Would Social Security ALJs process cases faster if disabilty hearings were adversarial?

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When I first started practicing Social Security Disability law, it seemed strange to me that the Social Security Administration (“SSA”) was not represented by an attorney at the hearing. The process is meant to be non-adversarial, although it does not seem that way sometimes. The Judge, who is paid by the Social Security Administration, has two roles: fact-finder and adjudicator. After going to a few hearings, I realized that the hearings really were a search for the truth and that the process worked better being non-adversarial.

Today I read an article online, “Recession is exacerbating Social Security claims, panelists say.” The article discusses the backlog that Social Security faces due to an increase in filing of retirement claims and is based on a discussion that took place at a forum of Administrative Law Judges (“ALJs”) held recently in Washington, D.C. One of the ALJs who spoke, Marilyn Zahm, suggested that Social Security re-think its position about the non-adversarial nature of the disability hearing. She stated that if, “attorneys for the government and claimants could discuss cases before a hearing, then they would be able to avoid the hearing all together.”

Well it is certainly a nice thought that hearings would be avoided, but in reality that would not occur. If the process is made adversarial, it will be adversarial. My belief is that attorneys hired by the SSA would not wish to discuss cases and resolve them in favor of the claimant. I am sure that once in a while, the process could work as Ms. Zahm suggests, but more often than not, the case would proceed to a hearing. I base my opinion on what I experience in the Immigration Court. Removal proceedings are adversarial proceedings. The government’s position is that the person in proceedings should be removed from the United States. The government’s attorneys rarely are willing or able to discuss issues in advance and rarely if ever will come into court and state that the individual should be permitted to stay in the United Stares. It just does not happen in an adversarial proceeding.

Adversarial proceedings would not benefit claimants who are already nervous about the hearing and who have been waiting for years for their benefits. Finally, unrepresented individuals will not fare well in adversarial proceedings. I want Social Security to reduce its backlog but I do not think making the proceedings adversarial will resolve the problem.

Social Security’s response to California’s cut in the State Supplementary Payment

If you are on SSI and live in California, you already know that the amount of your monthly check has been reduced. This reduction was caused by the state of California. The State has reduced the State Supplemental Payment. For more information, you may see my previous blog posts: California budget crisis may reduce state SSI supplement and Update on California budget crisis and SSI payments.

Apparently the Social Security Administration has become tired of people calling them and blaming them. They produced a fact sheet entitled, “Reduction of SSI Payments Effective May 1, 2009.” I obtained a copy of the fact sheet at the Walnut Creek field office.

Opportunities and Challenges for the Social Security Administration

Social Security’s Office of Inspector General (“OIG”) recently released a report entitled, “Opportunities and Challenges for SSA.” OIG’s terminology for the title of the report is too nice, in my opinion. It should be called “Grim and Dismal outlook for the Social Security Administration.”

The OIG notes that the Social Security Administration (“SSA”) is understaffed and underfunded. As such, the SSA has had to give priority to some tasks while giving less attention to others. It is not new to consumers and advocates that the OIG reports that under-funding, increased workloads, and the economic downturn “have resulted in severe backlogs in some critical workloads – and unacceptably long wait times for customers who seek SSA’s assistance at some of the most challenging times of their lives.”

The report examines SSA’s multiple program areas. I will highlight some of the items of interest.

National 800 number

The report notes that the Social Security Commissioner has reported a deterioration in the service provided by the SSA’s staff when consumers call the national 800 number. This is not surprising and mirrors my own experience when I have tried calling that number. “The Commissioner indicated nearly 15 percent of callers to SSA’s National 800 number receive a busy signal. As a result, many of the customers who were unable to conduct their business over the National 800 number chose to go to their local field office, which contributed to the higher field office waiting time.” The OIG recommends that the SSA receive funding to better support the 800 national number.

Field Office Wait Times

The Commissioner recently testified that in fiscal year 2008, the field offices served 854,000 visitors a week. In February 2009 field offices saw an average of 940,000 visitors a week. If any of you have been to a local field office lately, you know from first-hand experience that you experienced a long wait. The OIG recommends that SSA receive funding to staff the field offices.

ODAR

Finally, what we know is happening is that waiting times at ODAR are getting longer. The report states that the current case backlog is about 765,000 which has resulted in individuals waiting on average about 500 days to receive a disability decision. “Wait times for a decision have increased by about 200 days in the last 7 years.”

The report notes that with funding SSA has received this year, they plan to hire 157 ALJs and support staff to assist.

While recommending ways the SSA can reduce inefficiency and fraud in some areas, the OIG also recommends that SSA be more fully funded in order to better serve the public. Unfortunately, given the current economic situation, it does not appear that SSA is going to receive what it needs in the immediate future.