SAA program helped work down the terrible hearing backlogs. Those backlogs are less terrible now but we're certainly not at backlog levels that anyone should be comfortable with.
     Why did SAA decisions decrease after 2010? The 2010 election results are the obvious underlying reason but exactly why the change occurred may be a more difficult question. Was it a desire to somehow placate the new Republican majority in the House by approving fewer claims? Was it that then-Commissioner Astrue only used SAA because of pressure from the prior Democratic majority in the House and felt free to wind down the SAA program after Republicans gained control of the House of Representatives? Was it because reduced staffing forced the attorneys to stick to writing decisions for cases ALJs had heard instead of reviewing cases as SAAs? Was it simply because the backlog had come down enough that then-Commissioner Astrue thought that the SAA expedient could be phased out?
     I have no idea why OQP found a decrease in decisional agreement. Since there is no gold standard against which to measure SAA or ALJ decisions, I regard any report that OQP produces on decisional quality to be worthless. In any case, I'm confident in saying that there was no real change in SAA decisions. The change was at OQP.
     The most interesting question to me is why ALJ OTRs decreased. I can't explain it but I've certainly seen greatly increased ALJ reluctance to issue OTRs in the last three years or so. It's not unusual for me to have a hearing where the ALJ, in effect, tells me before the hearing begins that he or she has already decided to approve the claim. The ALJ wants to make sure I know so I get the hearing over quickly. This seems to be an effort to disguise an OTR. What's the point of this? Are ALJs afraid that if they do too many OTRs that something will happen to them? If so, who or what put this fear in them? What's the threat? To me, this just seems pointless. Some cases are appropriate for OTR, regardless of who the decision maker is. Who wants to slow down the process of approving people who obviously deserve to be approved?

What Happened To Re-Recon And Senior Attorney Reviews?

     What's going on with re-recon (also known as informal remands) and senior attorney reviews? These have been efforts to cope with Social Security's backlog in hearing disability cases. Non-Administrative Law Judge personnel have done reviews after a request for hearing to see if the cases can be paid. My impression earlier in the year was that these cases were being reviewed under a standard that guaranteed that few would be approved. It seemed close to being a waste of time. Now, it seems like these reviews have slowed down. What's going on? Lack of staff to even do reviews? A decision that these reviews weren't worth the effort? Even more restrictive standards for approving a claim?

SAA Usage At Social Security

Social Security's Office of Inspector General (OIG) has issued a report on the use of Senior Attorney Adjudicators (SAAs). The report is quite favorable for SAAs.