Independent Review Commissioned To Review The Social Security Federal System

The Wall Street Journal published an article today, December 15, 2011 entitled "Disability- Benefits Center Faces Review." The article addresses concerns about the federal disability system and the quality of its decision-making process, noting the great disparity amongst different Administrative Law Judge's award and denial statistics.  To address these concerns an independent review has been commissioned to review the federal system and the work of the 1500 Administrative Law Judges hearing cases across the country.  The review along with recommendations (that will not be binding) is expected to be completed next year. 

The most immediate change addressed in the article is that beginning next week Social Security plans to stop letting both claimants and their representatives know which judge has been assigned to their case.  This is being done in an attempt to stop representatives from trying to influence which judge will be assigned to their case.  At Doherty, Cella, Keane LLP, we have always used the information regarding which judge assignment to appropriately prepare for our clients' hearings.  Most judges have their own set of preferences/rules, in areas such as witness testimony, opening and closing statements, pre-hearing brief format and allowing observers.  In addition, knowing the judge and their particular style can help us better prepare the claimant for what they should expect during the hearing, and giving them this information can help alleviate any concerns or stress they may feel as the hearing approaches.

As this change is implemented we will continue to call ODAR to try and obtain the name of the judge; however, if we are unable to obtain this information it will not effect the expert preparation or delivery of our case.  We do not expect this will influence our outcomes to any degree, but rather just provide less opportunity to cater our individual hearings to particular judges preferences ahead of time.  We do expect that this change will likely elicit a largely negative response among not only the public and their representatives, but also among the judges and their administrative staff.  At Doherty, Cella, Keane our initial response is that this change is likely to eventually be reversed.

Please contact Barbara Mountain at Doherty, Cella, Keane LLP if you have any additional questions. Please note clicking on the title of the blog will link you to the WSJ article.

Social Security Regulation Change to Subsequent Filing for SS Disability Benefits

Recently Social Security changed its rulings regarding SSR11-1p allowing a new SS disability claim to be filed while an existing disability claim is pending at the Appeals Council level.  Previously when a claimant was denied at the Hearings level of appeal, we would generally file a new claim at the initial level with an onset date equal to the date after the ALJ decision; while at the same time filing an appeal on the denied ALJ decision to the Appeals Council level.   This is no longer allowed and we must now decide with the claimant if we should file a new claim at the initial level with a later date of onset or file an appeal to the Appeals Council for review.  Doherty, Cella, Keane has created an internal review process with several levels of review to make this decision.  Please contact Barbara Mountain at Doherty, Cella, Keane LLP if you would like more specific information regarding this review process.

 

Effective Date: July 28, 2011
Publication Date: July 28, 2011
Federal Register Vol. 76, No. 145, page 45309

POLICY INTERPRETATION RULING

SSR 11-1p: Titles II and XVI: Procedures for Handling Requests to File Subsequent Applications for Disability Benefits

Purpose: To explain our revised procedure under which we will no longer process a subsequent disability claim if you already have a claim under the same title and of the same type pending in our administrative review process.

Citations: Sections 202(j), 216(i), 223(a), and 1631(e) of the Social Security Act, as amended; Regulations No. 4, subpart G, sections 404.601, 404.603; subpart J, sections 404.900(b), 404.970(b), 404.976(b); and Regulations No. 16, subpart C, section 416.305; subpart N, sections 416.1400(b), 416.1470(b), 416.1476(b).

Introduction

In 1999, we adopted a procedure that allowed us to process a subsequent disability claim while your prior disability claim was pending at the Appeals Council level of our administrative review process.

Under that procedure, if you filed a subsequent application for disability benefits while you had a disability claim pending at the Appeals Council, we sent your subsequent claim to the disability determination services (DDS) or similar case-processing center for development and adjudication. If we denied your subsequent application at the earlier stages, and you requested a hearing before an administrative law judge (ALJ), the hearing office took no action until the Appeals Council completed its action on your prior claim.

We have seen an increase in the number of subsequent disability claims in recent years. When two disability claims under the same title and type are pending at the same time, there can be conflicting decisions that we must then reconcile. Subsequent claims may result in improper payments, increased administrative costs, and unnecessary workloads stemming from duplication. Because of these problems and the significant increase in the number of initial disability claims that we have experienced in recent years, we are changing our procedures for handling subsequent applications for disability claims of the same title and type.

Policy Interpretation

Under the new procedures we are adopting in this Ruling, generally you will no longer be allowed to have two claims for the same type of benefits pending at the same time. If you want to file a new disability claim under the same title and of the same type as a disability claim pending at any level of administrative review, you will have to choose between pursuing your administrative review rights on the pending disability claim or declining to pursue further administrative review and filing a new application. This Ruling explains our new procedures.

If You Choose to Pursue Your Pending Disability Claim Instead of Filing a New Claim Under the Same Title and of the Same Type

If you decide to pursue your administrative review rights on the pending disability claim, we will not accept your subsequent application for benefits under the same title and for the same type of benefit as the pending claim. Although we will not accept your subsequent application while your prior disability claim is pending administrative review, you can still provide us with evidence that is relevant to your pending claim, in accordance with our existing regulations and procedures. Our technological improvements, such as Electronic Records Express and electronic alerts and messages, enable our offices to communicate with one another faster and more efficiently and act on additional evidence promptly. If the additional evidence indicates a critical or dire need situation, we will act expeditiously.

Claim Pending at Initial, Reconsideration, or Hearing Level

The procedures in this Ruling do not preclude you from reporting new medical conditions or a worsening in your existing medical conditions, and you can submit additional evidence on these matters. We will forward any additional evidence you submit to the office that is handling the pending claim so that it can be associated with that claim.

You can submit any information or evidence that you feel is helpful to your pending disability claim. See 20 CFR 404.900(b) and 416.1400(b). In adjudicating the pending disability claim, we will consider the information and evidence you submit, together with all the other information in the claim folder. Id.

Claim Pending with the Appeals Council

If you choose to pursue your disability claim that is pending at the Appeals Council, and you submit additional evidence, the Appeals Council will first determine whether the additional evidence relates to the period on or before the date of the hearing decision. When the additional evidence is new and material and relates to the period on or before the date of the hearing decision, the Appeals Council will consider it, together with the entire record. 20 CFR 404.970(b), 416.1470(b), and 405.373.^[1] The Appeals Council will review your case if it finds that the ALJ's action, findings, or conclusion is contrary to the weight of the evidence currently of record. Id.

If the new and material evidence that relates to the period on or before the date of the hearing decision shows a critical or disabling condition, the Appeals Council will expedite its review of your pending claim.

When the additional evidence does not relate to the period on or before the date of your hearing decision, the Appeals Council will return the additional evidence to you. 20 CFR 404.976(b), 416.1476(b). The notice returning the additional evidence will explain why the Appeals Council did not accept the evidence and inform you that, under certain circumstances, we will consider the date you filed the request for Appeals Council review as the filing date for your new claim. If you originally filed for disability benefits under title II, and you file a new application for title II disability benefits within six months of the date of this notice, we will use the date of your request for Appeals Council review as the filing date. If both applications are for Supplemental Security Income payments based on disability under title XVI, and you file the new application within 60 days from the date of the notice, we will use the date you requested Appeals Council review as the filing date for the new claim. We will permit the filing of a new disability claim after the Appeals Council completes its action on the request for review of the pending claim.

If the additional evidence that does not relate to the period on or before your hearing decision shows a new critical or disabling condition, and you tell us that you want to file a new claim based on this evidence, the Appeals Council may permit you to file a new disability claim before it completes its action on your request for review of the pending claim.

If You Choose to Decline Further Review of Your Pending Disability Claim and Instead File a New Claim Under the Same Title and of the Same Type

If, on the other hand, you decide to decline to pursue further administrative review on the pending disability claim and file a new application, we will assess your eligibility for any other benefits and take applications for these benefits. When you received an unfavorable or partially favorable decision from us on your pending claim, we explained the effect that not pursuing an appeal might have on your possible entitlement to benefits.

If Your Subsequent Claim Does Not Involve the Same Title or Type of Benefit

This Ruling does not change the procedure we currently follow when you file a subsequent claim under a different title or for a different benefit type than a pending claim. When a subsequent claim under a different title or for a different benefit type shares a common issue with the pending claim, we will usually consolidate it with the pending claim through the hearing level. When you file a subsequent claim that is under a different title or is for a different benefit type and your prior claim is pending review at the Appeals Council, we will process the subsequent claim in accordance with our current procedures.

Cross-References: Program Operations Manual System, DI 12045.027 and DI 20101.025, DI 23015.005, DI 81010.155, DI 81020.120, GN 00201.005, GN 00204.028, GN 00206.001, GN 00206.015, GN 01010.030, GN 03104.370. GN 03104.380, GN 03104.385, GN 03104.390, GN 03104.400, GN 03104.400, SI 00601.030, SI 00601.048, SI 00601.050, SI 04040.025, SI 04040.027, Hearings, Appeals and Litigation Law Manual, I-3-1-7, I-3-5-20, I-3-5-90, I-4-2-30, I-4-2-1, I-5-1-13, and I-5-3-17

---

^[1] In the six states that comprise our Boston Region (Maine, New Hampshire, Vermont, Rhode Island, Massachusetts, and Connecticut), the Appeals Council must consider whether the evidence relates to the period on or before the hearing decision, whether there is a reasonable probability that the evidence would change the outcome of the decision, and one of the following: 1) our action misled you; 2) you had a physical, mental, educational, or linguistic limitation(s) preventing you from submitting the evidence earlier; or 3) some other unusual, unexpected, or unavoidable circumstance beyond the your control that prevented you from submitting the evidence earlier. 20 CFR 405.373

Social Security ALJ's Receiving Media and Political Attention

Over the past several months Social Security Administrative Law Judges have been receiving media attention, regarding both lower than average award rates and higher than average award rates.  The result has prompted some political attention resulting in a Congressional Hearing to be held on Monday July 11, 2011.

April 12, 2011 the New York Times published the article, “Suit Alleges Bias in Disability Denials by Queens Judges.”  This article focused on five judges in New York that averaged in 2010 a denial rate of 63% compared to the national average of 36%.  In addition, they were alleged to be combative, and biased.  
http://www.nytimes.com/2011/04/13/nyregion/13disability.html

January 2011 the West Virginian News published a precursor to the story picked up in the Wall Street Journal on May 19th, "Disability-Claim Judge Has Trouble Saying 'NO'"  This article focused on the extremely high award rate of Administrative Law Judge,  David B. Daugherty, and the alleged inappropriate relationship with Social Security attorney Eric Conn. 
http://westvirginianews.blogspot.com/2010/11/has-social-security-appeals-process.html
http://online.wsj.com/article/SB10001424052748704681904576319163605918524.html

July 1, 2011 USA Today published the article, "Data shows disability benefits can depend on judge" in which they highlighted the great disparity in award and denial rates among Administrative Law Judges across the country.   http://www.usatoday.com/money/workplace/2011-07-01-disability-denials_n.htm 

All of this media attention has brought with it some political attention.  Most recently U.S. Congressman Sam Johnson (R-TX), Chairman of the House Committee on Ways and Means Subcommittee on Social Security, and U.S. Congressman Howard Coble (R-NC), Chairman of the House Committee on the Judiciary Subcommittee on Courts, Commercial and Administrative Law, announced  that the Subcommittees will hold a joint oversight hearing on the role of Administrative Law Judges (ALJs) at the Social Security Administration (SSA).  The hearing will take place on Monday, July 11, 2011 in 2141 Rayburn House Office Building, beginning at 3:30 p.m.  The goal of this hearing is to examine the role of ALJs, the impact their decisions have on those who have appealed their claim and on taxpayers, and SSA’s overall management of and challenges facing the hearing process. 
http://waysandmeans.house.gov/News/DocumentSingle.aspx?DocumentID=249731
   
This situation is an example of Congress reacting by holding hearings after an expose appears in a newspaper or on a news magazine TV show.  There has been some historical examples of reactionary changes occurring after a news organization has highlighted certain areas of the Social Security Administration. In the 1990’s Congress eliminated SS benefits based on drug and alcohol abuse after a “60 Minutes” story on addicts waiting for their SS checks so they could buy illegal drugs. In the early 1980’s after another  news organization pointed out that SSA was not performing any continuing disability reviews suddenly the pendulum swung the other way and many recipients had there benefits terminated as a result of many re-exams.   ALJ award and denial rates have historically varied greatly. The problem faced with trying to discern why this is the case and how to rectify the issue is that  judges are protected in order to be allowed qualified decisional independence.  This creates challenges to being able to performance manage ALJs based upon their decisions.