My first reading was that the proposed rules concerning Administrative Law Judge (ALJ) decisions and the Review Board, which is to replace the Appeals Council, say that if the Review Board or a Federal Court remands a case that the ALJ may only consider the time period up to the initial ALJ decision. I am surprised to say that my second reading is the same. This would mean that on any remand, an ALJ could only award a closed period of disability up to the date of the initial ALJ decision.
To say this comes out of left field is to put it mildly. I had not heard anything previously indicating that such an idea had ever been under consideration. I cannot imagine that this was under consideration for more than a short time before publication, since word would have leaked out if this proposal had been around long.
I do not see how this comports with the medical improvement standard, which applies to closed period cases. In remand cases, benefits would be cut off even though the evidence would show no improvement and might well show a decline in the claimant's condition. Indeed, the claimant might be dead and yet his or her benefits would be summarily cut off as of the date of the first ALJ decision. The claimant would have to show all over again that he or she was disabled.
If the Social Security Administration has the power to do this, the logical corollary would be that the Social Security Administration has the power to limit any determination of disability at any level of review to a closed period of disability, meaning that once any claimant was approved for Social Security disability benefits, he or she would have to immediately begin a new claim for disability benefits if he or she wished more benefits. Obviously, this would make a mockery of the medical improvement standard and, indeed, would make Social Security disability benefits a never ending merry-go-round that would eventually exhaust any claimant, no matter how disabled.
I do not see how the Social Security Administration may limit the effect of a United States District Court remand in this way. I would expect that many District Courts would issue specific orders to the contrary.
I am surprised that the Social Security Administration would undertake such a dramatic change in its procedures without any prior notice to Congress as best I can tell. I think this will not play well with the Senate Finance Committee and House Social Security Subcommittee.
On a more personal level, why was it that neither Michael Astrue nor Lisa De Soto mentioned anything about this when they spoke at the conference of the National Organization of Social Security Claimants Representatives (NOSSCR) just a weeks ago? They mentioned other items from this proposal but did not mention this dramatic item. (And, by the way, there are other bad items in this that they did not mention. This is just the most dramatic. I will get to the others as I have time.) Why speak at all if you are going to do this?
What is not completely clear to me is whether the proposal would limit the effect of any reversal by the Review Board or a United States District Court to a closed period. I think this is what is intended, but I have so far been unable to find any language in the proposal that specifically covers this situation. It would be inconsistent if this is not what was intended. The lack of clear language on this point adds to the impression that this part of the regulatory proposal was drafted hurriedly.
I think what bothers me the most about this is that it creates a classic trap for the unwary. Experienced Social Security attorneys can mostly get around the problem created by this provision by having the claimant file a new claim in addition to an appeal. By the time any remand happens, there will be a new claim to be consolidated with the remand in order to get full justice for the claimant. It will only be the claimants represented by inexperienced attorneys or who are unrepresented who will be hurt by this.
If Congress can add a budget rider that limits the Social Security Administration's ability to close field offices, Congress can certainly add a budget rider prohibiting the expenditure of funds for preparing final regulations based upon this proposal. It may be necessary for Congress to take action to preserve the status quo until the Bush Administration leaves office.
To say this comes out of left field is to put it mildly. I had not heard anything previously indicating that such an idea had ever been under consideration. I cannot imagine that this was under consideration for more than a short time before publication, since word would have leaked out if this proposal had been around long.
I do not see how this comports with the medical improvement standard, which applies to closed period cases. In remand cases, benefits would be cut off even though the evidence would show no improvement and might well show a decline in the claimant's condition. Indeed, the claimant might be dead and yet his or her benefits would be summarily cut off as of the date of the first ALJ decision. The claimant would have to show all over again that he or she was disabled.
If the Social Security Administration has the power to do this, the logical corollary would be that the Social Security Administration has the power to limit any determination of disability at any level of review to a closed period of disability, meaning that once any claimant was approved for Social Security disability benefits, he or she would have to immediately begin a new claim for disability benefits if he or she wished more benefits. Obviously, this would make a mockery of the medical improvement standard and, indeed, would make Social Security disability benefits a never ending merry-go-round that would eventually exhaust any claimant, no matter how disabled.
I do not see how the Social Security Administration may limit the effect of a United States District Court remand in this way. I would expect that many District Courts would issue specific orders to the contrary.
I am surprised that the Social Security Administration would undertake such a dramatic change in its procedures without any prior notice to Congress as best I can tell. I think this will not play well with the Senate Finance Committee and House Social Security Subcommittee.
On a more personal level, why was it that neither Michael Astrue nor Lisa De Soto mentioned anything about this when they spoke at the conference of the National Organization of Social Security Claimants Representatives (NOSSCR) just a weeks ago? They mentioned other items from this proposal but did not mention this dramatic item. (And, by the way, there are other bad items in this that they did not mention. This is just the most dramatic. I will get to the others as I have time.) Why speak at all if you are going to do this?
What is not completely clear to me is whether the proposal would limit the effect of any reversal by the Review Board or a United States District Court to a closed period. I think this is what is intended, but I have so far been unable to find any language in the proposal that specifically covers this situation. It would be inconsistent if this is not what was intended. The lack of clear language on this point adds to the impression that this part of the regulatory proposal was drafted hurriedly.
I think what bothers me the most about this is that it creates a classic trap for the unwary. Experienced Social Security attorneys can mostly get around the problem created by this provision by having the claimant file a new claim in addition to an appeal. By the time any remand happens, there will be a new claim to be consolidated with the remand in order to get full justice for the claimant. It will only be the claimants represented by inexperienced attorneys or who are unrepresented who will be hurt by this.
If Congress can add a budget rider that limits the Social Security Administration's ability to close field offices, Congress can certainly add a budget rider prohibiting the expenditure of funds for preparing final regulations based upon this proposal. It may be necessary for Congress to take action to preserve the status quo until the Bush Administration leaves office.
4 comments:
the action makes sense as long as you remember that lisa desoto is evil
Rather than rant in a blog, I guess that your comments would have better value formally submitted so that they can be taken into account.
Federal eRulemaking Portal at http://www.regulations.gov. (This is the preferred method for submitting your comments.) In the Search Documents section, select ‘‘Social Security Administration’’ from the agency dropdown menu, then click ‘‘submit’’. In the Docket ID Column, locate SSA–2007–0044 and then click ‘‘Add Comments’’ in the ‘‘Comments Add/Due By’’ column.
• Telefax to (410) 966–2830.
• Letter to the Commissioner of Social Security, P.O. Box 17703, Baltimore, MD 21235–7703.
• Deliver your comments to the Office of Regulations, Social Security Administration, 922 Altmeyer Building, 6401 Security Boulevard, Baltimore, MD 21235–6401, between 8 a.m. and 4:30 p.m. on regular business days.
Mr. Hall’s interpretation about closed periods has these three qualities:
1. It’s novel.
2. It’s startling
3. It’s consistent with his past history of unjustified negative inferences.
The current system is that the period at issue for an ALJ’s hearing decision is the date the ALJ issues the decision. If we apply Mr. Hall’s approach, under current regulations ALJs ought never to find more than a closed period ending on the date of the decision.
The same holds for Appeals Council review. The period at issue for Appeals Council review is the period through the date of the ALJ’s decision. Let us suppose there is new evidence that the claimant got run over by a truck, incurring disabling injuries. Then let us consider the different outcomes if the accident happens two weeks after the date of the ALJ’s decision versus two weeks before the date of the ALJ’s decision. If the accident is two weeks after the ALJ’s decision, the new evidence does not prompt AC review, because it’s after the period at issue. If the accident is two weeks before the ALJ’s decision, it prompts an AC of ongoing disability.
With this kind of existing practice, why would anyone think that limiting the period at issue should be taken as barring any finding of ongoing disability?
That's not my reading. I assumed that if an individual was found disabled, he was continuously disabled until medical evidence showed improvement. I did not see any amendments to the medical improvement standards, which I think is the real crux of the issue.
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