By Scott B. Elkind, Esq.
Social Security's Plans to Address Recent Problems
High Denial Rate Judges
The Office of the Inspector General (OIG) undertook an audit in July, 2014 to address the ongoing problem of administrative law judges (ALJs) with low allowance rates (what we facetiously call "denial machines"). A sample survey of the 12 low-allowance judges revealed that four of them had an Appeals Council (AC) appeal rate of 80 or more percent as compared to the 67percent average for such appeals. Appeals Council reversal rates were twice for the low-allowance ALJs as compared to their higher allowance peers with one judge have a five times higher rate of reversal.
In response to this problem, OIG made the following recommendations:
- informing ALJs about the reasons for AC reversals
- monitoring AC reversal trends to identify ALJs who have high reversal rates, and
- tracking subsequent ALJ actions on remanded cases.
This report noted the Social Security Administration's agreement with these recommendations. Unfortunately, these recommendations will do nearly nothing to address this problem.
It is more disconcerting when taken in context of SSA's current assault on ALJs who they believe pay too many cases. In many cases, these "too approving" judges are sent in for "re-education" or face other disciplinary proceedings in an effort to force them out of their positions. Whereas, no actions are being taken against judges who pay only low percentage of cases. And, when I use the term "low," I mean only less than 10% of cases approved. Such denial judges are far more worthy of disciplinary proceedings or re-educations courses, yet SSA does not address the judges that conserve its funds. The injustice done to disabled claimants with merit worthy claims who are denied by these denial machine judges far outweighs a favorable approval to a less deserving person who is not hurt at all.
The system remains broken and cannot be repaired until SSA takes ownership of its poor processes and employees. It remains a system of delay and denial which fights approval of claims. This is extremely unfortunate to this nation's citizenry who is forced to pay into an unjust system, hoping to receive benefits should disability strike.
Hearing Office Risk Factors
In response to the scandals in hearing offices in New York, West Virginia, and Puerto Rico, SSA is pushing to develop an "early monitoring system" based on a combination of factors such as number of dispositions and on-the-record dispositions as well as frequency of hearings with the same claimant representative.
Although it cannot be argued that OIG's addressing this issue as politically necessary, it will undoubtedly result in a backlash against judges who are believed to be "payment friendly." Again, the problems caused by a very few individuals can be addressed without repercussions to the entire process. Unfortunately, the fallout has already resulted in a chilling effects among the ALJs who have been made to feel that SSA is looking over their backs even more.
Appeal Council Delays
Since 2007, the Appeals Council (AC) has been unable to keep up with the increasing number of requests for review following ALJ hearing denials. By FY 2013, the AC case backlog has tripled with related processing times which are 60% higher than in 2007. In simpler terms, the AC is having to do three times the work, but is only half efficient at doing so despite increased hiring, improved training, and set performance goals.
Problems noted at the AC included having judges perform other duties than reviewing cases, judges that worked only part of the year due to new hires or departures, and dependency on analysts performance in assisting the judges.
The March, 2014 OIG report addressing this problem recommended the following improvements:
- improve published performance goals
- establish adjudicator productivity goals
- enhance communication of internal goals
- formalize successful quality reviews
- explore additional methods for conducting quality reviews of all relevant workloads
Do these improvements really sound like they will have an effect on the AC when it has already failed to realize the previously set performance goals despite increased funding and personnel? I think not. It is just another example of they typical "wonkish" government-speak which sounds good, but really signifies nothing.
In 2007, this firm would expect an AC decision to occur within 6 - 9 months. Now, it can take a year and a half or longer. This is more than falling behind, it is lagging very badly. Without proper staffing and aggressive management, this situation will only continue to deteriorate.