Fascinating Responses

The two responses, so far, to my post of Social Security's press release on Michael Astrue's speech at the conference of the National Organization of Social Security claimants representatives -- the one where he claimed that the backlog situation is getting better and I commented that this claim seems to square poorly with the backlog numbers that Social Security has released -- are fascinating. Take a look at them.

The Last Time ...

The last time that the order of succession at Social Security was changed was April 17, 2006, which was before a change of Commissioner, but the change did not come until nine months later when Jo Anne Barnhart's term as Commissioner of Social Security ended. It seems unlikely that those two events were linked.

Make Of This What You Will

From the White House:

For Immediate Release
Office of the Press Secretary
October 17, 2008

Memorandum for the Commissioner of Social Security
SUBJECT: Designation of Officers of the Social Security Administration to Act as the Commissioner of Social Security

By the authority vested in me as President by the Constitution and the laws of the United States of America, including the Federal Vacancies Reform Act of 1998, 5 U.S.C. 3345 et seq., it is hereby ordered that:

Section 1. Order of Succession. Subject to the provisions of section 2 of this memorandum, the following officials of the Social Security Administration, in the order listed, shall act as and perform the functions and duties of the office of the Commissioner of Social Security (Commissioner), during any period in which both the Commissioner and Deputy Commissioner have died, resigned, or become otherwise unable to perform the functions and duties of the office of the Commissioner, until such time as the Commissioner or Deputy Commissioner are able to perform the duties of that office:

(a) Chief of Staff;

(b) Deputy Commissioner for Operations;

(c) Deputy Commissioner for Budget, Finance and Management;

(d) Deputy Commissioner for Systems;

(e) Deputy Commissioner for Quality Performance;

(f) Regional Commissioner, Atlanta; and

(g) Regional Commissioner, Dallas.

Sec. 2. Exceptions. (a) No individual who is serving in an office listed in section 1 in an acting capacity, by virtue of so serving, shall act as Commissioner pursuant to this memorandum.

(b) No individual listed in section 1 shall act as Commissioner unless that individual is otherwise eligible to so serve under the Federal Vacancies Reform Act of 1998.

(c) Notwithstanding the provisions of this memorandum, the President retains the discretion, to the extent permitted by law, to depart from this memorandum in designating an acting Commissioner.

Sec. 3. This memorandum supersedes the President's Memorandum of April 17, 2006 (Designation of Officers of the Social Security Administration).

Sec. 4. This memorandum is intended to improve the internal management of the executive branch and is not intended to, and does not, create any right or benefit, substantive or procedural, enforceable at law or in equity, by any party against the United States, its agencies, instrumentalities, or entities, its officers, employees, or agents, or any other person.

Sec. 5. You are authorized and directed to publish this memorandum in the Federal Register.

GEORGE W. BUSH

Of course, the next President can modify this any time he wants.

If It Sounds Too Good To Be True ...

Take a look at this website that promises that "You could add up to $1,033 PER MONTH to your Social Security paychecks, thanks to a little-known loophole used by only 230 Americans last year." This is from "Olivia Martin, Sr. Researcher, S&A Investment Research" who "interviewed a West Virginia man who has taken advantage of this situation... a spokesperson at Social Security Administration (SSA) Headquarters outside of Washington, DC... and a Boston University Social Security expert, who has testified before Congress 16 times." The ellipses are in the original. The website goes on to tell us "And remember: All you have to do is ask. The Social Security Administration can't deny you, no matter how long you've been collecting already, or what your age." Eventually, the website leads to an offer of a subscription to "Dr. Steve Sjuggerud's True Wealth Investment Advisory."

The deal is that someone noticed that it is possible to withdraw a claim for retirement benefits and then refile a new claim. Since retirement benefits go up the older you are when you go on benefits, you receive a higher monthly benefit amount on the new claim. Sounds wonderful, doesn't it? Just one little catch. When you withdraw your earlier claim for retirement benefits, you have to pay back all the Social Security retirement benefits you have already received. How many people on Social Security retirement benefits are able and willing to do that? Probably a lot fewer than are foolish enough to pay "Dr. Steve Sjuggerud" for his "True Wealth Investment Advisory."

I have already received a message from a client asking about this. This has the potential to create unnecessary business for Social Security. There may be many people who will be angered when their delusions smash up against harsh reality.

Press Release On Astrue Speech At NOSSCR Conference

A press release from Social Security:

During a speech to the National Organization of Social Security Claimants’ Representatives, Michael J. Astrue, Commissioner of Social Security, reported on the progress made in fiscal year (FY) 2008 in the agency’s efforts to expedite backlogged disability cases.

“The plan we presented to Congress in May 2007 is working,” Commissioner Astrue said. “We have moved quickly to utilize new technologies, improve our business processes and add new staff. Combined with the hard work of our employees and the support of Congress, we are clearly on the right track to providing Americans with disabilities the prompt service they deserve.”

During FY 2008, Social Security hired 190 new Administrative Law Judges (ALJs), opened a National Hearing Center (NHC), eliminated virtually its entire aged case backlog of more than 135,000 cases waiting over 900 days for a hearing decision, and implemented a quick disability determination (QDD) process in all 50 states.

As a result of these and many other activities, the disability backlog at the hearings level, which had been growing at the rate of about 70,000 cases each year for most of this decade, grew by only about 14,000 cases.

“The hiring of 190 additional ALJs was critical but will not yield immediate results,” Commissioner Astrue noted. It generally takes about nine months for new ALJs to become fully productive. With attrition and experienced ALJs being used to train the new judges, the agency actually had 46 fewer ALJs available in FY 2008 than the prior year. Despite this fact, ALJs held more hearings and issued more dispositions than in FY 2007. The agency exceeded its targeted goal by over 16,000 cases.

The opening of the NHC gives Social Security the capability to quickly and flexibly move cases and conduct video hearings in the cities with the worst backlogs. NHC judges initially focused their efforts on the backlogs in Atlanta, Cleveland, and Detroit – cities where claimants had been waiting the longest. Atlanta continues to be a focus for the NHC, along with Flint, MI and Indianapolis. The agency plans to expand the NHC in Falls Church, VA as well as open additional centers in Albuquerque and Chicago. In addition, the agency is working with the General Services Administration to establish new hearing offices in the most backlogged states: Florida, Georgia, Kansas, Michigan and Ohio.

Social Security completed the nationwide roll-out of the QDD process in February 2008 and it has proven to be an unqualified success. QDD cases now represent about three percent of all new claims. This means more than 75,000 people each year will have their cases allowed in about 8 days, something that was unheard of just a year ago. The QDD threshold has now been adjusted for 31 Disability Determination Services (DDS), and the agency plans to gradually increase the volume of QDD cases while maintaining the same level of quality.

Other accomplishments in FY 2008 include:

• More than 2.6 million initial disability claims processed;
• Approximately 560,000 reconsideration cases processed;
• Over 575,000 hearing requests processed;
• Over 83,000 Appeals Council Reviews processed;
• Implemented procedures to allow attorney adjudicators to issue fully-favorable decisions -- over 24,000 decisions issued;
• Implemented a process in which the hearing office returns specific cases to the DDS for review for potential allowance -- to date, DDSs have allowed about 24,000 cases;
• Improved the process to identify and expedite military casualty claims;
• Implemented the Request for Program Consultation process nationally to improve accuracy and consistency in the disability decision-making process; and
• Implemented a process that allows the public and third parties to file disability reconsideration and hearing requests via the Internet.

“The progress we have made is significant, especially since receipts at the hearings level were five percent higher than we expected in FY 2008. While the backlog grew slightly, the rate of increase in pending cases continues to drop,” Commissioner Astrue said.

Looking ahead to FY 2009, Commissioner Astrue hopes the energy and talent of the new ALJs, the national rollout of Compassionate Allowances, and other initiatives will improve the quality of reviews and steadily reduce the number of pending cases starting this spring. However, he stated, “the effects of an extended continuing resolution are clearly slowing our progress. We simply cannot address the challenges we face without adequate and timely funding. Many things we need to do, such as increase support staff and add new hearing offices, will not happen if Congress fails to pass an adequate appropriations bill by March. Social Security is an agency of great skill and accomplishment and we are ready to work with Congress, the new Administration and all of our stakeholders to improve service to the public.”

If Social Security is making progress, why are the backlogs going up?

One Nugget Worth Repeating

Here is one little nugget from Eric Schnaufer's excellent summary of the presentations at yesterday's National Organization of Social Security Claimants Representatives (NOSSCR) Conference in Los Angeles that deserves further attention. This was from Lisa de Soto, the Deputy Commissioner for the Office of Disability Adjudication and Review (ODAR):

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.

Let me explain this a bit. Administrative Law Judges (ALJs) hear the appeals of Social Security disability claims. There is a humongous backlog of claimants awaiting hearings before ALJs. This is causing great human suffering. People are committing suicide while awaiting hearings. The Commissioner has called the backlog a "disgrace." ALJs are not one man (or woman) shows. They need help, doing things like preparing files and getting out written decisions. The current ratio is 4.4 other employees for each ALJ. Most, but not all, observers think that the 4.4 to 1 ratio is not enough. Social Security has hired some ALJs. More will be hired. Social Security is not adding anything like 4.4 staff members for each ALJ hired, so the staffing ratio will decline from 4.4 staff members per ALJ to 4.1 staff members per ALJ. I know of no one other than Lisa de Soto and Michael Astrue who thinks this decline in the staff ratio is a good idea. Michael Astrue and Lisa de Soto expects each ALJ to produce more decisions even though the staff per ALJ is being cut by about 7%. What is wrong with this picture?

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.