Apr 30, 2007
Poll On SSA As Employer
Charlotte TV Station Reports On Hearing Backlogs
The TV station is running this during sweeps week, a time when they know that the Nielsen organization is looking at their viewership, in order to report on it to advertisers. This is the time of the year when TV stations make a special effort to run their most interesting material.
Results Of Last Week's Unscientific Survey
Apr 29, 2007
An Image From The Pre-History Of Social Security In the U.S.
Woman Lies To Continue Collecting Widows Benefits
Apr 28, 2007
Wall Street Journal On Garnishment Of Social Security Benefits
Who knew that the Wall Street Journal was multi-media?
Apr 27, 2007
Time Of Hearing Changed
New Privacy Act Regulations
From The NOSSCR Conference -- Lisa De Soto
- A bit of Lisa de Soto's biography was given in her introduction. See it in the post just below this. [I have no doubt that Ms. de Soto is a bright woman, but this background is just too offbeat for someone in her position. She has only been at Social Security for five years.]
- ODAR's name may be changed. [Is there anyone who likes the name ODAR?]
- Quick Disability Determinations (QDD), a part of the Disability Service Improvement plan of former Commissioner Barnhart now undergoing a trial in the Boston region, may go national soon. [But is QDD anything different than what is already done to expedite the disability claims of those who are most seriously ill?]
- Commissioner Astrue is interested in expanding the Listings of impairments.
- Commissioner Astrue is looking at "collapsing" the Disability Review Board (DRB), which is a part of the DSI experiment, and the Appeals Council. [Nancy Shor said that this might end up being called DRB, pronounced "drab." That acronym does not come tripping gladly off my tongue.]
- ODAR has 750,000 cases pending.
- De Soto regards 400,000 cases pending at ODAR as a normal pipeline of cases, needed to make sure the staff stays busy. [Now you can see why I am doing that survey on what sort of goal ODAR should have on how long it takes for a claimant to get a hearing. De Soto thinks that about nine months is an appropriate goal. The vast majority who have responded to my unscientific poll think that Social Security should be aiming at something below six months. De Soto's inexperience shows here, in my opinion. Until the last six years, ODAR (or the Office of Hearings and Appeals as it used to be called) seldom had a backlog of more than nine months at any time in its history which dates back more than 50 years. I found de Soto's statement disturbing.]
- Until recently, ODAR had 26,000 cases where claimants had been waiting over 1,000 days for a hearing. That number has been reduced to 18,000. [1,000 days is almost three years! This is how low things Social Security has sunk.]
- ODAR is disposing of about 550,000 requests for hearing per year.
- ODAR is getting more FTEs. [FTE means full time equivalents. Basically, she is saying she is getting to hire more employees.]
- De Soto said that the agency was looking at having personnel at Social Security look at cases in which a request for hearing had been filed to see if some could be sent back for another review at the reconsideration level. [She sounded a bit uncertain on this point, but she must have been describing "re-recon." She was not around for re-recon before, so I can understand her haziness.]
- De Soto is looking forward to a contractor providing software that will "pull" exhibits for ALJ hearings. [She is the proud owner of this plan. As I have said before, it will never work. Sit Ms. de Soto at a table. Give her a 500 page ALJ file and let her "pull" the exhibits by hand. Then ask her if she really believes a computer program can do this. Of course, she has never done this and has only a vague idea of what is involved, but she is about to spend several million dollars on the hopeless task of getting a computer to do this.]
- She believes she can pilot autopulling of exhibits nationally in the next 18 months.
- De Soto said that she has some limited ability to work employees overtime.
- De Soto wants to encourage bench decisions.
- De Soto wants to allow decision writes to use short form fully favorable decisions. [If she is talking about true "short form" fully favorable decisions --a simple form allowance with a two or three paragraph rationale that is not even sent to the claimant -- she is talking about something important, since that would really streamline the process. However, true "short form" fully favorables have not been used in so long (Can someone help me? 15-20 years?) that I am surprised that anyone even remembers them. I have trouble believing she actually meant what she seemed to be saying.]
- She wants Social Security's web site to allow secure two way communication between attorneys and ALJs.
- She would like for attorneys to be able to access their clients' files via the internet with appropriate password protection. [In my lifetime?]
- The Office of Personnel Management (OPM) is moving "full steam ahead" on a new ALJ register by the end of this calendar year. However, the tone of de Soto's voice expressed clear skepticism that this would happen. [OPM will get a chance next week to explain their delay in producing a new ALJ register when the House Social Security Subcommittee holds a hearing on the issue. Maybe that will get their attention.]
- De Soto thinks holding hearings on "unpulled" files is appropriate to help out with the backlogs. [But, she said nothing about requiring that ALJs do this.]
- The use of senior attorney decisions is under consideration. Although she could not speak for her "boss," Michael Astrue, "everyone views it favorably." [Was she recommending this before Democrats took control of Congress? Do not tell me that it does not matter who wins elections.]
- The Appeals Council has an average 220 day backlog. She did not think this is a crisis. [So how come if you call the Appeals Council you get a recording telling you not to bother them with questions about the status of your case unless it has been at the Appeals Council for more than three years?]
- She expects to see some initiatives regarding hearing backlogs within the next two weeks -- which would be by the end of next week. [Probably, the hearing scheduled for May 1 before the House Social Security Subcommittee is where these initiatives will be revealed.]
- De Soto thinks that giving claimants a 75 day notice of ALJ hearings would be a good idea. This is part of the DSI experiment, but may go national even if DSI goes down the tubes.
Lisa De Soto Biographical Information
Lisa de Soto is [was] SSA's General Counsel. [She is now head of ODAR.] She is an experienced attorney who has held a number of senior management positions in the private and federal sector. She specialized in procurement, bilateral and multilateral negotiations, conflict resolution and organizational change. Most recently, Lisa was the Country Director for the U.S. Agency for International Development's Office of Transition Initiatives in Nigeria. Before that, she served as the General Counsel of the U.S. Trade and Development Agency and as Deputy Assistant General Counsel for Contract and Commodity Management for the U.S. Agency for International Development in Washington, D.C. Lisa received her law degree from the University of California at Los Angeles, where she was executive editor of the UCLA-Alaska Law Review.What a bizarre background for someone in her position! How did she end up where she is?
Another Tidbit From NOSSCR Conference -- Distinguised Service Award
Apr 26, 2007
From The NOSSCR Conference -- Glenn Sklar
- Commissioner Astrue is talking about holding public hearings on Social Security issues. [Social Security has held public hearings only very rarely -- but the Food and Drug Administration (FDA) does this a lot. Astrue spent a lot of time dealing with the FDA in the past.]
- Commissioner Astrue is talking about setting up various committees under the Federal Advisory Committee Act, perhaps on various Listings. [I think that the FDA uses advisory committees a lot.]
- Social Security will be publishing a Notice of Proposed Rule-Making (NPRM) to change the mental impairment Listings. There will be "significant" changes. [I have heard nothing to suggest that this should make me tense, but I am getting tense anyway.]
- Sklar kept saying that "we're teeing this up" or "we teed that up." He was apparently referring to placing some issue under in-house discussion. I have heard him use this unusual phrasing in the past. [Sklar must be an avid golfer.]
From The NOSSCR Conference -- Marty Ford
- She wants to see details of Social Security's budget submission. Social Security has been releasing little more that a bottom line number. She would like to know more. [A lot of people are paying a lot more attention to Social Security's budget after the fiasco of this year's budget. There is also an increased realization that it is not just how much money Social Security is getting, although that is most important, but also how the money is being spent.]
- The U.S. Comptroller General held a forum two weeks ago on disability policy. She spoke. The Government Accountability Office (GAO) is under the direction of the Comptroller General. [There was no public notice of this "forum."]
- Ford had a meeting with Commissioner Astrue about two and a half weeks ago.
- Ford expects changes in Social Security's Office of Medical and Vocational Experts. [Tell us more.]
- Ford expects Social Security to work on its Listings of Impairments, with more listings added and more old listings updated.
- Ford thinks Astrue wants to "close the record" in Social Security disability cases earlier. [Nancy Shor mentioned concerns about the same thing.]
- Ford expects new Ticket to Work regulations to reach the Office of Management and Budget soon, but does not necessarily expect them to be published soon.
- Commissioner Astrue seemed concerned about the limited time he has to accomplish something as Commissioner. [Nancy Shor said much the same thing.]
Was SSA Involved?
White House officials conducted 20 private briefings on Republican electoral prospects in the last midterm election for senior officials in at least 15 government agencies covered by federal restrictions on partisan political activity, a White House spokesman and other administration officials said yesterday.
The previously undisclosed briefings were part of what now appears to be a regular effort in which the White House sent senior political officials to brief top appointees in government agencies on which seats Republican candidates might win or lose, and how the election outcomes could affect the success of administration policies, the officials said.
Bush "A Little Defeatist"
President Bush conceded this week that he's likely to fall short of his goal of reforming the nation's Social Security program.
"That's going to be hard," Bush said in an interview Tuesday with PBS's Charlie Rose. "I wish we could get it done. I'm not sure it's going to happen... I'll keep pushing, but I don't think it's going to happen. It's a little defeatist. I don't see it happening yet is a better way to put it."
Direct Deposit Of Fees For Representing Claimants And Law Firms Representing Claimants
We were also told that Social Security hopes eventually to allow law firms to get direct deposits for attorneys they employ and, indeed, that Social Security will recognize law firms as representing claimants. Currently, Social Security only recognizes individual attorneys and some non-attorney representatives, but no entities.
Apr 25, 2007
From The NOSSCR Conference -- Nancy Shor
The first speaker on Thursday morning was Nancy Shor, the executive director of NOSSCR. Here are some of the points she covered and a few of my comments in brackets:
- Commissioner Astrue will speak at the next NOSSCR Conference in St. Louis in October 2007.
- Social Security's Office of Disability Adjudication and Review (ODAR) plans to detail 5% of all Administrative Law Judges (ALJs) to Falls Church, VA, the headquarters of ODAR, to do video hearings to help clear Social Security's hearing backlog. [Why do they have to go to Falls Church? Why not avoid the extra expense of sending them to Falls Church, by letting them do this from the comfort of their own hearing offices?]
- Social Security plans to offer retired ALJs the opportunity to hold hearings to work on the backlog -- but only in Falls Church. [There seems to be a pattern here. Does someone like the idea of having all ALJs located in just one or a few offices where they can be carefully controlled -- sort of like what happened with Medicare ALJs?]
- The Columbus, OH ODAR office is refusing to process any requests for cases to be approved without a hearing -- on the record reversal is the term of art for these. [That will really help with the backlogs!]
- The no-show rate for ALJ hearings is 30%. This drives a lot of people in ODAR nuts. [I cannot blame them for being upset. No solution is likely, however.]
- Commissioner Astrue is not interested in plans that will take long. He is aware that he has only a limited time as Commissioner and that there is pressure from Congress on Social Security's backlogs.
- Shor thinks that the Federal Reviewing Officers (FedROs) currently being used in a trial of the Disability Service Improvement plan in the Boston region are not likely to be around much longer. She thinks it likely that at some point soon they will be told to finish off the cases they have already, but that no new cases will be sent to them. [So what happens to all these FedROs?]
- Commissioner Astrue has told Shor that he is thinking of ending the Disability Review Board (DRB). She thinks that the name DRB may live on as the new name for the Appeals Council. [Do Appeals Council employees want to say they work at DRB -- pronounced "drab?" ODAR is bad enough. Do not burden Social Security employees with working for "drab!" There is no need to give former Commissioner Barnhart such a silly fig leaf.]
- Shor thinks that some or all of the limitations on submission of evidence contained in the DSI plan may be adopted nationwide. [Note to ALJs and others who think this is a wonderful idea. Adopting this solves nothing. It just allows a few "outlier" ALJs (as another speaker at the NOSSCR Conference called them) to engage in oppressive behavior. A longer notice of hearing would be far more effective. If you have not tried to get medical records out of doctors and hospitals, you do not get it. The problem is much more with medical providers than with attorneys.]
- Commissioner Astrue told Shor in a recent meeting that there were a lot of regulations in Social Security's pipeline which would be coming out soon. When she asked him if this included the proposed regulations that would increase each of the age categories in Social Security's regulations by two years [which does not sound like that big a deal but which would have a devastating effect upon Social Security claimants], he said simply "No." [But will he withdraw those proposed regulations? As long as that proposal is out there, it could be adopted with no advance warning.]
- Shor described her recent meeting with Astrue as mostly a monologue by Astrue. [If you have been reading this blog regularly, that should not come as much of a surprise.
An Interesting Little Tidbit
CDR Moratorium Lifted
Identification Number EM-07028 SEN
Effective Date: 04/19/2007
Intended Audience: All RCs/CDPs/ARCs/ADs/FOs/TSCs/Originating Office: DCO OPSOS
Title: Medical Continuing Disability Review (CDR) Moratorium Update
Type: EM - Emergency Messages
Program: Title II (RSI); Title XVI (SSI); Disability; All Programs
Link To Reference: DI 13005.001
SENSITIVE - NOT TO BE SHARED WITH THE PUBLIC
Retention Date: October 31, 2007
This Emergency Message (EM) obsoletes EM-06071 SEN and provides additional information about the CDR moratorium.
Effective immediately, the CDR moratorium is lifted. Regional guidance will be provided concerning the numbers and flow of cases to the DDSs according to each state's needs. For workload monitoring purposes, it is very important for field offices (FOs) to pay close attention to staying within the established quotas. Once this information has been provided from the RO, FOs may release and DDSs may process all types of CDRs, based on Regional targets. Effective immediately, FOs should discontinue using the CDR Moratorium Exception Flag.
Offices should adhere to the following CDR priority processing order:
· Follow regional directives on targeting specific CDR types.
· Age 18 medical CDRs that were selected September 1, 2006 or earlier. (We are required by law to review these CDRs timely; therefore, it is very important for FOs to continue to process these CDRs.)
· All other CDRs on a normal first-in-first-out (i.e., greatest overall age) basis.
NOTE: FOs should continue to hold all Certified Electronic Folder (CEF) CDRs, including Age 18 redetermination (CEF) CDRs, as per the instructions in EM-05075 SEN .
The PCs may now initiate the previously held (and newly determined) "DO CDR" cases. These cases should be initiated on the Disability Control File (DCF) and released to the FOs.
Direct all program-related and technical questions to your RO support staff or PC OA staff. RO support staff or PC OA staff may refer questions or problems to their Central Office contacts.
Apr 24, 2007
May 1 Social Security Subcommittee Hearing
Congressman Michael R. McNulty (D-NY), Chairman, Subcommittee on Social Security of the Committee on Ways and Means, today announced that the Subcommittee will hold a hearing to examine the Social Security Administration’s (SSA’s) ability to hire Administrative Law Judges (ALJs) to address the growing disability claims backlog. The hearing will take place on May 1, 2007 in room B-318 Rayburn House Office Building, beginning at 10:00 a.m.
In view of the limited time available to hear witnesses, oral testimony at this hearing will be from invited witnesses only. However, any individual or organization not scheduled for an oral appearance may submit a written statement for consideration by the Subcommittee and for inclusion in the printed record of the hearing.
Nationwide, more than 700,000 people are currently awaiting hearings on their Social Security and Supplemental Security Income disability claims appeals. Because of this large backlog, severely disabled individuals often must wait years to get the benefits they need for basic economic survival.
A significant contributor to this backlog is a shortage of SSA ALJs to conduct the hearings. According to the Social Security Advisory Board, from 1999 to 2005 the number of disability claims hearings pending nationwide more than doubled, while the number of ALJs on duty remained about the same.
A number of federal agencies employ ALJs, but SSA is the largest employer. The Office of Personnel Management (OPM) is responsible for developing qualification standards for ALJs, conducting examinations for ALJ candidates, and developing a register of candidates from which agencies can hire.
The Social Security Administration’s hiring of ALJs in recent years has been limited by several factors. First, administrative funding shortfalls have limited SSA’s ability to hire across all positions, including ALJs. In addition, litigation filed in 1997 disrupted federal hiring of ALJs for several years. In August 2003, OPM announced that it would develop a new examination for ALJ candidates. Until this examination was developed and a new register created, SSA and other federal agencies could hire only from a register from the late 1990s. OPM issued new final regulations on the ALJ program in March, 2007, but a new examination has not yet been announced. Therefore, a new and up-to-date ALJ register is not yet available for SSA to use in hiring.
Focus of the hearing:
The hearing will focus on the importance of having an adequate number of ALJs to address the growing disability claims backlog; barriers to SSA’s hiring of ALJs; and the steps that must be taken to remove these barriers. In particular, the Subcommittee will explore the need to develop an updated register of ALJ candidates, the steps involved in this process, and the time frames in which it will occur.
In announcing the hearing, Chairman McNulty stated, “The Social Security Administration needs Administrative Law Judges to help clear the backlog, so that persons applying for disability benefits can get the support they need as soon as possible. This Subcommittee is committed to ensuring that SSA has the resources to hire ALJs and that relevant government agencies move rapidly to eliminate other barriers to ALJ hiring.”
When To Expect News From Commissioner Astrue
Astrue's confirmation hearing was on January 24, 2007. At the time, he was asked how soon he would be able to come back for another hearing to talk about his plans for Social Security's backlogs. He said three months. I do not think it was ever specified whether this was three months from that date or three months after the date he assumed office -- which was February 12.
On February 14 Astrue appeared before the Social Security Subcommittee of the House Ways and Means Committee. They clearly wanted to hear from him again soon, although no time frame was mentioned.
Representatives of the National Council of Social Security Management Associations (NCSSMA) met with Astrue on March 1. At the time, he told them that Congress expected him to report back to them with ideas by April 15.
Nancy Shor, the executive director of the National Organization of Social Security Claimants Representatives (NOSSCR) said at the NOSSCR Conference last week that she had met with the Commissioner the week before and that he had talked about having some plan within a week -- which would have been last week, if you are following the timeline in this sentence..
Lisa DeSoto, the head of Social Security's Office of Disability Adjudication and Review (ODAR) mentioned at the NOSSCR conference that she expected Commissioner Astrue to have a plan within a couple of weeks, which would mean next week.
Thus far, neither the Senate Finance Committee nor the House Social Security Subcommittee has scheduled another appearance for Astrue. However, it appears that we should expect each to be scheduling a hearing soon, almost certainly before the middle of May. That is when Astrue is likely to unveil his plan. However, if you want to see a preview, take a look below at my summary of the highlights from the NOSSCR conference. I will give more detailed summaries from that conference when I have time.
Apr 23, 2007
2007 Trustees Report Press Release
Social Security Board of Trustees Issues Annual Report
Long-Range Financing Challenges Continue
The Social Security Board of Trustees today released its annual report on the financial health of the Social Security Trust Funds. The 2007 Trustees Report shows slight improvement in the projected financial status of the Social Security program from last year.
In the 2007 Annual Report to Congress, the Trustees announced:
The projected point at which tax revenues will fall below program costs comes in 2017 -- the same as the estimate in last year’s report.
The projected point at which the Trust Funds will be exhausted comes in 2041 -- one year later than the projection in last year’s report.
The projected actuarial deficit over the 75-year long-range period is 1.95 percent of taxable payroll -- .06 percentage point smaller than in last year’s report.
Over the 75-year period, the Trust Funds would require additional revenue equivalent to $4.7 trillion in today’s dollars to pay all scheduled benefits. This unfunded obligation is about $100 billion higher than the amount estimated last year.
“Social Security provides valuable economic protection to workers and their families. We owe it to the American public to continue to offer the best possible support for older Americans, people with disabilities and their families in the coming decades,” said Michael J. Astrue, Commissioner of Social Security. “The Trustees Report is an important tool for those in the legislative and executive branches who will have to make the very difficult decisions about how best to ensure Social Security remains viable for the long term.”
Other highlights of the Trustees Report include:
Income including interest to the combined Old-Age and Survivors, and Disability Insurance (OASDI) Trust Funds amounted to $745 billion ($626 billion in net contributions, $17 billion from taxation of benefits and $102 billion in interest) in 2006.
Total expenditures from the combined OASDI Trust Funds amounted to $555 billion in 2006.
The assets of the combined OASDI Trust Funds increased by about $190 billion in 2006 to a total of $2 trillion.
During 2006, an estimated 162 million people had earnings covered by Social Security and paid payroll taxes.
Social Security paid benefits of $546 billion in calendar year 2006. There were 49 million beneficiaries at the end of the calendar year.
The cost of $5.3 billion to administer the program in 2006 was a very low 1.0 percent of total expenditures.
The combined Trust Fund assets earned interest at an effective annual rate of 5.3 percent.
The Board of Trustees is comprised of six members. Four serve by virtue of their positions with the federal government: Henry M. Paulson, Jr., Secretary of the Treasury and Managing Trustee;
The 2007 Trustees Report will be posted at www.socialsecurity.gov/OACT/TR/TR07/ by Monday afternoon. [It is now posted]
Hearing Backlog Poll
Report On SSI Disabled Recipients Who Work
Among the states, the percentage of disabled workers varied from a low of 2.9 percent in Mississippi to a high of 18.8 percent in North Dakota. In general, the percentage of disabled workers was higher in the northern states than in the southern states.
The majority of these disabled workers were male (53.5 percent). Almost half (49.1 percent) had unearned income; 43.4 percent were receiving Social Security benefits. Comparable figures for all disabled recipients in December 2006 were 45.8 percent male, 38.2 percent with unearned income, and 30.5 percent receiving Social Security benefits.
Disabled workers are more likely to have certain impairments than other disabled recipients. Almost two-thirds (66.4 percent) of the workers had a mental disorder, including 40.5 percent who were diagnosed with mental retardation. By comparison, 58.1 percent of all disabled recipients were diagnosed with a mental disorder, including 21.6 percent with mental retardation.
The greatest use of work incentive provisions was by participants under section 1619—roughly 30.5 percent of disabled workers. This included 5.0 percent under section 1619(a) and 25.6 percent under section 1619(b).
Other Work Incentives
Use of other work incentive provisions continued to have a smaller, but measurable, impact. In December 2006, about 2.7 percent of the SSI disabled workers had some of their income excluded under one of these provisions—plans to achieve self-support (PASS), 0.5 percent; impairment-related work expenses, 1.6 percent; or blind work expenses, 0.7 percent.
Plans to achieve self-support permit an SSI recipient to set aside income and resources to help obtain the training or education necessary for certain specified occupational goals. In December 2006, 409 PASS participants had earnings, which averaged $792 per month. However, exclusions under a PASS are not limited to earnings. Of the 1,583 disabled recipients with a PASS, 69.4 percent did not have any earnings reported for December 2006. For this group, the PASS excluded unearned income such as Social Security benefits. Out of all PASS participants, 435 had a PASS that excluded only resources.
SSA Press Release
The Social Security Administration ranks as one of the top ten “Best Places to Work in the Federal Government,” according to The Partnership for Public Service and American University’s Institute for the Study of Public Policy Implementation. The ranking not only identified Social Security as one of the “Best Places to Work,” but also the most improved agency this year.
“I’m very pleased that this score reflects what many of us already know: Social Security is a great place to work,” said Michael J. Astrue, Commissioner of Social Security. “It is my sincere hope that anyone thinking about a career in public service will seriously consider Social Security.”
The “Best Places to Work” rankings are based on the results of the Office of Personnel Management’s Federal Human Capital Survey, a government-wide assessment of federal employees’ job satisfaction and perceptions of their agency’s human capital efforts. The survey identified effective leadership and skills-to-mission match as the biggest drivers of overall employee satisfaction and engagement.
Social Security attributes its success to:
- linking human capital management programs to the Agency’s missions,
- building a diverse and productive workforce,
- using high standards for recruitment, and
- maintaining a wide array of development programs and other employee-friendly programs.
“Social Security has a workforce of dedicated, talented, and well-trained employees,” said Commissioner Astrue. “We need to continue to hire and retain the best and the brightest for the future.”
To learn more about careers with the Social Security Administration, please go to: www.socialsecurity.gov/careers.
To learn more about the report, please go to: www.bestplacestowork.org.
Results Of Last Week's Unscientific Poll
Apr 22, 2007
From A 1956 Social Security Administration Publication
Briefing On Social Security Trustees' Report
Apr 21, 2007
New Standards For ALJs
Qualification Standard For Administrative Law Judge Positions
The Administrative Law Judge (ALJ) function was created by the Administrative Procedure Act (APA) in 1946 to ensure fairness in administrative proceedings before Federal Government agencies.
ALJs serve as independent impartial triers of fact in formal proceedings requiring a decision on the record after the opportunity for a hearing. In general, ALJs prepare for and preside at formal proceedings required by statute to be held under or in accordance with provisions of the APA, codified, in relevant part, in sections 553 through 559 of title 5, United States Code (U.S.C.). ALJs rule on preliminary motions, conduct pre-hearing conferences, issue subpoenas, conduct hearings (which may include written and/or oral testimony and cross-examination), review briefs, and prepare and issue decisions, along with written findings of fact and conclusions of law.
The Federal Government employs ALJs in a number of agencies throughout the United States. Cases may involve Federal laws and regulations in such areas as admiralty, advertising, antitrust, banking, communications, energy, environmental protection, food and drugs, health and safety, housing, immigration, interstate commerce, international trade, labor management relations, securities and commodities markets, social security disability and other benefits claims, and transportation.
II. QUALIFICATION REQUIREMENTS
An applicant must meet both the licensure and experience requirements and pass the OPM administrative law judge competitive examination to qualify for an ALJ position.
Applicants must be licensed and authorized to practice law under the laws of a State, the District of Columbia, the Commonwealth of Puerto Rico, or any territorial court established under the United States Constitution throughout the selection process, including any period on the standing register of eligibles. Judicial status is acceptable in lieu of "active" status in States that prohibit sitting judges from maintaining "active" status to practice law. Being in "good standing" is acceptable in lieu of "active" status in States where the licensing authority considers "good standing" as having a current license to practice law.
Applicants must have a full seven (7) years of experience as a licensed attorney preparing for, participating in, and/or reviewing formal hearings or trials involving litigation and/or administrative law at the Federal, State or local level.
Cases must have been conducted on the record under procedures at least as formal as those prescribed by sections 553 through 559 of title 5, U.S.C.
Qualifying litigation experience involves cases in which a complaint was filed with a court, or a charging document (e.g., indictment or information) was issued by a court, a grand jury, or appropriate military authority, and includes:
- participating in settlement or plea negotiations in advance of trial;
- preparing for trial and/or trial of cases;
- preparing opinions;
- hearing cases;
- participating in or conducting arbitration, mediation, or other alternative dispute resolution approved
by the court; or
- participating in appeals related to the types of cases above.
Qualifying administrative law experience involves cases in which a formal procedure was initiated by a governmental administrative body and includes:
- participating in settlement negotiations in advance of hearing cases;
- preparing for hearing and/or trial of cases;
- preparing opinions;
- hearing cases;
- participating in or conducting arbitration, mediation, or other alternative dispute resolution approved by the
administrative body; or
- participating in appeals related to the types of cases above.
Experience involving cases with no formal hearing procedure and uncontested cases involving misdemeanors, probate, domestic relations, or tort matters is not qualifying.
Applicants are required to pass an examination, the purpose of which is to evaluate the competencies/knowledge, skills, and abilities (KSAs) essential to performing the work of an Administrative Law Judge.
III. CONDITION OF EMPLOYMENTALJs must be held to a high standard of conduct to maintain the integrity and independence of the administrative judiciary. As a condition of employment, all ALJs must meet the licensure requirement stated in Part II Qualification Requirements. Incumbent ALJs must continue to meet this condition throughout the duration of their employment. This requirement also applies to former ALJs who are reinstated or reemployed as Senior ALJs. Judicial status is acceptable in lieu of "active" status in States that prohibit sitting judges from maintaining "active" status to practice law. Being in "good standing" is acceptable in lieu of "active" status in States where the licensing authority considers "good standing"
Apr 20, 2007
Commissioner At Press Briefing On Monday
Treasury Secretary Paulson to Host Press Briefing on the Social Security and Medicare Trustees Reports
Treasury Secretary and Managing Trustee Henry M. Paulson, Jr. will be joined by members of the Social Security and Medicare Trustees Board for a press briefing to discuss the release of the annual trustees reports on Monday.
Secretary of Treasury and Managing Trustee Henry M. Paulson, Jr.
Secretary of Labor and Trustee Elaine L. Chao
Secretary of Health and Human Services and Trustee Michael Leavitt
Commissioner of Social Security and Trustee Michael J. Astrue
Public Trustee John Palmer
Public Trustee Thomas Saving
Press Conference to discuss Social Security and Medicare Trustees Reports
Monday, April 23, 2007, 3:15 p.m. EDT
Media Room (Room 4121)
1500 Pennsylvania Ave., NW
Apr 19, 2007
Something Not Mentioned At NOSSCR Conference
Some Highlights From NOSSCR Conference
- Nancy Shor, NOSSCR Executive Director said that she understood that 5% of Administrative Law Judges (ALJs) would be detailed to Falls Church, where Social Security's Office of Disability Adjudication and Review (ODAR) is based to work on clearing Social Security's hearing backlog, with cases pending over 1,000 days targeted first. Lisa DeSoto, who is in charge of ODAR essentially confirmed this later saying that there had been over 26,000 of these cases and that number had been reduced to less than 19,000. She hoped to get all of these eliminated by the end of the fiscal year, September 30, 2007.
- I had posted earlier about plans to offer positions to retired ALJs to help work off the backlogs. The plan is that these retired ALJs would only work out of Falls Church, which dramatically reduces what may be possible.
- The Federal Reviewing Officer (FedRO) allowance rate is 25%.
- Michael Astrue told Nancy Shor in a recent meeting that many stalled regulations would be moving forward in the near future. When asked if this included the proposed regulations that would increase the age categories of Social Security's grid regulations by two years, Astrue gave a concise answer: "No."
- Nancy Shor said that her meeting with Astrue was mostly a monologue by Astrue.
- Marty Ford of the Association for Retarded Citizens (ARC) and the Coalition for Citizens with Disabilities (CCD) said that it was her impression that Commissioner Astrue wanted major changes in Social Security's Office of Medical and Vocational Experts (OMVE).
- Ford said that she thought that Astrue was looking at proposals to close the record earlier.
- Glenn Sklar said that proposed regulations to change the mental impairment Listings were coming and that the changes were significant.
- Lisa DeSoto indicated that she favored a change in the name of ODAR.
- DeSoto said that Commissioner Astrue is interested in an increase in the number of Listings.
- DeSoto said that the backlog at ODAR of cases awaiting a hearing is 750,000. She believes that 400,000 cases is what is needed just to keep work in the pipeline. ODAR is currently disposing of about 550,000 hearing cases per year.
- DeSoto did not use the term re-recon, but indicated that this was very much under consideration.
- DeSoto proudly claimed credit for promoting the idea of a computer program that will "pull" exhibits. I predict that she will regret this.
- DeSoto said that the Office of Personnel Management (OPM) is going "full steam ahead" with a new ALJ register and expected to have this by the end of this calendar year. The tone of DeSoto's voice expressed clear skepticism about this.
- DeSoto said that re-activating the senior attorney program was under consideration and that, although she could not speak for her boss, Michael Astrue, that she thought that "everyone views it favorably."
- DeSoto said that Social Security may go to 75 day notice of ALJ hearings.
Apr 18, 2007
SSAB Meeting Agenda
Social Security Advisory Board
Thursday April 19, 2007
9:30 a.m. - 11:00 a.m. Thomas Hughes, Chief Information Officer
Social Security Administration
Astrue Not Scheduled To Speak At NOSSCR Conference
AFGE Criticizes Biggs Recess Appointment
Apr 17, 2007
Disabled Population Grows
Apr 16, 2007
Hearing Backlog Poll
Results Of Last Week's Unscientific Poll
Apr 15, 2007
Fraud Allegation Against Social Security Employee
A former Social Security Administration worker from the Los Angeles area faces federal charges for allegedly providing information to people who used it to steal identities and rack up about $2.5 million in credit card charges, prosecutors said Thursday.
Jennifer Batiste, 45, allegedly took $20 bribes each time she accessed a government database that lists Social Security numbers, mothers' maiden names and dates of birth.
Apr 14, 2007
But Is It Fraud?
Dozens of people are facing misdemeanor fraud charges after cashing too many Social Security checks. They are accused of obtaining money under false pretenses. It's all part of a crackdown by the Social Security Administration. ...
In Dipippo's case [she is one of those accused], when she didn't receive her monthly disability check, she asked for a new one. When it came in the mail, she cashed it. Soon after that, another one showed up. "I got in trouble for cashing both", says Dipippo.
The Social Security Administration has been cracking down on what they call "double check negotiations". It started with an audit by The Office of the Inspector General.
Apr 13, 2007
Unexpected Effect Of Gay Marriage
Unmarried, heterosexual senior couples would also be eligible for domestic partnerships if one partner were at least 62. Lawmakers said that provision was included to help seniors who are at risk of losing pension rights and Social Security benefits if they remarry.
An Expensive Request
I know this is history, but the breadth of this request and the ridiculous response are both amazing. I knew there was bad blood there, but this is stunning!
Apr 12, 2007
Disability Appeals Chart
Apr 11, 2007
NCSSMA On Budget And Backlogs
For Fiscal Year 2008, the President has proposed an increase for SSA of approximately $304.0 million over the final level of funding for Fiscal Year 2007. And yet, staffing levels in offices across the country are being cut. In fact, SSA will lose about 4,000 positions from the beginning of Fiscal Year 2006 to Fiscal year 2008. The most significant staffing losses in SSA have occurred in the agency’s Field Offices. Field Offices have lost about 2,300 positions in the past 18 months and about 1,200 positions in the past 6 months. The vast majority of these losses have been in the most critical positions in the Field: Claims Representatives and Service Representatives. All of this comes after five years of reductions to the President’s Budget Requests, which total $720.0 million dollars, and about 8,000 work years. It is interesting to note that while total Executive Branch Employment is expected to increase 2.1% from FY 2006 to FY 2008, SSA’s employment is expected to decrease by 6.2%.NCSSMA has also posted the minutes of a conference call of their Executive Committee on March 22. Here are a couple of excerpts from that:
NCSSMA’s contacts related to the FY 2008 Budget Resolution have been very productive. Rachel is optimistic that there will be good news about the FY 2008 Budget Resolution and its recommendations for SSA very soon. Rachel and Rick are very encouraged with the reception they have been getting from the staff of key members of the House and Senate related to the Budget Resolution and SSA’s resources needs. There is definitely interest in SSA-related issues and the information we have been sharing has been both well-received and appreciated. ...
Rick and Greg met with Commissioner Astrue on March 1. The Commissioner spoke at length about disability backlogs and it is clear this will be his primary focus, at least for the short term. Congress is expecting him to respond to them about the problems with ODAR and disability backlogs by April 15. He has been working with Linda McMahon and other senior staff on many issues, and we can probably expect some changes to be announced in the near future.
Disability Claim Backlogs At VA Too
Nearly 400,000 disability claims were pending at the VA as of February, including 135,741 that exceeded the VA's 160-day goal for processing them. The department takes six months, on average, to process a claim, and the waiting time for appeals averages two years.
This already strained system may grow more overburdened in years ahead as many of the troops deployed to Iraq and Afghanistan return from those wars, experts say. The VA gives veterans from those two conflicts top priority in claims processing.
"The projected number of claims from the wars in Iraq and Afghanistan will rapidly turn the disability claims problem into a crisis," said Linda J. Bilmes, a Harvard University public policy professor who has studied the claims process and met with VA Secretary Jim Nicholson last month to discuss ways to improve it.
Medicare Waiting Period
Each year, tens of thousands of Americans like [Roxianna] McCutchan find themselves disabled and unable to work. After going through the process to get Social Security disability income, most are shocked to discover that they have to wait two more years to be eligible for Medicare, the federal health program for elderly and disabled people ...
McCutchan and 20 others tell their stories about life in the two-year waiting period today in a report released by New York-based advocacy group the Medicare Rights Center, which is lobbying to end the waiting period.
"There's no more desperate group of uninsured Americans than people who are severely disabled, suddenly unemployed and without any access to health coverage," says Robert Hayes, the center's president ...
But cost could be a barrier: Estimates range from $5 billion to more than $8 billion a year to offer Medicare to disabled people in the waiting period — and Medicare's hospital fund is already expected to hit insolvency in just over a decade.
"There's a judgment call here about how big a problem is this," says Joe Antos, a health policy researcher at the conservative American Enterprise Institute. "If Congress decided to change the rule … (it is) locking in a permanent increase in entitlement spending of some amount forever." ...
Debating expansion of Medicare to cover disabled people in the waiting period thus puts Democrats in a dilemma, says Antos.
"Kids are a very appealing group politically," he says. "The disabled may not be as appealing politically."
Why Wasn't Mary Chatel Fired?
Second, I am not saying that Mary Chatel deserves to be fired or that she will be fired. Probably, she deserves nothing of the sort.
However, Martin Gerry was abruptly fired. The firing came at a time when the new Commissioner of Social Security was reviewing former Commissioner Barnhart's DSI plan and, apparently, not liking what he was seeing. The easy inference was that Gerry was fired over DSI, since Gerry was heavily involved in developing DSI. That may well be the case. However, Mary Chatel, is still in her job, according to Social Security's organizational chart. If Commissioner Astrue decided that DSI is a disaster and wanted to clean house of everyone responsible for it, one might think that Chatel would get fired or demoted at the same time, but it has not happened. It is not like Chatel can hide. Unlike Gerry, Chatel works in the Office of the Commissioner of Social Security. Whatever else one can say, there is no sign that the apparent failure of DSI is leading to indiscriminate career carnage.
I imagine that Mary Chatel and Commissioner Astrue have had some long conversations about DSI. I would have liked to have been a fly on the wall. I wonder what she had to say about DSI and about former Commissioner Barnhart and Martin Gerry. It must have slowly dawned on Chatel as she tried to get DSI going that she was trying to execute an incoherent and unworkable plan.
Apr 10, 2007
What Is This About?
Defense Contract Audit Agency's Audit of Lockheed Martin Services, Inc. Incurred Costs for Calendar Year Ending December 31, 2004 (Limited Distribution)
What is this about? Why are the Defense Contract Audit Agency and Social Security's OIG looking at the same thing? Why is Social Security's OIG concerned with a secret audit report at the Department of Defense? There may be some harmless explanation of this, but it has an Orwellian ring to it.
Apr 9, 2007
Poll -- Only For Those Who Represent Claimants
Results Of Last Week's Unscientific Polls
|Don't Know/No opinion (25)||20%|
Total Votes: 125
How do you rate the overall quality of service that the Social Security Administration currently gives to the public?
Total Votes: 62
Large Scale Hiring At SSA
What Will Andrew Biggs Role Be?
There has been no sign that Biggs has ever had any interest in the day to day operations of the Social Security Administration. Why would you want to be responsible for keeping the trains running on time if your goal was to blow up the locomotives and tear up the tracks? The Policy office does research, which is closer to the kind of work Biggs has done in the past, although recently he has been more of a polemicist than a researcher.
Apr 8, 2007
NY Times On Biggs
...Andrew Biggs, the president’s choice to be deputy commissioner of the Social Security Administration, is a champion of partially privatizing the program he is being sent to administer. The agency dispenses checks to beneficiaries and traditionally provides factual information on the state of the program. But under this president the agency has become increasingly politicized, using questionable arguments and projections to support Mr. Bush’s drive for private accounts. As a lower ranking official in the agency, Mr. Biggs was in the thick of that politicization. His appointment is a sure sign that Mr. Bush intends to keep using the agency as a propaganda machine to push a privatization scheme that has little public support.
Apr 7, 2007
Attorney Fee Payments Go Up Dramatically In March
Payments of attorney fees closely mirror payments to claimants. Slowdowns or speedups in these payments reflect slowdowns and speedups in payments to claimants who have been approved..
Where did the money come from for overtime? There had been no overtime at Social Security from October until late March. A good guess is that money that had been earmarked for implementation of former Commissioner Barnhart's Disability Service Improvement (DSI) plan was released for other, more pressing, purposes. There was a flurry of activity at Social Security in mid-March indicating that DSI was dead.
Apr 6, 2007
RICO Claim Against UNUM Allowed To Go Forward
LTD benefits are typically reduced because of the receipt of Social Security disability benefits. While LTD is of no direct concern to the Social Security Administration, it is of huge concern to many people receiving Social Security disability benefits. UNUM is, by far, the largest writer of LTD insurance.
The Mirage Of Rehabilitation As A Solution For Disability
The only rational response to this study should be to eliminate the Ticket to Work program. Ticket to Work is only of limited value. There are much better ways to spend that money. The program has never been based upon much more than the naive dreams of people who know little about those who receive Social Security disability benefits. The response that has traditionally been given to this dream by those with first hand experience with Social Security disability recipients has been along the lines of: "If you require claimants to be half dead or seriously crazy to get on benefits, why would you expect many of them to go back to work?" It is a simple question, but the proponents of Ticket to Work have never had a good answer for it.
Here is a summary from the GAO report:
• Earnings outcomes were mixed in the year following VR [Vocational Rehabilitation] and also over time. Approximately 40 percent of the over 303,500 SSA disability beneficiaries in our study increased their earnings compared to the year prior to VR services, while 32 percent did not have any earnings and another 28 percent had fewer earnings. In comparison to DI [Disability Insurance Benefits] and concurrent beneficiaries, more SSI beneficiaries—42 percent versus 36 and 39 percent—increased their earnings in the year following VR. Of the disability beneficiaries who exited VR in fiscal year 2000, 33 percent sustained some level of earnings through 2004, although their median earnings decreased by 12 percent over this period.
• Most beneficiaries’ annual earnings remained below annualized SGA [Substantial Gainful Activity, which would be enough earnings to eventually cut off benefits] in the year following VR. Specifically, 88 percent of all disability beneficiaries in our study had annual earnings below annualized SGA in the year following VR. Only a small percentage (5 percent) of beneficiaries from each cohort had annual earnings just below annualized SGA (i.e., earning over 75 percent of, but less than annualized SGA) in the year after VR. However, this does not provide evidence that beneficiaries either were or were not “parking”—i.e., deliberately remaining just below program income limits to retain benefits. Because SSA did not collect monthly earnings for DI beneficiaries during the timeframe of our study, we used annualized earnings for both DI and SSI beneficiaries, thereby limiting our ability to determine the extent of “parking” on a monthly basis.18 For beneficiaries who had earned income in the year after VR, their median annual earnings were $4,476.
• Some beneficiaries in our study earned enough to have their benefits reduced in the year after VR, resulting in decreased DI and SSI program expenses. Benefit reductions from DI and concurrent beneficiaries in our four cohorts who did not receive DI benefits for 1 or more months due to work in the year after VR resulted in an estimated reduction in DI benefit payments of over $106 million. The average annual reduction in DI benefits due to work was $26.6 million. Of the 70,302 SSI and concurrent beneficiaries in our study who had earnings gains from the year before VR to the year after VR, almost 50,000 (71 percent) had a reduction in their SSI benefits. However, we were unable to reliably estimate SSI benefit reductions for SSI and concurrent beneficiaries because SSI benefit amounts can be affected by other factors besides earnings increases (e.g., changes in unearned income, spouse’s income, etc.), and, due to data limitations, we could not isolate the effect of beneficiaries’ earnings increases on their SSI benefit levels.
• For the 2000 and 2001 exit cohorts, 10 percent of beneficiaries were able to leave the rolls at some point by 2005; however, about a quarter of those who left also returned for at least 1 month. While the SSI program saw the most departures, the lower rate of DI and concurrent beneficiaries leaving the rolls may be due to several factors. For example, DI beneficiaries are generally afforded a much longer working period before cash benefits are completely discontinued, and delays in the reporting of beneficiaries’ earnings data to SSA are much more likely to occur for DI beneficiaries. The median annual earned income for all beneficiaries leaving the rolls was $12,027.21 By way of comparison, the average annualized SGA was $9,618, and the average annualized disability benefit was $8,460 for the DI beneficiaries and $4,452 for the SSI beneficiaries in our study in the year after VR.22 Those who returned were off the rolls for an average of 16 months.
Apr 5, 2007
GAO Report On Court Remands And An Interesting Longhand Response From The Commissioner
Over the past decade, the number of disability appeals reviewed by the district courts and the proportion of remands increased, and SSA subsequently granted benefits to claimants in many of the remanded cases. Between 1995 and 2005, the number of cases reviewed by federal district courts grew by 20 percent—from about 10,300 to some 12,400—which roughly corresponds to workload increases at SSA during the same period. During this period, the courts upheld SSA’s decisions to deny benefits in 44 percent of cases on average and reversed 6 percent. However, the most frequently occurring decisions were remands back to the agency for further review (50 percent), essentially resulting in additional work for SSA. The proportion of reviewed cases that were remanded increased by 36 percent over this period, with 1998 being the pivotal year when the proportion of remands exceeded affirmations. According to some SSA officials, this notable increase may have been due to new national guidelines for SSA adjudicators—known as the process unification rulings—that may have also led to federal courts using more remands to ensure that the guidelines were followed. With regard to the disposition of cases by geographic jurisdiction or judicial circuit, there was substantial variation in 2005, the year for which detailed data were available. Federal district courts in the Second Circuit—which serves part of the Northeast—affirmed 19 percent and remanded 74 percent of cases, while district courts in the Sixth Circuit—which serves Michigan, Ohio, Kentucky, and Tennessee—affirmed 61 percent and remanded 35 percent. According to SSA officials, case outcomes may vary from circuit to circuit because of differences such as judges’ interpretations of laws and the volume of cases that circuits examine. We also found that once cases were remanded back to SSA for re-adjudication, the majority of claimants—66 percent—were awarded benefits. According to agency officials, the changing nature or severity of claimants’ disabilities over the often lengthy period of appeal may contribute to the extent of allowances for remanded cases. ...
... many stakeholders said SSA decision makers had failed to properly consider the opinions of treating physicians. Many agency officials as well as outside stakeholders attributed the errors resulting in remands to a heavy workload. For example, ALJs we spoke with expressed the view that their caseload—around 50 to 60 cases per month—undermined the quality of their written decisions.
We are in the process of reevaluating DSI and looking at more direct ways to reduce backlogs. Your analysis will be helpful to that effort. -- Thanks!"
The PDF Zone has an interesting discussion of PDF versus TIFF, which may help support Social Security's decision. Here are some excerpts:
Deciding whether to go PDF or TIFF with your documents seems like a no-brainer for many users. But there's a time and a place for both document formats. And, increasingly, companies are evaluating whether to switch to using TIFF in their document workflows.We have some themes here:
TIFF, or tagged image file format, is a popular format for high-color depth (32-bit) images. ...
For the majority of users who are putting text in their documents, the PDF is hands down a better choice. It is a universally accepted format that any recipient can view using the free Acrobat Reader utility. ...
[PDF] is also a much more secure file format that offers the ability to control factors such as who can read or alter your document.
You can alter a PDF much more easily than a TIFF file. Between the features available in Acrobat, Acrobat Pro and third-party add-ons, you can do several things not possible with TIFFs, such as:
But don't count TIFF out yet. TIFF is a great choice for archiving images, and may be a better choice in the long run than PDF. ...
- Add bookmarks, notes and highlighting without altering the original file
- Insert hyperlinks to other documents
- Index a PDF for complex searches. ...
The major drawback of TIFF is that, because it has been neglected by Adobe, it lacks standardized support for advanced imaging features that have been developed in the last few years. ...
"A TIFF connected to a database with OCR provides the same capability as a PDF with OCR that has been catalogued," says George Thornton, managing partner of On Site E-Discovery. On Site's clients are law firms with hundreds of thousands of pages of documents that need to be scanned into digital format, then OCRed and searched for keywords to provide evidence in a case. These databases can grow into multiple terabytes, so saving space is crucial. "When I have a large document collection I use TIFFs with a database," says Thornton. "For business purposes, I tend to send PDFs."
- Normally, using PDF files is a "no-brainer." It is much more widely used. The Adobe Acrobat software used with PDF files is far more advanced than the TIFF software.
- TIFF has advantages when one is dealing with photographs.
- TIFF has advantages (that are unexplained by this article) when used in conjunction with a database, particularly a large database.
It is also unclear how much thought was given to the fact that Social Security's document imaging system will never stand in isolation as most document imaging systems do. Social Security's imaging system has to interact extensively with the outside world. Claimants and their attorneys must be able to view records. Social Security must be able to receive medical and other records from outside the agency that are already scanned in PDF. Eventually, claimants and their attorneys are likely to be able to view their files over the internet, which will be difficult with TIFF files. And there has to be the question of whether TIFF really has any future.
Going with TIFF was a crucial decision for Social Security, which has implications for decades to come. If the decision to go with TIFF was a mistake, the transition to PDF is going to be terribly expensive. The TIFF decision deserves attention from Social Security's Office of Inspector General (OIG), the Government Accountability Office (GAO) and Congress. It may seem boring, technical and confusing, but, in the end, it was probably the most consequential decision made by former Commissioner Barnhart. As far as I know, no one who was not directly involved has taken an in depth look at the choice of TIFF.