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May 13, 2008 10:41 PM
Social Security Disability Backlog Is Again the Focus of a Congressional Hearing

Congressional interest in the disability claims backlog and SSA's need for adequate funding continues. On April 23, 2008, a four-hour hearing was held by the full House Ways and Means Committee, which is chaired by Rep. Charles Rangel (D-NY) .

Clearing the Disability Backlog .

Giving the Social Security Administration the Resources It Needs to Provide the Benefits Workers Have Earned.
Hearings on Social Security disability topics are normally held by the Social Security Subcommittee.

The fact that this was a full Committee hearing shows the ongoing focus on the agency and the service problems faced by constituents. In addition to SSA Commissioner Michael J. Astrue, the other invited witnesses were: Sylvester Schieber, the Chair of the Social Security Advisory Board; an SSA employees' union representative; an AARP Board member; Administrative Law Judge Frederick Waitsman, an ALJ in Atlanta, GA, who testified on behalf of the Federal Bar Association; and Marty Ford, testifying on behalf of the Consortium for Citizens with Disabilities (CCD) Social Security Task Force.
NOSSCR helped to write the CCD written statement and signed on to the testimony. In a very important role, many NOSSCR members submitted stories from 29 states regarding the hardship that their clients endure while waiting for decisions and payment of benefits. The stories are very important and put a human face on the numbers. The CCD testimony is posted on the NOSSCR website, www.nosscr.org. The written statements of all witnesses are available on the House Ways and Means website, http://waysandmeans.house.gov.

The Commissioner testified for nearly two and onehalf hours and was questioned on a wide range of topics by Committee Members. Some highlights of his testimony include the following:
Retirement applications. The Ready Retirement Team is moving to streamline the application process such as fewer age authentication requirements to allow easier online filing of applications, and improving an online tool to estimate monthly benefits. The goal is to increase the online filing figure from 13% to 50% over the next five years and to drop the online filing process time from 45 minutes to 15 minutes.

Online appeals. Currently, iAppeals is used on a voluntary basis in about 10 to 15% of all cases. The Commissioner sees this as a way to reduce delay and eliminate unnecessary manual work. In the coming year, he will propose a regulation that will require represented claimants to use iAppeals, with the status quo available for unrepresented claimants. Disability determinations. SSA plans to update all Listings on a regular basis, at least every 5 years. Quick disability determinations (QDD) will be expanded during the next several months to a larger percentage of initial claims. Currently, about 2.3% of claims are identified for QDD processing, with over 96% allowed and decided in an average of 6 to 8 days. The other screening track, compassionate allowances, (see article on page 5), will also begin in pilot states. By the end of 2009, he estimates that 4% of claims will be fast-tracked and from 6% to 9% by the end of 2012.

Hearing level initiatives. Much of the
Commissioner's testimony addressed issues at the hearing level. Members, especially those in states with long processing times, were skeptical about the timeline to eliminate the backlog by fiscal year 2012. They know firsthand from their local offices what their constituents are going through. Two Members from districts with particularly long processing times, John Lewis (D-GA) (Atlanta ODAR offices) and Sander Levin (D-MI) (Oak Park, MI ODAR office), expressed their strong concerns.

By the end of this year, SSA plans to bring onboard 175 additional ALJs (to date, 135 have been hired and assigned). The Commissioner has looked at resource distribution and found a long-standing imbalance, with the Chicago and Atlanta Regions dramatically under-resourced. Hearing offices in the most backlogged cities  Atlanta, Cleveland, and Detroit  were receiving 3 to 4 times as many hearing requests per ALJ as offices in New England and southern California. In addition to new ALJs, ODAR is changing jurisdictional lines in adjacent locations and reassigning scheduled video hearings to less busy offices. There also are plans to expand the National Hearing Office (NHC). [We understand that a second NHC is being set up in Albuquerque, NM.] While the use of video hearings expands, the Commissioner, responding to a question, reaffirmed a claimant's right to have an in-person hearing. He said that very few claimants turn the video hearing down but is sensitive to those who do. The support staff to ALJ ratio will continue to be monitored. While currently at 4.4 staff per ALJ, the staffing ratio might change as automating functions increase and paper files are eliminated. For example, ODAR plans to use a new system to help support staff prepare files for hearing,

The lack of space to expand ALJs and staff is an issue in some offices. The Commissioner noted that it can take as long as two years to acquire new space through the General Services Administration. Committee Members offered to assist the Commissioner in cutting through the red tape where possible.
Work on aged cases continues. Last year, ODAR targeted cases that were 1,000 or more days old, but those cases have been essentially cleared. The focus now is on cases that are 900 or more days old. There were 135,000 cases in this category at the beginning of the fiscal year and 63% have been completed to date. These cases represent a large percentage of the paper files in the system and the goal is to eliminate these cases and other paper files by the end of the year. This will be about the same time that the new ALJs will reach full productivity. The Commissioner described the convergence of these two events as the tipping point, with the hope that the number of pending cases and average processing time will decline in January or February 2009.

Two new initiatives will be of particular interest to NOSSCR members. SSA is working on a system that will allow authenticated claimants representatives to access SSA files online to check for case status and evidentiary development. In addition, SSA expects to start a pilot program in June 2008 with a small number of NOSSCR members that will allow them to conduct video hearings from their offices.
The Commissioner also plans to look more locally at problems. For example, he noted that in most prototype states (where reconsideration is eliminated), SSA is not seeing a dramatic increase in the percentage of initial denials appealed to the ALJ level. However, in Michigan, it is an issue and contributes to the backlog of cases in hearing offices in that state. SSA is planning a test in Michigan to use profiling mechanisms, similar to those for attorney advisor cases and informal remands to the DDSs, to look at cases appealed from the DDS to the hearing level. This screening activity may help SSA identify cases that should not need to go to ODAR and may be helpful for use around the country.

Improving the front end of the process. Testimony by witnesses on the second panel highlighted recommendations for improving the process and addressing the backlog. Sylvester Schieber, the Chairman of the Social Security Advisory Board (SSAB), testified about the need to improve the front end of the process at the DDS level, noting that:
[A] quality review process that targets allowance decisions almost exclusively also sends an unintended message. Only a small fraction of denied cases are selected for quality review. The chance of an insufficiently documented denial determination sliding through the system unchecked cannot be discounted.

Mr. Schieber also commented on the informal remand initiative, which has a 43% allowance rate (of 34,000 cases) and with well over two-thirds of the allowances made without any additional development. While there may be a number of reasons why the cases are now allowed without the need for additional evidence, we cannot discount that process pressures in earlier stages of adjudication could have caused inadequate review the first time around. He also noted that many of these informal remands were pending at the ODAR level for three to four years. If we had enough evidence years ago to decide that these applicants were disabled, why didn't we reach the conclusions then? Marty Ford's testimony also provided a number of recommendations for improving the front end of the process, primarily through better and more targeted development of the record earlier.

ALJ Waitsman, testifying for the Federal Bar Association, also touched on the need to improve the process at the beginning, focusing on the need for a better quality assurance process. In a stark example of the increasing toll the backlog is taking on claimants, Rep. Lewis asked ALJ Waitsman if he was seeing more claimants die while waiting for a hearing and decision. ALJ Waitsman responded that, in fact, more claimants are dying before their hearing, something that he described as occurring infrequently in the past. He also said that he sees more deterioration in claimants conditions while they wait because many do not have any health insurance and cannot obtain treatment for their medical problems.

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