Numbers and Statistics for Social Security ALJ Decsions

Here is the breakdown from the SSA data found in December of 2012 at Social Security’s website.

On cases that get to a decision:

Fully Favorable 50.1 %

Partially Favorable 5.8 %

Unfavorable 44.1 %

When dismissals are included (I assumed the cases that were dispositions but not decisions to be dismissals). I am surprised by the number of cases that seem to get dismissed. I would assume that dismissals fall into two broad categories – failing to appear at a hearing, or requesting that the claim for benefits be withdrawn.

Dismissed 22.9 %

Fully Favorable 38.7 %

Partially Favorable 4.5 %

Unfavorable 34.0 %

Benchslap: Posner Schools ALJ on How to Be a Judge (blogs.findlaw.com)

It’s hard to win if you don’t show up to your Social Security Hearing

Well, it happened again last week – I could hear a judge lamenting the fact that a person who had a disability hearing scheduled did not show up. From the sounds of it, the judge was ready to approve the case, but wanted to see the claimant in-person. While this person’s case will probably not be thrown out without the judge asking the person to explain him or herself, it is certainly going to delay things. And if there is one thing I can say about most of my clients, it’s that they need money and insurance sooner rather than later.

The Social Security Administration has a guidebook called the HALLEX. SSA has the following to say about the HALLEX:

Through HALLEX, the Deputy Commissioner for Disability Adjudication and Review conveys guiding principles, procedural guidance, and information to Office of Disability Adjudication and Review staff. HALLEX defines procedures for carrying out policy and provides guidance for processing and adjudicating claims at the hearing, Appeals Council, and civil action levels.

This HALLEX section deals with a no-show claimant. Most likely a notice to show cause will be issued. This will place the burden on the missing claimant to explain why he or she did not make it into the hearing. If the judge finds that good cause was established, then the hearing will be rescheduled. If the judge finds that good cause was not established, the case will likely be dismissed. The judge is urged by HALLEX to consider the following:

Before dismissing a claimant’s [request for hearing] for failure to appear, the ALJ must ensure that the claimant fully understood the possible consequences of his or her failure to appear. This requires documentation in the record that the claimant received the Notice of Hearing.

It is interesting to note that if the claimant has a representative, HALLEX says:

NOTE: If a representative appears at a scheduled hearing without the claimant, dismissal is never appropriate.

If the person would have had the attorney or representative, that person could have let the judge know that HALLEX gives the judge another good solution if the case is very strong to begin with:

If the evidence of record appears to support a fully favorable decision and thus the hearing may not be necessary, the ALJ should consider whether he or she can issue a fully favorable decision instead of dismissing the [request for hearing].

At the end of the day, it is best to show up to your hearing. If you have a good reason for missing it, you might get a second chance. Why increase the time your case takes? Most people are waiting between one and two years to get their hearings scheduled.

Attorney B. Thomas Golden practices Social Security disability and SSI law from his offices in Ionia, Michigan and Lowell, Michigan. He can be reached by calling (616) 897-2900 or (616) 527-9700. Initial consultations are always free. So if you are wondering about how to apply for disability benefits, or wondering how to appeal a denial of Social Security benefits, please call us today.

Why practice disability law?

For the past several years I have had the privilege to represent Michigan Social Security attorneys through my service as a council member to the Social Security Lawyers Section of the State Bar of Michigan. Today is my last day as Treasurer of the section.

Our section strives to improve the representation of disabled individuals through education advocacy, and seminars. It has been a great learning experience. I am often humbled to be in such knowledgable company. In my office, in my building, in my small town, I must admit that sometimes I feel like a big shot; but put me beside these skilled advocates and I know I will forever be learning about disability representation.

Don’t count me out just yet, for as far as I can tell I will move on and become the Secretary of the Section. I truly cannot wait to continue my growth as a disability attorney. This is the one area of law that keeps my attention, and while I have no idea what the future holds, I know at hundreds of people are counting on me.

Even though the laws are the same, judges are denying more cases than ever. Nobody judge to be singled out for “giving away” too much money. Nobody wants to end up on the front page of the newspaper for awarding benefits to some scam artist or drug attic. Some people are shying away from this practice, but it only makes me want to dig in even more. I know I appreciate each victory more than ever, and my clients seem forever-grateful for the help. Who would want to do anything else?

What Will My Social Security Hearing Be Like?

I would like to spend a little bit of time answering some routine questions I get about ALJ hearings.

Where will it be?

You will need to look at your Notice of Hearing to determine where your hearing is. The Notice of Hearing will give the time, date, and location of your hearing. I was reminded of this simple lesson recently when certain Grand Rapids hearings started to get scheduled at the Field Office instead of the ODAR office. The location of the hearing will also be on the form called Acknowledgement of Receipt (Notice of Hearing). I advise clients to arrive about 45 minutes early. This usually gives a person enough time to get lost, find the building, find a parking spot, and still have time to check in before the hearing.

Who will be there?

A typical hearing has only a few people in the room. The judge will be there, along with a hearing monitor. The monitor makes sure a good recording is made in case anybody needs to listen to the audio of the hearing. You will be there – well, at least if you want a decent shot to win your case. There is usually a Vocational Expert at the hearing too. This person tells the judge what type of work you did in the past, and he or she will also answer some hypothetical questions regarding a person with the same age, education, work experience, and ability to do work-related activities.

Can I bring witnesses?

You can always ask to have a witness testify. Some judges will allow it, some judges say no, and other judges are somewhere in between.

Is it open to the public?

No, it’s not like a regular court room where people can wander in and out. If you are not part of the case, you will not be going into the hearing room.

How long will the hearing take?

There is no good answer to that question. I have had hearing that lasted five minutes, and I have had hearings that lasted two hours. It depends on the claimant, the judge, vocational expert, the evidence, and about a hundred other things. I would say the average hearing takes about 40 minutes.

Wait Times for a Decision in Michigan Social Security Cases

Here are the hearing times process numbers for a the offices where I have most of my hearings. According to Social Security, these numbers represent the “average number of days until final disposition of the hearing request.” You can check all of the hearing office processing times at the following link, by clicking here to access Social Security’s website.

The numbers for Michigan Social Security Disability and SSI cases are all over the map.

Grand Rapids, Michigan: 441 days.

This paces Grand Rapids ODAR as the 160th fastest hearing office Social Security has. In other words, there are only five other offices that take longer to process a case from the hearing request until a decision is made. Most of my Ionia County and Kent County, Michigan cases go to the Grand Rapids ODAR.

Lansing, Michigan: 290 days.

This office places 31 out of 165 offices around the country. The Lansing ODAR has really improved its ranking in the last 24 months. Lansing and Grand Rapids would consistently both find themselves in the bottom ten up until recently.

Mount Pleasant, Michigan: 369 days.

It is ranked 109/165. It seems like their processing time has been slipping lately.

What about the Freedom of Information Act?

The Problem

The Office of Disability Adjudication and Review (ODAR) has a new policy that prohibits releasing the name of the Administrative Law Judge (ALJ) assigned to hear a case until the day of the hearing. Attorneys for disabled individuals seem to be universally against this foolish policy.

My Solution

Use the Freedom of Information Act (FOIA) to request the name of the ALJ assigned to your case. The disclosure of the name of an ALJ assigned to a disability case should be permitted. The Social Security Administration (SSA) seems pretty open with its FOIA responses. After all, they provided to the Wall Street Journal, the names of the ten individuals who earned the most dollars in attorney fees last year, right down to the penny.

FOIA Background

A memorandum from the President’s Pen on his first day of office stated:

My Administration is committed to creating an unprecedented level of openness in Government. We will work together to ensure the public trust and establish a system of transparency, public participation, and collaboration. Openness will strengthen our democracy and promote efficiency and effectiveness in Government.

In response to the President’s directive, the SSA also created its Open Government Plan. Goal Number One of the Open Government Plan is to increase transparency.

SSA goes on to say:

Through our Freedom of Information Act (FOIA) program we ensure transparency through a “presumption of openness.”

And

We are committed to achieving an unprecedented level of openness in government.

If this is their real policy, then why in the world did they decide one day that disabled individuals no longer need to know who their ALJ is going to be until the day of the hearing?

Process

Straight from the FOIA page on SSA’s website:

The Freedom of Information Act allows members of the public to request records from various Federal government agencies. The FOIA was established to make the federal government accountable to the public for its actions and prevents agencies from having secret policies.

You can make a request online, mail, or fax.

The rules regarding submission of FOIA requests are simple – just tell them who you are and what information you want. SSA’s own website, says your letter and envelope needs to say “FREEDOM OF INFORMATION REQUEST” or “INFORMATION REQUEST” and be sent to one of the addresses below. Make sure your letter includes your name, address, and the specific information you want. SSA also asks that you include a phone number or email address. However, SSA is not very clear as to what specific address out of the two listed below you need to send your request to:

Social Security Administration
OEO FOIA Workgroup
300 N. Greene Street
P.O. Box 33022
Baltimore, Maryland 21290-3022

Social Security Administration
Office of Privacy and Disclosure
617 Altmeyer Building
6401 Security Boulevard
Baltimore, Maryland 21235
Fax: (410) 966-0869

I used the second address when I sent out my recent requests because that address said “for all other requests” and because it had a fax number. I sent my requests by fax so that I have proof that SSA received my request.

As an attorney, my request looked something like this:

FREEDOM OF INFORMATION ACT REQUEST

Dear Reader:

I am the attorney of record who represents the individual listed below in connection with that person’s claim for Social Security benefits. There is currently a case pending at the Social Security Administration’s Office of Disability Adjudication and Review. It is my understanding that Goal Number 1 of the Social Security Administration’s Open Government Mission is to increase governmental transparency. Under the Freedom of Information Act, we request the name of the Administrative Law Judge assigned to hear the case. We have enclosed form 1696 so you can easily verify our representation of the Claimant.

Name of Claimant:

Claim Number:

You may send your response in writing to:

Outcome

I recently sent out several FOIA requests for cases with upcoming hearings. I have no idea how SSA will respond. I hope they respect their own policy of openness and transparency and disclose this important and helpful information.

Open Government my SSA

Have you even been punished for something you didn’t do? Parents and teachers have been guilty of the punish-everybody-for-the-misdeeds-of-a-few since … well, forever. Sometimes it works. The undesired behavior is eliminated, and the authority figure can pat themselves on the back for a job well done. Other times, the punishment is so ill-conceived that one Michigan attorney who should be in bed, is sitting at his kitchen table after midnight writing about how overreaching the punishment is.

December 19, 2011 marks the first day that the Social Security Administration unrolls a new policy of not informing attorneys or claimants of the judge assigned to hear a disability case until the day of the hearing. The policy has been lovingly dubbed the Mystery ALJ Policy. The news was leaked on the internet last week and the policy was later confirmed by multiple Social Security employees.

This policy is a disaster. I really expect attorneys to be outraged by this. Here’s why. I prepare each and every case to the individual preferences of the judge assigned. Just like writing a term paper in college, or giving a presentation to a large group of people, the first rule is know your audience. Some judges like a written brief, some judges ignore them; some judges like to hear from witnesses, some judges do not; some judges run on time, some are not; most judges are reasonable, some are not.

Is this not the age of open and transparent government? During President Obama’s first full day in office, he signed an Executive Order that laughably begins with the following statement:

“A democracy requires accountability, and accountability requires transparency. As Justice Louis Brandeis wrote, ‘sunlight is said to be the best of disinfectants.'”

The President went on to say, according to one article:

“My Administration is committed to creating an unprecedented level of openness in Government.”

This new Social Security policy is toxic – it needs some sunlight. From what I understand, the brilliant policy came from high above, with no input requested from Social Security employees, judges, or attorneys. It was basically a knee-jerk reaction to a few idiots who figured out how to game the system by getting certain judges assigned to their cases.

Withholding important information from claimants and their attorneys is certainly against the promise of governmental openness.

Should I Apply for State Disability?

If you live in Michigan and are applying for Social Security Disability or SSI, you should strongly consider applying for Michigan State Disability Assistance (“SDA”). This is a state-run program that provides medical insurance and cash benefits if you are approved. The main difference between the two programs is that to get approved for SDA, you generally must show that you are unable to work for a period of 90 or more days (as compared to 12 months in Social Security cases). Here is a link to the State of Michigan website for the specific eligibility requirements.

Make no mistake though, SDA provides a very minimal amount of cash on a monthly basis – $268 (as opposed to $678 for SSI and typically about $1000 for Social Security Disability). If you are living on nothing, $268.00 can make a big difference in your life. By law, your SDA application must be approved or denied within 60 days. IF you are denied, you have the right to appeal that decision and have a hearing before an administrative law judge. In Ionia, Michigan, there hearings are typically conducted by phone from your local Department of Human Services (“DHS”) office. You do have an absolute right to have an in-person hearing, but this usually results in a significant delay.

You can begin the application process online, by printing out an application here. You can also find your local DHS office by clicking here.

Wait Times for Social Security Disability and SSI appeals in Michigan

Wait times in Michigan are all over the map, according to a recent Social Security report accessed on November 24, 2011.

Detroit: 293 days. 37th out of 161 offices.

Flint: 304days. 44th out of 161 offices.

Grand Rapids: 451 days. 160th out of 161 offices.

Lansing: 292 days. 36th out of 161 offices.

Livonia: 291 days. 34th out of 161 offices.

Mount Pleasant: 335 days. 68th out of 161 offices.

Oak Park: 394 134th out of 161 offices.

As you can see, most offices are moving cases relatively quickly. The obvious exception is the Grand Rapids ODAR, which is the second slowest office in the country.

B. Thomas Golden is a Michigan attorney who practices Social Security disability and SSI law. He handles Social Security disability and SSI appeals, hearings, and applications. He has offices in Ionia and Lowell, Michigan. For more information, please call his office directly at (616)897-2900.

(Non) Adversarial Social Security Disability Hearings

I have already written (here and here) about Senator Coburn’s efforts to reduce the federal budget by weakening the very minimal safety net provided by Social Security disability and SSI benefits.

In Michigan, after Social Security denies an application, many clients choose to appeal the denial to an impartial Administrative Law Judge. After a year or two wait, their case finally makes it before a judge who has to decide whether or not the person is truly disabled under the law. The claimant presents his or her case, and the judge makes a decision.

Senator Coburn now proposes the idea of adding US government attorneys to the ALJ hearing process on pages 545 and 546 of his Back in Black publication. In the Senator’s own words:

Under this proposal, the attorney for the government would also be responsible for developing and submitting evidence that the claimant is not suitable for disability benefits, which under current law, the claimant is not required to submit. The government would be represented at the ALJ disability hearing.

Attorneys who represent claimants in these hearings are against this measure. The hallmark of the Social Security system is that it’s non-adversarial. Disabled claimants are simply trying to get the government to recognize their inability to work because of physical and/or mental impairments.

When I sit back and think about it, there is one scenario where I would be able to support the idea of having an a government attorney oppose benefits at the ALJ hearing – if we got to present out case to a jury that made the ultimate disability determination.

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