Results Of Last Week's Unscientific Poll

How do you rate the chances of former Commissioner Barnhart's Disability Service Improvement plan being implemented nationally?

Almost certain (2)	2%
More likely than not (4)	4%
Some chance (21)	19%
Little chance (39)	36%
No chance (42)	39%

Total Votes: 108

An Image From The 1980s

Odd And Surprising Decision From the Sixth Circuit

Thanks to Eric Schnaufer for posting links to federal appellate decisions in Social Security cases. Here are some excerpts from Cook v. Commissioner of Social Security, issued on March 21, which I would characterize as an odd and surprising decision that suggests that some federal judges look for ways to dispose of Social Security cases without hearing them:

Cook appealed to the SSA’s Appeals Council, which issued a notice of denial of review dated July 27, 2005. This notice was sent to Cook by regular mail in an envelope bearing a postmark of July 28, 2005 ... On Monday, October 3, 2005, Cook filed a complaint in federal district court, appealing the Appeals Council’s denial of review. ...

Under the Federal Rules of Appellate Procedure, Cook had 60 days from the Appeals Council’s notice of denial in which to file his appeal. Fed. R. App. P. 4(a)(1)(B) (“When the United States or its officer or agency is a party, the notice of appeal may be filed by any party within 60 days after the judgment or order appealed from is entered.”). But he also had a five-day “grace period” before the 60 days began to run, which reflects the SSA’s rebuttable presumption that he received his notice of denial within five days of the date of the notice. 20 C.F.R. § 422.210(c). Rule 26(a)(3) of the Federal Rules of Appellate Procedure provides that when the final day of an appeals period falls on a Saturday or a Sunday, then those days are excluded in computing the time period. Fed. R. App. P. 26(a)(3). If the appeals period ended on a weekend day, the appellant accordingly would have until the following Monday in which to timely file. ...

But Cook urges us to calculate the five-day period from the date of mailing, represented by the postmark date, rather than from the date on the notice itself. Unlike the facts in McKentry, however, Cook does not deny that he received the Appeals Council’s notice. He instead argues that the district court miscalculated the applicable review period because the notice was not actually postmarked until July 28, 2005, even though the first page of the notice bears a date of July 27, 2005. ...

Contrary to Cook’s argument, this court has consistently calculated the filing period from the date on the notice itself. See, e.g., McKentry, 655 F.2d at 724; Harris, No. 01-3522, 25 F. App’x at 273-74. This is in keeping with the applicable regulations. Cook has presented no persuasive argument for deviating from this interpretation. His complaint filed on Monday, October 3, 2005, was thus one day late.

A Ray Of Budget Light

A recent e-mail to all Social Security employees from the Commissioner of Social Security:

A Message To All Social Security And DDS Employees

Subject: Budget News

As I told you last month, Congress approved and the President signed legislation allocating an additional $200 million for Social Security. That number brought us about half of the way back to the President's recommended budget level for this fiscal year.

This week I had the pleasure of releasing additional resources to different parts of the agency so that we can prepare to do some hiring that will deal with staffing imbalances and loosen restrictions on overtime. As you know, these limits have made it difficult to live up to our own standards. Please join me in congratulating Dale Sopper, Bob Wilson and their staffs for their fine work in making our case to Congress. It is a real credit to SSA that we received such strong support from our Congressional committees of jurisdiction, the Appropriations committees and from outside organizations concerned about the impact of five years of budget reductions on our ability to deliver service.

While I was responsive to most of the requests from senior managers, we are still faced with an overall budget environment that limits our ability to increase the size of our staff and sustain it into the next year. Fortunately, at this stage of the Congressional budget process, the budget levels targeted by the House and Senate for fiscal year 2008 would not require us to consider furloughs or other drastic measures in the coming year. This is incredibly good news but I must caution that Congress is faced with scores of competing priorities, so it is important that we remain vigilant until there is a final vote later this year.

Senior managers will be providing you soon with additional information about what this week's budget decisions will mean for your specific organization.

Michael J. Astrue
Commissioner

United Spinal Association Calls For More SSA Funding

From a press release from the United Spinal Association, which suggests that Social Security's fiscal year 2008 budget is under active review in Congress:

The delays facing applicants for disability benefits at the Social Security Administration are unconscionable and lawmakers could remedy the situation by voting for the full amount the agency has requested in the FY 2008 budget, according to Paul J. Tobin, President and CEO of United Spinal Association.

n an urgent call for action, United Spinal recently received over 1,000 responses from concerned citizens across the nation eager to help alert Congress to the gravity of the situation. “We are asking lawmakers to ensure that the FY 2008 budget includes the full $10.44 billion that the Social Security Commissioner requested for staffing and administrative expenses––not the lesser amount in the Proposed Budget for FY 2008,” Tobin said.

“Unless the Proposed 2008 Budget is increased, Social Security will lose nearly 7,000 full time positions at a time when there were over 700,000 applications for disability benefits pending in Social Security offices last year.” ...

SSA Employment Dropping

The Office of Personnel Management has finally come up with the numbers showing the number of employees that the Social Security Administration had as of the end of 2006. Below is that number and the same number for other recent dates. This shows a 4% reduction in personnel between the end of 2005 and the end of 2006.

• December 2004 65,286
• December 2005 65,777
• March 2006 64,297
• June 2006 64,814
• September 2006 63,647
• December 2006 63,410

Senators Press For Adequate Funding For Social Security

Thirty-seven U.S. Senators have joined in a recent letter to the Chairman and Ranking Minority Member of the Senate Budget Committee asking for better funding for Social Security in order to reduce hearing backlogs. Only Senators Barbara Mikulski and Elizabeth Dole have put out press releases on the subject, as best I can tell.

While this sounds good, last November more than 50 Senators joined in a similar letter. Apparently, several Senators were willing to sign a letter last fall are unwilling today.

Hearing Backlog Ideas That Can Be Implemented Quickly -- Installment IV

Make a statistical review of cases in which ALJs reverse prior administrative denials to look for patterns showing which types of cases are most reversal prone and carefully consider adjusting policies and practices at the initial and reconsideration levels to allow more of these cases.

This was done during the Clinton Administration and it worked. This was a part of something called Process Unification. I have my own candidates for types of cases that Social Security should look at. The most important type would be bipolar disorder. Social Security is turning down almost everyone who is bipolar at the initial and reconsideration level, but 80-90% of these claims are approved by ALJs.

I have more clients suffering from bipolar disorder than anything else. It may be 10% of my caseload. The next biggest category is chronic pain syndrome. If the claimant is going to a pain clinic and being told to take methadone or some other powerful narcotic several times a day, they might just be in severe pain. However virtually all such claims are being denied at the initial and reconsideration levels, while the vast majority are approved by ALJs. Social Security probably ought to look at its policies on mental retardation, congestive heart failure, obesity and peripheral neuropathy as well.

You could probably eliminate 10-20% of appeals to ALJs in this manner and the vast majority of these claims would have been approved by ALJs anyway. This would probably take at least a year to implement.

Maybe Dilbert's Employer Will Try To Get This Contract

Below are extracts from a request by Social Security for information from potential contractors. The agency is not ready to seek bids, but is seeking information only.

Let me make it clear that I regard this request as a complete fantasy that reveals the naivete of whoever came up with this idea and whoever approved this request for information. What is requested is far beyond the capacity of any computer program -- but some contractor will certainly be willing to promise to produce a program that does this, for $100 million or so, but definitely without a money back guarantee. Go ahead with this nonsense and you will be wasting lots of money.

The Social Security Administration (SSA), Office of Systems (OS) and Office of Disability Adjudication and Review (ODAR) are seeking to identify qualified sources interested in providing and implementing a Commercial-Off-The-Shelf (COTS) Image Knowledge Base software product or a service that provides and/or utilizes the functionality of an Image Knowledge Base software product. The software or service may consist of multiple components, if necessary to meet the SSA's requirements. ...

ODAR employees in hearing offices classify documents into various categories and extract pertinent information from those documents. The employee must look at a document's identifying features, determine the type and title of the document and then enter the information into the electronic folder. Afterwards, the employee organizes the documents chronologically and removes duplicates. ...

The SSA invites all qualified sources to respond to this sources sought announcement.ALL REQUIREMENTS ARE MANDATORY.

REQUIREMENTS:

• At a minimum, possess the capability to process a national workload from 145 hearing offices and remote sites nationwide that process approximately 550,000 cases per year that consist of, on an average, 300 document images per case. Possess the capability to process these images within an acceptable period of time and with an acceptable level of accuracy. ...
• Possess the capability to use the knowledge base of information to classify the document images into categories and subcategories according to the established SSA Electronic Folder (EF) rules for classification.
• Possess the capability to separate document images from one another to avoid multiple document images from being inappropriately scanned, stored, and treated as a single document image. The document images may be any combination of multiple known forms and/or multiple free format text documents. This needs to include the ability to address those document images that already exist within SSA's unstructured data repository where there is already some document separation and classification information.
• Possess the capability to extract structured data from the document images such as Social Security Number (SSN), treatment dates, treatment source names, etc., and place the data in the appropriate fields specified by SSA for the Electronic Folder using SSA's application program interfaces (APIs)....
• Possess the capability to automatically organize the document images (after classifying them), chronologically by treatment date or other parameters established by SSA for the EF.
  
• Possess the capability to support SSA's viewing function (of the document images) by accessing the stored metadata in the EF, using SSA's API's, to organize the document images based on parameters established by SSA.
• Possess the capability to identify and flag duplicate document images.
• Possess the capability to identify and flag document images with poor quality.
• Possess the capability to identify and flag images with low probability of being classified correctly with the ability to configure and dynamically adjust the probability ratio.

NTEU On The Future At SSA

As reported on the Association of Attorney Advisors board (and yes, that is a rather new board), this is a message from the National Treasury Employees Union (NTEU) to its Social Security attorney advisor members, who write decision for Administrative Law Judges:

March 19, 2007
Folks:
The Importance of Addressing the Backlog

Members of the Subcommittee on Social Security of the House Committee on Ways and Means have made in clear that addressing the backlog at ODAR hearing offices should be of the highest priority. This is a significant change, and one that bodes well for us. SSA is under considerable pressure to deal with the backlog, and there is little doubt that Commissioner Astrue understands the situation and is committed to effectively dealing with it. However, it is equally clear that presently hearing offices cannot effectively deal with the backlog. Congressman Michael R. McNulty, Chairman of the Social Security Subcommittee, and Congressman Sam Johnson, the ranking member of that Subcommittee, sent a letter dated March 15, 2007 to Congressmen John Spratt and Paul Ryan, the Chairman and ranking member, respectively, of the House Committee on the Budget seeking to significantly increase the appropriations to SSA. Prominently cited in that letter was the size and impact of the Hearings level backlog.
Commissioner Astrue: We have a solution to the backlog crisis that could be implemented immediately; that is cost effective; and that has a history of success – an enhanced version the original Senior Attorney Program. We can provide the Agency with an additional 100,000 legally defensible decisions a year without adversely impacting ALJ productivity or the payment rate.

DSI

Commissioner Astrue has stated that he will review DSI in detail prior to deciding which DSI programs will be retained, which will be terminated, and which will be altered. Currently, there are a number of rumors floating around that indicate that the FedRO program will be terminated. While we emphasize that we have no definitive “inside knowledge” regarding the veracity of these rumors, we believe that they may well be true. The implementation of the FedRO program has been a disappointment to many, including NTEU Chapter 224, and it may well be following the path of the Disability Redesign and HPI. In any event DSI was never intended to offer immediate relief to the Hearings level backlog.

As you will recall, we have been a supporter of the FedRO concept - as it was originally formulated in 2003. We have vigorously cautioned against significant changes from the original concept of an independent decision maker located in the field. We have been very disappointed that our warnings were ignored. Simply stated, the FedRO program that was implemented is not the FedRO program we supported. We believe that the FedRO program as presently constituted is seriously flawed, and consequently, we are not surprised by its relative lack of success despite the talent and dedication of the current FedROs. The bureaucratic reengineering of the FedRO concept may simply have been too much to overcome.

As the FedRO program rolled out, it became clear that the original concept, an independent decision maker empowered to review appeals of state agency determinations and render legally defensible decisions, had not been realized, and that the FedRO had been turned into a “federal reconsideration”. Bureaucratic red tape has all but precluded efficiency and substantially increased the cost of the program. In these times of tight budgets funding a new, expensive, and not terribly productive program may be unsustainable. On the other hand, shifting the priorities of the disability program from DSI to eliminating the hearing office backlog certainly should benefit Attorney Advisers currently in the hearing offices.

In addition to cost, we fear that operational errors have significantly limited the effectiveness of the FedRO program. The FedROs were not located locally; rather they were placed in Falls Church, depriving the program of many, many highly qualified individuals, the Agency’s attorneys in the field. The decisional independence of FedROs has been seriously eroded by the influence of the “medical units”, the “quality assurance process” and even the FedRO management structure. Additionally, FedROs have been discouraged from producing high quality, legally defensible decisions and are burdened with an inadequate decision drafting format.

The Future

We again emphasize that we have no definitive knowledge regarding the fate of the FedRO program. Commissioner Astrue could decide to continue it, alter it to enhance its viability, or terminate it. Nonetheless, we believe it is a possibility that it will be terminated. What is the impact of the potential demise of the FedRO program on Attorney Advisers in hearing offices? Obviously, the demise of this program would be a blow to those who hoped to become FedROs in the future. However, whether or not the FedRO program continues, the crisis at the hearing level must be addressed.

Can SSA afford to continue to ignore us? Will SSA continue to ignore its own history or will it finally recognize that the Senior Attorney Program was instrumental in eliminating the backlog of the 1990’s? Will SSA again recognize that we are the solution? We are doing our utmost to make SSA and Congress understand what is in their best interest and the best interest of the claimants and the public at large. Hopefully, SSA will finally listen and implement our improved version of the Senior Attorney Program.

- Jim Hill