Association of Attorney-Advisors
Paducah, Kentucky 42003
To:
The Subcommittee on Social Security
Of the Committee on Ways
and Means
Subject: Submission of Comments related to Hearing on May 2, 2002
I am the President of the Association of Attorney-Advisors, an organization comprised of attorneys throughout OHA, and includes in its membership both GS-12 Attorney-Advisors and GS-13 Senior Attorney-Advisors, as well as some attorneys who are members of management and some Administrative Law Judges. We have been reading with great interest the submissions of some of our fellow professionals who are concerned with the future direction of OHA. This paper is not designed to exhaust all of issues currently facing OHA, but to comment on some of the proposals which have been presented.
1. DDS receipt of hearing functions. It has been proposed that the hearing functions be removed from OHA, thereby dissolving the organization, and be added to the responsibilities of the state agencies. The Association of Attorney-Advisors is very much against that plan. It is the DDS position that disability determinations are solely a medical evaluation. The DDS believes that the ultimate arbitrator of disability should be the state agency physicians who review the medical records. This is contrary to existing law and regulation. The Social Security Act, related Regulations, Rulings and case law set forth the legal framework for analyzing the medical evidence of record. The ultimate decision regarding disability is reserved for the Commissioner, rather than any physician including a treating physician, much less a non-examining medical source. The law recognizes the need to evaluate multiple pieces of evidence from multiple sources and assign weight to each. Intangible aspects of a case, such as the credibility of a claimant’s complaints of pain, require more analysis than a review of objective tests alone can give. (see 20 CFR 404.1512, 20 CFR 416.912, 20 CFR 404.1527. 20 CFR 416.927, Social Security Ruling 96-2p, Social Security Ruling 96-5p and Social Security Ruling 96-6p.
Several years ago, the Agency underwent Process Unification Training (PUT) to help bring the state agencies into line with the legal requirements for determining disability. No substantive change has occurred in the state processing of claims. Little effort is made to properly evaluate a claimant’s credibility. Further, in many cases, development is not near completion when files are turned over to OHA. The state agencies have not shown the capacity for managing the legal requirements of our joint business. Turning the hearing process over to the state agency would dramatically change the claimant’s due process rights and would eliminate his ability to receive a proper legal determination regarding whether entitlement to benefits.
The Association is also concerned with the timelines promised in proposal. One of the challenging aspects of disability determinations is ensuring reasonable development of the record has occurred. Many medical sources take longer to respond to requests for records than the proposed time frames would allow. One reason for the disparity among cases denied at the DDS level but paid at the OHA level is the additional development that OHA accomplishes. The “fair hearing” proposed by the DDS is fair only if adequate development has occurred. A “fair hearing” is fair only, if after being apprised of his rights, a claimant has sufficient time to obtain representation and opportunity to ensure the record is as complete as possible.
2. Elimination of reconsideration reviews. One of the programs which has been tested is the elimination of the reconsideration level of review at the state agency level. We recommend this be considered for a nationwide test. As a general rule, the reconsideration level of evaluation does not add value to the process. Little new development is performed at that step. If the funds that were used to carry out the reconsideration process were used for better development at the initial level of consideration or to increase fees paid to medical consultants, the claimant would be much better served.
3. Consideration of a Government Representative Program. The government representation program would have many advantages. Administrative Law Judges would be relieved of the burden of case development and could assume a more traditional judicial role. They could focus on hearing and deciding cases, rather than performing the ongoing reviews required in current efforts to schedule cases. Attorneys assuming the duties of government representative would have the opportunity to more fully utilize their skills as advocates. Many of the OHA attorneys have backgrounds as former prosecutors and civil litigators who are more than capable of evaluating a case, ordering development, negotiating settlements, and making presentations during the hearing. The job of the Administrative Law Judge would be made much easier by having issues defined and ready for evaluation at the hearing, thus expediting the process for the claimant. For those attorneys who do not want these additional duties, there will still be a need for competent attorneys to engage solely in decision writing for the Administrative Law Judges. It makes sense for the Agency to fully utilize the experience and skill of its staff. The Association of Attorney-Advisors feels this program has a long-term promise.
4. The “old” Senior Attorney Program. The only program which has thus far demonstrated the ability to speed up the processing of favorable decisions is the prior Senior Attorney Program. The Agency is well aware of the success of the program in cutting down the backlog of cases and reducing average case processing times. Serious consideration should be given to returning signature authority to the Senior Attorneys.
5. Two other recommendations for immediate relief. There were numerous problems with HPI, which have been addressed in depth in other documents. At the heart of the failure was the lack of trust the Agency had in its management and employees. Local management had minimal imput in the implementation in HPI. Forcing a “one size fits all” approach will not bring about further improvement. Prior to bringing about any change, the Agency needs to collectively take a deep breath and look at the progress of individual offices. Some offices are fully staffed in judges, others are woefully short. Some offices need more managers to handle the workload, others may need to decrease the management team. Some offices are overstaffed in writers, others need more. Almost every office needs some degree of supplemental support staff. We need to avoid any approach where manning edicts are made across the board ranging from full-time receptionists to additional case technicians. Local management should be given a voice to individual office manning concerns.
A) Support Staff – Funding needs to be made available to be able to hire adequate support staff to manage all the administrative functions associated with hearing cases. Local management needs to ensure there staff is doing its best to work up cases, however, in some offices workload far exceeds the available staff. It is inexcusable that a claimant would have to wait months just to have a case technician work up his case.
B) Administrative Law Judge support – In some offices, the staffing of Administrative Law Judge slots is significantly less than needed to adequately hear cases. While many offices report the need for more Administrative Law Judges, hiring could be delayed indefinitely due to the litigation with OPM in regards to the Azdell case. Pending resolution of Azdell, some measure must be taken to get additional cases heard. The time has come for serious consideration of some form of magistrate’s program, where claimants could opt to have their cases heard by an attorney magistrate in lieu of a judge. Unlike the Adjudication Officer program, the attorney magistrate would need to be empowered to hold full hearings and issue unfavorable as well as favorable decisions. Although increasing the number of Administrative Law Judges would be preferred, until that is possible, the position of magistrate would enable additional cases to be heard and give claimant’s final resolution in the disability process.
Thank you for your attention. This is intended to be a general overview of our position. We welcome the opportunity to discuss any plans in further detail. We hope that a process can be worked out to enable OHA to better serve the needs of the claimants and the general public.
Lisa Russell Hall
President