Binder and Binder Lawsuit

I have posted on the separate Social Security Perspectives blog the complaint filed by Binder and Binder seeking to force the Social Security Administration to allow Binder and Binder employees to appear at hearings before Administrative Law Judges (ALJs) solely by video. The ALJ would be in one location, the claimant in another and the Binder and Binder employee in a third location. So far, Social Security has refused to allow this as a general matter.

From The NOSSCR Conference -- IV

Glenn Sklar, Social Security's Deputy Commissioner for the Office of Disability Adjudication and Review (ODAR,) spoke yesterday at the semi-annual conference of the National Organization of Social Security Claimants Representatives (NOSSCR) in Chicago. Here are some points from his presentation:

• ODAR has now cleared almost all cases that have been pending more than 825 days.
• ODAR's virtual screening units will continue through at least the end of fiscal year (FY) 2011 (September 30, 2011).
• Several new hearing offices will open in the near future but no mention was made of the new office that I care the most about, the one in Fayetteville, NC.
  
• Sklar warned that the new hearing offices will have a lot of new employees who will make a lot of mistakes. He prefers that these mistakes be sorted out at the local hearing offices or the regional offices rather than at his level.
• ODAR has opened two new hearing assistance offices, a large one in St. Louis and a smaller one in McLean, VA, to help with "pulling" exhibits and writing decisions.
• Going into the NOSSCR Conference there were 491 people who represent Social Security claimants who were active users of Social Security's efolders, which give online access to claimant files. 248 more users were signed up during the NOSSCR Conference up to the point at which Sklar spoke. Presumably, more have signed up since.
• By mid-November Social Security hopes to start signing up attorneys and other representatives for efolder access at hearing offices. Social Security's goal is to sign up 500 a month for a year. [Two points on this: I did not get the impression that Sklar was completely confident that his agency will accomplish this. Second, would you make up your mind what this is called? It has been called EDIB, electronic filel, efiles and efolders and maybe other names. It is time to decide on a name and stick to it!]
• Sklar was asked about attorney's office staff accessing efolder records. There has been concern that it may be Social Security's view that only attorneys could access the records. Sklar said that he was aware that many attorneys were using workarounds to allow their staffs to access the efolders and that Social Security's Office of General Counsel was working on the problem. [I think there are enough real problems at Social Security that the agency does not need to waste its time on something as silly and theoretical as this. The tone of Sklar's voice suggested that he might agree with me.]
  
• CDs being given to those who represent Social Security claimants who lack efolder access will soon be encrypted. Sklar said these would be easy to use. [I am glad that I have efolder access.]
  
• Sklar seemed surprised at a question from the audience about decisions and other correspondence from hearing offices arriving at attorneys' offices a week or ten days after the date they were supposedly mailed. This has happened since Social Security centralized printing and mailing. [Sklar's surprise surprised me. I am just about certain this is a national problem.]
• Sklar was asked about allowing attorneys and others who represent Social Security claimants to appear on a three way video linkup. This would allow someone to represnet a Social Security disabisity claimant without ever meeting them. Sklar said that this issue was being litigated in the Eastern District of New York and that he could not comment. [This confirms a rumor that Binder and Binder has sued over this issue. I will write more on this subject next week. I will say for now that I am extremely unsympathetic to Binder and Binder's position.]
  

From The NOSSCR Conference -- III

Nancy Shor, the long time executive director of the National Organization of Social Security Claimants Representatives (NOSSCR) spoke at the organization's conference in Chicago yesterday. Here are a few points from what she had to say:

• She understands that the proposed regulations that would recognize law firms and other entities as representing Social Security claimants are now dead. She does not understand why.
• Ms. Shor has resigned from the Occupational Information Development Advisory Panels (OIDAP). She felt that she had to after NOSSCR adopted a position statement opposing Social Security going ahead with its own occupational information system, something that OIDAP wants to do.
• She expects a new report from OIDAP by the end of the year.
  

From The NOSSCR Conference -- II

It would be impractical for me to summarize everything said at the Wednesday general session of the National Organization of Social Security Claimants Representatives conference in Chicago. I will stick to that which regular readers of this blog might find newsworthy.

Catherine Olson, the staff director of the House Social Security Subcommittee spoke. Congressional staffers are not supposed to make news and Ms. Olson did as she was supposed to do in giving those present an update on Social Security and Congress. She expressed concern about Social Security's Occupational Information Development Advisory Panel (OIDAP). She thought, or perhaps hoped, that Social Security was reaching out to the Department of Labor (DOL). I hope she is correct. My guess is that any outreach to DOL will disappear if Republicans take control of the House of Representatives. As I have stated before, OIDAP's work is, by far, the most important policy issue that the Social Security Administration has dealt with in more than 30 years.

Judge David Hamilton of the U.S. Court of Appeals for the 7th Circuit also spoke. Federal judges are also supposed to avoid making newsworthy speeches. Judge Hamilton managed to give an interesting, engaging speech without making news. He did give an answer to a question that lawyers who do Social Security work in the federal courts -- but no one else -- will find interesting. He was asked whether it is a good idea in drafting a brief to keep the statement of the facts and the legal arguments completely separate or whether an attorney should have a somewhat brief statement of the facts and then supplement those facts in the argument section of the brief. Judge Hamilton prefers the latter course, of mixing in detailed facts with the legal argument. This must sound extremely unimportant to most people reading this blog but I assure readers that it is a crucial question for anyone drafting a Social Security appellate brief. It is an excellent example of the sort of decisions that attorneys have to make every day. This one is a particularly tough call for an attorney. As boring as it sounds, it can be the difference between winning and losing a client's case. One problem with what Judge Hamilton rlecommended is that he expressed his preference but that is not necessarily the preference of every other appellate judge. Another problem, as Judge Hamilton mentioned, is that what he suggests does not precisely comply with the Federal Rules of Appellate Procedure. Attorneys have to worry how far they can bend these rules before they offend an appellate judge. Aren't you glad that you're not a practicing attorney?

From The NOSSCR Conference -- I

Today was the first full day of the National Organization of Social Security Claimants Representative' (NOSSCR) semi-annual conference. More than 1,200 people were present at the Marriott Magic Mile in Chicago.

The day started with the annual Eileen Sweeney Public Service award, which this year went to David Traver and to me. David is well deserving of his award. He has maintained the SSAS Connect Board for many, many years. It is a vital resource in the Social Security world.

I am deeply grateful for my award. I have been involved with NOSSCR since 1979, the year it began and the year that I entered private law practice. I have gotten far more out of my involvement in NOSSCR than I ever put in. It is especially satisfying to receive an award named after Eileen Sweeney. She was a great woman who had an incredible impact on the world. I wish she could have lived longer.

Why?

Social Security has just withdrawn a proposed amendment to its regulations that would have made permanent the authority of some of its senior attorneys to issue fully favorable decisions on appeals of disability claims.

Problems At The Appeals Council

An e-mail I received from a legal assistant at my firm:

No surprise, but just received this from Barbara Hunt, Chief, Congressional and Public Affairs Branch [at the Appeals Council]:

“The Council has received an unprecedented number of requests for review and as a result, is experiencing lengthy delays in the processing of its cases. Although the average processing time for the Council is about 13 months, it is not unusual to find delays of about 30 months”

I have found that they are only answering the phones in the morning. The afternoon calls go to a “general mailbox” which, from my experience, is equivalent to a black hole. I have yet to get a call back from messages left there.

Senate Hearing On LTD

The Senate Finance Committee has scheduled a hearing for September 28 to investigate the question Do Private Long-Term Disability Policies Provide the Protection They Promise? David Rust, Social Security's Deputy Commissioner for Retirement and Disability Policy is scheduled to testify. Mary DeBofsky, a Chicago attorney who represents long term disability claimants will also testify.