The Preamble
During the late 1980’s, the New Orleans Office of Hearings and Appeals had 12 Administrative Law Judges, each of whom had a caseload of 200-250 claimants. Through illness, death, and resignation the number of ALJ’s has shrunk to 7, and because of the huge nationwide increase in disability applications, the average caseload is now over 1,000 claimants per judge!! This convergence of a diminishing number of judges and rising number of claims literally brought the New Orleans OHA to a standstill during the latter half of 1993. When it because apparent that the only resolution of this national trend would be strong local action, a core group of attorneys and ALJ’s informally banded together in an effort to ease our client’s agony. It has always been difficult for our clients to wait 4-6 months from the reconsideration denial for their hearing. But when that delay routinely began stretching to 6-12 months, their cries of frustration could not be ignored by even the most hard-hearted.
Yes, Virginia, There Is A Crisis
Any lawyer with a decent caseload of disability clients knew that something went terribly wrong with the system last year. How could we have more cases than ever before at OHA but less hearings held, and less decisions rendered? Everyone likes to point fingers, but would you like the job of telling the ALJ’s to work harder?
The first crack in the dam of apathy came when the HOCALJ in New Orleans wrote a letter to the newspaper and attributed the delays to the increase in filings, but definitely not to the laziness of his “loyal and devoted” hearing assistants and hearing clerks. How a letter to the editor could relieve hunger and suffering was a mystery to other ALJ’s and lawyers alike. But it caused a reaction.
At the urging of several judges, I responded. (See Exhibit A). I requested a meeting of all interested ALJ’s and claimants’ representatives in an effort to see if a local solution could be hammered out. I was told by an ALJ that when my letter was presented to the other judges, the notion of a “crisis” was ridiculed, and the idea of meeting with those pesky lawyers was laughed at. One judge said his tennis game was more important, and one judge blamed “unprepared attorneys” for the entire crisis! I swear it.
Cooler heads must have prevailed because a few days later, a letter appeared on the Security Guard’s desk at OHA, announcing a meeting in 10 days. (See Exhibit B). Now, the pressure was on, because we actually had to figure out what to propose. But in the midst of a brutally cold winter, the blanket of poverty is very thin, and the sad voices of our clients showed the way.
The Meeting
Some of them were friendly, some were ciphers, and some wore a long face. But they were there. Each and every one of the 7 ALJ’s was waiting for us when we arrived at Federal Court for our meeting. It was probably the first time in the history of Louisiana that all of the judges in one discipline met with the lawyers who represent 75% of their cases.
The Chief Judge opened the meeting by asking me if I had any opening comments. Nothing like being put on the spot! But, I was ready.
In an effort to ameliorate the crisis, I made four proposals:
- Within 60 days, all attorneys with “aged” cases not yet set for hearing, should be permitted to come to OHA for a “Scheduling Day”. The attorneys would meet with the hearing assistant for each ALJ, and seek to get cases scheduled where more than 12 months had elapsed since the Request for Hearing had been filed.
- To assuage angry ALJ’s and hearing assistants, who claim that New Orleans lawyers are sending in numerous duplicate medical records (and thereby wasting “hours” of their precious time culling the duplicates) all attorneys will assume responsibility for the problem. Should any attorney send in duplicates that will lead to more than 10 minutes of culling, the hearing assistant will call the attorney’s office immediately, and a staff member will be sent to OHA to eliminate the problem. (No calls yet!).
- The central mail system at OHA is an abomination. Important medical evidence can be hand-delivered to the OHA mail clerks before a hearing, and it disappears into a Black Hole! Where does it go? Accordingly, I proposed that all lawyers be permitted to personally place any mail for an ALJ, directly into that ALJ’s mail slot. That way, we know it will get to the ALJ or else we know who is responsible for the vanishing act.
- A committee of ALJ’s and lawyers should be set up to initiate, analyze, and implement any reasonable proposals which would lead to a better working relationship between judges and attorneys. I suggested that there be four ALJ’s and three lawyers on the committee, and that the committee meet periodically. All members of the committee must be completely rotated every six months.
Other attorneys in attendance also had suggestions, such as scheduling hearings far enough in advance so that updated medicals could be obtained prior to the hearing. After two and one half hours of discussion, the HOCALJ decided that I would meet with him to discuss putting some of these ideas into effect. We left believing that changes would be made, and, to a very limited extent, we have been proven partially correct.
The Implementation
Within a week of the en banc meeting, I met with the HOCALJ. A proposal for a new incoming mail system and central file system was circulated by an interested ALJ prior to the meeting, but was tabled. (See exhibit C). No steps were taken to form an ongoing committee of ALJ’s and attorneys either. What was acted upon was the request to have a Scheduling Day.
In my discussion with the HOCALJ and his staff, we learned that OHA can print out, in five minutes, a list of cases at OHA, by attorney, and in chronological order by request for hearing date. (See exhibit D, which represents one page of the March printout). This meant that OHA could now identify every lawyer’s oldest cases and we could seek to get those scheduled as soon as possible. To facilitate scheduling, OHA announced a Scheduling Day every second Wednesday of the month. The chronological printout was to be made available to the attorney on the Friday before Scheduling Day, so the lawyer could prepare for scheduling. (See Notice to Attorneys, exhibit E). In return for this scheduling project, the attorneys agreed to dispense with the issuance of a Notice of Hearing. One ALJ had each attorney sign the Oral Confirmation of Hearing. (See exhibit F).
Chipping Away At the Backlog
We have had two Scheduling Days since the meeting of lawyers and ALJ’s. I scheduled forty of my most aged cases on those two days, simply by meeting with each ALJ’s hearing assistant. In between Scheduling Days, the OHA staff continues to call and schedule those cases that the ALJ wants to set for a hearing. While this by no means represents a substantial number of cases scheduled, it does represent a significant number of aged cases scheduled. The only cases waiting for scheduling now which are over a year old are those that are lost, or which were lost and recently located. March, 1994 was our busiest month of all time in terms of hearings held.
We are in business to move cases along, and at long last, there is some brief glimmer of hope that the log jam will be set free.
Other Methods of Expediting Cases
Over the last few months, the attorneys and judges have managed to hammer out two other means of speeding up the dreadfully slow process. “On the record” favorable decisions are now being rendered at a greater rate. However, many of the judges are looking for compromises, and we are being asked to consent to amended onset dates and closed periods. Of course, it is imperative that you obtain your client’s permission prior to consenting to the compromise.
Several ALJ’s have allowed the attorneys to draft favorable decisions. We are in favor of this procedure, because we can get the decision out in one day, rather than waiting 90-120 days — the usual delay after the hearing at our OHA. Taking the time to write the decision is no harder than drafting proposed findings of fact and conclusions of law in a federal litigation case. To help out, the ALJ’s have informally approved a boilerplate Favorable Decision which I have annexed. (See exhibit G).
Some Closing Thoughts
Sometimes I worry that having so many hearings in a short time is like being a practitioner in Traffic Court. Are we trying to move too many cases through an antiquated system?
I really don’t think so. The Social Security Administration has kept these people waiting so overly long that any meaningful steps we take on their behalf are far better than having their case remain in legal limbo. We have not accomplished much yet. So far, we are merely getting more cases heard. But, it is a start, and at least we have established a meaningful dialogue with ALJ’s who had at first refused to meet with us. I do not believe that you can gain the reputation you desire if you allow OHA to remain paralyzed.
Get the cases moving! Call your HOCALJ today!!