From The NOSSCR Conference

Nov 03, 2011 Comments Off on From The NOSSCR Conference by

I have been attending the National Organization of Social Security Claimants Representatives (NOSSCR) conference in San Antonio this week. This morning was the general session when attendees heard from some Social Security officials and NOSSCR’s Executive Director. I am going to summarize what I heard, at least what I heard that was news to me with some remarks by me in brackets.

Glenn Sklar, Deputy Commissioner for the Office of Disability Adjudication and Review (ODAR)

  • Sklar and the other speakers from Social Security appeared by video link because of budget related travel limitations at Social Security.
  • ODAR opened eight of the sixteen hearing offices it wanted to open in the fiscal year (FY) 2011, which ended on September 30, 2011.
  • New hearing offices will be opening soon in Moreno Valley, CA and Reno, NV.
  • In FY 2011, ODAR hired 143 Administrative Law Judges (ALJs) but lost 97 to retirement, death, etc.
  • ALJ “quality numbers” are quite good despite increased ALJ productivity. [How does one measure the quality of ALJ decisions?]
  • Sklar’s presentation was briefly interrupted by an announcement blaring over the intercom at the building from which he was speaking.
  • ODAR is shooting for a 270 day time frame for processing cases at the hearing level. Sklar referred to this as “the right number.” [Historically, this is a modest goal. Over the entire history of ODAR and its predecessors, the processing time has usually been far lower. However, 270 days is a huge improvement over where we have been in recent years. ]
  • ODAR has been “pushed to our limits by this recession.”
  • Receipts of new requests for hearing are now in the 70,000-80,000 range per month.
  • ODAR is working to reduce backlogs in hearing non-disability cases and have made considerable progress. [I have heard about this backlog before. I do not understand why these cases were ever processed on a different timeframe than disability cases.]
  • 7,800 appointed representatives have e-folder access.
  • 77% of cases at ODAR have representatives who have e-folder access.
  • ODAR wants to give attorneys and other representatives access to a case status summary report that would list each case the attorney has at ODAR and its status on one page. [When?]
  • Sklar showed interesting maps which visually displayed the numbers of people awaiting a hearing before an ALJ who live more than 75 miles from a Social Security hearing site. The maps showed dramatic improvement over the past year. I hope that Social Security will make these maps available online. The remaining areas with poor coverage appeared to be in sparsely populated areas in the Western U.S.
  • Because of budget constraints, ODAR is not replacing employees who leave.
  • ODAR is working towards national scheduling of hearings, using software currently being developed. [Will it work better than the e-pulling software?]
  • Attorneys can object to expert witnesses testifying by telephone at ALJ hearings but the alternative may be interrogatories to the expert witness.

Patricia Jonas, Executive Director of the Office of Appellate Operations

  • Case receipts at the Appeals Council were up 34.7%  in FY 2011 over FY 2010.
  • 13,995 civil actions were filed in the federal courts appealing from Social Security cases in FY 2011. This was up 12% from FY 2010.
  • There were 5,881 remands from federal court in FY 2011 which was down 1.8% from FY 2010.
  • In FY 2011 the Division of Quality completed review of 3,692  ALJ decisions that had not been appealed.
  • Requests for Appeals Council review should not be filed using the electronic file. There is currently no way of filing requests for Appeals Council review online. I heard no mention of a plan to make this available.

And Some Question From The Floor

  • Sklar and Jonas were kind enough to take questions from the floor. I hurried to the mike. My question concerned the bad publicity that ODAR had received earlier this year about a West Virginia ALJ who had been allowing almost all the claimants whose cases he heard. In the wake of this, there had been talk at ODAR of “outlier” ALJs with high allowance rates and of some sort of reviews of those “outlier” ALJs. I mentioned that some ALJs are concerned about being targeted. I asked what is going on and what is planned. [The answers given was not a model of clarity. Indeed, it was noticeable that Sklar said twice that he wanted to be “very clear.” I had the impression that he might have more accurately said that he wanted to be “very careful” about what he said in order to avoid being “clear”.] The answer, as I understood it, was that there was considerable pressure to do something about ALJs who are allowing a lot of disability claims and that Sklar feels compelled to do something. Because of limitations in place as a result of old litigation, ODAR cannot target individual ALJs for review by the Appeals Council. However, ODAR is trying to get around these limitations by post-effectuation reviews of ALJ decisions and these post-effectuation reviews are targeting individual ALJs and individual hearing offices. Post-effectuation reviews are reviews of ALJ decisions after the claimant has been paid. Generally, these reviews do not result in overturning the ALJ decision. Probably, the ALJ and the claimant will be unaware of the review. [It is not clear to me what point there is to post-effectuation review. I understand why ALJs are concerned about these reviews but they don’t seem to me to be of any importance. Other steps could be taken that would be of consequence, but those steps do not seem to be in the works.]
  • Neither Sklar nor Jonas spoke to the issue of whether there will be increased own motion reviews of ALJ decisions.[This would be a big deal.]
  • In response to another questioner, Sklar said it may be three to five years before there is electronic access to claimant files pending at the initial and reconsideration levels.

Nancy Shor, Executive Director of NOSSCR

  • 1,080 people have registered for the San Antonio conference.
  • Lisa DeSoto, who was previously employed at Social Security is now a Congressional aide. She was sitting behind the Chairman of the House Social Security Subcommittee at a recent hearing.
  • There is increasing concern that Social Security’s disability trust fund will be exhausted by 2018. When there have been problems of this sort in the past, tax revenues were re-directed from the retirement and survivors trust fund. Because of Republican behavior during the recent debt ceiling crisis, there is concern that there may be a Republican attempt to force massive changes in Social Security’s disability programs as the price for replenishing the disability trust fund.
  • There is talk of reducing Social Security disability benefits. Currently, Disability Insurance Benefits are 100% of a claimant’s Primary Insurance Amount (PIA). However, when an individual takes Social Security retirement benefits prior to full retirement age, that there is an actuarial reduction in benefits, currently 25% for retiring at age 62. There is talk of applying the same sort of reduction to Disability Insurance Benefits.
  • The cap on the user fee which reduces attorney fees under the Social Security Act will go up to $86 in 2012.
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About the author

Charles Hall is the lead attorney for the Charles Hall Law Firm in Raleigh, NC. He has been practicing in the Social Security Disability law field since 1979, is published, and is ready to help new clients win their benefits in North Carolina.