We have determined that your condition is not severe enough to be considered disabling.  In deciding this, we considered the medical records, your statements, and how your condition affects your ability to work….Doctors and other people in the State agency who are trained in disability evaluation reviewed the evidence and made the determination based on Social Security law and regulations….

Now it turns out that these “doctors and other people” are not so well trained, nor is it likely that they spent more than a few minutes reviewing your file.

An article in today’s Wall Street Journal entitled Doctor Revolt Shakes Disability Program, the Journal describes a system where Social Security administrators are pressing consulting physicians to work faster and to process more files to deal with a growing claims file backup.

Consulting physicians, many of whom are retired doctors looking to earn extra money are being asked to evaluate medical records outside their areas of specialty (such as a case where a pediatrician was asked to review a complex small fiber neuropathy case, or where an eye doctor was asked to review an orthopedic case).  SSA has also cut the case consulting fee for these doctors from $90 per hour to $80 per hour.

As a result of these changes, consulting doctors are leaving the program, further stressing the system and increasing delays.  One former consulting physician recalled that he was fired when he refused to complete a report about a medical issue outside his area of specialization.

What does this internal upheaval at Social Security mean to you?  I think it is fair to say that any progress SSA has made in reducing delays will be difficult to maintain given the increasing number of filings and the difficulty that the agency has in training and deploying trained personnel.

In my office, I no longer assume that Social Security claims adjustors will have time to track down and request copies of my clients’ medical records, or that they will have time to read these records.   In my office, we are taking more responsibility to obtain these records and to summarize them for the adjudicators, consulting doctors and, ultimately the judges.  If I can make the decision-maker’s life a little easier by giving him a reason to approve my deserving clients’ cases, then everyone will benefit.

As of July 28, 2011, this “double filing” option is no longer available.

SSA has issued a “ruling” called SSR 11-1p which says in part:

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.

Social Security concluded that this new rule was needed because of the administrative complications of coordinating appeals with new claims.

This prohibition against concurrent claims does not apply if you are seeking a different type of benefit – for example, if you are appealing an SSDI denial, you could file a new claim for SSI benefits.

In my view, the question of whether or not to file a new claim vs. appealing a hearing denial will be most relevant to claimants whose insured status for Title II has not yet run out as of the date of the unfavorable hearing decision.   The Appeals Council process can take one to three years and the likelihood of success is not great.  On the other hand, a new case is likely to be denied by the Social Security adjudicator and a hearing will be scheduled before the same judge who denied case #1, unless that judge has retired or moved on in the interim.

In the past, this judge had the practice of announcing his favorable decisions – in other words, he would tell my client “I am going to find you disabled and award benefits.”   This time, however, he closed the case without saying anything.   After the recording equipment was turned off, he asked my client to leave the room but asked me to stay.  He then explained that “I have been told by the chief judge that I am no longer allowed to announce when I am going to grant a case.  I think this is a ridiculous policy as your client and thousands like her have been waiting for years, but I can no longer announce my decisions.”

Although my judge did not explain the reasons for this change in policy, I suspect it has to do with the nature of Social Security hearings.  The Social Security Administration is an agency that is part of the executive branch of government, rather than the judicial branch.  As such, the procedures, including rules of evidence and trial procedures are not the same as the procedures used in judicial proceedings that you might find in a state or federal court.

In state and federal courts, you find baliffs and court personnel who provide security to judges.  In Social Security hearings, there is no formal security other than a sole security officer who performs a brief security check of claimants and witnesses when they enter the hearing office waiting room.

The Washington Post recently ran a story entitled Judges in Disability Cases Increasingly Face Violent Threats that discusses this problem.  According to this story, Social Security documented 80 threats to disability judges and staff over the past year.  No doubt some of these threats arose from a claimant’s frustration at the delays, while some may have come from claimants upset that their claims were denied.   I can only imagine the frustration of a claimant who waits 2 years to appear before a judge, and who feels rushed and disrespected by a busy and perhaps distracted judge, and who ends up with a denial notice that essentially calls that claimant a liar.

I know that many of the judges who I see regularly are equally frustrated at the lack of staff and resources to do their jobs.  Unlike state court judges who have some degree of control over the procedures in their courtrooms, Social Security judges are subject to the processes set by a very bureaucratic and often inefficient Social Security Administration.  In my experience the judges get most of the blame for delays but, in fact, are often the least culpable party.

Since Social Security already faces major budget problems, I suspect that the last thing Commissioner Astrue wants to hear is a call to use limited financial resources to hire more security personnel rather than hearing assistants or judges.   Obviously it is difficult to control truly unbalanced people, but I think that SSA could reduce the frustration levels among the vast majority of claimants simply by creating systems or policies that provide dates or date ranges in which decisions are forthcoming.  Even better, I would like to see SSA move towards a system where claimants could log in to a secure location to see status updates.

Universities of all size seem to be able to offer online information about the status of college applications, receipt of materials and expected dates of decisions – and just having this information available offers some comfort to anxious teenagers – I see no reason why Social Security cannot offer the same courtesy to the hardworking men and women who have paid into the Social Security system.

Compassionate Allowances are a way of quickly identifying diseases and other medical conditions that clearly qualify for Social Security and Supplemental Security Income disability benefits.  It allows the agency to electronically target and make speedy decisions for the most obviously disabled individuals.

There are now 88 medical conditions that qualify for compassionate allowance.  About half of these conditions are forms of cancer, while the other have are made up of rare diseases, many of which affect children.  Among the more common conditions that now qualify for an early approval:

• early onset Alzheimer’s Disease
• mixed dementia
• idiopathic pulmonary fibrosis
• mucosal melanoma

A full list of all of the compassionate allowance conditions may be found by clicking on the link which will take you to Social Security’s internal Program Operations Manual System (POMS).

If you or a loved one are afflicted by any of the conditions described under the compassionate allowance program, it is very important that you make that fact known to the adjudicator who is assigned to your claim.  You should not assume that the state agency adjudicator is familiar with the compassionate allowance list.

I am a 43 year old diabetic. I was diagnosed 7 years ago and progressed quickly from pills to insulin injections and have now been on an insulin pump for 3 years.  I have neuropathy in both legs, heart disease, and many other diabetic problems, because of high blood sugar.  I am at an ideal weight of 170 Lbs. and 5′ 9″ height and have always been active and try to eat healthy.   I take 40-50 units of insulin each day, but my A1C readings are still 10+. I am no longer able to perform my work assignments.  My employer (25years)had even allowed me to change to an office job but I am still not able to sit for over an hour without my legs hurting and I have had many hypo (low-sugar) episodes at work which scared everyone.  My doctor’s have suggested that I quit so that I can concentrate on this disease before it kills me, but the stories of possible delays in SSDI have really concerned me and my family.  I have enough money saved to survive for a year, but that is it.  Do you think someone like me would qualify for SSDI benefits, and what would a potential wait be?

Here are my thoughts: I think that Steve has very good reason to be concerned.  When you apply for benefits, there are two times when you are likely to be approved – at the initial application stage, which will be within four to six months after application, or at the hearing stage, which could be two to three years after application.

Initial application approvals are almost always arise in cases that meet a listing.  Steve is a diabetic and the applicable listing is at Listing 9.08. State Agency adjudicators will approve diabetes cases on the listings but they will expect the medical records to document as many of the following complications:

• long standing neuropathy (numbness in extremities)
• long standing retinopathy (vision issues)
• blood sugar readings at 200 or higher over an extended period of time despite increasing dosages of insulin
• organ damage (documented by abnormal lab readings)
• frequent urination
• sexual dysfunction
• statement or checklist from treating doctor that condition equals 9.08

In my view, you need to aggressively argue to the adjudicator that your case meets a listing – do not assume that the adjudicator will figure it out.

If your case is denied at the initial application stage, it is very unlikely that a different adjudicator will approve it at reconsideration.  Statistics I have seen suggest that no more than 10 to 15% of cases are approved at the reconsideration appeal level.

Assuming that you are denied at initial and reconsideration, the wait for a hearing date can be long, very long.  Depending on where you live the wait can reach two to three years.  Steve did not say where he lives – Social Security does publish statistics about the wait times for each disability hearing office.

As far as the substance of Steve’s claim, it appears that he is having a great deal of trouble keeping his blood sugar under control despite both his diet and his medicine.  I would advise Steve to bring a copy of listing 9.08 to his doctor and to enlist his doctor’s support in the form of a narrative report stating that he meets the listing and that his capacity to sit, stand, concentrate, get through a workday without interruption and to avoid excessive absences has been significantly impaired by the diabetes.  You can read more about the case strategies I use in diabetes claims by clicking on the link.

At some point, Steve is going to have to make the decision to stop working and to start the disability process.  Obviously the intend of the disability laws is that Steve should wait until working become impossible, as opposed to highly uncomfortable.

Finally, I would also point out that if Steve stops working, files for disability and is turned down at initial and reconsideration, he could try to return to work.  Work attempts of three months or less are considered “unsuccessful work attempts” and can actually help a claimant by demonstrating his desire to work.  Those unsuccessful work attempts can also add money to the family’s budget – not an ideal solution but perhaps a way to deal with the many months of delay when waiting for a hearing date.

When Georgia Congressman John Lewis set reduction of SSA’s disability case backlog as one of his top priorities, the Atlanta North processing time for claims was the worst in the country at 828 days, and in Atlanta proper it was 750 days.  He noted that “people are waiting years for benefits they deserve, some are even dying while waiting. This is simply wrong…Somehow the richest, most powerful nation in the world must find a way to meet the needs of these Americans. They have suffered enough. They should not suffer at the hands of their government.”

Mr. Lewis testified before the Budget Committee, and urged his colleagues on the House Ways and Means Committee to give SSA the funds needed to hire more Administrative Law Judges and disability claims staff.

Last month, Social Security Commissioner Michael Astrue announced that for the first time in a decade, the agency ended its fiscal year with fewer pending disability hearings than in the previous year.  It closed FY 2009 with 722,822 pending hearings – a reduction of more than 37,000 cases from its 760,813 hearings pending at the start of the fiscal year.  Processing time for cases also improved over the same period, dropping from an average of 514 days in FY 2008 to 491 days in FY 2009.

“Our backlog reduction plan is working, and progress is accelerating,” Commissioner Astrue said.  “Even in the face of a significant increase in our workloads as a result of the worst recession since the Great Depression, we have reduced the hearings backlog for nine consecutive months.  Thanks to the efforts of thousands of hardworking Social Security employees and the additional funding we received from President Obama and the Congress, we have exceeded our backlog reduction goal for this year.”   Click on the link to see SSA’s recent news release discussing these developments.

Despite Commissioner Astrue’s positive spin on the statistical improvement, in real life I am still seeing delays of 2 to 3 years.  We are seeing some cases processing through the case very quickly and I suspect that these fast tracked cases have something to do with making the statistics look better.

We have also seen thousands of cases shifted from the Atlanta North hearing office to Atlanta and from Atlanta to Columbus and Macon.  These temporary fixes may result in a short term improvement in the statistics related to delays but only time will tell if the recent backlog improvement is a true trend.

We are also seeing increasing delays in the processing of hearing decisions following the hearings.  I have several cases in my office that I tried in March in which a hearing decision has not yet been issued.   The hearing offices advise us that they do not have enough staff to help the judges.

I do think that Commissioner Astrue is making the backlog a priority in his office and I applaud him for his efforts.  Moving a large bureaucracy like SSA is not an easy task and I wish him the best of luck in this undertaking.

Fast forward to 2009.  That two to three month period is now four to six months.  Here’s why:  about 18 months ago, the Social Security Administration convinced Congress to allocate more money to hire new administrative law judges, and SSA immediately hired around 100 new judges.  At the same time, Social Security put into process its conversion from paper files to electronic files and they created the infrastructure to provide for video hearings.

In Atlanta, where I practice, SSA created a video hearing ODAR office in Marietta, Georgia with three hearing rooms available to handle video hearings.

The good news – Social Security is now equipped to offer claimants administrative hearings.  The bad news:  the hearing offices often do not have enough support staff to process all of the decisions being issued by new judges and judges appearing by video.

As I noted back in 2007, the judges themselves do not actually write the decisions – that task is assigned to “decision writers” – individuals who may be staff lawyers or paralegals who are not in attendance at the hearings but who prepare the decisions for the judges’ review.

Even though the decision writers follow a standard hearing template, the decision has to be written, proofread and sent to the judge for review.  Since the judge may not see a decision for weeks or months after the hearing, he most likely will not remember the case, meaning that he will have to review the file and verify that the decision reflects his thoughts.

Because of the volume, I am seeing delays of four to six months between the hearing dates and the issuance of a decision.

This delay can be especially frustrating for claimants who are expecting favorable decisions.  In some cases, judges announce at the hearing that they plan to approve a particular case.   The claimant leaves the hearing office happy, knowing that a big lump sum check is headed his way along with monthly benefits and access to Medicare.  Imagine how frustrated that claimant will become when there is a six month wait in the issuance of a decision.

Unfortunately there is just not a whole lot anyone can do about these growing delays.   As an advocate for my clients, the last thing I want to do is anger a judge by demanding that my cases be moved to the front of the line.   Social Security judges work hard and they know that there is a decision processing problem.   Complaining by a lawyer or a claimant is not going to help.   And since the judge has the power to change his mind, I am not a big fan of demanding action by calling your Congressperson.

While frustration and anger is understandable, there is no remedy unless and until Social Security hires more staff to support its expanded judicial corps.

This month’s NOSSCR (National Association of Social Security Claimant’s Representatives) newsletter contains a story about SSA Commissioner Michael Astrue’s efforts to increase the productivity of the judges and to reduce backlogs.  As noted before, I applaud SSA’s transition to electronic file folders and it does appear that Commissioner Astrue’s efforts are beginning to pay off.

I scanned the report from the NOSSCR Forum bulletin, which you can download by clicking on the link here: ssdelays

Jonathan Ginsberg responds:  Steve, it sounds like you have a difficult choice to make.  I would certainly not be happy to learn that my lawyer had retired and transferred my file to someone else without any notice to me.  Most lawyers I know would at least make an effort to contact their clients if closing their practice.  You do say that you are homeless – is it possible that your lawyer was not able to get in touch with you?

With regard to the new lawyer, he may very well be very capable.  On the other hand I would be concerned that he never made any effort to contact you.  From my perspective the fact that the new lawyer has never met you is less important than knowing whether he has thoroughly reviewed your file.  What you don’t want to happen is ending up at a hearing where the medical records are not updated and the lawyer does not have a clear theory of your case.   Periodically lawyers from other States will hire me to represent a client in a Georgia hearing.  As long as I am familiar with the file and know what I want to prove, I can spend an hour with the client prior to the hearing and be sufficiently prepared.

I would suggest that you contact the new lawyer and try to meet with him today or a minimum of an hour before the hearing.  Ask him if the file is  updated and if he has a working theory of your case.  I would also ask him to level with you – if the case is not ready to try or if he is not ready, I’d rather ask for a continuance and wait a couple more months than to lose a winnable case because the file wasn’t updated or the lawyer wasn’t ready.

At the end of the day, you want to win – it doesn’t matter who the lawyer is.  The records in your file and the opinion of your doctors is far more important.  These factors are where I would put my focus.  Good luck and let me know how it turns out.

Commissioner Astrue says that the new judges will begin training in April and should be prepared hear full calendars by the end of 2008.

The press release does not say where the new judges will be stationed, but I presume that the hearing offices with the biggest backlogs – like Atlanta – will likely get new judges.  The downtown Atlanta hearing office recently moved to larger quarters with more hearing rooms, which is a good sign.

Thanks to my loyal reader Mike for bringing this press release to my attention.