LawAndOrder: socialNsecurity Appendix C

APPENDIX C

ALJs ISSUING 200 DECISIONS A MONTH

Paying Down The “Back Log”

There is a concept called “Paying Down The Back Log. This is where a judge just reverses every case on his docket and grants benefits to the claimant. Some ALJs have been known to do this with no regard at all for the merits of the case. Sometimes the Commissioner will take action to stop them. Other times he does not.

Those ALJs are extreme cases. However, there are other ALJs who see this type of behavior and emulate it on a smaller scale. Rather than pay 200 or more case “on-the-record” without holding a hearing, they will hold hearing and pay 75 to 100 or more cases per month. The hearings are very brief. Some may last for no more than 10 minutes or so. Then the ALJ will issue a favorable decision.

These ALJs are irresponsible, but they are not the worst. At least, deserving claimants are getting the benefits they deserve. Not all of them might be genuinely disabled, but the majority probably do deserve benefits.

The worst ALJs will follow the same pattern, but they will deny the majority of the cases. They simply want to clear their docket. In the process, they deny a lot of deserving claimants.

From: Brown, Mark A. ODAR St. Louis HO

Sent: Tuesday, November 28, 2006 1:19 PM

To: Ganly, David M.; Bernoski, Ronald; Butler, Larry J.; Elliott, Joel; Filion, Cheri L.; Frye, D. Randall; Habermann, Robert S.; Kennedy, Thomas ODAR Providence HO; McLaughlin, Patrick F.; alfonso.montano@hhs.gov; Snook, Thomas; Wenzel, William; Williams, H. Scott; Willy, Donald J.; Zahm, Marilyn

Subject: RE: IMPORTANT MESSAGE from NTEU224 President Jim Hill - Civil Monetary Penalty - November 22, 2006

Dave:

Thank you for sending this around. We should all be aware that the single most important part of the NTEU letter is in the 5th paragraph which starts: "While the specific facts of the situation as it applies to the four impacted individuals is unlikely to occur again..."

That is because the NTEU letter does not say that the HOCALJ was issuing up to 200 OTRs per month for multiple months in a row. That is the context for the reference to "your actions were designed to reduce the backlog of cases by causing benefits to be paid..." I know that at least 740 of these OTRs were Remanded to be heard by a different judge.

The statement in the 10th paragraph that there was "no finding of criminal or civil wrongdoing by US Attorneys" is a bit misleading. The US Attorney for the State of Kansas had an active ongoing criminal investigation going about the HOCALJ, but that investigation ended when the HOCALJ unexpectedly died. I know of at least one ALJ who was subpoenaed and did testify before that Grand Jury. [In addition to being HOCALJ in Iowa, he was also the Acting HOCALJ in the Kansas City, Kansas, OHA office; hence, part of this was in the jurisdiction of the US Attorney in Kansas.] Once the HOCALJ died, the US Attorney decided not to seek criminal prosecution of the other employees. In part, that may have been because those other employees had never physically been in the State of Kansas.

One other thing I know about the investigation is that the hard drives were seized from the office computers of the HOCALJ, the HOD, a senior attorney, and a forth employee. Those hard drives might contain e-mails between the parties that set forth the details of how this non-existent VE "interrogatory" was going to be used in all of the OTRs. They may have shown how a specific "boiler plate" paragraph was drafted and evolved and ultimately approved for use in these decisions.

So my point is that this is truly a unique factual situation. I do not foresee OIG going after any decision writers who might not mention every single piece of evidence in a file in drafting a decision. In fact, this OIG investigation did not begin until 4 judges in the KC office wrote OIG a letter spelling out the pattern by this HOCALJ of issuing 200 OTRs per month. At the Jacksonville AALJ Educational Conference in October 2005, AALJ presented a plaque to each of the 4 judges for their actions in the highest traditions of the Corps of judges in their commitment to due process. If any of your judges express concerns about what this involves, feel free to share my e-mail with them.

Mark

______________________________________________
From: Goldstein, Stewart
Sent:   Wednesday, November 22, 2006 7:42 AM
Subject:        IMPORTANT MESSAGE from NTEU224 President Jim Hill - Civil Monetary Penalty - November 22, 2006
Importance:     High

November 22, 2006

Folks:

A very disturbing development has occurred that may have very serious ramifications for all of us who draft ALJ decisions. Merely following an ALJ’s instructions and drafting a decision that the ALJ subsequently approves and signs may subject you to a civil monetary penalty for as much as $5,000 and perhaps even more per case.

After pursuing, without success, criminal and civil remedies with U.S. Attorneys in two states, the Office of Inspector General (OIG) is now attempting to assert a civil monetary penalty against at least four current ODAR employees pursuant to 42 U.S.C. § 1320a-8. Three of these employees are current Attorney Advisers. The extent of potential liability is staggering; one Attorney Adviser has been assessed a penalty in the amount of $215,000.

This action is outrageous and is being vigorously contested. NTEU National is committed to rectifying this situation and is aggressively looking at all avenues available to protect employees.

It is our opinion that the case against these individuals is not only without merit, but that we are entitled to the same quasi-judicial immunity that protects ALJs. The Supreme Court has recognized that individuals, when performing functions that are judicial in nature, or who have a sufficiently close nexus to the adjudicative process, are entitled to a grant of absolute quasi-judicial immunity. Among those the Court has found immune are administrative law judges when performing adjudicative functions within a federal agency, and agency attorneys, in arranging for the presentation of evidence in the course of an administrative adjudication. We believe we qualify.

While the specific facts of the situation as it applies to the four impacted individuals are unique and unlikely to occur again, the underlying theory advanced by OIG, that the individual who drafts the decision is responsible for the content of the decision and may be held liable for a civil monetary penalty, represents a threat to us all.

The specific fact pattern involves language inserted into decisions at the direction of the ALJ that indicates that a particular VE had concluded that the limitations specified by the ALJ would preclude competitive employment. The problem is that the VE was not involved in that specific case but had previously responded to interrogatories in another case that those limitations precluded competitive employment.

The ALJ instructed the individuals who drafted the decision to use the opinion of a vocational expert, obtained through interrogatories in one case, in multiple other cases involving the same finding as to specific functional limitations. The opinion of the VE that no jobs would exist for such a person was not reliant on any specific vocational factors or functional limitations beyond those specified functional limitations that were found by the ALJ to be present in both cases. While the opinion did not state that the VE responded to interrogatories specific to the case in which the opinion was being used, it did not specifically say that the VE had provided the responses in connection with another case.

The OIG alleges that by including the language about the VE opinion in the draft decision, and by not stating that the opinion was obtained in connection with another case, the individual drafting the decision made false and misleading representations and/or omissions of material facts to SSA in connection with benefit determinations. OIG ignored the fact that the ALJ had made the decision to pay the case before any involvement by the attorney. It ignored the fact that the ALJ directed that the language be included in the decision. It ignored the fact that the final decision signed by the ALJ was exactly the same as the decision made by the ALJ and the instructions provided by the ALJ to the attorney. It ignored the fact that the ALJ involved was the HOCALJ, the highest management official in the office. It also ignored the fact that the HOCALJ, acting on behalf of the Commissioner, had actual knowledge of all the material facts.

Our overriding concern is the OIG interpretation of § 1129 of the Social Security Act (42 U.S.C. § 1320a-8 as implemented by 20 CFR 498.100 et seq.) upon which these actions are based. I am particularly concerned about the consequences of omitting material facts from decisions. How often have each of us omitted material facts in writing fully favorable decisions? In fact, the Agency’s policy of encouraging far less comprehensive decisions for fully favorable cases significantly increases the likelihood of omitting material facts. Imagine the magnitude of the task of including every fact that the Commissioner may consider in every decision.

The imposition of a civil monetary penalty against agency employees, an act without precedent, despite no finding of criminal or civil wrongdoing by U. S. Attorneys or even a disciplinary or adverse action by the Agency suggests a purpose unrelated to the statute. In this case, all of the impacted decisions are favorable decisions raising the possibility that this action is being directed against us as a method to lower the payment rate. A back door Bellman review if you will. In fact the OIG bluntly stated: “Clearly your actions were designed to reduce the backlog of cases by causing benefits to be paid and to prevent further review of the decisions that you wrote.” We have no idea how the action of drafting a decision by following the ALJ instructions prevents further review of the decision. We also have no idea of how drafting a decision pursuant to the instructions of an ALJ who already made a decision can possibly cause benefits to be paid. Nonetheless, OIG believes that attorneys drafting cases by following the ALJ decision in the case to pay the claimant, and the ALJ instructions in the case on what to put in the draft, are “causing benefits to paid”. This is nonsense. Attorneys and paralegals drafting ALJ decisions based on ALJ instructions are not causing claimants to be paid; we are merely delivering the message of the ALJ that the claimant is disabled. Just because the OIG doesn’t like the message is no reason to shoot the messenger that has to deliver it. If simple logic were applied to the OIG interpretation, the writers, who may be held liable for the contents of the decision, need to be the final arbiters of the language of that decision rather than the ALJ who made and signed the decision. We, but apparently not OIG, know better. At least we know the decision maker is the ALJ.

What can you do to protect yourself? That is difficult to say right now. The OIG theories in these cases are so inane and off the wall that it is impossible for us to say you are safe in doing anything. At the very least, however, you should keep copies of all ALJ instructions and memorialize any discussions you have with the ALJ about one of the ALJ’s cases and retain a copy of your draft.

We have little hope that SSA or ODAR will take any action to protect its attorneys and paralegals, so that task will fall on NTEU. We have already requested information from the Agency that will be necessary to represent our members and we were met with what was essentially a form letter refusal to provide the information by the Agency as it felt we did not demonstrate a “particularized need”. To help them understand the need we subsequently filed more than 60 individual requests for information, with more to come. They have not yet responded to any of those requests. Let me assure you that we will take every possible action we can to stop the OIG’s attempt to impose civil monetary penalties on any ODAR attorneys or paralegals and ensure that this type of action never occurs again.

Happy Thanksgiving.

-- Jim Hill

From: Loughry, Daniel

Sent: Tuesday, November 28, 2006 1:16 PM
To: Ganly, David M.; Blume, Michael; Buls, Norman R.; Dietterle, Keith; Flierl, Patricia L.; Garwal, Dale; Gaye, Thomas; Geb, John L.; Hannon, T. Patrick; Martinez, Joel B.; Mazzi, David; Mitchell, James M. ODAR Stockton HO; Sherr, Norman; Sotolongo, Ariel; Steverson, London; Tobin, John; Tucevich, Michael; Valentino, Peter; Villere, Plauche

Cc: Kennett, Michael; Colpitts, Donald
Subject: RE: IMPORTANT MESSAGE from NTEU224 President Jim Hill - Civil Monetary Penalty - November 22, 2006

"From what I have heard about this thus far, all of which is word of mouth, the facts may show more culpability than initially appears."

This may turn out to be true. However, I believe we must defend the basic principle that staff attorneys and paralegals must never, under any circumstances, be allowed to be put in financial or other jeopardy when the judge is solely and completely responsible for what is done, i.e. the judge is the one who must sign on the dotted line.

"The OIG alleges that by including the language about the VE opinion in the draft decision, and by not stating that the opinion was obtained in connection with another case, the individual drafting the decision made false and misleading representations and/or omissions of material facts to SSA in connection with benefit determinations." It seems to me that the only acceptable outcome here is for competent authority to decide that this is a legal impossibility! I suggest that even if a judge said to a staff attorney - "Here are 100 cases. Figure out which ones should be allowed and draft decisions for me to sign". - and thereafter improperly or at least improvidently signed the drafts without reviewing the evidence or even reading the draft, the staff attorney cannot legally be held to have made false or misleading representations and/or omissions of material facts (unless the staff attorney is in cahoots with the claimants' representatives - then see the statutes concerning bribery etc.)

Dan Loughry

_____________________________________________
From: Ganly, David M.

Sent: Tuesday, November 28, 2006 11:08 AM
To: Blume, Michael; Buls, Norman R.; Dietterle, Keith; Flierl, Patricia L.; Garwal, Dale; Gaye, Thomas; Geb, John L.; Hannon, T. Patrick; Loughry, Daniel; Martinez, Joel B.; Mazzi, David; Mitchell, James M. ODAR Stockton HO; Sherr, Norman; Sotolongo, Ariel; Steverson, London; Tobin, John; Tucevich, Michael; Valentino, Peter; Villere, Plauche

Subject: FW: IMPORTANT MESSAGE from NTEU224 President Jim Hill - Civil Monetary Penalty - November 22, 2006

Importance: High

I have received several inquiries on this today. The NEB has been aware of this situation but the facts in the cases at issue are not yet fully known. Dan Loughry has furnished a copy of a letter purportedly from Jim Hill, below, which explains the NTEU position at this time. As more facts are known, NTEU's and AALJ's positions will probably be clarified.

From what I have heard about this thus far, all of which is word of mouth, the facts may show more culpability than initially appears. We will keep a close watch on it, but your eyes and ears are always valuable. Please forward what you find. Thanks to Dan for the letter.

Dave Ganly

_____________________________________________
From: Loughry, Daniel

Sent: Tuesday, November 28, 2006 9:06 AM

To: Ganly, David M.

Cc: Kennett, Michael; Colpitts, Donald

Subject: FW: IMPORTANT MESSAGE from NTEU224 President Jim Hill - Civil Monetary Penalty - November 22, 2006

Importance: High

David:

I received this today. I have some reason to think it is not a hoax. Assuming the facts as presented are accurate, I respectfully suggest that the NEB investigate this IMMEDIATELY!

If accurate, and the staff attorneys and paralegals respond by making sure that, in each case, as Jay Leno would say, they check, recheck, and check the facts again, and then make sure the decision is perfect, we will probably be down to 5 decisions per writer per month.

I'm beginning to think it really is time to retire!!!!!!!!!!!!!!!!!

Thanks.

Dan

______________________________________________
From: Goldstein, Stewart

Sent: Wednesday, November 22, 2006 7:42 AM

Subject: IMPORTANT MESSAGE from NTEU224 President Jim Hill - Civil Monetary Penalty - November 22, 2006

Importance: High

BACKGROUND:------

United States General Accounting Office Fact Sheet for the

Honorable Howard M. Metzenbaum

United States Senate

LMI 28950

December 1985 INCOME SECURITY

Selected Disability Payments

HUMAN RESOURCES DIVISION

UNITED STATS GENERAL AGCOUNTING OFFICE

WASHINGTON, D.C. 20548

December 27, 1985

B-220833

The Honorable Howard M. Metzenbaum

United States Senate

Dear Senator Metzenbaum:

In response to your February 14, 1985, letter and later discussions .with your office, we reviewed selected issues related to (1) the administration of the Medicare part B program' in Ohio and (2) time frames for paying beneficiaries whose social security disability claims were approved by either administrative law judges or federal courts.

After briefing your office on August 21 and September 24, 1985, on our review results, we agreed to provide you with separate fact sheets on the above subjects. On October 18, we provided you with our fact sheet entitled Administration of Selected Medicare Activities in Ohio (GAO/HRD-86-28FS).

This fact sheet discusses the Social Security Administration's (SSA's) payment of disability benefits to applicants whose claims were approved by administrative law judges or the federal courts. As requested, we have also

included information on the status of SSA's plans to close or otherwise restructure its field offices.

In doing our work, we relied primarily on statistical information and studies obtained from SSA's Office of Disability Operations and Office of Hearings and Appeals. We reviewed 22 cases chosen at random from among the 85 disability claims approved in October 1984 by administrative law judges from SSA's Cleveland hearing office. In addition, we reviewed from among

these 85 decisions the 4 cases that were selected for a special quality assurance review (referred to as a "Bellman review") by the Office of Hearings and Appeals. Further, we interviewed officials from pertinent SSA offices and from the Department of Health and Human Services' Office of General Counsel.

B-220833

Based on information obtained from SSA, unless a case is selected for a Bellmon review, most claimants who are awarded disability benefits by administrative law judges should receive their first payment in about 2 months.

For disability claims that were approved by the courts, SSA has (since June 1984) implemented a number of procedures that, in general, have resulted in more timely payments to beneficiaries. One study showed that between February and May 1985, the average length of time for SSA to complete payment processing activities for court-approved claims decreased from

120 to 93 days.

As of November 1985, SSA's Chicago Regional Office was reviewing the activities of nine field facilities in Ohio. Decisions on what changes (if any) will be made to these field facilities have not yet been made. We discussed the matters contained in this document with SSA officials from the Office of Central Operations and the Office of Disability Operations and incorporated their comments where appropriate. As arranged with your office, unless you publicly announce its contents earlier, we plan no further distribution of this fact sheet until 30 days from its issue date. At that time we will send copies to the Secretary of Health and Human Services and the Director, Office of Management and Budget, and make copies available to others on request.

Should you need additional information on the contents of this document, please call me on 275-5451.

Sincerely yours,

Franklin A. Curtis

Associate Director

I.2

PAYING SELECTED SSA DISABILITY CLAIMS INTRODUCTION

The Social Security Administration (SSA) is the largest component of the Department of Health and Human Services (HHS).

In fiscal year 1985, SSA had over 80,000 employees and over 1,300 offices located throughout the nation. The major programs administered by SSA include (1) the Social Security Retirement program, (2) the Social Security Disability Insurance program, and (3) the Supplemental Security Income program. Individuals may file applications for disability benefits

under title II of the Social Security Act with SSA district offices. District offices make nonmedical eligibility determinations based on an applicant's earnings history and forward applications to a state-administered Disability

Determination Service for further processing. The Disability Determination Service makes an initial determination of whether an applicant's medical condition warrants payment of disability benefits, using rules and guidelines issued by SSA. If the Disability Determination Service denies the initial application, the applicant may submit additional material and ask for a

reconsideration. If the claim is still not approved, the applicant can request a hearing before an Administrative Law Judge (ALJ) from SSA's Office of Hearings and Appeals (OHA).

An applicant can further appeal the ALJ's decision to OHA's Appeals Council and, if still dissatisfied, to the federal court system. If a decision to award benefits is made, and if SSA does not reverse the ALJ decision or appeal a court decision to a higher court, the case will be forwarded to SSA's Office of Disability Operations (ODO) or one of six SSA Program Service Centers (PSCs) for placement into payment status.

SSA may also have to calculate and pay retroactive benefits to applicants based on the date of their eligibility for disability benefits. In some cases involving retroactive benefits, individuals are entitled to disability benefits under both title II and title XVI of the Social Security Act. Title XVI authorizes the Supplemental Security Income program, which provides benefits to aged, blind, financial need or disabled persons based on cases with dual entitlement present SSA with administrative problems in the payment of retroactive benefits because the amount of the title II benefits affects the amount payable under title XVI. benefit payments;

SSA district offices process title XVI benefit payments.

ODO in Baltimore or PSCs process title II 3

WHAT IS THE STATUS OF SSA PLANS REGARDING ITS FIELD FACILITIES?

As of November 1985, SSA was studying its service areas and field facilities using a Service Delivery Review Methodology that the Acting Commissioner of Social Security had instructed SSA offices to implement in May 1985. Using this methodology, SSA regional commissioners are expected to review all field facilities within their service areas by December 31, 1987.

The Service Delivery Review Methodology states that implementing an SSA-wide Service Delivery Plan will be a positive step in ensuring that SSA provides both cost-effective services and acceptable access to these services. The methodology and the guidelines that supplement it give SSA's

regional commissioners criteria for reviewing field facility activities. The methodology or guidelines discuss such specifics as (1) the method for determining which facilities should be reviewed first and (2) the steps SSA offices should follow in notifying congressional delegations of service delivery review results that indicate a field facility should be closed or otherwise restructured.

Regarding SSA facilities in Ohio, an SSA Chicago Regional Office official told us that as of November 1985, that office was reviewing the first 9 of its 58 field facilities in Ohio and it did not expect to make decisions on what changes (if any) were needed until after the first of the year.

HOW LONG DOES IT TAKE SSA TO IMPLEMENT ALJ DECISIONS?

Most individuals entitled to title II benefits begin receiving them within about 2 months of an ALJ decision. This time is based on (1) SSA data on the average time PSCs and ODO take to implement ALJ decisions, (2) information on the time from the date of the ALJ decision to receipt of the case by ODO for cases we reviewed, and (3) SSA officials' estimates of the

time the Treasury Department takes to issue and mail a check after payment data are processed by SSA. Payments to claimants whose cases are selected for a Bellmon review' by OHA take longer to process. ISection 304(g) of the,Social Security Amendments of 1980 (Public Law 96-265) requires SSA to institute a program of ongoing review of ALJ decisions on claims for Social Security Disability Insurance benefits. (See p. 5.)

SSA case processing after an ALJ signs a decision approving disability

benefits, SSA's hearing offices forward the decision with the claims folder to either ODO or one of the six regional PSCs, depending on the claimant's age. ODO handles cases for claimants under age 58 years, 9 months; PSCs handle the rest.

Staff in these organizations obtain information needed to calculate benefit amounts and input data to SSA's records to initiate the payment of monthly benefits.

Table 1 shows the average processing time for ALJ cases from the time the case is received by ODO's Division of Appeals Processing or the PSCs to the time SSA places the case into payment status.

Table 1:

SSA Average Processing Times

For ALJ Disability Decisions-1985

Month	ODO average (days)
January	44.7
February	40.6
March	36.2
April	35.8
May	36.8
June	35.1
July	29.1
August	31.6
September	28.6
October	23.6

Average processing times had not been compiled at

completed our fieldwork in October 1985.

PSC

average

(days)

30.7

29.8

26.8

26.7

25.5

25.9

the time we an official from ODO's operations support staff attributed

the decrease in average processing times to SSA's increased use of a more sophisticated automated claims processing system.

Before February 1985, SSA did not use this system for ALJ cases;

since then, about 80 percent of the ALJ cases have been processed with this system.

The processing times reported in table 1 do not include the time it takes a case to reach a processing unit after an ALJ has signed a decision. We reviewed 22 cases chosen at random from among 85 cases decided in October 1984 by ALJs at SSA's Cleveland hearing office. For 12 of the 16 cases sent to ODO, we noted that they took an average of 7 days to reach ODO after an ALJ decision. For the other four cases processed by ODO and

for the six cases that were processed by the PSCs, we did not have the dates that ODO or the PSCs received them.

ODO officials estimated that after SSA finishes processing a disability payment, another 7 to 15 days pass before the beneficiary receives a check. During this time, the Treasury Department receives the payment tape from SSA and prints the check and mails it to the beneficiary.

Based on the length of time it takes an ALJ decision to reach ODO, average processing times by ODO or PSCs, and estimates of the time it takes the Treasury Department to process a check, most applicants whose claims were approved by ALJs would appear to be receiving their initial benefit payment in less than 2 months.

Payment of retroactive benefits

In 21 of the 22 cases we reviewed, claimants were entitled to retroactive benefits. For cases involving only title II benefits, SSA generally completed the processing of retroactive benefits within the same time frame as the processing of the current benefit payment. However, in five of the six cases

involving concurrent title II and title XVI (Supplemental Security Income) benefits , payment of the retroactive title II benefits was delayed considerably. Table 2 shows the time frames involved.

Table 2:

ALJ Cases Reviewed by GAO:

Time From ALJ Decision to SSA's Completion

of Processing of Retroactive Benefits

Median Average

Number time time Range

---------(days)----------

Title II only cases 15 37 43 28 to 94

Titles II and XVI cases 6 152 145 19 to 253

According to officials of ODO's operations support staff and SSA's Columbus, Ohio, District Office, the delayed payment of retroactive benefits in concurrent title II and title XVI cases had previously generated many complaints. They explained that the amount of title XVI benefits owed is partially determined by the amount of title II benefits received;

therefore, adjustments must be made before SSA can pay the correct amount of retroactive benefits. SSA district offices collect monthly income and family information before calculating an individual's title XVI benefit.

According to these officials, since February 1985, SSA has paid title II retroactive benefits before it paid title XVI retroactive benefits when the title II benefit calculations were completed before the SSA district offices were ready to pay title XVI benefits. Before February 1985, SSA's policy was to withhold payment of retroactive title II benefits until title XVI benefits were calculated and paid. These officials believe this change in policy has generally shortened the time for paying retroactive benefits.

OHA Bellmon reviews The;1980 amendments to the Social Security Act (Public Law 96-265) required HHS to implement a program of reviewing ALJ disability decisions to ensure that they conform to statute, regulations, and policy. These reviews are commonly referred to as Bellmon reviews. For ALJ-approved cases going to ODO, SSA samples these ALJ decisions for review. Using social security numbers, staff in ODO's mailroom select for OHA review about 20 percent of the ALJ decisions that involve only title II benefits. OHA staff screen these decisions. If the decisions appear to conform to statute, regulations, and policy, the cases are returned to ODO for payment action without further review by OHA's Appeals Council.

During the first 11 months of fiscal year 1985, OHA staff screened 5,741 ALJ approvals, including 234 from Ohio. In 4,972 of the approvals (87 percent), no objection was raised. An OHA official told us that, if the Appeals Council does not review these cases, OHA has them for an average of about 20 days before returning them to ODO. In 311 of the 5,741 cases, the Appeals Council reversed the ALJ decision, and in another 288 cases, the Council remanded them to ALJs for their reconsideration. (About

3 percent of the cases were pending as of Aug. 31, 1985.) Four of the 85 cases approved in October 1984 by ALJs from SSA's Cleveland office were selected for a Bellmon review. Two of these cases were screened and returned to ODO without Appeals Council action. These cases took 113 and 97 days from the dates of the ALJ decision to complete SSA payment processing. The Council reviewed the other two cases and remanded them to ALJs for reconsideration. For these cases, ALJs held new hearings and issued second decisions in the claimants' favor. These cases reached payment status 228 and 303 days after the original ALJ decisions.

HAVE PROCEDURESF OR PAYING DISABILITY CLAIMS

APPROVED BY FEDERAL COURTS BEEN IMPROVED?

According to officials from SSA's Office of Regulations and HHS' Office of General Counsel (OGC), SSA and U.S. attorneys have implemented procedures beginning in June 1984 that should enable ODO to reduce processing times for paying beneficiaries whose disability claims were approved by federal courts. Recent ODO studies showed that (1) for the 4-week periods ended February 1 and May 3, 1985, the average processing time from the date of the court order approving benefits to ODO's completion of payment processing decreased from 120 to 93 days and (2)

after new procedures for processing court orders were implemented in April 1985, a much higher percentage of the court orders were reaching ODO's Division of Appeals Processing within 30 days (67 vs. 19 percent).

Changes in procedures for processing court orders that we discussed with SSA and HHS officials included:

--In June 1984, OGC (the initial recipient of federal court orders approving disability claims) discontinued a policy of holding cases before sending them to SSA for payment processing and agreed to send documentation to SSA authorizing payments to claimants as soon as it had screened the case for a possible appeal. Before June 1984 OGC routinely held court orders until they were at least 60 days old before authorizing SSA to begin payment processing. This delay allowed OGC, SSA, and the Department of Justice the maximum time to consider whether an appeal was warranted. According to an OGC official, delays in paying court-ordered disability

benefits had resulted in many complaints and contempt-of-court lawsuits against SSA.

--In September 1984, OGC asked U.S. attorneys to expedite the mailing of court orders approving disability benefits to SSA. U.S. attorneys were to mail these court orders to special post office boxes.

--On April 1, 1985, OGC and SSA established new procedures for processing court orders approving disability benefits. Within 48 hours of receipt from U.S. attorneys, OGC forwards copies of these orders to the

litigation staff in SSA's Office of Regulations. The litigation staff forwards these cases to either 0~0 or PSCs within 48 hours. Unless the litigation staff

notifies the PSC or ODO within 10 days that the government is considering appealing the case, the case proceeds toward payment. During this lo-day period, the litigation staff reviews the court order and obtains opinions from ODO, OHA, OGC, and others on whether the government should appeal.

Table 3 shows that since SSA established its new processing procedures in April 1985, its records showed that a much higher percentage of the court orders were reaching ODO's Division of Appeals Processing within 30 days.

Table 3:

Length of Time for Court Orders to

Reach ODO's Division of Appeals Processing

Jan. 7 to Mar. 15, 1985 July 1 to Aug. 16, 1985

Number Percent Number Percent

Days of cases of cases of cases of cases

Under 30 282 19 716 67

30 to 59 564 39 171 16

60 to 89 243 17 67 6

90 and over 370 25 111 11

Total 1,459 100 1,065 100

(118133)

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LawAndOrder

Monday, October 28, 2013

socialNsecurity Appendix C

APPENDIX C

ALJs ISSUING 200 DECISIONS A MONTH

Paying Down The “Back Log”

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