SSA Magnifying Glass for Even the Most Obvious Cases, No “OTRs”

March 23, 2015

This is a first in a series of blogs which will explain why Social Security disability benefits are so hard to get, and why the process takes so long. Please stay tuned for more in the coming weeks. With Social Security disability, the process has always been driven by what happens at the hearing level after people are denied not once but twice. The statistics associated with approvals at what is known as the initial and reconsideration level (before one has a right to request a hearing with an Administrative Law Judge) have remained about the same for the past 35 years I have been helping people – many arbitrary denials, yielding appeals pending at the hearing offices with the judges. In 2005-2012, as the SSA backlog at the hearing offices steadily grew, SSA struggled with how to handle the growing backlog. Part of the current media and legislative firestorm revolves around false notions that the hearing offices paid down the backlog, supposedly putting undeserving claimants on the rolls in a bad economy with much unemployment.

Over the years, it was astonishing to see and hear certain of the out-of-state visiting ALJs (assigned to help reduce the backlog) explain with pride that they had never had a case where they saw fit to approve the beleaguered claimant without the need for a full hearing and the delay, hardship, and injustice associated with such a posture. My reaction was, “Really, knowing how these claims are adjudicated at the lower level, you have never seen a worthy file of a person with debilitating multiple sclerosis, chronic back pain with clear outpatient medical records, a person with obvious very limiting diabetic complications, cancer or severe mental illness where you said to yourself, this person should not have to wait on the docket for a year for me to scrutinize all this, maybe some people need a hearing, but not this human being?”

The numbers tell the story here. The hearing offices, before 2013 and 2014 had an intelligent plan to allow senior attorneys to approve claims where the medical paperwork alone made clear the eligibility of the given claimant. These decisions are known as OTRs, an abbreviation for decisions on the record. At Nash, we have always felt a key to helping our clients was getting the right evidence in the right place with the right person at the right time. We were able to help many of our clients get such OTRs. But see the decline nationwide in the number of these senior attorney advisor decisions:

Those numbers not only point to the harder notion but also help explain the why so long. Absent those OTR decisions, every claimant is waiting far longer for a hearing than they would be if the obvious claims were promptly recognized as such.

Interestingly, applications have gone down in each of the last 3 years as have the hearing office receipts, so the backlog should be less, right? No, the hearing office backlog (the wait till one gets the hearing justice, the first time a real person deciding the case sees you, after having been turned down twice in the very arbitrary earlier process) has steadily increased each and every one of the past 3 years and shows every sign of growing. If one were to assume for the sake of argument that the hearing offices approved too many cases on the record in the years leading up to the above OTR decline, how in the world can it be justified that the entire OTR program has now been effectively abolished? How does the system go from 37,423 OTR’s in year 2012 to 1872 in year 2014? Throwing out the baby with the bath water, that’s how.