Federal Court Vacancies

There are 12 vacancies on the Courts of Appeals and 25 at the District Court level. There are four vacancies on the 15 member Fourth Circuit Court of Appeals alone. One of the vacancies on the Fourth Circuit dates back to 1994! There will be many more vacancies over the next four years. Politics aside, the federal courts need more judges right now.

Barack Obama's appointments to the federal bench will have a significant impact, with Social Security being one of the ways they will have an impact. Their impact may be particularly important when it comes to class actions.

Something Fishy About These Numbers

Click on each of the thumbnails to see a November 5, 2008 report that the National Organization of Social Security Claimants Representatives (NOSSCR) obtained from the Social Security Administration on backlogs of claimants awaiting hearings on their Social Security disability claims at each of the hearing offices, each of Social Security's regions and nationally.

Compare the state of the national backlog over time:

• January 25, 2007 -- 508 days
• May 25, 2007 -- 523 days
• July 28, 2007 -- 528 days
• August 31, 2007 -- 523 days
• November 30, 2007 -- 500 days
• February 29, 2008 -- 511 days
• May 30, 2008 -- 523 days
• June 27, 2008 -- 529 days
• July 31, 2008 -- 530 days
  
• September 3, 2008 -- 532 days
• November 5, 2008 -- 476
  

Does this improvement seem too good to be true? How could there be a 56 day reduction over the course of just 63 days? Is it possible that there has been some fiddling with the method by which these numbers are generated? Just looking at the numbers for the office I am most familiar with, Raleigh, I see a reduction in processing time from 509 days to 497 days yet there has been no surge in productivity locally that I have noticed. If anything, my impression is that things continue to slowly get worse here. I hope this report is true, but this needs an explanation.

Integrated Disability Process

Take a look at this letter from the National Association of Disability Examiners (NADE), an organization of personnel who work at state Disability Determination Services (DDS) agencies and make initial and reconsideration determinations on disability claims. The letter was sent to Ruby Burrell at Social Security central offices. It concerns a proposal called the "Integrated Disability Process." I do not think that I have heard of this "Integrated Disability Process" previously. This may be a significant plan, but it is hard to tell exactly what is in the works, since we can only read a response to the plan, rather than the plan itself. It is also hard to tell how far along they are on this.

Here are a few excerpts to give you an idea of what may be afoot -- and note that it gets more interesting as you go along:

We advise that caution be used when placing weight on the TPs [Treating Physicians] MSS [Medical Source Statements], as these can sometimes be overly restrictive and in some instances fraudulent. Increased program costs will be the result of incorrect decisions driven by these types of MSSs. Some States have commented that, in many cases, TP MSSs appear to be exaggerated because many TPs want their claimant’s to receive benefits or they do not want their patients to believe that it was the TPs report that kept them from receiving benefits. ...

We support a standardized form for the MSS. This form should include in its format adequate space for individual comments/input as well as a statement that the source himself feels that the MSS he is providing is consistent with his medical findings. ...

The requirement of obtaining a MSS at the reconsideration level seems to be based solely on the ALJs’ ‘discomfort’ in making a decision without a MSS in file. This is based not on fact but rather a belief amongst ALJs that having an MSS makes their decision legally defensible. This change will inevitably result in an increase in processing time, as fruitless efforts to obtain an MSS from uncooperative providers are pursued. ...

Slide #25-27: there may be a benefit in rewriting SSR 96-2p and eliminating the ‘controlling weight’ provision. There is no similar concept in other governmental or private agencies. Removing the concept of a controlling opinion would allow for more equity in the consideration of other opinions. ...

There is some support for the concept of DDSs conducting selected face-to-face interviews by highly trained DDS staff before the case goes to ODAR. This could provide some cost benefit savings for many cases involved in the more costly appeals process at the ODAR level. We would welcome additional discussion on this proposal.

By the way, NADE, what a way to feed into the stereotypes that others have about DDS personnel! Really, I did not think you would be that concerned about a few more claimants being approved.

NADE Newsletter

The National Association of Disability Examiners (NADE), an organization of the personnel who make initial and reconsideration determinations on Social Security disability claims, has issued its Fall 2008 newsletter, complete with a summary of a speech that Commissioner Astrue made at a NADE Conference.

A Few Thoughts About Dr. Susan Daniels

Dr. Susan Daniels, who worked at the Social Security Administration during the Clinton Administration, has been appointed by the Obama transition to be a lead in their planning team for the Social Security Administration.

I have already noted that the disastrous Re-engineering and Hearing Process Improvement initiatives happened on Dr. Daniels' watch at Social Security, but those were not the only bad things that happened then. Two of the most viciously anti-claimant regulatory changes ever made at Social Security also happened then. The obesity listings were eliminated and the examples that had been in section 201.00(h) of the grid regulations were eliminated. You think this sounds technical and unimportant? Trust me, there are tens of thousands of people who never got Social Security disability benefits because of those changes. There was never any justification for either. Neither has been forgotten. Both still rankle. I remain astonished that these changes happened while a Democrat was in the White House.

I do not want to go on and on about a person whose role is likely to be over in about two months, but just try to find one example of Dr. Daniels speaking out about the enormous backlogs that have developed at the Social Security Administration. Where was she when she might have done some good?

Dr. Daniels is no well-respected elder statesperson. She should not have gotten this appointment. Any nomination of Dr. Daniels to serve in any official capacity at Social Security would be controversial. She does not even have any business on the Social Security Advisory Board and I think the SSAB is so worthless that it ought to be abolished.

Obama Transition Names Agency Review Team Leads For Social Security

President-elect Obama's transition office has announced the "team leads" for the Social Security Administration Review Team. It is not clear from the announcement whether this is the entire team. My guess is that there will be more. Here are the people announced today:

Dr. Susan Daniels is currently self employed, with the firm Daniels and Associates. From 1988 to 1991 Daniels served as Associate Commissioner in the Rehabilitation Services Administration in the U.S. Department of Education. From 1991 to 1994 she was Associate Commissioner of the Administration on Developmental Disabilities in the U.S. Department of Health & Human Services. Daniels served as Deputy Commissioner for Disability and Income Security Programs at the Social Security Administration from 1994-2000, where she helped pass The Ticket to Work and Work Incentive Improvement Act.

Jim Roosevelt is president and chief executive officer for the Tufts Health Plan and formerly served as senior vice president and general counsel. Before joining Tufts Health Plan, Mr. Roosevelt was the associate commissioner for Retirement Policy for the Social Security Administration in Washington, D.C. He has also served as chief legal counsel for the Massachusetts Democratic Party and is co-chair of the Rules and By-laws Committee of the Democratic National Committee. Mr. Roosevelt spent 10 years as partner at Choate, Hall and Stewart in Boston. He is past chairman of the board of trustees for the Massachusetts Hospital Association, past president of the American Health Lawyers Association and past chairman of the board of trustees for Mount Auburn Hospital. Currently, Mr. Roosevelt serves as chairman of the board of directors for Massachusetts Association of Health Plans, and as a member of the board of directors at America's Health Insurance Plans, Emmanuel College and the Kenneth B. Schwartz Center. He is also co-chair of the board of directors for the Tufts Health Care Institute.

Addendum: Can someone refresh my recollection? To what extent was Dr. Susan Daniel involved with the Re-engineering and Hearing Process Improvement debacles? There were plenty of extenuating circumstances, but the Clinton Administration is hardly remembered as a golden age for the Social Security Administration. The fact that Dr. Daniel lists the failed Ticket to Work program as if it were a shining achievement is hardly reassuring.

The Audacity Of Hope

In 1981 the Social Security Subcommittee in the House of Representatives published a staff report with the title "Social Security Hearings and Appeals: Pending Problems and Proposed Solutions." This is not available online. The report began "The backlog of social security administrative law judge hearings is rapidly reaching crisis proportions."

Click on the attached page from that report showing the situation at that point and compare it to the current situation. If the situation in 1981 was a near crisis, how should the current situation be described?

The current Commissioner of Social Security tells us things are getting better because they are getting worse at a slower rate than they used to. His goal is to slowly, slowly work towards a situation in which it would take about a year to get a hearing. before an Administrative Law Judge. He believes that this would constitute normality, even though he was working at Social Security at the time this report was produced in 1981. I do not think many people believe that the Commissioner even has a plan to reduce the backlog at all, but his plan, even taken at face value, would take us to a place that would be much worse than what seemed intolerable in 1981.

The late Senator Daniel Patrick Moynihan coined the phrase "defining deviancy down" to describe permissiveness in criminal justice. Commissioner Astrue is trying to define adequate service down at Social Security in a dramatic manner.

Barack Obama titled his second book, The Audacity Of Hope. I think we should take this title seriously. We should aspire to levels of service at the Social Security Administration comparable to what they were before Ronald Reagan was elected President. Anything less seems to me lacking in both audacity and hope.

We have a political situation that has not been present since at least 1964 -- a Democrat elected President with a strong mandate and a heavily Democratic Congress. Don't tell me that we cannot aspire to really do something about the mess at Social Security.

What Would You Say To The Transition Team?

A team from the Obama transition will be visiting the Social Security Administration soon to talk with the Commissioner and other high level officials. If you had a chance to talk with the Obama transition team, what would you say?