Hearing Decisions–Part 4

In this final article of this series about the hearing process, I propose that the position of Administrative Law Judge, the hearing officer at the hearing level, be modified in part.

At the moment, Administrative Law Judges are essentially appointed for life, there is no age-mandated federal retirement.  I believe that if hearings were published and the state disability determinations services were held to federal requirements, the need for hearings would decrease, and thus the need for a large number of Administrative Law Judges.  Additionally, there are other changes in the process that have been instituted by the Social Security Administration to deal with the hearings office backlog, and some of these will contribute to substantially reducing the existing 900-plus-day backlog.

Some background on the Administrative Law Judge position is provided in a statement made on May 16, 2006, to the U.S. House of Representatives Subcommittee on the Federal Workforce and Agency Organization.  See http://www.opm.gov/news_events/congress/testimony/5_16_2006.asp.

As of December, 2005, there were 1,172 Administrative Law Judges employed by the Social Security Administration.  On the average, the Administrative Law Judges were age 61.2 years old.  Administrative Law Judges “may be removed only for cause and almost never resign.”  A total of only 12 had resigned over the prior four years.  The salary for Administrative Law Judges is linked to the federal Senior Executive Service pay rates.  The law caps the total pay for Administrative Law Judges, including federal locality pay, at $152,000.  The statement to Congress by the Office of Personnel Management noted that at that time 43 per cent of all Administrative Law Judges were paid at the maximum rate.

In addition to Administrative Law Judges conducting the hearings at the Office of Disability Adjudication and Review (previously known as the Office of Hearings and Appeals), the Social Security Administration had from 1995 through April, 2001, allowed “senior attorneys,” being most of the already-employed attorney-advisors, to issue wholly favorable decisions based on the case record and other prehearing proceedings.  The initial Senior Attorney program was noted to be a “success,” and on March 3, 2008, the Social Security Administration published final rules in the Federal Register (vol. 73, no 42, page 11349) for a new two-year program of Senior Attorneys, now limited to only a few (already employed) attorney-advisors in each office and limited to only part of their work duties, to issue wholly favorable decisions.  The fact that the first senior attorney program from 1995 to 2001 was a success, by the Social Security Administration’s own characterization, and that it was not reinstated until, after the plans were put in place to increase the number of Administrative Law Judges by about 150, it not untypical of Social Security Administration management and leadership.

 

In a Government Accounting Office report, entitled, “Social Security Disability: Better Planning, Management, and Evaluation Could Help Address Backlogs” GAO-08-40,  December 7, 2007, at p. 20, it was noted that backlogged claims were almost eliminated at the hearing level from fiscal year 1997 through 1999.  The senior attorneys program was in effect at that time.

The report also observed that substantial growth in initial applications, staff losses and management weaknesses contributed to the increased backlog.  The GAO stated, at p. 28,  ”Management problems have been manifested in a number of initiatives that were not well planned and implemented.”

In any event, I propose that future Administrative Law Judges be hired for only a ten-year period.  It would still be a very good job.   The May 16, 2006, statement to Congress stated that in the prior four years, Administrative Law Judges retired at an average age of 69.6 with 31.7 years of government service. 

Contracting out (lower-paid) federal jobs to private contractors has been advocated and implemented by the Bush Administration.  In the Social Security Administration hearing process, assembly of case files was at one point contracted out, and the results were poor.  At present, some of the digital work is contracted out.

Hiring Administrative Law Judges for a limited period of time would likely provide for a younger and more diverse workforce and a more flexible number of employees at a very high salary level.  The Social Security Administration should concentrate on improving the earlier stages of application process.  The work of the hearings level ideally should be reduced, and therefore it should be the goal of the Social Security Administration to not employ more Administrative Law Judges than necessary.

Secondly, as described in yesterday’s article, I propose that each decision address why the claimant was not paid at an earlier stage of the disability process and that the decisions be used training material for the first two levels.  In the April, 2007, GAO report noted, at p. 37, that the Process Unification initiative was designed to standardized decisions made at all levels by streamlining existing regulations and required state disability determinations examiners to more fully develop and document their determinations.  The Social Security Administration only partially implemented this initiative and portions of it, such as producing a unified policy guide for all adjudicators, were abandoned.

Thirdly, any reversals or modifications of decisions should be used as training for the Administrative Law Judges and for the administrative staff of the Social Security Administration.

The changes I propose, beginning with publications of the decisions at the hearing level, would require modifications of federal statutes and regulations, but they would in my opinion maximize existing resources, provide transparency and hopefully greater fairness to claimants and provide the data needed for evaluation by the Social Security Administration, Congress and the public and would contribute to greater support for this important social program.

  

All original content © 2008 Patricia A. Petow.  All rights reserved, including the right of reproduction in whole or in part in any form.

Hearing Decisions–Part 3

In May, 2006, the Social Security Advisory Board reported, at p. 30, in “Disability Decision Making:  Data and Materials,” Chart 14, for calendar year 2000, the following approval and denials for both Social Security Disability and Supplemental Security Income Disability.  See www.ssab.gov.

The same figures were also discussed, at p. 3, in the Social Security Advisory Board’s report entitled, “Improving the Social Security Administration’s Hearing Process, September, 2006.”

1. At the initial application stage, the state disability determinations services approved 822,975 claims, or 40 per cent of all who had filed;

2. At the initial application stage, the state disability determinations services denied 792,272 claims, or 38 per cent of all who had filed, and no appeal was taken;

3.  Of those who appealed to the second stage, reconsideration by the state disability determinations service, 85,049, or 4 per cent of all who had filed were approved;

4.  Of those who appealed further to the hearing stage, 120,146, or 6 per cent of all who had filed were denied; and

5.  Of those who appealed further to the hearing stage, 253,319, or 12 per cent of all who had filed were allowed.

So added together, 40 per cent were initially approved; 4 per cent were approved at the reconsideration stage and 12 per cent were approved at the hearing level.   Thus, of all claims, 56 per cent were approved.  Two-thirds of those who appealed to the hearing level were approved.

In the September, 2006, report, it was noted at p. 3, that in 2005, 72 per cent of the decisions at the hearing level were favorable to the claimants.

    

The figures show that many claimants are discouraged at the initial stage of their application and do not appeal further. 

The statistics also show that 253,319 people in 2000 had to wait, a number of months, until after a hearing to be approved.

In proposing to publish the decisions at the hearing level, I would also like to suggest that the hearings decisions in each case address the questions of why the claimants were not approved earlier in the process.  Did the claimant lack the ability to obtain medical records?  How did the state disability determinations service misapply the law or the vocational regulations?  Each favorable decision at the hearings level suggests to me that there was something the matter with the process at the initial and reconsideration levels.

Publishing the decisions at the hearing level and identifying problems at the first two levels would provide the public with needed information about the disability program.  Perhaps the 38 per cent who did not appeal their initial determinations should have appealed. 

Secondly, the hearing decisions should be used as a training tool for the state disability determinations service at the first two levels.  The hearing decisions would also provide data for the Social Security Administration to enforce its regulations at the first two levels.  The public would have greater opportunity to evaluate how well the administration follows through with supervision of the state agencies.  Although the disability determinations services are “state” programs, the disability determinations services are mandated to follow federal regulations.

 All original content ©  2008 Patricia A. Petow.
All rights reserved, including the right of
reproduction in whole or in part in any form.

Hearing Decisions–Part 2

Making the Social Security Administration’s hearing decisions public would in my opinion provide data needed to monitor decision results and to identify and address problems.  The Social Security Administration is an actuarially driven agency, and while the numbers alone can find many abuses, fairness to individuals cannot be evaluated by statistics.  

Decisions in the regular court system, as distinguished from the administrative agency level of the Social Security Administration’s hearings, are made in public, although sometimes agreements are made by the parties in pending civil cases to keep their settlements private.  On the appellate level in the regular court system, decisions are usually published for later citation.  How fair would people think the criminal justice system would be if it were not open to public view?

Once established the publication of hearing decisions would expose “poor” decisions, that is, decisions in particular cases that are inconsistent with the evidence and/or with the law.   In some cases, the problem might be the decision-maker, in other cases the representative or lack of representation of the claimant, “local” procedures or bias. The decision-makers, the Administrative Law Judges, will be discussed in a future blog in this series.

Publication of hearing decisions, such as, at very little cost, on a website, would also allow the public to understand the disability program.  Basically disability under both Social Security and Supplemental Security Income provides income, and health insurance, to people who are unable to work.  To some extent it is like becoming eligible for Social Security retirement at an earlier age.  Each decision contains some description of why an individual is unable to work.  The public would be more supportive of this social program if it understood how real people are affected.

With access to decisions, the public would be more attentive to policy matters that drive the administration of the Social Security Disability and Supplemental Security Income Disability programs.  The ability to read actual case decisions would offset the misinformation circulated by opponents of this social program.

 All original content © 2008 Patricia A. Petow.
All rights reserved, including the right of
reproduction in whole or in part in any form.

Hearings Decisions Should be Made Public

In a report at the end of September, 2007, the Social Security Administration stated that there were 746,744 cases waiting for disposition at the hearing level—nearly all of these cases involved disability.  Of the total number 18.1 per cent had been waiting 900 plus days.  See “Plan to Eliminate the Hearing Backlog and Prevent Its Recurrence” at www.ssa.gov

Links to a number of recent television and newspaper reports on the terrible backlog may be found at http://www.nosscr.org/coverage.html

There are no simple answers to the enormous backlog, but in this article and in a few follow up articles, I suggest that one approach may be to publish the decisions that are made by Administrative Law Judges at the hearing office level.

Decisions at the hearing level are considered private and are not available to anyone except the claimant and his or her authorized representatives.  If a claimant is unsuccessful at the hearing level, he may appeal to a Social Security administrative review board, and if still unsuccessful, may file for further review at the U.S. District Court.  Once a case is filed at the U.S. District Court, it is no longer private and may be viewed by the media and the public.

In recommending that the hearing decisions be published, I also recommend that the published decisions not include the names of the claimants, the social security numbers of the claimants and other identifying information.  Generally, the body of the decisions refer to the claimant as “the claimant,” rather than by name, and the cover or title sheets can easily be modified to protect the claimants’ privacy.

 

 All original content ©  2008 Patricia A. Petow.
All rights reserved, including the right of
reproduction in whole or in part in any form.