Proposed Rules On Scheduling Hearings Coming Out Monday

The Social Security Administration is having a set of proposed regulations entitled "Setting the Time and Place for a Hearing before an Administrative Law Judge" published in the Federal Register on Monday. Here is Social Security's summary:

We propose to amend our rules to clarify that the agency is responsible for setting the time and place for a hearing before an administrative law judge (ALJ). Consistent with our regulations at lower levels of the administrative process, we propose to use “we” or “us” in the rules setting the time and place for a hearing. These changes will ensure greater flexibility in scheduling hearings both in person and via video teleconferencing and will aid us in our effort to increase efficiency in the hearing process and reduce the number of pending hearings. The number of cases awaiting a hearing has reached historic proportions, and efforts toward greater efficiency are critical to addressing this problem.

The notice says "We expect that we will need to exercise this authority in only those situations where an ALJ is not scheduling the number of hearings that we consider sufficient." However, this limitation is not an enforceable promise. The apparent intent here is to centralize the scheduling of hearings, at least for some ALJs, giving those ALJs no control over their docket. Each ALJ involved will get their hearing schedule for a month and they will jolly well hear those cases or else. As the notice puts it "... through this proposed rule, we could ensure that those ALJs who do not process a sufficient number of cases have enough of them docketed for hearings to drive down and eliminate the backlog by 2013."

Incidentally, the proposal estimates huge costs for going ahead with this -- as claimants have their hearings quicker and get on benefits quicker.

In my opinion, the idea that this is the solution for Social Security's backlog problem is absurd. The problem is lack of personnel. ALJs are already hearing too many cases. The quality has already been badly affected. Trying to go ahead with this is just going to cause quality to decline even further and create a huge number of practical problems.

Restrictions On Sending Evidence To CE Doctors

When a Social Security Administrative Law Judge (ALJ) sends a claimant out for a medical examination at Social Security's expense, called a Consultative Examination (CE), typically the ALJ sends some part of the claimant's medical records along as background information. I have heard from a well placed source that ALJs across the country have recently been told informally that they are limited to a certain number of pages of medical records they can send to the CE physician. Some have been told that they are limited to ten or twenty pages. This is problematic since ten or twenty pages may not be nearly enough to give the CE physician enough background on the claimant.

Comments On Proposed Representation Regulations

Here are links to some of the longer comments filed on the proposed regulations on representation of claimants:

• Max Rae
• James Allsup (I'm not sure about his claim that Allsup is the largest non-attorney entity representing Social Security claimants. That title may belong to Binder and Binder.)
• Cynthia Berger
• Sheryl Mazur
• Mike McNulty, Chairman, House Social Security Subcommittee Very interesting!
• Disability Group, Inc.

Today is the deadline for filing comments. You can post your comments online.

Waiting In South Carolina

From WSPA in Greenville-Spartanburg, SC:

It’s a monstrous problem, one we hear about dozens of times each day here at News Channel 7. Viewers in our area filing for Social Security Disability insurance benefits and waiting years for answers. ...

“My life has changed dramatically since that one fateful day back in January of ‘06,” said Penny Knight.

That’s when Knight says she lost consciousness from a violent seizure.

“I know that my body is contorting and something is happening,” she said.

She says it’s all due a head injury she got during a car wreck more than 20 years ago. Knight says she used to stock shelves 6 days a week and was on her feet 10-12 hours each day. She says she can’t do that anymore because the of seizures and depression. In 2006, she applied for disability benefits with the Social Security Administration and was denied. She appealed and has been waiting two-and-a-half years for a hearing in front of a judge.

“It is a waiting game and a paper pushing game,” said Knight.

When 7 On Your Side got involved Knight got a hearing within weeks and a final answer a week later.

Amazing how quickly things happened for Ms. Knight after. a television reporter called Social Security just before an election. Now, if a few hundred thousand other people could just get the same treatment, things would be great!

Trouble Brewing In California

California Governor Arnold Schwarzenegger has announced that all California state employees will be furloughed for one day each month for the next year and a half. Note that I said "all" California state employees. (See the attached letter. Click on each page to see it full sized.) This includes the California Disability Determination Services (DDS) unit that makes decisions at the initial and reconsideration levels for Social Security disability claims, even though the California DDS is funded by the Social Security Administration. This could make backlogs much worse in California. It is an enormous headache for Social Security.

California is not the only state with severe budget problems. My state, North Carolina, has a huge shortfall and a state constitution that requires a balanced budget. California may not be the only state to use generalized partial furloughs of state employees.

Obama Wants Bigger Budget And More Employees For Social Security

From Joe Davidson's Federal Diary column at the Washington Post:

"The only thing the unions are looking for Obama to do is be fair," said John Gage, president of the American Federation of Government Employees. "We understand that he's not going to be in lock step with our positions on everything."...

Gage released a series of letters from Obama that outline his positions on various federal labor related issues. The letters, Gage said, can serve as "a baseline for accountability with the new administration."...

Social Security Administration: Obama said there was a critical need to increase funding for the agency because its staffing has fallen as its beneficiary population has increased.

Gage may have released the letters to the Washington Post, but I cannot find them on the AFGE website.

Update: The letter from President-elect Obama is available through Federal Times. Here is the text:

October 20, 2008

John Gage
National President
American Federation of Government Employees, AFL-CIO
80 F Street, NW
Washington, DC 20001

Dear President Gage,

I am writing to respond to the concerns you raised with my staff regarding the challenges facing the Social Security Administration (SSA), and the issue of Social Security privatization.

First, I strongly agree with you that there is a critical need to increase funding for the SSA administrative expenses account to address the serious challenges facing the agency. Due to prolonged underfunding, SSA has reduced staffing levels even as its workload has increased. SSA agency staffing will soon reach its lowest level since 1972 even though SSA's beneficiary population has nearly doubled since that time.

An unfortunate result of underfunding is an unprecedented backlog in SSA disability claims. As of August 2008, about 767,000 people were awaiting a hearing before an Administrative Law Judge on their Social Security disability claims, compared to about 312,000 cases pending in October 2000. There has also been an increase in Field Office waiting times.

Second, I want assure you that I will continue to strongly oppose Social Security privatization. As you know, I have spoken out many times against President Bush's Social Security privatization plan, including a major speech in the midst of the 2005 privatization debate at the National Press Club. I also voted in 2005, 2006 and 2007 against amendments supported by Senator McCain and other Republicans that aimed to privatize Social Security.

Thank you, John, for everything you and your members do for America.

Sincerely,

Barack Obama

Tomorrow Is Deadline For Comments On Proposed Representation Rules

The deadline for posting comments on the proposed new rules on representing claimants before the Social Security Administration is this Friday.

You can post your comments online.

A Perfect Record

From a press release:

In the spirit [state?] of Michigan where the personal injury Law Office of Mayer B. Gordon represents Social Security Disability Claimants, slightly over 50% of Claimants were granted Social Security disability benefits in the year 2007. This is in sharp contrast to Mayer B. Gordon's amazing recovery rate of 100% for his Social Security Disability Clients. ...

The Law Office of Mayer B. Gordon found a solution for their clients. A whopping 77% of Claimants never have to appear for Social Security Disability Hearings. For this fortunate group of 77% the waiting time is slashed significantly. When asked how he achieves these outstanding results on behalf of his clients, Mr. Gordon stated: "I created the culture, but I can't fully take the credit. I have the hardest working, most knowledgeable and dedicated staff in the country." Kathy Sterbling, my paralegal with 30 years of experience, spearheads our team. They treat each and every client with courtesy and respect. This is the way they would like to be treated. We handle Social Security Disability cases with the same care that we put into multi- million dollar medical malpractice, birth injury, auto injury or any other personal injury cases that we have handled over the past 30 years". Mr. Gordon went on to explain that his staff went to great lengths to collect, develop and correlate medical data on each client which they submit to the Social Security Hearings office in brief form, well in advance of the hearing date. This requires dedication to the clients they serve and old fashioned hard work.

Some years ago a woman called me. She said that she had a Social Security disability claim and was looking for representation. She had a question for me. Her question was whether I had ever lost a Social Security disability case. I told her I had. She said that she wanted to hire me. She gave as her reason the fact that she had talked with another attorney and he had boasted to her that he had never lost a Social Security disability case. She said she knew that he could not have represented many Social Security disability claimants. She decided that she had better look for someone with more experience.