It is no secret among Social Security Disability attorneys that cases are getting tougher to win. Today an article in the Wall Street Journal confirmed this. The article, “Government Pulls in Reins on Disability Judges,” discusses how the Social Security Administration (“SSA”) is clamping down on judges by rewriting their job descriptions. The job descriptions will no longer indicate that they have “complete individual independence,” and will also indicate that they are subject to the “supervision and management” of other agency officials. The reasons for the changes, according to the article, is that the SSA is trying to rein in on problems such as fraud in the disability adjudication program, noting that there have been some criminal investigations with a few judges. Another reason for the changes is that they claim they are trying to promote consistency in adjudication
The article notes that the judges were already facing tightening scrutiny due to prior articles in the Wall Street Journal critical of the disability program. In response to the scrutiny, they had already been changing their behavior.
In 2010, for example, judges awarded benefits in 67% of their 585,855 decisions, according to federal data. By 2013, the award rate fell to 56%. The allowance rate right now is probably at a 40-year historic low, Social Security Administration Deputy Commissioner Glenn Sklar said at a congressional hearing in November.
Thus, the judges somehow felt that in response to scrutiny they had to become tougher. All attorneys have felt these changes. I am quoted in the last paragraph of the article. I mention that I now scrutinize the cases I take more carefully. If I do not feel I can win it, I will not take it.
Yesterday I had a hearing at the Office of Disability Adjudication and Review in San Rafael. After my client testified and the vocational expert testified, the Administrative Law Judge offered us a deal – agree to amend the onset date and she would issue a favorable bench decision.
My colleague, Gordon Gates, has discussed the advantages of receiving a bench decision, in his blog, The Social Security Disability blog. Essentially, a bench decision is a decision issued by the judge orally at the hearing. By stating the decision orally, the judge is able to decide a case faster thereby allowing a claimant to receive benefits faster. It is nice to receive them.
Yesterday though, the offer was tied to a deal. We had to agree to advance the onset date (the date my client claimed she became disabled) to a later date in order to receive the favorable decision. A later onset date results in a smaller past due amount for the claimant (and possibly reduced fees for the attorney). If you are faced with this dilemma, some of the factors you may consider are:
1. The strength of your case. Do you think you have a basis to win if you say “no” to the judge’s offer?
2. The judge’s reasoning for choosing the amended onset date. Does it make sense or was it arbitrary?
3. Whether you need the money now? Most people do, but is it better to wait to get the amount you feel you deserve?
4. Whether you wish to wait for a decision that might be unfavorable versus having the peace of mind that you can walk out of the room with a favorable decision.
Ultimately, in my case, we decided to accept the judge’s offer. We felt it was the best thing to do based on a combination of all the factors. Every case though is different and you should think about it carefully before making a decision. The past due amount is the only lump sum you will receive and you should understand the consequences of accepting a later onset date before agreeing to it.
One of the most interesting presentations I attended at the NOSSCR (National Organization of Social Security Claimants’ Representatives) conference in San Francisco was a presentation by SSA (Social Security Administration) personnel on a new program which will allow authorized representatives to have online access to electronic hearing folders. Essentially the SSA understands that the more they can take advantage of technology and automate their processes, the easier it will be for the public to work with them.
For the past year, SSA has been working with 9 attorneys in various areas of the United States on a pilot program which grants online access to claimants’ electronic hearing folders. They have been ironing out problems and now are ready to launch the program. The program will allow claimants’ representatives to access their clients’ electronic folders at the hearing level only. Eventually SSA wants to allow access at the initial and reconsideration stages but for now, they will start at the hearing level.
The program will begin in November 2009 with the official registration of the 9 attorneys involved in the pilot program. Registration alone is a complicated process. Because of the sensitive data an attorney will have access to, the SSA wants to ensure that the attorney is real and licensed. The SSA will require a great deal of information from the attorney during the registration process – identification and verification of identification (from different sources). The good thing about the program is that once an attorney registers, he or she does not need to go through the process again. The data will be stored and attorneys will only need to use their ID and password to access a claimant’s data. An attorney will only be able to access the data of a claimant whom he or she represents.
All interested attorneys will have to register. Despite having registered for other programs with SSA, this is a completely new and different process. The SSA is rolling out registration in a staged process:
- 11/09 – spring 2010 – registration to the 9 pilot attorneys and by invitation only;
- Spring 2010 – open enrollment;
- Summer 2010 – continued enrollment and automation of Form 1696 and Form 1697.
After the presentation, I inquired with one of the presenters to find out if I was on the list of invitees. (The presenter said she had the list with her.) I found out that I was not. I asked her how they chose the attorneys to be on the list. She told me that they looked at a variety of factors but would not tell me or perhaps did not know what they were. My guess would be that they would choose attorneys with a high volume practice. I was standing next to a well known, well respected, experienced attorney and he was not on the list either despite having been involved in initial talks with Baltimore about this program. Oh well. The SSA representative indicated that she was willing to take the business cards of attorneys who wanted to be invited and if those on the list did not respond, she would add them to the list. If you are interested in this information, please contact me and I will let you know who I spoke to. In any case, by the spring of next year, if all goes well, those attorneys that wish to, will be able to have instant access to claimants’ hearing folders.
I find it all to be very exciting and really commend the SSA on their work in this area.