New NOSSCR Officers

Here are the newly elected officers of the National Organization of Social Security Claimants Representatives (NOSSCR):

• Treasuer-Charles Martin
• Secretary-Ray Kelly
• Vice-President-Lawrence Wittenberg

A Lot More From NOSSCR Conference

More from Eric Schnaufer at the conference of the National Organization of Social Security Claimants Representatives (NOSSCR) in Las Angeles:

Michael Astrue, Commissioner of Social Security:

I. Backlog

Average processing time is the average length of time that a claimant waits after filing a request for an ALJ hearing (RH) to an actual oral hearing before an ALJ. An ideal average processing time is 270 days. Only 1 Office of Disability Adjudication and Review (ODAR) Hearing Office (HO) meets the 270-day standard.

There are no “magic bullets” to decrease the backlog. There are only commonsense and incremental advances. The Commissioner was “stunned” and “embarrassed” by the backlog. He is now “incredibly pleased” with the ALJ [Administrative Law Judge] corps.

The Agency reduced and reduces the backlog by attacking “aged” cases. In FY 2008, the Agency defined “aged” cases as pending for a hearing for 900 or more days. There were 135,000 such RHs. Less than 300 of them remained in FY [Fiscal Year] 2009.

In FY 2009, an “aged” case has been pending for 850 or more days. There are about 165,000 such RHs. The Commissioner was confident that these aged cases would be processed before the beginning of FY 2010.

The average processing time at ODAR increased 2 days in FY 2008.

There were reasons to be optimistic about FY 2009. In FY 2008, none of the new ALJs was working. Further, some of the best ALJs had lowered productivity in FY 2008 given their responsibilities to train new ALJs and to train their peers at the national training conferences.

In FY 2008, 56% of ALJs met the standard of disposing of 500 or more RHs per year. In the Denver Region, 89% of ALJs met that standard.

The Commissioner expected that the newly hired ALJs would be fully productive in 9 months. There was “universally positive feedback” about the new ALJs.

The ultimate goal is to have 1,250 ALJs. No new ALJs will be hired until the summer of 2009.

II. Geographic Allocation of Resources and Hearing Office

Atlanta and Detroit are “dramatically underresourced.” Atlanta, Cleveland, and Detroit have pending caseloads per ALJ 4 times those of Southern California and New England.

The Agency will transfer video hearings to HOs that were less busy.

The National Hearing Center (NHC) was working on Atlanta Downtown, Detroit, and Cleveland cases. The NHC would soon start taking cases from Flint, Michigan, Indianapolis, and both Atlanta HOs.

Two new NHCs will open: Albuquerque and Chicago.

There will be 5 new HOs [Hearing Offices]: Tallahassee, FL, Toepeka, KS, Mt. Pleasant, MI, Toledo, OH, and Atlanta (South), GA.

There will also be offices of some sort in Anchorage, AK and Boise, ID.

There will be “satellite offices” in Madison, WI, Sioux Falls, SD, and Rochester, NY.

There will be video offices in Detroit, Omaha, and Cleveland.

II. Information Technology

Eighty-five percent of claims are now electronic.

There are two 2 sites testing advanced software for the state agencies, one in California and the other in Michigan.

IT initiatives including, ePulling, electronic signatures, electronic scheduling, and centralized mailing of notices. (Deputy Commissioner DeSoto spoke approvingly of ePulling. Charles Hall has questioned that technology on this blog.)

The pilot project in which claimants testify from their representatives offices has started.

The pilot project in which representatives access their clients’ claim files online has begun. 418 files have been accessed. Privacy issues must be resolved regarding this pilot project.

III. DSI Ending

DSI [Disability Service Improvement -- former Commissioner Barnhard's plan] is winding down. The regulations to convert Region I back to the old ALJ-to-Appeals-Council process are pending at OMB [Office of Management and Budget].

DSI was sold as a “magic bullet.” It was not.

IV. Quick Decisions and Compassionate Allowances

Quick Disability Determinations (QDD) are currently 3% of initial applications. The goal is to increase QDDs. 95% of cases identified for QDD are allowed. Average processing time for QDDs is 8 days.

Compassionate Allowance (CA) is different than QDD. QDD cases are identified by a computer profile. CA cases are identified by the impairment, e.g., cancer. Under CA, a claimant will be found disabled at step three of the five-step sequential evaluation after review of only “minimal” medical evidence. The purpose of CA is to allow claims for claimants who are “clearly” disabled. There have been 2 public hearings about CA. There will be a third.

IV. Health Information Technology

The Commissioner reviewed the well-known Health IT initiative with Beth Israel Hospital in Boston and the MA state agency.

V. DOT
The Dictionary of Occupational Titles (DOT) is obsolete. The Agency plans to have a replacement for the DOT in 3-5 years. In the meantime, there are contracts with vendors to “patch” the DOT. There will be an advisory panel of outside experts to address DOT issues.

VI. Notices
Notices are letters that the Agency sends to claimants providing program information, adjudicative results, etc. There is now a new unit/office headed by Alan Lane the sole responsibility of which is to review and revise notices. The Agency issues 350,000,000 notices per year.

The Commissioner stated that he had personally added the word “please” to a notice. He tried rewriting notices himself.

(Nancy Shor stated that NOSSCR members can send defective notices to her for possible routing to the Agency for review.)

VII. Retirement Application
There will be a new Internet retirement application within 60 days.

Lisa DeSoto, Deputy Commissioner for ODAR:

I. Backlog

The goal was to process RHs on a first-in-first-out (FIFO) basis.

In FY 2008, pending RHs increased 1% and there were 5% more RHs then anticipated.

If all ALJs disposed of 500 cases per year, ODAR would dispose of 60,000 cases per year.

The goal is for each ALJ to dispose of 500-700 cases per year. Many ALJs now dispose of 400-500 cases per year.

In FY 2007, 46% of ALJs did 500 or more cases per year. In FY2008, 56% of ALJs did 500 or more cases a year.

There is or will be a Decision Writer Productivity Index.

There is “some debate” about whether there is an adequate ALJ-staff ratio. In FY 2008, the ratio was 1:4.4. With the new hires, the ratio is 1:4.1.

Electronic case processing means that less labor was required for each case.

The Senior Attorney program disposed of 25,000 cases in FY2008. The Senior Attorney program will be continued.

Informal remands to DDS disposed of 17,000 cases in FY2008.

There will be ten ALJs at the National Hearing Center in Fall Church, VA. There will be four ALJs at the Albuquerque, NM NHC and about 15 ALJs at the Chicago, IL NHC. These will be fully staffed by the Summer of 2009.

II. IT [Information Technology]

There were only 105,000 paper disability files left. By the end of FY2009, there will be no paper disability files pending. Paper files take 18 more days to process.

Central printing and mailing of notices was now full operational. Eleven notices are now centrally printed and mailed.

The Deputy Commissioner is “very excited” about ePulling.“It does work.” However, ePulling is “in transition” and is not yet ready for “prime time.” “Bear with us.”

III. DSI

The Deputy Commissioner addressed winding down DSI in Region I.

IV. Blogs

The Deputy Commissioner stated that she did not “read the blogs,” probably with reference to this blog. She did confess to read blog posts that were brought to her attention by her “staff.”

Frank Cristaudo, Chief Administrative Law Judge

I. Backlog

The Agency wants to hire 120 more ALJs.

The current average processing time (from RH to oral ALJ hearing) is 514 days. This was “not acceptable.” The backlog is caused by inadequate resources and increased “receipts,” i.e., increased RHs.

There are now 650 cases for each ALJ. In Michigan, there are 1,100.

Despite the need for productivity, the Judge stated that the “legal sufficiency” of unfavorable ALJ decisions was important.

The Judge echoed Deputy Commissioner deSoto’s comments about the Senior Attorney program and informal remands to the state agencies.

There will be 100 additional Senior Attorneys.

FIFO was the rule except for TERI and on-the-record cases.

II. New ODAR Medical Expert

The Judge described a process in which an ODAR medical expert (ME) reviews a case before it is assigned to an ALJ. If according to the ME a fully favorable decision is warranted, the case is sent to a senior attorney. The ME’s case review becomes part of the ODAR file if the case is not allowed by a Senior Attorney.

III. Request to Representatives

The Judge made several requests/suggestions:

-- communicate with Hearing Office Chief ALJs and Hearing Office Mangers about problems,
-- remove duplicate evidence from files,
-- don’t submit duplicate evidence,
-- submit evidence at least 1 week before a hearing,
-- submit evidence electronically when possible,
-- don’t request postponements of hearings,
-- use online appeal forms,
-- consider using video hearings,
-- please don’t wait to the last minute to opt out of a video hearing,
-- write fully favorable decisions with the FIT template,
-- don’t submit a request for an OTR decision in a case where an OTR will probably not be granted,
-- draft short, not lengthy OTR requests,
-- alternatively, provide a summary with any lengthy OTR request,
-- provide suggestions about the Senior Attorney program,
-- be professional, and
-- report unfairness.

There were 50,000 - 60,000 video hearings in FY2 008, i.e., about 12-13% of hearings.

IV. Detailed Earnings Statement

The Judge took questions. The Judge stated that a detailed earnings statement should be included in Exhibit files if an ALJ relies on it. There was a brief discussion about detailed earnings statements.

At the present time, a detailed earnings statement cannot be moved automatically to the electronic claims file.

Nancy Shor, Executive Director of NOSSCR:

I. Backlog

The backlog is aggravated by the economic downturn, increased receipts, and SSA’s lack of resources while functioning under a Congressional continuing resolution. NOSSCR is part of a consortium of groups addressing the Agency’s budget. Send NOSSCR and your elected officials compelling human/personal stories about the backlog.

Information technology will not solve the backlog. The “only” way out of the “morass” is money.

The Inspector General issued a recent report on ALJ productivity. Several factors cause delay: poor work ethic, use of experts, rewriting of decisions, lengthy hearings, and difficulty making decisions.

The Agency does not control the hiring process for ALJs. The current process is “unfair.” There should be a 3-month notice before applications are taken, and the acceptance of applications should not be cut off when a certain number of applications is reached. The process is “crazy.” Of the new ALJs, only 20% are from private practice. Twenty-five ex-NOSSCR members are ALJs.

The Agency has a tool that it will or might use to make some ALJs more productive. ALJs currently schedule their own hearings. Take that responsibility away and simply schedule more hearings for less productive judges.

II. Notices

Send NOSSCR problematic notices. It will route them to Alan Lane, the Agency official now responsible for notices.

III. 9/8/08 NPRM [Notice of Proposed Rule-Making]

NOSSCR has information about the 9/8/08 NPRM. There are problems with the NPRM. See the NOSSCR web site.

At the present time, representatives cannot file applications. They can under the NPRM. Representatives have new affirmative duties under the NPRM.

IV. Banks and 1099s

The IRS wants 1099s for fees for representatives. If firms can receive fees instead of individual representatives, then the IRS can verify the income of a firm.

It is possible that the Agency will not issue in January 2008 1099s for work performed in 2008, but will issue 1099s for work performed in 2009 in January 2010.

Banks, not the US or the Agency, are responsible for not providing information about the source of direct-deposited funds.

V. Information Technology

ePulling is “pretty impressive.” ePulling is slower than the Bates system but faster than a human.

eScheduling (when a computer schedules hearings by comparing a
representative’s calendar to ODAR’s) won’t happen until at least 2010.

Many thanks, Eric. This is truly impressive.

Summary Of What Astrue And Others Said At NOSSCR Conference Today

I am not in Los Angeles for the conference of the National Organization of Social Security Claimants Representatives (NOSSCR). Eric Schnaufer is there and has sent this summary of what he has heard so far:

At the plenary session today at the NOSSCR conference in Los Angeles, there were four speakers: Commissioner Michael Astrue, Deputy Commissioner Lisa deSoto, Chief ALJ Frank Cristaudo, and NOSSCR Executive Director Nancy Shor. In this message, I summarize the most important news for claimants' representatives.

1. Commissioner Astrue will not use his authority to increase the fee-agreement amount from its current $5,300. On an annual basis, he will consider raising the amount. The Commissioner stated that there was political pressure from advocates for claimants (not their representatives) not to increase the fee-agreement amount. Commissioner Astrue would not increase the amount to avoid a "political controversy." There was a "zero-sum game" between claimants and their representatives regarding the amount. He stated that some Agency employees in the Old Guard (not his term) had a "chip on their shoulder" (his term) regarding the amount.

Nancy Shor stated that NOSSCR was working "very hard" to have the amount increased, that only legislation will change the amount, and that NOSSCR planned to ask its members to lobby Congress during the next NOSSCR conference in D.C.

2. Commissioner Astrue stated that the Agency will not issue new regulations for three to four months after the new administration takes office. He anticipated issuing final regulations before then for the NPRM regarding firms as representatives. He stated that the Agency recognized that there were technical errors in the firms as representatives NPRM. He solicited additional comments, the deadline for which is 11/7/08. NOSSCR will meet with the Commissioner on 10/28/08 regarding the NPRM. (Charles Hall has presented extensive comments on this blog.)

3. The budgetary situation is grave. The Agency will operate under the Continuing Resolution until March 2009. Commissioner Astrue stated that the Agency really has no independence with respect to its budget. Commissioner Astrue stated that there was a 1-3 hiring freeze in the Agency and a 1-1 replacement in ODAR. The Agency will hire 70 FTEs in FY09.

4. Judge Cristaudo stated that ODAR's goal was to have 90-day hearing notices. However, he emphasized that ODAR must use shorter notices to keep hearings scheduled. Judge Cristaudo noted that at least 1 firm has asked ODAR not to schedule so many hearings. The Judge stated that that was unacceptable.

Judge Cristaudo proposed an open dialgoue between representatives and their local Hearing Office Chief ALJs and Hearing Office Managers.

The Effects Of Inflation On Social Security

The Center for Retirement Research at Boston College has released a report on The Impact of Inflation on Social Security Benefits. Key finding:

[W]hile the inflation adjustment in Social Security is extremely valuable, the rise in Medicare premiums and the extension of taxation under the personal income tax mitigate the ability of beneficiaries to maintain their purchasing power. This erosion of retiree purchasing power is serious given that virtually all other sources of retirement income have no inflation protection at all.

Full Press Release On COLAs

Below is the complete Social Security press release on the Cost of Living Adjustments (COLAs):

Based on the increase in the Consumer Price Index (CPI-W) from the third quarter of 2007 through the third quarter of 2008, Social Security and Supplemental Security Income (SSI) beneficiaries will receive a 5.8 percent COLA for 2009. Other important 2009 Social Security information is as follows:

Tax Rate	2008	2009
Employee	7.65%	7.65%
Self-Employed	15.30%	15.30%
NOTE: The 7.65% tax rate is the combined rate for Social Security and Medicare. The Social Security portion (OASDI) is 6.20% on earnings up to the applicable taxable maximum amount (see below). The Medicare portion (HI) is 1.45% on all earnings.

Maximum Taxable Earnings:	2008	2009
Social Security (OASDI only)	$102,000	$106,800
Medicare (HI only)	No Limit

Quarter of Coverage:	2008	2009
Earnings needed to earn one Social Security credit	$1,050	$1,090

Retirement Earnings Test Exempt Amounts:	2008	2009
Under full retirement age NOTE: One dollar in benefits will be withheld for every $2 in earnings above the limit.	$13,560/yr. ($1,130/mo.)	$14,160/yr. ($1,180/mo.)
The year an individual reaches full retirement age NOTE: Applies only to earnings for months prior to attaining full retirement age. One dollar in benefits will be withheld for every $3 in earnings above the limit.	$36,120/yr. ($3,010/mo.)	$37,680/yr. ($3,140/mo.)
There is no limit on earnings beginning the month an individual attains full retirement age.

Social Security Disability Thresholds:		2008	2009
Substantial Gainful Activity (SGA)	Non-Blind	$ 940/mo.	$ 980/mo.
	Blind	$1,570/mo.	$1,640/mo.
Trial Work Period (TWP)		$ 670/mo.	$ 700/mo.

Maximum Social Security Benefit: Worker Retiring at Full Retirement Age	2008	2009
	$2,185/mo.	$2,323/mo.

SSI Federal Payment Standard:	2008	2009
Individual	$ 637/mo.	$ 674/mo.
Couple	$ 956/mo.	$1,011/mo.

SSI Resources Limits:	2008	2009
Individual	$2,000	$2,000
Couple	$3,000	$3,000

SSI Student Exclusion:	2008	2009
Monthly Limit	$1,550	$1,640
Annual Limit	$6,240	$6,600

Estimated Average Monthly Social Security Benefits Payable in January 2009:	Before 5.8% COLA	After 5.8% COLA
All Retired Workers	$1,090	$1,153
Aged Couple, Both Receiving Benefits	$1,773	$1,876
Widowed Mother and Two Children	$2,268	$2,399
Aged Widow(er) Alone	$1,051	$1,112
Disabled Worker, Spouse and One or More Children	$1,695	$1,793
All Disabled Workers	$1,006	$1,064

Benefits Going Up 5.8%

The Associated Press is reporting that the Cost of Living Adjustment for Social Security benefits will be 5.8% for this year. This will affect benefits beginning with the December 2008 benefits, which are paid in January 2009. The Associated Press article contains an amazing mistake, saying that the Supplemental Security Income benefit for an individual will go to $1,011 per month. I wish!

An Oldie But A Goodie -- On DAA The Tie Goes To The Claimant

This is nothing new. In fact, it dates back to August 30, 1996 when the statute forbidding payment of disability benefits when drug abuse or alcoholism is material to the determination of disability was very new. It is just that it remains important and remains current Social Security policy, but people who ought to know better, both inside and outside Social Security, keep forgetting Emergency Message 96-200. Here is the key quote:

Q. The most complicated and difficult determinations of materiality [of drue abuse or alcoholism] will involve individuals with documented substance use disorders and one or more other mental impairments. In many of these instances, it will be very difficult to disentangle the restrictions and limitations imposed by the substance use disorder from those resulting from the other mental impairment(s). Can any examples be provided for how to handle the materiality determination in these situations/ or can any guidance be provided for the type of information that should be used in trying to assess the impact of each impairment?

A. We know of no research data upon which to reliably predict the expected improvement in a coexisting mental, impairment(s) should drug/alcohol use stop. The most useful evidence that might be obtained in such cases is that relating to a period when the individual was not using drugs/alcohol. Of course, when evaluating this type of evidence consideration must be given to the length of the period of abstinence, how recently it occurred, and whether there may have been any increase in the limitations and restrictions imposed by-the other mental impairments since the last period of abstinence. When it is not possible to separate the mental restrictions and limitations imposed by DAA and the various other mental disorders shown by the evidence, a finding of "not material" would be appropriate. See the response to question 27.

ALJ James Brown Retires

Administrative Law Judge James Brown retired recently. Judge Brown had been working at the Office of Disability Adjudication and Review office in Raleigh, NC.