What Social Security’s Latest Plans Mean for Your Law Practice: From NOSSCR Phoenix

Right now the Social Security Administration is pushing at least a dozen changes to the way it moves disability cases through the system.

Disability lawyers heard the latest plans directly from the administration at the recent NOSSCR General Session in Phoenix.

Aimed at cutting the chronic and severe backlog in Social Security Disability cases, the various plans could give disability law firms and their clients ways to jump ahead in the line for hearings, speed up cases with greater chances of approval, avoid scheduling conflicts and more.

This is the last of our two reports from the National Organization of Social Security Claimants’ Representatives (NOSSCR) conference in September.

If you couldn’t attend, Firmidable was there to listen for you. Here’s what we heard.

Kathleen Scully-Hayes Briefs Disability Lawyers

The Honorable Kathleen Scully-Hayes is the acting deputy chief administrative law judge (ALJ) overseeing the Social Security Administration’s national disability hearing centers.

For the audience at the Phoenix NOSSCR conference, she outlined three major areas where the agency is trying to address its crushing backlog of disability cases:

• Decision writing
• Hiring
• Efficiency

She began her report by recounting the chaos and challenges created by the recent hurricanes.

It wasn’t just that the SSA had to get offices back up and running. It also had to track down a huge number of claimants who evacuated their communities and move their hearings to other locations.

The storms added to the hurdles Social Security is already dealing with — like a massive backlog of hearing decisions waiting to be written.

Like Scene from Dunkirk, SSA Mobilizing Everyone to Move Out Disability Decisions

In her remarks to the general assembly, Judge Scully-Hayes echoed NOSSCR staff when she listed the backlog of decision writing as one of the most urgent problems now facing the agen-cy.

Normally, 25,000 to 30,000 post-hearing decisions should be moving through the pipeline. The decisions are already made. Claimants just need the notifications.

But staff shortages from a federal government hiring freeze this year mean an additional 35,000 decisions still need to be written.

The result is a 70,000-decision logjam.

Like a decision-writing version of a scene from the movie Dunkirk, SSA managers, judges, case managers, and senior attorneys have all been mobilized to write decisions.

The agency even held two decision writing classes to help with training.

We’re spending “tremendous amounts of money on overtime,” Judge Scully-Hayes said.

Some days are designated “favorable days” where only favorable decisions are written, to get those out the door and into the hands of deserving claimants as quickly as possible.

Additionally, Social Security added a national case assistance center.

Normally such a center would be staffed with all new hires, but this time they brought in 48 employees from the Office of Appellate Operations to aid in the center’s mission of writing de-cisions.

Unfrozen: The SSA Resumes Hiring

The Trump administration imposed a hiring freeze on most federal agencies when it took office in January.

Judge Scully-Hayes said the freeze has been Social Security’s “No. 1 challenge” for 2017.

That mandate ended in late spring, but in the meantime Social Security lost a lot of staff.

Now, hiring is back underway, with 100 new ALJs hired the week before the September NOSSCR conference. They start training Oct. 15.

Judge Scully-Hayes said the SSA was also focusing on hiring hundreds of support staff members, trying to make as many job offers as possible before the fiscal year ended on Sept. 30.

Ironically, the ends of fiscal years can be a time when the agency loses staff to other federal agencies — which are trying to meet their own hiring goals.

Still, she declared that agency officials, “expect to fill almost every spot we have the money to fill.”

The next step is to get systems in place to help all the new team members do their jobs as effi-ciently as possible.

10 SSA Strategies for Speeding Up Disability Cases

Judge Scully-Hayes presented a long list of attempts to rev up the SSA’s operating efficiency.

In the course of their practices, Social Security Disability attorneys might have already noticed — or soon will start to notice — at least 10 initiatives underway at the SSA:

1) Appeals Council Technicalities: The Appeals Council often remands cases for tech-nical reasons. Instead of sending those back to ALJs, the Appeals Council now is trying to rectify such issues itself.

2) Detecting Strong Cases: The SSA is deploying the science of data analytics to identify and speed up disability claims that are likely to be approved. It’s using software called Proactive Analysis and Triage for Hearings (PATH). When the software highlights a can-didate for a potential on-the-record decision (OTR), someone can pull the file to see if the claim can be paid right away instead of continuing to slowly push through the sys-tem.

Under this program, cases can take three paths:

• If it can’t be paid, the file goes back to the hearing office.
• If it can, the hearing request is dismissed and an OTR decision is given.
• If the case only needs a little more development, the agency can alert the claim-ant’s attorney so the case can move faster.

PATH has shown some initial success, motivating the SSA to dedicate more resources to it.

3) Pre-Hearing Conferences: The SSA is also testing pre-hearing conferences, generally for claimants without representation. Judge Scully-Hayes said the goal of a pre-hearing is to avoid wasting ALJ time by asking claimants — before a hearing —questions like how much medical evidence they have gathered and if they plan to seek representation. The claimant will even be offered a list of local representatives.

The focus on decision writing caused the agency to put pre-hearings on hold, but she said the SSA hoped to restart the program soon.

4) Experts Database: To keep the search for local medical and vocational experts from slowing down cases, the SSA is assembling a national cadre of experts. Sometimes these experts are hard to find locally. With the national system, the experts can work with the agency by phone or video conference.

5) Hearing Standby Status: The agency is piloting a standby list for hearings. If a claim-ant is ready for his or her hearing, when there is an unexpected opening they can waive the usual 75 days’ notice and get to a hearing quickly.

The SSA keeps a list of interested claimant names to draw when a time slot becomes available.

The recent hurricanes provide an example of how this idea is useful. Many claimants couldn’t attend their hearings because of the crisis, but ALJs were ready and available. If a more robust standby list had been in place, those judges could have conducted video hearings for people in other parts of the country rather than be idle.

6) Error Detection Software: The SSA is testing a software “insight tool,” which is “a spellcheck for decisions,” Judge Scully-Hayes said. The software scans decisions to catch and fix natural language errors.

7) Case Tracking Upgrade: The agency also is modernizing the software it uses to track all cases throughout the Office of Disability Adjudication and Review. “We are excited about that,” the judge said, noting the current system, “has its limitations.”

8) Cutting Duplication: Another digital efficiency strategy is using software to detect duplicate documentation. It goes through medical records looking for and removing ex-traneous copies of documents.

However, members of the NOSSCR team expressed concerns about this program, saying it could result in some evidence getting wrongly erased. Judge Scully-Hayes sought to assure the audience that while it will identify potential duplicates, it will “not just rip out” the documents.

9) Busy Schedules: Social Security also recognizes the problem of double-scheduling at-torneys. In May, the agency sent a memo telling its staff to work with attorneys on scheduling problems and to ask the best way to communicate with each attorney re-garding hearing schedules.

If you can’t work out a satisfactory system with your local Social Security offices, Judge Scully-Hayes said, you’re invited to reach out to your regional office. “This is very im-portant to us,” she said.

10) The Office Formerly Known As… Finally, she said, the Office of Disability Adjudica-tion and Review — ODAR — will change its name to the Office of Hearings Operations — OHO.

Audience Questions: What Disability Lawyers Wanted to Know from the SSA

Judge Scully-Hayes also took questions from disability attorneys and advocates in NOSSCR’s general assembly audience. Here’s a summary of the questions and her responses:

Q: Why are law firms not yet recognized as representatives, only individual attorneys?
A: Judge Scully-Hayes said this “seemed like a bigger problem years ago.” The audience laughed. You could hear several people saying “No.” She responded, “I don’t have an answer to that.”

Following up, the moderator noted that some ODARs will schedule a hearing without inquiring about a representative’s availability. When the attorney can’t make it, the ODAR insists the law firm send someone else. The implication is that those ODARs seem to look at the firms as reps of the claimants despite agency policy to the contrary.

The judge replied, “I don’t think ODARs should be in the business of telling you that you need to switch representatives…That’s interesting.” But she offered no plan to change the status quo.
firm send someone else. The implication is that those ODARs seem to look at the firms as reps of the claimants despite agency policy to the contrary.

The judge replied, “I don’t think ODARs should be in the business of telling you that you need to switch representatives…That’s interesting.” But she offered no plan to change the status quo.

Q: Why do you think award rates have been declining, even when there are fewer applications?
A: “The focus on the quality of the decisions has caused many judges to be very, very careful in their decision making,” she said. And some of it is the nature of people applying, she added.

Q: Can you require ODARs to add the earnings queries as soon as they get the case, to speed up the process?
A: “Great suggestion. I am happy to take that suggestion back.”

Q: What makes a good OTR request?
A: Declaring “the time is right. This is when you should be asking for them. We are looking for opportunities to move OTRs out of the line.”

If you’re submitting quality OTRs, yet not getting positive results, Judge Scully-Hayes encour-ages you to approach your regional office. She expects the national adjudication team to take up OTRs again, saying these are perfect decisions for them.

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