OIG Report Shows Bad ALJ Dismissal Problems

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

In an August 4, 2009 letter, Senator McCaskill requested that we review dismissals of hearing requests to ensure disabled individuals are afforded the rights and protections required by law and regulations. The Senator also requested we determine whether there were any unusual dismissal trends by individual ALJs [Administrative Law Judges] or by regions. ...

For our review, we analyzed selected hearing request dismissals to determine whether there was documentation in the case folder to support the dismissal. In addition, we examined dismissal rates by region, hearing office, and ALJ. ...

We reviewed 50 cases dismissed in FY 2009 where ODAR determined the claimant filed the hearing request untimely ...

In 2 of the 50 untimely hearing request dismissals we reviewed, it appeared the ALJ should not have issued an untimely hearing request dismissal. ...

For 7 of the 50 untimely hearing request dismissals we reviewed, there was no evidence in the claimants’ case folders that ODAR requested an explanation for late filing from the claimant (good cause). ...

In 3 of the 50 untimely hearing request dismissals we reviewed, we could not determine whether the ALJ considered the claimant’s good cause explanation. ...

For the 50 untimely hearing request dismissals we reviewed, ODAR took between 6 and 637 days to issue the dismissal to the claimant. ... In fact, more than half the dismissals took more than 60 days. ...

We reviewed 50 cases dismissed in FY 2009 because the claimant abandoned the hearing, that is, the claimant did not appear at the scheduled hearing. For seven cases, the claimants’ case folders did not contain evidence that ODAR attempted to contact the claimants, as required. ...

We reviewed 50 cases dismissed in FY 2009 because the claimant withdrew the hearing request. However, one claimant’s case file did not contain evidence the claimant wanted to withdraw the hearing request. ...

We analyzed all dismissals issued in FY 2009 and found that dismissal rates varied among ODAR regions, hearing offices, and ALJs. ...

For example, one hearing office in the Philadelphia Region had a dismissal rate of 10 percent, while another hearing office in the region had a dismissal rate of 25 percent. ...

Finally, we identified a wide variance in dismissal rates by ALJ. Although 95 percent of ALJs had dismissal rates of 25 percent or less, the dismissal rates by ALJ varied from 0 to 60 percent.

Most of the claimants whose requests for hearing are dismissed are unrepresented. Even when claimants are represented there can be inappropriate dismissals. For example, an ALJ is not supposed to dismiss a request for hearing because the claimant does not appear for his or her hearing as long as the attorney representing the claimant appears but ALJs frequently dismiss in these cases. The Appeals Council always remands them. I must have had a dozen of these cases remanded over the years.

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.

I Cannot Believe This Would Happen

From Robert Kuttner writing at Politico:

The tax deal negotiated by President Barack Obama and Senate Republican leader Mitch McConnell of Kentucky is just the first part of a multistage drama that is likely to further divide and weaken Democrats.

The second part, now being teed up by the White House and key Senate Democrats, is a scheme for the president to embrace much of the Bowles-Simpson plan — including cuts in Social Security. This is to be unveiled, according to well-placed sources, in the president’s State of the Union address.

Paul Krugman writes in response that:

[T]his would be a political disaster on two levels. It’s not just that progressive activists would sit on their hands in disgust; Republicans would, inevitably, run ads attacking Democrats for cutting Social Security. You think that’s crazy? They just won the House in part by accusing Democrats of cutting Medicare.

Social Security Facing Waterloo In The Spring?

From Dean Baker, Co-Director of the Center for Economic and Policy Research, writing at the Huffington Post:

Sometime in the spring the government will run up against its debt ceiling. This will prevent the government from any further borrowing.

Since the government has a substantial deficit, with spending exceeding revenue, hitting this limit would mean that the government would not have sufficient funds to pay for all its programs. It also would mean that the government could not pay interest or principle on debt that is coming due; in effect requiring it to default on its debt.

The prospect of the U.S. government defaulting on its debt creates the sort of end of the world scenario in which Congress rushed to pass the TARP in 2008. Back then, President Bush, Fed Chairman Ben Bernanke and all sorts of other luminaries told members of Congress and the public that we would have a second Great Depression if the Wall Street banks were not immediately bailed out, no questions asked. And the money flowed.

The prospect of defaulting on the debt will create a similar outbreak of shrill warnings of disaster. This would likely to lead to scenario in which President Obama signs whatever debt ceiling package House Republicans hand him, even if it includes the privatization of Social Security and Medicare and major cuts and/or elimination of other important programs. The argument from the administration will be that they have no choice.

I do not buy that this is going to happen, especially since any form of privatization would increase the deficit dramatically, but Baker is not the only one sounding the alarm.

22% More Funding For VA But No More For SSA

The Senate is working on a continuing resolution (CR) to fund government activities for a few more months. This is facing the threat of a filibuster. A government shutdown just before Christmas is unlikely but not totally out of the question. The current version of the CR would increase funding for the Veterans Benefits Administration by 22% "to support efforts in reducing the processing times of disability claims." Social Security would get no increase from its 2010 funding level under the CR.

Social Security Hearing Office Average Processing Time Report

From Social Security by way of Nancy Shor, Executive Director of the National Organization of Social Security Claimants Representatives (NOSSCR).

Social Security Calls This The Waterfall Report

From the newsletter of the National Organization of Social Security Claimants Representatives (NOSSCR). Click on it to see it full size.

What Will It Be Like If Social Security's Operating Budget Is Cut By 25%?

From the New York Times:

The collapse of a government-wide spending package in the final days of this Congressional session sets up a politically charged fiscal showdown early next year, testing the determination of Republicans about to take over the House with promises to slash an array of domestic programs....

Republicans say that timeline will allow them to quickly put their stamp on the budget for the current fiscal year, and Mr. Boehner and his leadership team have vowed to eliminate about $100 billion in spending out of about $400 billion in domestic programs. ...

The 2011 spending fight could be complicated by the need to raise the federal debt limit to avoid a federal default — a vote that many new Republican lawmakers have indicated they would not make.

Republicans say the debt limit vote could also present an opportunity, allowing them to tie a package of spending reductions to the debt increase to make it more palatable.

FICA Tax Cut

The bill that cuts Social Security's lifeblood, the FICA tax, by 2% "temporarily" is awaiting the President's signature after both houses of Congress finished work on the bill last night. The bill calls for a transfer of funds from the Treasury to make up for the cut.

The fear among those passionate about protecting Social Security is that it will be impossible to avoid the temptation to make the cut permanent, thereby crippling the funding mechanism that has set Social Security apart from programs such as Food Stamps or Temporary Assistance to Needy Families which are perceived -- negatively -- as "welfare."

That Binder And Binder Lawsuit

I have received many questions about Binder and Binder's lawsuit seeking that Social Security be required to allow them to represent Social Security claimants at hearings solely by video appearance from their office -- meaning that they would never have to meet with the claimant in person. I have downloaded the most recent documents filed in the cases from PACER, the federal court's online system. I have uploaded the to Yousend it so you do not have to mess with PACER or pay its fees. The documents will be available for you to download from Yousendit through December 23.