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Rant

by David R. Bryant



SSA = Delay

All the nights in the world are worthless if the delay in granting those nights becomes effective denial. Such is the current case for Social Security disability appeals from unfavorable decisions by Judges. The Appeals Council is currently running about two years behind in arriving at decisions. In about 90% or more, the decision is another "denial". Thus the necessity of filing in U.S. District Court another year or two.

Attorney's clients, the Federal Courts and Congress should be asking "why". Claims of lack of staff are smoke screens since Regional Staff Counsel, normally assigned to prepare briefs for the local U.S. Attorney in Social Security cases, are now reviewing Appeals Council claims. Yet this is a stopgap measure that buries the actual cost of the A/C budget, as well as its competence.

My clients are calling every month to ask "when?" They are normally poor in debt, sitting home and worrying about their future - and I can't give an answer. Up until now, I have never told my clients to call their local congressman. In this case, I will make an exception. Call him/her AND write a letter.

The Federal Courts Commission (Posner) suggested that a Federal Disability Court would be better suited to handle the flood of appeals that swamped the Courts in the early 80's. When the A/C backlog is "solved" by denying everybody and moving the paper chase from one place (SSA) to another (the Federal Courts). This Posner suggestion will be revived and policy wonks will have another field day. History repeats itself. Why?

Attorneys are dealing with the problem by short circuiting normal practices. If the attorney requests copies of the "tapes" of testimony during the Hearing, this can add 3 to 4 months to the Appeal time. Solution? Don't ask. If the attorney files a brief and argument based on facts and law, the formula A/C decision does not deal with the arguments except in general terms. Solution? Don't file a brief. (Besides, the AC attorney? Staff quality is suspect).

Congress, under Clay Shaw (R. Ind) and the Ways & Means Subcommittee, has been silent on this issue even though Hearings on Delays by SSA has a long and fruitful history. Maybe they (Congress) are putting pressure on SSA behind the scenes. Right! This is an election year! At least they should make speeches about what they will do (if re-elected). Right! Make Shaw ask "why".

ALJ's (Judges), are caught in the middle and have recently unionized. In my opinion, this will be a mixed blessing for clients. At least, they will retain a semblance of "judicial independence" in spite of SSA administrative attempts to reduce their roles to a minimum. Yet no ALJ , in my recollection, has ever been sanctioned for inordinate delays in making decisions "as soon as practicable". Personally, I am aware of decision delays of up to a year after all evidence is "in". Maybe a file is slipping through the cracks but that shouldn't be my client's problem.

Under Doheney, Social Security was forced to set "goals" for States for processing claims within a certain time frame: 20 CFR 416.1040 et seq. (404.1642).

                  Target Levels            Threshold
Title II          37 days                  49.5
Title XVI         43 days                  57.9
This is one reason why clients are pushed to apply for SSI as well as DIB. Justified delay.

In order to prevent paper pushing, SSA set a 90% accuracy minimum on State Agency decisions. Right!

The ALJ is also under a time constraint of 90 days from the time a Request for Hearing or "as soon as practicable" 20 CFR 416.1453 (b)(2)(ii). Yet the A/C has no similar mandate. Why not? Certainly their own accuracy rate based on District Court remands and reversals do not meet the SSA standards imposed on State Agencies of 90.6%. Who assesses the Quality of the Appeals Council?

The Appeals Council should take its job seriously or get out of the business of representing itself as a quasi-judicial body. Meaningful, timely review is a joke at this time. But nobody is laughing.

That's my opinion. What's yours?

E-mail DRB

Dave Bryant
Olde Mann
June, 2000

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