Happy New Year!

Backlog Report December 2008

Click on each thumbnail to view the processing time report for Social Security's Office of Disability Adjudication and Review, the part of Social Security that holds hearings on disability claims, obtained by the National Organization of Social Security Claimants Representatives (NOSSCR).

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 days
  
• December 3, 2008 -- 480 days

Update: I am going to take a guess at the explanation behind that remarkable improvement in the reported backlog between September 3 and November 5. What I think happened was that a few dozen new ALJs came on board during this time period. While the total number of cases backlogged increased, Social Security assumed that the increase in the number of ALJs would improve its output, thus decreasing the wait time.

Czech Treaty And User Fee Notices In Federal Register

Today's Federal Register has a notice that a Social Security treaty is going into effect between the United States and the Czech Republic and another notice that the user fee charged to attorneys and others who represent Social Security claimants and whose fees are deducted from their clients benefits will remain at 6.3% in 2009.

Wild Ass Guesses For The New Year

Early in my career as a lawyer I heard an expert witness at an administrative hearing (not before Social Security) testify that she could not answer the hypothetical question asked her with reasonable certainty, but that she could give a "wild ass guess." I think I have heard other wild ass guesses from expert witnesses over the years but that expert was the only one honest enough to describe her testimony accurately.

I will be honest enough to label my predictions for 2009 as being more wild ass guesses than anything else. Here they are:

1. Michael Astrue will stay on as Commissioner of Social Security throughout 2009. However, he will be under increasing pressure from Congress to do something about the service delivery problems at Social Security. His problem is that he has backed himself into a corner by promising that his plans will bring down the backlogs without big increases in staffing, but what he has promised is impossible. There will be tense Congressional hearings with testy exchanges.
2. John Lewis of Atlanta will become the new Chairman of the House Social Security Subcommittee, replacing Mike McNulty who is retiring. Lewis is currently the Chairman of the Oversight Subcommittee of Ways and Means. He will switch because the Oversight Subcommittee will be much less fun for a Democrat to chair in the Obama Administration than it was in the Bush Administration.
3. Congress will enact and President Obama will sign a budget for Social Security for fiscal year (FY) 2009 (which began on October 1, 2008) of $10.477 billion, $150 million above the Bush budget proposal for the agency. This will happen by February 15, 2009.
   
4. Obama and Astrue will put out similar proposed budgets for Social Security for FY 2010 (which begins on October 1, 2009) of about $11.2 billion. This appropriation will be passed essentially as is, before the beginning of FY 2010. This will not be enough money to add more than a modest number of new employees at Social Security.
   
5. There will be little or no improvement in the hearing backlogs at Social Security in 2009 -- except in Atlanta where there will be dramatic improvements.
   
6. Service at Social Security field offices will continue to slowly decline in 2009. Social Security's inability to answer its telephones and the increasing wait times at Social Security field offices will slowly become a public issue.
7. Social Security will end the year with about 1225 Administrative Law Judges (ALJ) and an ALJ staffing ratio that is lower than what it is currently.
8. In 2009, Congress will be working on plans to do something about the hearing backlog at Social Security, but nothing will pass in 2009. The plans under discussion will include removing Social Security from the unified federal budget and requiring regular reports on service delivery at Social Security. Time limits and interim benefits will be discussed but will not go forward. Commissioner Astrue will oppose all such legislative efforts and claim that his plans will solve the backlog problem. Even Congressional Republicans will be openly skeptical of his claim.
   
9. President Obama will appoint a Democrat to the position of Deputy Commissioner of Social Security. That person will have no prior background in Social Security. Commissioner Astrue will give the Deputy Commissioner major duties, placing him or her in charge of modernization of Social Security's computer systems and procurement generally, but will keep him or her well away from budget, policy and anything pertaining to disability or hearings. Astrue will concentrate on these matters himself, in the vain belief that he will be able to manage Social Security into giving better public service without significant additional personnel.
   
10. President Obama will appoint a Democrat to the position of Inspector General at Social Security. The appointee will have the Office of Inspector General (OIG) start preparing reports on service delivery at Social Security. He or she will testify before Congress frequently and will slowly become a major thorn in Michael Astrue's side.
11. There will be an increase in the number of disability claims filed in 2009 which will be blamed upon the recession, but the real reason for the increase will be the aging of the baby boomer population. Commissioner Astrue will claim that the increase in claims filed was unexpected.
    
12. There will be Congressional hearings on the 24 month waiting period for Medicare after a person qualifies for Social Security disability benefits. Legislation will move forward on this issue but will not become law in 2009.
13. Commissioner Astrue will officially but quietly withdraw the regulations proposed by Commissioner Barnhart that would increase the age categories in the Grid Regulations by two years. He will also quietly withdraw the controversial procedural regulations that he proposed. Both are actually still pending and, in theory, could be made official at any time -- but it is too late for that to happen during the Bush Administration and neither could happen in the Obama Administration.
    
14. Commissioner Astrue will raise the cap on attorney fees for representing Social Security claimants and will begin the process to adopt regulations that would put in an automatic cost of living adjustment, but he will slow roll this.
15. The proposed rules on representation of claimants will still be pending as of the end of 2009.
16. Commissioner Astrue will begin holding regular meetings with the heads of the employee unions at Social Security, but these meetings will be contentious. The American Federation of Government Employees (AFGE) will demand that Congress do something about the situation. Democrats in Congress will be interested in helping the union, but nothing will happen in 2009.
    

Basically, I am predicting that things will not change that much in 2009, but that by year's end there will be signs of significant changes coming in 2010 and beyond as well as a storm gathering around Michael Astrue. I have not seen enough sign of flexibility in Michael Astrue for him to avoid major conflict with Congress, the new Inspector General at Social Security and the employee unions. He has a history of resigning in a huff when others question what he is doing, but I do not see him doing that in 2009.

What are your predictions, or wild ass guesses, for 2009?

Waiting In Portland -- Shifting The Blame To The "Billion-Dollar Judge"

From The Oregonian:

The slow pace of a few judges and an overwhelmed staff at Portland’s Social Security hearing office are key reasons that people seeking disability benefits here endure some of the longest waits in the nation.

Across the country, it takes an average of 480 days to get a judge’s ruling on a Social Security disability claim — but 650 days if your case is in Portland.

The problems in Portland reflect a broader national crisis, according to Social Security Administration records obtained by The Oregonian under the Freedom of Information Act. Only about half the agency’s administrative law judges here meet its minimum goal of clearing 500 cases a year. Only three of nine Portland judges hit that mark in recent years, agency records show.

Last year, according to the national records, 132 of the agency’s judges — about 11 percent — failed to reach even half of the agency’s goal, dragging out appeals of disability claims as people faced financial ruin, got sicker and even died waiting.

And from a sidebar article:

Charles Bridges is Social Security’s billion-dollar judge.

When it comes to paying out disability benefits, no other Social Security judge comes close. Bridges awarded cash to 2,285 people last year — eight times that of the agency’s average judge — and he turns down only a small number of the people who plead for a check.

The cost to taxpayers? More than $2.1 billion for this judge over the last four years.

Bridges, 62, is the chief administrative law judge in the Social Security Administration’s Harrisburg, Pa., hearing office.

Inside Social Security, Bridges is a controversial figure, a symbol of the agency’s desperation to unclog its bottleneck of disability claims at any cost.

Stories about an unnamed judge who pays 2,000-plus cases a year arose in a congressional hearing in February, but the agency has never named him. The Oregonian identified Bridges through internal Social Security records obtained under the Freedom of Information Act. ...

Each time a judge approves a disability case taxpayers will pay out an average of $250,000 in lifetime cash and medical benefits, according to estimates. Experts say judges should spend hours considering each case, and that Bridges’ extraordinary production makes that all but impossible.

“It’s preposterous,” said Sylvester J. Schieber, chairman of the Social Security Advisory Board, an oversight agency, who has studied productivity of the agency’s judges.

“As complicated as these cases are, it’s outrageous that he’s doing 50 cases a week when most other judges are toiling to get out 10 to 15.”

The agency’s top officials can’t seem to agree about Bridges.

Social Security Commissioner Michael J. Astrue — without naming Bridges — told The Oregonian in a statement that if any judge produces that many cases a year, it “invariably means the quality of the review is low or nonexistent.”

But Frank A. Cristaudo, the agency’s chief administrative law judge, said Social Security has reviewed the record of high-producing judges (which would include Bridges) and found no problem with their accuracy. Cristaudo declined to comment on the quality of Bridges’ work.

“He’s putting in incredible hours,” Cristaudo said. “He feels very committed to public service.”

And from another sidebar:

Last fall, after investigating the glacial pace of Social Security’s disability claims process for several months, I decided to talk my way into one of the hearings in which people make their pitches for benefits.

Portland’s hearing office was one of the slowest in the country, and no one had adequately explained why. So I figured a look inside might show what a brutal system it was for thousands of people.

Trouble was, the hearing rooms were supposedly closed to the public — even though the judges inside award untold billions of dollars in taxpayer money each year. ...

I would later learn that judges frequently permit friends and family into the hearings, and that they have in the past admitted law students, academics and congressional staffers.

It seemed the only class of people denied access, after having been invited by claimants, were news reporters.

It is obvious to me that someone at Social Security gave this reporter the idea that the Administrative Law Judges (ALJs) are to blame for the backlogs and that a "billion-dollar-judge" is giving away the store. I cannot imagine this happened without Commissioner Astrue approving it.

Social Security's ALJs are not above criticism, but the idea that blaming them is going to work as an excuse for the backlogs at Social Security is just preposterous. It may sort of work with one reporter one time, but it is not going to fly as a general matter, because it is not true. Blaming the ALJs would not have worked even when Republicans were in control of Congress and the White House and it certainly will not work now. If this is Michael Astrue's main plan for deflecting the blame from himself, he needs to come up with a new plan.

ALJ Database

As part of the story about backlogs at Social Security discussed above, The Oregonian has posted a database online that shows the number of dispositions per Administrative Law Judge, by outcome, for each of the last four years.

From taking a look at it, I can take an educated guess that this lumps dismissals of requests for hearings with denials, which can be misleading, particularly for Hearing Office Chief Administrative Law Judges (HOCALJs). HOCALJs typically issue all or most of the dismissals for an entire hearing office when a request for hearing is clearly filed too late or too early.

New Disability Entitlement Program Proposed

They have not been making much noise about it so far, but some important disability advocacy groups are proposing a new entitlement program for the disabled. The name given to this proposal is CLASS, Communtity Living Assistance Services And Supports Act. The proposal is for a program run by the Department of Health and Human Services (HHS), but if this ever happens, I think it is a good deal more likely to be run by the Social Security Administration. Here are some details of the proposal:

• Financed through voluntary payroll deductions of $30 per month (with opt-out enrollment like Medicare Part B)
• Any individual who is at least 18 years old and actively working would be automatically enrolled (unless they opt out), and pay their premiums through payroll deduction or another alternative method. Any nonworking spouse could enroll in the program and pay their premiums through an alternative payment procedure.
• To qualify for CLASS Act benefits, individuals must be at least 18 years old and have contributed to the program for at least 5 years. Eligibility for benefits would be determined by state disability determination centers and will be limited to: (1) individuals who are unable to perform two or more activities of daily living (ADL) (e.g. eating, bathing, dressing), or (2) individuals who, due to a cognitive or psychiatric impairment, require supervision, cueing, or hands-on assistance to engage in activities that will enable the individual to perform at least 2 of the following critical life functions: communicating; taking medications; household management; and basic money management.
• To account for differences in independence support needs, there would be two cash benefit tiers. Tier 1 benefits ($50/day) will be payable to eligible individuals who are unable to perform 2 or 3 ADLs or have a cognitive or psychiatric impairment requiring assistance with 2 or 3 critical life functions. Tier 2 benefits ($100/day) will be payable to individuals who are unable to perform 4 or more ADLs or have a cognitive or psychiatric impairment requiring assistance with 4 or more critical life functions.
• Eligibility for CLASS Act benefits would not have any effect on eligibility for Social Security retirement, survivors, or disability benefits, Supplemental Security Income (SSI) benefits, Medicare, or Medicaid.
  

There are some problems with this proposal beyond the obvious one of whether it is possible to enact a new entitlement program even in the current political climate. I have strong doubts that the $30 a month deductions would begin to cover the costs of this program. It would be quite difficult to administer. It would exclude those who have been disabled since birth, who are the people most in need of such benefits. Still, I have to give high marks for audacity to those sponsoring this proposal. I hope this gets serious consideration.

Grievance On ALJ Productivity Standards

A grievance that several Administrative Law Judges (ALJs) filed against the Social Security Administration in the Chicago region has been posted online. The grievance concerns the production standard that has been more or less established at Social Security that each ALJ should produce 500-700 decisions per year. The grievance argues at some length that the standard is illegal and unreasonable. It is also unenforceable, but that does not mean that it is unimportant.