Update on the Administrative Process, Discussion of Evidence Gathering and the Impact on Administrative Practice

Amy Gilbrough and Victoria ChhaganDouglas Drachler McKee & Gilbrough

November 6, 2015

• Concerns Regarding the Administrative Process and Impact on Claimants

• Evidence Gathering Throughout the Administrative Process.

• EAJA Offset.• Considering Impacts of Remedy

Determinations on Remand Proceedings.

Concerns Regarding the Administrative Process and Impact on Claimants

“Hearing processing times are increasing. ALJ allowance rates are decreasing. Cases pending more than one year are increasing. Senior attorney advisor fully favorable decisions are decreasing. The number of cases pending per ALJ are increasing. The number of available ALJs is decreasing.” NOSSCR Social Security Forum, Volume 36, Number 11, December, 2014.

  Seattle Tacoma NationalFY 2008 ---------   ---------- 63FY 2009 --------- ----------- 63FY 2010 75% N/A 62FY 2011 66% N/A 58FY 2012 54% 53% 52FY 2013 42% 60% 48FY 2014 41% 63% 45FY 2015 40% 59% N/A

Decreasing Allowance Rates at the Hearing Level

The nation has seen a significant decrease in the percentage of cases granted at the hearing level, from 62% in 2010 to 45% in 2014, a 17% change. The change in rates at the Seattle Hearing office, has been even greater. In FY 2010, claimants in Seattle received favorable decisions on average 75% of the time. That number sank to 40% in 2015; a 35% decrease.

Decreasing Reversal Rates at the Appeals Council

Year Cases Allowed or Remanded

2008 24%

2009 24%

2010 24%

2011 23%

2012 20%

2013 18%

2014 15%

In this same period, the Appeals Council Granted Review in a declining number of cases.

Fewer Hearing Decisions Are Being Issued in Seattle and Nationwide

Received Dispositions National Decisions FY 2010 8593 8739 619,887 FY 2011 5329 8900 662,765 FY 2012 7607 7682 668,061 FY 2013 7835 7858 629,337 FY 2014 6562 6175 530,574 FY 2015 7660 5220 N/A

Waits for Hearings Are Increasing

Date Seattle Hearing Office Wait Time (days)

Seattle Hearing Office Wait Time (months)

2010 437 14.5 2011 391 132012 323 10.82013 317 10.62014 362 122015 410 13.7

• In 2010, the average wait time for a hearing was 437 days, or 14.5 months.

• Because of Commissioner Astrue’s initiatives in 2013 the wait reached a low of 317 days, or 10.6 months.

• Since 2013, the wait time has been climbing.

• At the end of August, the wait in the Seattle hearing office was 456 days, or 15.2 months.

Impact: Claimants Who Are Denied Initially and on Reconsideration

• Loss of Income for at least a year. • Loss of Housing for at least a year.• Difficulties Obtaining Medical Treatment.

“People disabled by psychiatric illness depend on Supplemental Security Income (SSI) and Social Security Disability Insurance (DI) benefits to meet their basic needs. Disability payments provide critical financial support in preventing homelessness among the indigent and contribute to improved outcomes when homeless mentally ill people receive treatment.” U.S. Social Security Administration, Office of Policy, available at https://www.ssa.gov/policy/docs/ssb/v67n1/v67n1p53.html.

Impact: Increased Federal Court Filings

“The Court’s Social Security filings have increased 171 percent over the past four years (from 298 in 2010 to 807 in 2013).” Pechman, Martha, J., The Rise of Social Security Disability Appeals, Federal Bar Assoc. W.D.Wash., Volume 36, Issue 1, Summer 2014, available at http://www.fba-wdwash.org/newsletters/FBASummer14.pdf.

The increase in district court filings may reasonably be linked to a precipitous decline in the number of claims allowed at the hearing and appeals council levels. This increase in disability appeals has been matched by decreasing number of cases being granted at the hearing level as well as decreasing number of denials being reviewed and reversed by the Appeals Council since 2010.

The article identified three possible reasons for the explosion in Social Security filings:

1. The EAJA allows attorneys to get paid for fighting a successful Social Security appeal.

2. Social Security decisions are reversed with frequency in this district.

3. States encourage claimants to file for Social Security benefits.

While these factors certainly promote applications for and appeals of Social Security benefits, all of these facts have been true since long prior to 2010 and therefore the surge in cases since 2010 cannot reasonably be linked to these factors.

Evidence Gathering Throughout the Administrative Process

• All Evidence Regulations – Effective April 20, 2015, Social Security claimant’s

were required to: “inform [Social Security] about or submit all evidence known to you that relates to your disability claim.” 80 FR 14828-38 (March 20, 2015).

• Consultative Examinations/Medical Experts.• Barriers to Developing a Good Administrative

Record.

EAJA Offset EAJA belongs to the Plaintiff under Astrue v. Ratliff, 130 S.Ct. 2521 (2010).

If an EAJA recipient has child support debt, educational loans, tax debt, or other federal debt, the amount of EAJA is sent to the Department of Treasury to repay the debt, and not to the Plaintiff or her attorney.

Number of cases impacted by this is not clear – anecdotally 10-15%.

Federal Court attorneys and can do check for debt prior to accepting a case on appeal.

If EAJA is offset, attorneys will look to fees under 42 U.S.C. 406(b) for payment, if a favorable decision is reached on remand or if the Court orders calculation of benefits.

Considering Impacts of Remedy Determinations on Remand Proceedings.

• Whether to affirm specific findings, i.e. credibility or rejection of medical opinions.

• Whether to address all the issues raised where the appropriate remedy is remand.

• How to give ALJ’s leeway in light of new evidence or conditions on remand.