Hearings in 75 days and Decisions in 15 ?

The interesting part of this July 16, 2008 article, complete version found at the St Petersburg Times website, involves Rep. Kathy Castor's proposed legislation this week to break the backlog.

Vacant judgeship adds to wait for aid
By Waveney Ann Moore, Times Staff Writer

The tens of thousands of people stuck in the national backlog for Social Security disability benefits might disagree, but the agency's top official argues progress is being made in ending the crisis.

The progress is hard to see in the Tampa Bay area, however, where the caseload is among the highest in the nation and an office sits empty awaiting the hiring of a much-needed judge.

The most recent figures indicate that 761,042 people are waiting across the country for hearings to address their claims. In the Tampa hearing office, the number is 14,524, the highest in the state.

The situation prompted Rep. Kathy Castor, a Tampa democrat, to propose legislation this week to break the backlog. Castor's bill would require that a hearing be held between 60 and 75 days from the date it is requested, and that a final verdict be given no more than 15 days after the hearing.

Social Security officials in Baltimore could not answer questions Tuesday, but in April, Commissioner Michael J. Astrue told Congress the agency has made "slow and frustrating progress in fixing our service delivery problems."

One step taken was the hiring of additional administrative law judges and support staff members to handle the hearings. In the Tampa office, though, that has yet to pay dividends.

Funds were appropriated in December to allow the office to increase its number of judges from 16 to 17, but the new judge's office remains empty.

"They started the hiring process in late April or early May. I don't know why it (has taken) so long," Castor said. "A judge was hired … the office is ready. For some reason, the person that was hired refused the posting. So now they're not going to start the next round of hiring until the beginning of October.

During his testimony, Astrue told Congress that the agency has begun using a fast-track system to decide allowances in an average of six to eight days. But thus far, only a small number of new claims were being processed this way, he said.

Video conferencing is being introduced to help break apart the worst logjams, he said, and the agency is going to begin a pilot program called "compassionate allowances."

Linda Fullerton, co-founder of a national grass roots organization called the Social Security Disability Coalition, is not impressed.

Fullerton, who lives in Rochester, N.Y., said she waited for a year and a half to get her benefits. When the wait devastated her finances, she got angry enough to start a cyberspace group that now numbers 3,000 members, she said.

Backlogs Front Page News In Indianapolis

From front page of the Indianapolis Star – Sunday July 6, 2008. The following article by S. Rudavksy considers the disability backlog big news. The Star ran this article, excepted below, about the state and nation's continued delays in obtaining a disability hearing.

Headline -Getting on disability is a real pain ...it takes average Hoosier more than 2 years to receive a hearing

Dana Smith waited three years for a judge to agree she qualifies for Social Security disability payments. That’s because Indiana has one of the worst records in the country for processing the disability claims of people unable to work because of medical or psychiatric reasons. Once they're approved, recipients get an average of $1,000 a month in financial assistance. For a determination at the Indianapolis offices for Social Security disability or Supplemental Security Income, the average applicant waits 749 days from the time of filing until a hearing before an administrative judge, the step necessary if claims are denied -- and most are.

Most Americans wait 505 days, the Social Security Administration estimates.
Without a job or any source of income while they wait, some applicants lose their homes and cars. Some must live with relatives or friends or in shelters. Some go on welfare. Some die before a final decision. "I was very appalled at how long it took," said Smith, a Southside resident who watched with envy as a friend in Tennessee completed the process in a year. "I kept thinking: any time now, any time now." Government officials blame the national backlog of disability claims on years of agency underfunding and understaffing combined with a growing number of applications from baby boomers. A recent Government Accountability Office report also identified mismanagement as an issue. Nationwide, the Social Security Administration has 10 percent fewer judges to hear case appeals than it did a decade ago, while the number of cases has increased by more than 176 percent, said Carmen Moreno, regional communications director for the Social Security Administration's Chicago region, which includes Indiana. "We're sympathetic over the fact that the waiting times are long, but keeping in mind that we are receiving so much less money than we need, these are the consequences," Moreno said. In Indianapolis, no one filled the chief administrative law judge position for seven or eight months, said Phillip Price, an Indianapolis attorney who has specialized in disability cases for about three decades. Judges have been slow to move on cases, said Price and Steven Jacobs, another attorney who has worked on such cases since 1974. Most cases used to be heard within six months, Price said. "We need more judges, more staff. We need a more efficient staff," Jacobs said. For the first time in a decade, the Social Security Administration this year received more rather than less funding. Congress allocated an additional $148 million to address the backlog, allowing the agency to hire 175 more judges and other staff nationwide.

Buoyed by the infusion of money and staff, the agency processed all cases nationwide older than 1,000 days. Now it's targeting the 135,000 cases across the country that are more than 900 days old, Moreno said. But even with more judges, the wait remains too long, Jacobs said: "It's like saying: 'I'm a lot taller now. I've grown from 3-foot-6 to 3-foot-7.' You're still a shrimp." To help troubled offices like the ones in Indianapolis, a new hearing center in Virginia will allow judges there to assist staff here by conducting hearings by video. The agency also may send traveling judges to the busiest offices, Moreno said.

People should wait no longer than 95 days from application to hearing, said Ethel Zelenske, director of government affairs for the National Organization of Social Security Claimants' Representatives, which also advocates for increased staffing. Social Security Commissioner Michael Astrue has said he would like to see the wait reduced to 250 to 275 days, about half the time applicants face today.

Dana Smith's inability to work stems from a severe car accident at age 14. She now suffers from osteoarthritis in her right hip, bursitis in her right shoulder, migraine headaches and fibromyalgia, which she says causes horrific pain. Smith, 43, said she's tried to work. She's held jobs in offices, in fast-food restaurants, in department and convenience stores, and on a chicken farm. But each time, the pain came back, and Smith had to quit. In December 2003, the man she was seeing (now her husband, James Smith) offered to let her live with him while she applied for disability. She concentrated on her quest for benefits. "Every time I would try to deal with them (Social Security officials), I was told: 'You need to call this number. No, you need to call this number.' You never get a straight answer from anybody," she said. In March 2007, she had a hearing and soon was granted benefits. But she realizes her husband's generosity gave her security many others do not enjoy. "I just hope that something can be done so others don't have to wait this long," she said. "There are other people that are worse off than I am."

Social Security Administrative Law Judge Removed For Holding Two Jobs

The following article, by Ann Hardie, can be found in its entirety in the Atlanta Journal-Constitution, published on June 21, 2008. The story involves an apparent exception to the ALJ ranks, but is indicative of a Commissioner who continues to play an active role in oversight of all adjudicative agency components. Excerpts are included below:



For three years, Kelly S. Jennings ruled on disability claims for the Social Security Administration while simultaneously serving as an active-duty lawyer for the Army. This week, a ruling determined the Atlanta administrative law judge can be removed from his civilian job for double-dipping. Social Security has also filed papers to recover more than $309,000 in back pay and interest from Jennings.

By dividing his time between jobs, Jennings could not give Social Security his full attention, which in turn contributed to the nation's mountainous backlog of disability claims, wrote William N. Cates, the administrative law judge who heard the case. Jennings worked in Social Security's Atlanta North office, known as the agency's "backlog capital" of the country. With an average wait of 838 days, the office in May ranked as the slowest in the nation in resolving the appeals of people who say they are too sick or injured to work.

Jennings, who said he made more than $300,000 a year working for both Social Security and the Army, acted "purely for personal gain," Cates wrote. "Judge Jennings' dual employment and the ramifications thereof warrant his removal." In an interview Thursday, Jennings said he was "shocked" by Cates' decision. He said he was among the most productive judges in his office. "It wasn't like I was on the golf course," Jennings said. "I took it upon myself to hold hearings in an effort to reduce the backlog and render decisions to give individuals the benefits they had worked for their entire life. For that, I am being fired."

But last year, the agency filed a claim with the Merit Systems Protection Board, the agency charged with protecting the rights of federal employees, seeking to remove Jennings.

Social Security claimed Jennings improperly held two jobs and failed to fully disclose his active-duty status with the Army. Cates, ruling on behalf of the board, agreed. Jennings plans to exhaust his appeals to keep his job. Social Security officials, citing privacy concerns, will not discuss Jennings' current status. But Jennings said he has been placed on paid administrative leave until a final decision is reached.

"We are pleased by the decision," Social Security Commissioner Michael J. Astrue wrote in an e-mail. "The irresponsible conduct of this employee shouldn't tarnish the reputations of our ALJs, who have helped reduce the disability backlog by increasing their productivity by about 10 percent in the past year."

Jennings, 55, was appointed an administrative law judge and went to work at the Atlanta North office in 1994.For the past 25 years, Jennings also served as a commissioned officer in the U.S. Army Reserve. When he retired last month, Jennings held the rank of colonel with the Judge Advocate General's Corps, the Army's legal arm.

Jennings said he performed active military duty for a few months every year that he served as an administrative law judge and received pay from both the Army and Social Security "with no problem.” His current troubles stem from his continuous military duty from January 2003 to December 2005. Jennings did brief tours during that period in the Middle East. But during most of those years, Jennings said, he worked from 6 a.m. to 3 p.m. at Fort McPherson in Hapeville, providing legal advice for the 3rd U.S. Army based in Kuwait.

He said he spent the rest of the weekdays and weekends working on Social Security cases both in his Atlanta North office and at home. Jennings said he took military leave when necessary to hold hearings. Jennings had signed an agreement with Social Security to work weekdays from 8 a.m. to 4:30 p.m. While Jennings acknowledged that he did not adhere to that schedule, he called it "inconceivable" that his higher-ups were not aware of what he was doing. Military regulations would not have precluded Jennings from holding another government job. But a human resources specialist testified that the Social Security Administration does not allow employees to keep working their civilian jobs if they are activated for military duty. In August 2007, Social Security placed Jennings on paid administrative leave, he said. He is drawing his annual salary of $158,500.

Jennings said his annual Army pay ranged between $140,000 and $155,000 between 2003 and 2005."There was never a time I was double-dipping at all," he said. "I fully earned every dime of my salaries."

SSA admits it's time for new tickets........

For those of us who help clients in the disability process, simply the admission by the agency that post entitlement options need reexamination is a step forward.

For a thorough discussion of work incentives, visit Scarborough's blog.

This is something we will watch.


‘Ticket to Work’ Program Underutilized


Monday, June 2, 2008
Erin Smith, Staff Writer offers the following:

The Social Security Administration has announced changes to the rules for the “Ticket to Work” program, though the program has not garnered the response they had hoped.

Of the 10 million “tickets” issued nationwide by June 2007, only 171 had been activated, according to Social Security’s Technical Expert Tim Moore.

Moore told the Journal in an interview on Wednesday that he does not have specific numbers for individual states or local areas.

The program is federally funded and was signed into law in 1999. The first phase of Ticket to Work began in 2002 and in 2003,
the final phase of which North Carolina was a participant, was implemented. The program’s intent was to expand providers available
to those with disabilities who are seeking vocational rehabilitation, employment and related services. The program is available in
all 50 states and the U.S. territories.

According to Moore, the program is managed by Maximus, Inc. located in Virginia. When an individual receives their information, they
contact Maximus and the company puts them in contact with the agencies also known as employment networks.

The process of determining who is qualified for Ticket to Work is an automated process, said Moore.

A person must be between the ages of 18 and 64 and receive Social Security disability benefits or SSI. Candidates are selected based
on an automated review, according to Moore.

“It is a voluntary program,” said Moore. “Just because they receive a ticket doesn’t mean they have to activate it. The main advantage
is, if they activate the ticket, while they are active in the process, there is no medical review.”

Commissioner of Social Security Michael J. Astrue said, “Beneficiaries with disabilities will have greater flexibility and expanded
choices in obtaining services they need to attain their employment.”

Social Security is in the process of recruiting more organizations to serve as employment networks and also trying to encourage
greater participation from those who receive tickets, according to Astrue.

The changes include allowing the participation of individuals for a ticket even if they are expected to medically improve;
modifications to the employment network payment systems to create greater financial incentives for providers to participate;
increase the value of the ticket to enable participants to take advantage of “a more effective combination of services from
the state vocational rehabilitation agencies and employment networks;” and better alignment of the Ticket to Work program,
the Work Incentives Planning and Assistance Program, the Protection and Advocacy for Beneficiaries of Social Security Program,
and other Social Security incentives.

NPRM – SSA Suspends Proposed Rule Changes

Commissioner Michael J. Astrue asked the Chairman of the Social Security Sub Committee to “suspend” the proposed changes to SSA’s appeal process. Astrue notes in a letter dated January 29, 2008 that after frank and productive discussions with representatives of the disability community, one problem emerged - medical providers denying timely access to medical records.

We agree. This is a longstanding reality. Many providers not only delay, but actually withhold medical records because the claimants are behind in payments to the physician, clinic or hospital where the records are housed. This makes it difficult for appeals to proceed and in many cases, results in a denial of benefits.

Astrue went on to say that it was time for Congress to look into the problem of medical providers who delay or withhold records. Again, we agree.

Finally, Commissioner Astrue also suspended one of the appeal branch initiatives in the Boston Region. These steps continue to raise hopes that a reassessment of the proposed changes will emerge as they meet the reality of the processes facing disability claimants and representatives who advocate for timely and accurate disability adjudication.

Link to Post/ Article

December 20, 2007 - The House sends Commissioner Astrue a Note on SSA's Proposed Appeal Changes...

"Dramatic changes are unjustified. The backlog is the result of
chronic underfunding of SSA's Administrative budget, not faulty
appeals procedures."


In this 10-page tome, the House of Representatives sends SSA a letter regarding the proposals. The deftly worded, detailed missive displays a firm grasp of the downside to the proposals. Well worth the read, the letter continues in the general skein of what a potentially bad idea this particular move by the agency portends. The letter is signed by John Dingell, John Conyers, Charles Rangel, Pete Stark, Henry Waxman, Howard Berman, John Lewis, Frank Palone, Jr., Jim McDermott, Michael McNulty and Linda Sanchez.

SSA Proposals - At What Cost?

Proposed SSA Change Would Cut Benefits for Disabled Individuals
Restricting appeals process would deny many eligible applicants their Social Security, Medicare, Medicaid and SSI benefits

SSA is proposing significant changes to the Disability Appeals process. The good news is that the agency will keep an appeal process – the past SSA Commissioner spoke of its abolition. The bad news? Unfortunately, the rest of the proposals do not bode well for appellants or claimants. The agency proposes a slew of restrictions involving submission of evidence and tightening previous procedures that allowed claimants and representatives reasonable access to Administrative Law Judge Hearings and Appeals. Perhaps the most unfortunate aspect of the new proposals is vagueness to the process, allowing the ALJs and Appeals Judicial Branch, now called the Review Board, virtual carte blanche in their decisions and other new, obtuse procedures. While increased ALJ accountability would be a reasonable goal nowadays, given the interminable wait claimants endure for a face to face hearing with an ALJ, these provisions lead in the other direction. The result is taking an existing backlog that requires action, and proposing counter-productive measures that will money. These provisions should not cost more, deny more and take longer. In reality they will likely do just that. Let’s look at what the real costs are and who benefits.

Unrepresented clients are the biggest losers. They now face additional burdens, many far too technical for the layman to comprehend and some challenge the powers of competent advocates. The burden of proof is arguably an unbearable one in these provisions. The law requires the program to be clear and specific for the majority of Americans. These provisions add layers of bureaucracy and intricate legal nuances that don’t portend to do anything of the sort. Administrative Law Judges, (ALJs ) will be able to exclude evidence, with vague or no accountability. ALJs will have the discretion to ignore evidence submitted within 5 days of the hearing. It is simply good practice for representatives or pro se clients to have evidence submitted far earlier than 5 days before a hearing. However medical events occur, providers respond at the last minute – in other words, events beyond control of the claimant will exist. These are the exception, not the norm. Five days is too short even for postal errors. Two weeks or 14 work days should be the minimum in last minute submissions. The majority of ALJs are reasonable. A minority are not, as is the case with any judicial body. This means a percentage of claimants will have medical and other evidence excluded based on the whims of a minority of Judges who adhere to vague guidelines in refusal of evidence and other procedural niceties. This is unacceptable and will increase additional claims as well as add a new layer of potential injustice in the practice. Claimants will die or have their disease progress if they are technically denied their hearings. Homes will be lost and lives ruined because of a 5 day technicality. Some will pick up the pieces and file new claims. In doing so they stand to lose years of back pay and thousands of dollars. They will usually have to wait again for two years of Medicare, when their appeal if heard, would have provided access to Medicare or Medicaid far earlier. If deadlines or other new procedural roadblocks prevail they will be expensive and increase the need for new initial decisions. New decisions, the initial ones prior to appeals, are the most error prone and add to the pipeline for new ALJ pending case, i.e., more expenses. The result. More claims denied. More new claims, not less, longer delays not shorter.

The new changes propose to remove “open” remands by closing the record at the ALJ hearing level. That is, once a case is reviewed by the review board, only the issues at stake in the original hearing can be considered by the ALJ who erred in the first place and received a remand to look at her errors. The fact that the claimant has usually waited 6 months to a year or longer to get a decision on his appeal, means his vocational viability diminishes, and almost always results in a worsening medical status (the agency has long acknowledged that conditions worsen over time). The proposals ignore these facts. Under the new proposals, we go back in time to the original hearing only, no additional current evidence may be considered. This is truly justice with blinders. This makes no medical sense and leads to speculation as to why it would make any judicial sense. Fiscal sense? The clear result will be denying more claims at appeals quicker and in a far more arbitrary manner. Thus the alleged savings. What happens to the denied claimant is the real story – they worsen, they line up at the ER, they apply again and the whole flawed process begins anew.

Claimants who have SSDI vs. SSI disability issues, face an expiration of their insured status and are thus penalized if an ALJ or other appeals level body makes an error. Again, since only the condition at the time of the hearing may be considered. This may result tin many wage earners losing insured coverage and applying for non wage earning or SSI benefits. Again, less jurisprudence, more delays, more denials. The latter is unfortunately along with vagueness in judicial responsibility, the second emerging theme of the provisions. Is this what the American people want, less disability coverage and more tax money for other projects? If so, it should be presented as such. The program is saving over a billion dollars, at what cost? The disability program exists to cover eligible individuals who are disabled, not to generate tax savings. Yet, this is the leitmotif that I s embedded in the proposals. The provisions mark a departure from the SSA mission to protect the disabled. The denied appellants simply won’t rush to file new claims on line. On line applications are simply not viable at present. If the provisions force more new applications by making appeals harder, the applicants will not turn to an online system that is at best difficult for most and at worst underutilized because it simply has never been practical for applicants to use. The older SSDI wage earner will be less likely to fumble with the computer and won’t, (the alleged viability of Internet applications begs for a GAO study in this author’s opinion).

The provisions limit reopening cases. In other words, where clear and compelling error by the agency existed and the claimant was protected to an extent, these new proposals simply shut the door. The more the agency ages, the less experienced examiners and field office personnel, the clear and compelling errors will be overlooked. This is a no brainer in terms of fairness for the disabled. It may save money, but it will result in less allowances. One wishes there was a DNA SSA test for those wrongly convicted of the ability to work despite clear and compelling error to the contrary.

The new proposals mandate an appeal to the Review board within 10 days of decision receipt. This will guarantee bad briefs. There is inherently nothing wrong with dictating the length and even font of briefs and reasonable deadlines are fair. However, dictating the time to compose comprehensive briefs to an unrealistic period, allows the claimant little time to research to statutory issues involved in a very complicated ALJ decision. It encourages “boiler plate” appeals which really benefit no one. It virtually removes the ability of a pro se claimant to full appeal rights and places restrictions on the ardent advocate who toils over a cogent brief. Claimants are allowed 5 days to object to issues in the decision. Most ALJ decisions involve hundreds, if not thousands of pages of medical and procedural records. Five days? Most striking is the requirement at the pro se claimant must analyze this twice removed judicial appeal issue and extract, then submit a statement citing the criteria (So, the claimant studies the CFR, POMS, Hallex et al?) and distills the crucial legal issues that were overlooked. This is stacking the deck against the claimant and placing unrealistic demands on a conscientious representative. Other issues such as rescheduling a hearing and mandating a telephone hearing are either geared to deny or were conceived without knowledge of the issues. AlJs may deny a claim for failure to appear at a post hearing conference – a new concept, another step and a step that will be abused by the minority of ALJs who are biased or simply have too many cases to adjudicate. There is little consistency from one ODAR to another in the procedural dealings at present (look at travel and records submission and oversight of ALJs). How, one must ask, does and ALJ assess credibility in a phone conversation? Having been in a “Telephone Hearing”, I can tell you that it is a poor alternative – why not just pick up the phone and call the claimant five days after the first denial and make a decision? The push is on to plug in rather that plead out one’s case. More latitude is offered the ALJ, more restriction the claimant and representative. These new powers open a Pandora’s Box of potential claimant neglect and abuse. The non adversarial role will spin adversity where the possibility did not exist before, even at one billion plus, the cost is too high.