National Hearing Centers and Their Impact on the Disability Back Log – Part 2

Last week we explored the role National Hearing Centers play as far as attaining SSA’s goal of reducing the back log of cases waiting to be heard in front of an ALJ. The decision to open the National Hearing Centers in Falls Church, VA, Albuquerque, NM, Chicago, IL, Baltimore, MD and St. Louis, MO was helpful in many ways. However, it has also created several challenges SSA must overcome.

The first challenge is the availability of VTC equipment and locations. Most ODARs must devote the space they have to accommodate in-person hearings, leaving less space to devote to video hearings. SSA had opened several temporary remote sites back when the National Hearing Centers were being established, but these are being done away with as they are replaced with more permanent sites in the ODARs.

A solution that has been successful so far in the Chicago region is use of Claimant-Only Video (COV) sites.  This is a room large enough to hold only the video equipment, the claimant, the claimant’s representative, the hearing monitor, and any experts. The Representative Video Project was also created in an effort to accommodate VTC hearings by setting up remote sites in disability representatives’ offices.

Scheduling conflicts present another challenge to NHCs. Even though they can use medical and vocational experts from any region, NHCs prefer to use experts that are located in the same area as the claimant. This creates a potential for scheduling conflicts, as the local ODARs use these same experts for their hearings.

This is also an issue when it comes to scheduling representatives, as most representatives have many clients who live in many different areas. NHC schedulers try to relieve these problems by scheduling the hearings months in advance, so both experts and representatives can plan accordingly.

VTC hearings have been declined by claimants and representatives for many reasons, such as due to the fact that the claimant is Spanish-speaking. Spanish interpreters used during a VTC hearing can cause miscommunication and misunderstanding of very important facts, which leads to the prevention of due process for the claimant. However, because a VTC hearing can be declined up until the day of the hearing, it creates more work for SSA, as the file must be transferred back to the local ODAR with all the proper paperwork filed.

Now that these challenges have been identified, the OIG recommends that SSA:

1.       Monitor video capacity and, as resources permit, consider increasing the number of video locations, which may include permanent remote sites, COVs, and RVP locations.

2.       Ensure steps are taken to prevent claimants from choosing the ALJ hearing their case, such as removing the ALJ’s name from all hearing notices and reminding schedulers not to reveal the name of the ALJ when asked by a claimant’s representative.

3.       Consider modifying the regulations to prevent claimants from declining VTC hearings close to the day of the hearing.

SSA has agreed to these recommendations, so it will be interesting to see what steps will be taken next in the effort to continue to decrease the hearing back log.

Source: Office of the Inspector General Audit Report, April 2012

Written by Anna Westfall and edited by Attorney Andrew November

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National Hearing Centers and Their Impact on the Disability Back Log

In fiscal years 2010 and 2011, 82,000 disability cases were transferred from SSA’s 10 regions to National Hearing Centers (NHC) in Falls Church, VA, Albuquerque, NM, Chicago, IL, Baltimore, MD and St. Louis, MO. Here, video teleconferencing (VTC) technology is used to connect the ALJ at the NHC to the claimant at their local Office of Disability Adjudication and Review (ODAR) in order to conduct a hearing.

The purpose of this transfer was to relieve the local hearing offices of the back log of disability cases waiting to be heard by an ALJ, while new local ODARs were being constructed. The Chicago region, which handles Cleveland-area hearing offices, transferred approximately 41,000 cases alone, making up approximately 50 percent of the cases transferred to the NHCs.

Was this a successful plan? According to a report made in April, 2012 by the Office of Inspector General (OIG), ALJs in the National Hearing Centers have issued approximately 56,000 dispositions during the 2010 and 2011 fiscal years. This equals out to be about 2.77 dispositions per day, compared to the national average of 2.42. This higher disposition rate is based on several factors, according to the OIG’s report: high decision writer-to-ALJ ratio, how attorneys are supervised, the lack of travel to remote sites, useful pre-hearing briefs, and the processing of NHC remands at the hearing office level. 

The greater decision writer-to-ALJ ratio has a tremendous impact on productivity. Only one regional ODAR out of 10 possesses a ratio above 2, the lowest being the Chicago region at 1.60. The NHC ratio is 2.90. SSA hopes to get the national ratio to average out to at least 1.85. The more decision writers per ALJ, the sooner decisions can be written and issued in a timely manner.

Rather than ALJs and attorneys both answering to a Group Supervisor as is the case at ODARs, staff attorneys at NHC hearing offices report directly to ALJs who act as managers. This way, according to the OIG’s report, staff attorneys gain a better understanding of the ALJ’s preferences. Unfortunately this style of leadership cannot be replicated at ODARs, due to the fact that those ALJs do not carry managerial title.

Because NHC ALJs are not required to travel to remote locations to hear cases, they have more time to hear more cases as a result. Thanks to VTC technology, a NHC ALJ can hear a case from any where in the country from the comfort of his own courtroom, as long as the claimant has access to the same technology at his location. Typically claimants travel to their local ODAR, but VTC hearings can also be held at local field offices as well.

Pre-hearing briefs are another helpful practice that has been implemented at the NHCs. These are composed by the senior attorneys for the managing ALJs in preparation for a hearing. They include pertinent details such as the claimant’s education, medical conditions, past relevant work and impairments found by Disability Determination Services (DDS). The attorneys can also state their recommendation on the decision based on their research. ALJs told the OIC that they find these briefs more helpful than the pre-hearing worksheets used by ODAR attorneys.

Interestingly, NHC ALJs were not hearing their own remanded cases. This was so they had more time to hear new cases. However, the Chief ALJ amended this in December, 2011, and the following protocol was put in place for ODARs, effective January 3^rd, 2012:

1.       Determine whether the NHC is still providing assistance to the hearing office.

2.       Verify that the NHC ALJ who issued the decision is on duty at the NHC .

3.       If the remand meets both requirements, transfer the remand to the NHC.

However, if a claimant declines a VTC hearing, the remand would then be transferred back to the local ODAR.

While these are steps in the right direction, NHCs are also facing a few challenges: availability of video capacity, conflicts with scheduling experts, and claimants declining VTC hearings. Next week, we will explore these challenges and what SSA is doing to overcome them.

Source: Office of the Inspector General Audit Report, April 2012

Written by Anna Westfall & edited by Attorney Andrew November


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Your Online Presence – Why Disability Claimants Should Be Mindful

It is common knowledge these days that a person has to be careful about how they present themselves on the internet, whether it is through pictures, videos, blog posts, or even comments you leave on your friends’ Facebook pages. How you portray yourself online is essentially how you portray yourself to the world. When you are a disability claimant, you must be especially mindful of these things.

Until April of this year, some ALJs were utilizing the internet to research claimants whose cases were to be heard. SSA has since told ALJs they are no longer to seek out information on the internet to help decide cases. This has become a controversial issue for several reasons.

The ALJ’s Point of View

Senator Tom Colburn, an Oklahoma Republican, has been vocal in regards to what this ban could mean for taxpayers. Senator Colburn, along with many ALJs, believes the Internet is a valuable source for catching fraudulent disability claims. If a person is claiming disabling back pain, yet posts pictures of himself playing tag football with friends, it could be a huge red flag for an adjudicator.

Senator Colburn’s goal is to protect taxpayer dollars. He believes that by being more stringent on whom we award disability to, tax dollars won’t be going to people who don’t “deserve” it. Last year, Senator Colburn accused Stanley Thornton, Jr., who lives as an “adult baby,” of SSA fraud. Senator Colburn pointed out that, if Thornton is able to manage his own website dedicated to the adult baby lifestyle, as well as construct an adult baby high-chair of which he had posted pictures of on his website, that Thornton has the skills and knowledge to make a living. After a lengthy investigation, Thornton was cleared of fraud. Thornton suffers from PTSD, along with a range of other impairments, which in combination deem him disabled.

It is also argued that looking on the Internet is no different than looking out a window and seeing a claimant mow his lawn or work on his car. Casual observation of the claimant has always been part of the adjudication process, and it is believed that using the Internet falls along those same lines.

Another thing claimants must be mindful of is the fact that, when they make their application for SSD or SSI, they are required to sign a release that allows SSA to collect any and all information related to their ability to perform tasks. However, it can also be argued that information on the Internet is public, so no such release is even necessary to see any information an ALJ can find on a claimant.

Because deeming someone is disabled is such an important decision, all facts of the matter must be brought to light, not just what the claimant or the claimant’s representative wants the ALJ to see. 

The Claimant’s Point of View

As mentioned earlier, disability claimants must be especially mindful about what they post on the Internet. However, if the picture a claimant posts of himself playing tag football with friends is five years old, it should not be given any weight in a current disability claim. People post old pictures all the time, but the problem is the casual viewer being unaware of the picture’s age.

When an ALJ considers evidence without the claimant’s or the representative’s knowledge, it is called ex parte evidence. This is a serious legal matter because it denies the claimant due process. When evidence is requested and received by the ALJ, a copy must be made available to the claimant or his representative in order to allow time for a response. As in our example, if an ALJ found a picture of the claimant playing tag football with friends, and the picture is indeed five years old, the claimant should have the opportunity to explain same to the ALJ.

SSA officials have stated that, even though using information from the Internet can be potentially helpful, they do not want “front-line deciders” using it. Rather, this practice is reserved for the likes of fraud investigators that are hired to research awarded claimants that may be attempting to deceive SSA.

Arguments on both sides of the coin are strong. On one side: Should SSA take more steps to prevent fraud in the first place, such as ALJ internet research? Would this help prevent benefits from being paid to the “wrong people?”

On the other side: How much does this tool affect a claimant’s due process? Is it fair?

Because you never know who your ALJ is going to be, or what tools he or she may utilize to decide your claim, it is always better to err on the side of caution and maintain your internet presence wisely.

Source: The Washington Times, May 3^rd, 2012

Written by Anna Westfall & Attorney Andrew November

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The Social Security Administration – A Brief History

Security was attained in the earlier days through the interdependence of members of families upon each other and of the families within a small community upon each other. The complexities of great communities and of organized industry make less real these simple means of security. Therefore, we are compelled to employ the active interest of the Nation as a whole through government in order to encourage a greater security for each individual who composes it…This seeking for a greater measure of welfare and happiness does not indicate a change in values. It is rather a return to values lost in the course of our economic development and expansion….

This quote was taken from Franklin D. Roosevelt’s Message of the President to Congress, which he presented on June 8^th, 1934. By this time, our country has seen many changes, and unfortunately they were not positive ones. We were in the midst of the Great Depression, and President Roosevelt recognized that some things had to change in order for us to recover fully.

By Executive Order, the President created the Committee on Economic Security ("CES"). The CES was comprised of a small group of experts from other agencies whose job it was to study the problem of economic insecurity. They also studied the economic issues dealt with by European countries. After much research and the first-ever national town hall forum regarding Social Security, CES developed a Report to the Congress as well as drafted the legislative proposal, which was given to President Roosevelt in January of 1935.

On January 17^th, the President submitted the proposal to both houses of Congress. By July of that same year, the bill was passed by both houses and sent to the President to sign and make official, which occurred on August 14^th, 1935. The bill provided not only several provisions for general welfare, but also a social insurance program that would pay income to retired workers aged 65 and older. The provisions included unemployment insurance, old-age assistance, aid to dependent children, and grants to the states for their medical care programs.

Title I and Title II were the first major provisions related to the elderly. Title I – Grants to States for Old-Age Benefits, supported state funded welfare programs for the elderly. Title II, which is what we think of now as Social Security Disability (SSD), was originally called Federal Old-Age Benefits. Benefits were paid to the worker when he or she retired at age 65. The first taxes for this purpose were collected in 1937, and monthly benefits began in 1942. However, under amendments passed in 1939, payments were advanced to 1940.

The Title I program was meant by President Roosevelt to be temporary “relief” to support retired workers until the Title II program was in full-swing. This program was gradually phased out as more and more workers paid into the Title II program.

Another provision of the Social Security Act was the creation of the Social Security Board ("SSB"). This was a committee comprised of three members who where appointed by the President. Their responsibilities included providing employers and employees with information on how earnings were to be reported, what benefits were available, and how to get them. SSB was also responsible for the opening and staffing of Social Security offices across the nation.

SSB’s biggest task was registering employers and employees by January 1^st, 1937, which is when workers would begin acquiring credits towards benefits. They contracted the Post Office Department to distribute applications and the numbers were assigned at local post offices. The applications were then forwarded to Baltimore, Maryland where the numbers were registered and employment records were established. The first-ever SSN account number established belonged to John David Sweeny, Jr., of New Rochelle, New York.

After this arduous task was completed, the first Federal Insurance Contributions Act ("FICA") taxes were collected in January 1937.Trust funds were created from which benefits would be paid.

While the SSB was originally an independent agency of the federal government, it became part of the cabinet-level Federal Security Agency in 1939, and eventually was abolished altogether and replaced with the current Social Security Administration.

The first-ever monthly benefit check was received by Ida May Fuller, a retired legal secretary from Ludlow, Vermont. The check was issued on January 31^st, 1940 in the amount of $22.54. Previously, from 1937 to 1940, benefits were paid to retired workers in lump-sum payments, as these people contributed to the program but did not do so long enough to receive the monthly benefits. The first recipient of a lump-sum benefit was Ernest Ackerman, a retired motorman from Cleveland, Ohio. Mr. Ackerman paid a nickel into the Social Security system and retired the next day, receiving a lump-sum payment of 17 cents! The average lump-sum payment made during this time period was around $58.06. The smallest lump-sum payment ever was 5 cents.

 This is just the tip of the iceberg of the Social Security Administration’s long and interesting history. There is even a museum located in Baltimore, Maryland, where visitors can learn about the history of SSA in vivid detail. From past to present, SSA continues to change and evolve for the greater good of its citizenry, which is what President Roosevelt would have wanted.

We can never insure one hundred percent of the population against one hundred percent of the hazards and vicissitudes of life, but we have tried to frame a law which will give some measure of protection to the average citizen and to his family against the loss of a job and against poverty-ridden old age….

                                               President Roosevelt, upon signing the Social Security Act

Source: http://www.ssa.gov/history/

Written by Anna Westfall & Attorney Andrew November

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What is the Difference Between SSD & SSI?

Probably one of the very most common questions in regard to Social Security disability is what the difference is between SSD (Social Security Disability) and SSI (Supplemental Security Income). Most people are not even aware that there are two different disability programs offered by SSA. Both have different criteria and different benefits, and elements of the two are often mashed into a misconception of what “disability” is.

Social Security Disability (SSD)

In order to be considered for receipt of SSD benefits, you must:

1.       Be of 18 years of age or older;

2.       Have worked and paid Social Security taxes long enough to qualify; and

3.       Have a medical condition that has prevented you from working and is expected to prevent you from working for at least 12 months, or result in death.

What does it mean to have worked long enough to qualify? This means you must have paid Social Security taxes for enough quarters. For peopled aged 31 and over, they must earn at least twenty quarters in the ten years prior to becoming disabled. Typically, if a person has worked five out of the last ten years consistently, that person would have earned twenty quarters of coverage. Younger individuals 30 and under must earn at least twelve quarters out of the last six years. Workers who become disabled prior to age 24 must have six quarters out of the last three years. This is why it is important to file for benefits as soon as you become disabled. If you wait too long, you will no longer be entitled to the money you have paid into the system.

This is where the Date Last Insured (DLI) comes into play. This is the final date that Social Security considers a person to be qualified for benefits. For example, if you stop working in 2005, your DLI will most likely fall in 2010. If you file for SSD in 2012, you must prove you have been disabled since before 2010, the date you were “last insured” for benefits.

Your Primary Insurance Amount (PIA) that you see on your SSA statements is the money you would receive if you are found disabled. The Family Maximum (FMAX) is the maximum amount of money you would receive if you also claim dependents in your household. After receiving disability benefits for two years, SSD recipients are automatically given Medicare coverage.

Supplemental Security Income

This is a needs-based program funded by federal tax dollars. In order to qualify, you must:

1.       Be aged (65+), blind or disabled;

2.       Have limited income and resources; and

3.       Be a U.S. citizen.

Because SSI is needs-based, you must prove that you are in need of assistance to provide food, clothing, shelter and medical care to yourself. Basic qualifications include possessing less than $2,000 in any and all bank accounts, owning no more than one property that is your residence and no more than one vehicle. Claimants who are married are allowed up to $3,000 in their bank accounts.

The current amount a SSI recipient would receive is $698 per month. This is adjusted periodically for cost of living (COLA). The last adjustment occurred just recently in October of 2011. The next COLA will be announced in October, 2012. SSI recipients also receive Medicaid.

It is important to know what your options are if you are faced with the daunting situation of becoming disabled. If you are still unsure of what programs you may qualify for, you can use BEST, which is Social Security’s Benefit Eligibility Screening Tool. You may qualify for one program or the other, or it is also possible to qualify for both programs. For more information, please visit ssa.gov.

Written by Anna Westfall & Attorney Andrew November

If you need assistance with your SSD or SSI claim, please contact us by clicking here. We have offices in Mentor, Cleveland, Ashtabula, Akron, Canton, Youngstown, Toledo and Lorain for your convenience!