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Social Security Disability Hearing Delays: The Blame Game Continues

By Scott B. Elkind, Esq.

As can always be expected with a poorly run governmental system which affects many people adversely, there will be Congressional hearings with blame laid at supposedly responsible parties and responses from the accused with their own set of finger pointing.

Such was the case in the hearing held by the Appropriations Committee of the United States House of Representatives held on 2/28/08. This hearing centered on the failure of the Social Security Administration to reduce its disability backlog. The hearing transcript reveals many disconcerting facts and conduct. As of Fiscal Year 2008, the disability case backlog totals 751,767 with an average waiting time for appeal of 499 days. Despite efforts made at overhauling the disability appeals system in the past few years, the delays have continued to increase rather than decrease.

Several problem areas were cited as being responsible for the ever-mounting delays in appeal processing at SSA. The first area is the management structure of SSA. With the enactment of the failing Disability Service Initiative (DSI), there were changes made in SSA’s structure, particularly in the Office of Disability and Income Security Programs (ODISP) which is responsible for directing and managing the planning, development and issuance of operational regulations, standards and instructions for the disability programs. The Office of Inspector General (OIG) conducted an evaluation of ODISP and concluded that ODISP was not focused solely on planning and program policy issues. Rather, it was responsible for several operations functions that detracted from its primary policy function. Further, there was a lack of communication between the ODISP and other SSA components. It was also concluded that several functions within ODISP could be better aligned to improve coordination and productivity while other functions performed by ODIP needing to be managed elsewhere in SSA. To this end, the OIG study found that there were similar policy functions being undertaken elsewhere in SSA resulting in redundancy and confusion in the system.

Other problem areas cited in the OIG study involved staffing, productivity, and technology use difficulties. In particular, the study questioned whether hearing offices and Administrative Law Judges were “operating at acceptable levels of productivity” and if SSA was utilizing the electronic disability folders to enhance performance and productivity. The inconsistent use of administrative personnel supporting ALJs is particularly troublesome. The national average support staff for each ALJ is 4.7, but the range goes from 3 support staff to 18.5! Even with the average number of support staff, 63% of offices operating at this level had disposition rages below the national average. For this reason, consistent staffing levels were recommended with establishment of an ideal staffing ratio.

The OIG study also found a wide variation in ALJ caseload performance, ranging from a low of 40 cases for one ALJ in FY 2006 to a high of 1,805 for another ALJ in the same year. 30% of ALJ’s processed fewer than 400 cases each year which was described as “a cause for concern.” It was specifically stated that if ALJ’s were to continue performing at the low end of the productivity spectrum, then this would have a negative effect on the disability backlog. Part of this problem was attributed to the lack of any formal performance accountability process for ALJ’s resulting in the inconsistency of performance. Conflicts between SSA and the ALJ union were cited for the lack of any standard being put in place.

The third problem is the SSA’s history for making proposals to enhance productivity with these proposals without actually implementing them. The OIG audit revealed that the Office of Disability Adjudication and Review (ODAR) management did not always use the case management software reports as part of their caseload management. This failure has resulted in stagnating cases. As it stands, 50% of case are not being tracked at all including hundreds of thousands of unworked cases.

The OIG study also addressed the Quick Disability Determination (QDD). It was found that QDD’s predictive model for initial claims could identify cases with a high potential that the claimant would be found disabled. Unfortunately, QDD cases have not been processed within the proposed 20 day time period from case intake with non-medical development causing the greatest delay in making initial decisions. Further, the QDD personnel did not take prioritize Title XVI claims which could be paid immediately as opposed to Title II claims which, if approved timely, would still be affected by a five month waiting period prior to being paid benefits.

Also noted in the report were cost reduction measures. This includes the efforts of the Cooperative Disability Investigative (CDI) program which is responsible for fraud detection in claims. The CDI investigators coordinate with state and local law enforcement agencies. Their efforts have resulted in $110M in savings to SSA and other agencies in FY 2008 to date. Another cost reduction measure cited is the use of continuing disability reviews (CDRs) was also heralded for cost reduction potential.

A parallel report issued by OIG on 2/6/08 addressed the Administrative Law Judge case load performance. Part of the fault for the poor performance of the ALJs is placed on the lack of a formal accountability process. The report noted that performance review has been resisted by some ALJs based upon “their misinterpretation of the qualified decisional independence provision” despite legislation and the Union agreement permitting the setting of reasonable production goals. At this time, ODAR does not track the number of hours each “partially available” (as opposed to fully available) ALJs actually available to process cases. Therefore, there as no means to track the performance of these ALJs at all. In 2006, partially available ALJ’s processed fewer than 400 cases each while representing 29% of the ALJ production. A surprising finding is that Hearing Office Chief ALJs averaged 657 case processed each year, considerably higher than the national ALJ average of 485 cases each for ALJs who do not have to perform additional management responsibilities. 372 of the 895 fully available ALJs processed fewer than 450 cases, comprising 42% of ALJ production. If these ALJ’s alone increased their production to 450 cases each year, it would account for an increase of 42,2203 cases (10% overall). A production level of 500 cases per ALJ each year would result in over 64,000 claimants receiving timely decisions. Unfortunately, 619, of the 895 fully available ALJ’s processed fewer than 550 cases each. If the fully available ALJ’s processed 550 cases each year, 92,000 cases could receive timely decisions. The report conclusion stated: “It is imperative that ALJs process cases at an acceptable level to reduce the emotional and financial impact of long processing times for the thousands of claimants awaiting decision on their appeals.”

As would be expected, the ALJ Union responded with a statement in April, 2008, stating that report conclusions “call into the question the independence and objectivity of the Audit Report.” The Union cited a lack of any continuing education for the judges and SSA’s slow effort to reimburse union members for taking advantage of the annual educational program offered by the Union with much of the costs subsidized by the members themselves.

What is to be gleaned from this??? Nothing in the report indicates any potential for improvement. That is for sure. With redundant policy efforts and poor communication between ODISP and other components of SSA, the OIG has identified the classic situation of “the left hand not knowing what the right hand is doing.” There remains an ongoing and long-standing conflict between the SSA and the ALJ corps concerning productivity goals with no end to this stalemate in sight. SSA still lacks the ability to utilize newly acquired technology to enhance productivity. And, of course, there is a clear lack of consensus concerning proper support staffing in hearing offices. As has been the case over the years, SSA is never without new programs to propose and/or implement to increase productivity with no evidence that any program has ever reduced the case backlog to any great extent. This conduct only has resulted in increased waiting times for one of society’s neediest segments, the disabled.

Scott B. Elkind is a Principal with Elkind & Shea, The Disability Benefits Law Firm, located in Silver Spring, Maryland.

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