May 7, 2016

Social Security Plan To Remove Some Cases From ALJs

     From Huffington Post:
The Social Security Administration is quietly changing how it handles some appeals from Americans who’ve sought disability benefits.
The changes are part of an effort to chip away at an unprecedented backlog of unresolved claims, one that’s left some people waiting more than 500 days for a decision.
“With over 1.1 million people waiting for a hearing decision, we are in the midst of a public service crisis,” SSA spokesman Mark Hinkle said in an email. “For some people this results in a wait of over 17 months to receive a hearing decision, which we concede is unacceptable service.” ...
It’s the later stages of appeals where the SSA has made changes. Nearly 30,000 disability claims per year get sent back down, or “remanded,” to the appeals council or to administrative law judges for reconsideration. Now, these remands will instead be heard at the council level by administrative appeals judges who don’t have the same independence from the SSA that administrative law judges do.
Another 10,000 or so cases being taken away from ALJs include situations where people have returned to work after receiving disability benefits and the agency believes they’ve been overpaid. ...
Sen. James Lankford, an Oklahoma Republican who believes the disability program is rife with fraud, will hold a hearing on the new appeals policy next week, his office said.
“These proposed changes break with decades of practice, run contrary to well established interpretation of the Social Security Act, and depart from the SSA’s own regulations,” Lankford said in a letter to the agency last month. “The possibility that such actions could invite large-scale, costly, and protracted litigation from affected claimants is very troubling.”
     The idea that switching these cases to Administrative Appeals Judges (AAJs) could help Social Security's backlog situation is preposterous. It's too few cases to have a significant effect and the Appeals Council has enormous backlogs of its own. At best, you decrease ALJ backlogs slightly by increasing backlogs at the Appeals Council dramatically.
     I would attribute this to three factors:
  • Social Security management distrusts ALJs.
  • Social Security management prefers centralizing anything it can centralize.
  • The number of federal court appeals of Social Security decisions is increasing rapidly. With Democratic appointees filling the federal courts, the rate of remands is only going to increase. You can deter this by making it harder to win on remand which you can do by switching the remands to people who can be made to follow orders.
     I don't understand how this would work as a practical matter unless video hearings are forced on claimants. There would be too few cases to send AAJs roaming around the country.
     By the way, don't expect anything to happen quickly on this. Social Security can't do this without adopting new regulations and they can't do that in less than a year. A new Administration may decide to kill this off. For that matter, this Administration may kill this off. I have my doubts that there has been even an informal OK of this by the White House.

39 comments:

Anonymous said...

the usajobs posting for more AAJs/attorney advisors that the agency posted to ramp up for this stated the job would involve significant travel so the plan may be to have them conduct in person hearings. this seems even more of a waste of time and resources

Anonymous said...

oh and there will no new regs issued, OGC has told the puzzle palace 404.956 gives them all the authority they need to do this

Anonymous said...

here is the job posting for AAJ's, 50% or more travel required-

https://ssai.usajobs.gov/GetJob/ViewDetails/432349300/

Anonymous said...

This demonstrates ongoing, continued mismanagement by SSA/ODAR officials. As you state, utilizing AAJ’s to adjudicate some ALJ cases will not have a significant effect on the backlog and will substantially increase the backlog at the Appeals Council. These top officials and managers could have easily addressed this nominal amount of cases, and more, a long time ago had they simply allowed the Senior Attorney Program to operate as originally intended when it was first implemented without all the add on restrictions over the years, and increased the number of Senior Attorney’s, which could have easily been done from the Agencies existing cadre of experienced Attorney-Advisors. Moreover, everything was already in place to do this. The current backlog would be much less had they done this. The decision to destroy all but a small skeleton of the Senior Attorney Program by these top officials and managers is but yet another example of poor decision making. Plus, Senior Attorneys would have been under the umbrella of full control by the Agency, which is something these top officials and managers repeatedly gravitate toward.

Anonymous said...

The Appeals Council fails to competently perform the responsibilities they have already. Why trust them with more? I'd love to see a performance audit at the AC.

Anonymous said...

Just bring AAJs under the APA, despite what seems to be a different hiring process.

Anonymous said...

@ 3:08PM

Placing AAJ's under the APA despite the different hiring process is not realistic. The hiring process to become an ALJ under the APA is very long and complex, and involves a progressive testing and interview process. OPM controls the process until successful candidates names are placed on a Register. Thereafter, in a nutshell, "Certs" are given to Federal Agencies from which to select prospective ALJ candidates to interview. The hiring process to become an AAJ, on the other hand, is the normal GS hiring process for Federal employees. Moreover, with SSA/ODAR, the hiring must be done from within, and the only qualified personnel are employees who possess a law license at the GS-14 level. The number of employees with such qualifications are few and far between. Moreover, several Hearing Office Directors, (HODS), are licensed attorneys, but they have never adjudicated a SSA Disability case. Yet, they are able to seek the AAJ positions while long time ODAR Senior Attorneys who have adjudicated SSA Disability cases for many years are not. This makes no sense, but is consistent with mismanagement and poor decision making by top Agency officials and managers. Needless to say, I seriously doubt ALJ's would be open or accepting of AAJ's simply being given APA protection without having gone through the rigorous hiring process to be an ALJ. (It is fair to say, however, there are serious issues with the ALJ hiring process in that many well qualified candidates do not make the Register for seemingly erroneous reasons, and that an Agency such as SSA/ODAR has learned how to manipulate the Register to reach over others in order to choose candidates with lesser scores whom they know and reasonably believe they can more easily control).

Anonymous said...

as someone who will need to file a case this year I for one must disagree with the last caller. and I must say as a citizen I don’t give two beans about your turf war. who cares about how aljs would "feel" about "accepting" these aaj people. Had enough of reading posts about treating alj staff like sacred vessels.
If someone is going to do my hearing and hearings for hundreds and hundreds of other people and make these type of final decisions for people’s cases then provide some type of protection.
It's not the public's fault that the agency can hire other judges. Once hired, place them under this apa however you want to do it. aljs don't like it, then get your union to convince these manager heads to increase the requirements for their aaj hires to meet your "rigorous" standards.

Anonymous said...

Lots of problems with this idea. First, 404.956 was never intended to permit wholesale adjudications at the hearing level by Appeals Council members (I refuse to call them Judges as they are not independent fact finders. The name Council Member is much more appropriate and fits the job description). Second, as others have said, this is not going to make a dent in the backlog and I would predict it to be very expensive, once claimants decide to opt out of video hearings and the taxpayer will be paying for Council members to fly all over the country for a hearing or two. Third, AC members currently receive pay bonuses for job performance, something that is inopposite to the APA. Bad idea by folks who have never held a hearing and have no idea what the ALJs do.

Anonymous said...

In reading the last comment, I could not help but think: in that case I guess we need to keep Article III of the Constitution in mind and not call ALJs judges either, just call them hearing officers. That’s been a reoccurring sentiment amongst us practicing attorneys that also go before district court judges.

In any event, looking it up both the ALJ and AAJ positions are defined in the statute--- 5 U.S. Code § 5372 and 5 U.S. Code § 5372b. Also according to OPM.GOV they make the same salary. So with the large scale changes SSA has in mind, bringing both groups under the APA in some way seems like a plausible idea, and it shouldn’t be so swiftly dismissed just because they are hired through different mechanisms, or because there may be those who are invested on either side that don’t like the idea. It very well may make some upset and bring an end to the bonus practice the other writer brought up, but it might not be a bad price to pay for shoring of public confidence in these major changes they’re proposing.


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Amishboy51 said...

My apologies for continuing to repeat myself, but ODAR cannot resolve the backlog by itself; it's an SSA problem.

To wit, the agency must begin to require all the DDS offices to properly and fully apply the rulings that are "binding on all adjudicators," including evaluation of subjective symptoms and assigning weight to treating source opinions. This will result in far more allowances at initial and recon and, thus, far fewer hearing requests. Then, without seeking to add substantial numbers of employees or assigning cases to AAJ's, ODAR will be able to begin whittling down the backlog.

Dot.GOV said...

The question that comes t my mind is whether the removal of classes of SSA/SSI cases from the jurediction of ODAR ALJs could lead to a "down grade" (OPM/Civil Service term) of the SSA ALJ job?
Admittedly this would be simpler if they were still on the GS classification (pay scale) rather than AL. Also in the real world of civil service, most "down grade" actions end up with a compromise -- the current holders keep their grade (& not just a two year transition or pay with higher step at the new lower grade) and new hires/promotions are at the new lower grade -- which is also common in union contract negociation for reduced beifits "grandfathered" in.
Historical Note: The SSA Referees --> Hearing Examiners --> ALJs were moved from GS-14 to GS-15 with the added responsiblities added with the SSI program. Even earlier, it was only a GS-13.
And, with adding the SSI program, tere were p;ans (incuding GSA office leases and furniture) for a handful of branch (?) Appeals Council offices outside of the DC/Baltimore area. The need went away when over time the transfers from state roles to Federal SSI roles with reexamination of Resouces and "Esential Perons", also most GS-13/14 'temporary' SSI ALJs becames full SSA ALJs.

Anonymous said...

Another fool’s errand. I envision a cabal of frustrated policy wonks in Woodlawn; rubbing their hands and offering up yet another harebrained scheme. There are good folks with restraint at SSA, but they function best in a functional environ. We don’t have that. We have a distracted Commissioner who hasn’t demonstrated any real initiative with disability and a newbie replacement somewhere in the wings. This makes for a mad house of upper level feds, posturing for the eventual change.
The AC was reviewed in the last year or so and found severely wanting, because they don’t release quality statistics. Having those folks who deny 80 – 85% review (after holding the case for 16 months) handle remands is like booking a room for the fox in the hen house. DDSs have a much more rigid quality review than any other component (50% of SSDI allowances are reviewed) and they are better trained. When’s the last time you saw a decision where an ALJ actually met a listing. This is not to bash ALJs, most of whom work hard and play fair.
It’s just a money game. The only way to reduce the backlog is to get rid of Reconsideration and hire more ALJs who are well trained, require continuing training and live up to their oath to be fair and impartial.
Otherwise, the new scheme is just tilting at windmills.

Tim said...

10:01 AM Why don't they review 50% of the denials? This whole process should be about making the right decision for the claimant, not a petty turf war. Obviously DDS can make the obvious approvals, but they need to do better at some of the more complex cases. DDS needs to approve more at step 5, instead of just passing the buck to ALJs and then complaning that ALJs are too lenient because they approve cases that DDS DENIED!

Anonymous said...

In my neck of the woods, DDS completely ignores subjective pain and other symptoms such as lack of ability to concentrate. They also do not even acknowledge having received opinion evidence, failing to list it or mention it (although when I can see the ERE file, my submission is there). It is a "deny-em-all" culture.
Appeals Council fails to address even simple problems, such as the ALJ adjudicating a claim using the wrong DLI (did not consider lag earnings on file) or the ALJ adjudicating one part of a concurrent claim but not the other. They simply choose not to review.
ALJs used to be the bulwark against these illegal practices. Now, too many are caving to the "party line"-- even though they are protected by the APA, human nature want to "go along to get along". If AAJs are allowed to adjudicate claims for CDRs, overpayment waivers, and remands, since there are no APA protections it'll be a sad day for the claimants.
Simply put, SSA is not following the disability criteria set out in the law. Politics and trust fund balances should have nothing to do with applying the law.

Anonymous said...

@ 11:43AM,

SPOT ON!

Anonymous said...

From a bird’s eye view of the big picture, even though it may at first be a blow to the ego, the ALJS and their union may very well be wise to embrace these AAJS under some form of APA structure. Then do your darnest as some suggested to move the managers to have stricter hiring practices for the appeal judges and keep their numbers within a certain percentage of the overall ALJ numbers.
Less this AAJ group be used to eventually whittle down the need for ALJS even if that’s not the intent, weirder things have happened.

Just a word to the wise and the reasonable of mind if you are listening, triangulate. It very well may prevent one less class action from John Q. Claimants.

Amishboy51 said...

"In my neck of the woods, DDS completely ignores subjective pain and other symptoms such as lack of ability to concentrate. They also do not even acknowledge having received opinion evidence, failing to list it or mention it (although when I can see the ERE file, my submission is there). It is a "deny-em-all" culture."

It's nationwide at DDS, not just your locale. DDS continues to follow the same practices they've always had in place; for example, if you don't have a disabling impairment at step 3, you have the RFC for at least a full range of sedentary,

Anonymous said...

SSA has wanted to get rid of ALJ's for decades. This is the first substantive attempt. No one within the agency is going to step up for the ALJ corps, not even ALJ management, the entire rest of the agency hates the ALJ corps (Bice and Allen stepping aside right now is no coincidence. Expect a complete SSA management robot to take over, not that Bice was much better). SSA management wants real managerial authority over the adjudication process, so you all can forget this modified APA talk. Congress, NOSSCR and the Federal Courts will decide this one but I have a really bad vibe about the whole thing.

Anonymous said...

@ 6:16PM, I suspect you are correct. On a smaller scale, they already did this with the Senior Attorney Program, despite its effectiveness. This may all come down to a situation in which Hearing Officers, who may or may not have law licenses, hold hearings, and non-attorneys write their decisions. This is what DOL does with the Federal Employee Workers' Compensation (FECA) program. It's a horrendous mess and one of the most mismanaged programs in the Federal government, but since when has that mattered among the powers that be at SSA/ODAR?

TruthBtold said...

@6:16pm. Can you expand on "Bice and Allen stepping aside"? Have they announced something only insiders know?

Anonymous said...


@ 6:16 said: "Bice and Allen stepping aside right now is no coincidence. Expect a complete SSA management robot to take over"

Ummm, I've heard nothing about Bice/Allen giving up their positions. What do you mean they have chosen to "step aside"?

Anonymous said...

Judge Bice and Judge Allen have already announced they are leaving their positions at the latest by end of fiscal year, most likely well before. That has been announced. Rumor is that Judge Bice will retire. Judge Allen will return to hearing cases.

Anonymous said...

Why is it the least competent are primarily the ones who rise to power in government pushing those with more rational, pragmatic and functional thought processes out?

It has repeatedly been pointed out on this blog the "SSA robots" who will remain in control are unable to successfully manage SSA/ODAR and the backlog of cases.

These top officials and managers want full control over everything. They will micromanage the workforce with a punishment/reward system measured by numerical goals, quality be damned. Historically, this type of managerial style is known to create an abusive work environment.

Further, these individuals have already demonstrated they are quite adept when it comes to cleverly disguising unfair/prohibited personnel practices in order to promote those culturally similar to themselves, and to get rid of those they dislike without having to abide by those pesky civil service merit system principles and anti-discrimination/ retaliation laws.

If you think things are bad now with the massive backlog, hang on for a wild ride, folks.

Anonymous said...

Can't say I will be sad to see Bice and Allen go. They have done nothing but continue to further perpetuate the number driven, contentious atmosphere that has become ODAR as of late. They probably both want out before they are called to answer for the worsening situation.

Anonymous said...

@ 12:17PM,

I did not realize that. I thought Bice and Allen were more on the sanity side of the equation. You are likely correct then in your assertion, "They probably both want out before they are called to answer for the worsening situation." It appears as though thing are worse than I even thought. Wow.

Anonymous said...

Responding to 3:48 PM, May 07, 2016:

Your on-point discussion detailing the rigorous process used in selecting ALJs from the available candidates is well taken. The importance of having well qualified individuals for the ALJ position cannot be overstated. OPM and the other agencies involved should be commended for their continued efforts. All parties can agree that we must have qualified candidates who at the very least follow the law and display appropriate judicial temperament. Despite having a differing hiring process, one would expect SSA takes their role of directly hiring AAJs just as seriously.

But dare I say your comments, although well taken, do not precisely capture and address the reasonable concerns other commenters here raise.

The point being made is that yes rigorous hiring practices are extremely important, but arguably of similar importance to the integrity of the process, is that we will soon have new individuals engaging in the role now performed by ALJs who currently have APA protections. Like ALJs, this new group will hold hearings, engage in hearing related activities and make decisions based on their evaluation of the evidence. Given this new role, arguments and questions regarding additional protections are warranted and legitimate. The protections at issue are not as some would believe for the ultimate benefit of any one judge be they ALJ or AAJ. To the contrary, the argument derives from a desire to first and foremost safeguard the public's interest in having fair and impartial hearings and decisions.

I don’t think any reasonable person would argue against the necessity of having a level of management oversight over the ALJs and AAJs---knowing however the extent of this oversight will always be up for perpetual debate, but this APA issue should not only be seen just from the standpoint of the judges and the agency, but also that of the claimant. Leaving the matter unresolved and multiplied by x number of cases inexorably leads to a poor public perception and warranted doubt in the public’s mind.

It’s understood the agency is under extreme pressure to address its pending cases at all levels. However, the agency’s measures should not needlessly erode public trust and leave unanswered question regarding due process. Legitimate concerns should receive serious, thoughtful and deliberate consideration and resolution by those involved.

Anonymous said...

The real culprit throwing the ODAR levers is Gerald Ray of the Appeals Council. He has overseen the development of a dubious data system shaped by an overly conservative view of the disability rules. His Franken-metrics are the key driver behind the ODAR plan. In a case of who is watching the watcher, nobody has validated the soundness of his system.

Anonymous said...

@ 8:05

ALJs have a ton of discretion. Even we who think the APA stuff is thrown around way too much by them and their union acknowledge that.

The problem is that some ALJs want to operate freely in spheres where they certainly do not have discretion. It's discretionary whether you see good cause, or which evidence you give more weight to and that ultimately decides disabled/not disabled, etc.

What are not discretionary are things like: making all findings you (and only you) are charged at law with making; following clearly-articulated law and policy; giving instructions that are consistent with law and policy to decision writers; only giving waivers of recovery of overpayment when both prongs are satisfied, etc. etc.

The saddest or most absurd or ironic (depending on your personal views) part about this whole fight is that if ALJs were deft at operating within the discretion they actually have, they could get/do pretty much everything they want that they are currently fighting for via ridiculous APA-based arguments. Except for quotas--those aren't helped by anything, really.

Anonymous said...

@ 8:05AM, May 11, 2016

From 3:48PM, May 7, 2016, here. I largely concur with you. However, your assertion, "Despite having a differing hiring process, one would expect SSA takes their role of directly hiring AAJs just as seriously," misses the point I was making, which is the only GS-14 qualified candidates within ODAR who could apply for the recent opening to hire more AAJ's are primarily HOD's who have law licenses. Many of these individuals have never adjudicated an SSA disability or non-disability case. This smacks directly in the faces of Senior Attorneys, a GS-13 position, and there are many Senior Attorneys who adjudicated cases for several years. Some still date back to the start of the original Senior Attorney program in 1995. On what planet is a GS-14 HOD who has never adjudicated a case more qualified than Senior Attorneys who adjudicated cases for several years? It is as though the 20+ AAJ positions may very well have been created to promote certain HOD's with law licenses who are under fire for engaging in prohibited personnel practices and other misconduct. This is certainly in keeping with history and top officials promoting those culturally similar to themselves. Why were Senior Attorneys specifically precluded from applying for these positions?

While you advocate you have faith in SSA officials and the hiring process, in general, whether it is ALJ's or AAJ's, I have learned from my 30+ years experience with the Agency NOT to have faith in the process. I have seen far too many cases of more qualified individuals being skipped over, and this is especially the case when it comes to promoting African-Americans and minorities. Reverse discrimination is very much alive and well, especially at the highest levels of the Agency. In other words, I have repeatedly witnessed prohibited personnel practices engaged by the powers that be in order to promote/choose the individuals they favor. This is true for the ALJ hiring process, as well. I cannot tell you how many times I have witnessed Agency officials maneuver, manipulate and/or wait until they are able to skip over some in order to choose an individual (insider) with a much lower score on the register. This is the reality. So, no, I have no faith in SSA officials and the hiring process based on what I have witnessed over 30+ years with the Agency.

Another thing which stands out to me is a complete and total aversion among those at the top when it comes to the Senior Attorney program. Why is this, and why have these individuals been allowed to all but destroy the Senior Attorney program? Despite its effectiveness early on, the Agency placed more and more restrictions on the program over the years until they all but destroyed it, why? I understand ALJ's felt their turf was being invaded, and that Senior Attorneys usurped many O-T-R's. As the backlog grew, this became less of an issue. I have heard some say Senior Attorneys paid too many cases. Certainly, I never did, but I do believe during the Astrue era, pressure was placed on Senior Attorneys to produce more numbers. As a result of this pressure and ones annual performance evaluation being largely based on numbers, I suspect some Senior Attorneys paid more cases then they otherwise would. However, I honestly cannot blame them, can you? At any rate, I think it is an absolute shame certain top officials have viewed the Senior Attorney program with such disdain.

Tim said...

Senator Lankford's supposition that SSDI has become "saddled with fraud" is not only totally unsupported without a single concrete example, he largely discusses the program's budget issues. He give no means of funding with several proposals that would increase expenditures without necessarily resulting in fewer benefits paid! As for his idea of updating the vocational criteria, that has been suggested by reps who have been given rediculous job titles by "VEs." Are there really that many unskilled sedentary jobs left in the country? Will Senator Lankford require employers to hire more of the disabled? Or, does he just not care? Find them not disabled and let 'em rot... Then Republicans wonder why people think they don't care!

Anonymous said...

@11:38 regarding Ray and his Franken-metrics
Your comment seems to have gone over their heads - but it's true- he seems to be the man behind the ODAR curtain wiith his magic data system. He is like the SSA Wizard of Oz - he and his magic data are going to provide the missing pieces - not just brains, hearts, and courage - but an end to backlogs, decisional inconsistencies, and all human failings. nobody has bothered to validate his system because there's no incentive to question something that holds the promise and illusion of better days to come - why would anyone want to question that?

Anonymous said...

Teri Gruber was pretty hard pressed to explain to the two Senators just why she was taking on an expensive and controversial new program to accomplish very little. Sen. Lankford also explained to her that she did, in fact, have to share the legal advice SSA got with the Committee, as Attorney/Client privilege did not apply. It was pointed out (by one of the Senators) that her reluctance to do so suggested that she was anticipating litigation over her new program.

The word incompetence comes to mind.

Anonymous said...

To anonymous May 11 at 8:05:

What "clearly articulated ... policy" are you talking about? Have you read any SSRs lately?

One of the possibly endless problems this godforsaken agency has is that the people writing policy are unable to provide useful guidance to the people making decisions. This is the agency, e.g., that uses "moderate" and "marked" as crucial elements in listings, yet tells decisionmakers they cannot use these terms in RFCs because nobody knows what they mean.

Anonymous said...

Gerald Ray and his heat maps - This is emblematic of the current outrageous backlog. While the backlog and processing times went up, the folks in the crystal tower played with data analytics to "improve" quality. The answer was to essentially have the Appeals Council take over the field (training, messaging, review on reviews...) and see how that worked. He and others pretend to know what's good for the field, even though they have never held a hearing in their careers.

Anonymous said...

Could it be that certain people in the Appeals Council have never forgotten that OAO was once considered so completely and utterly irrelevant, useless, and a hindrance to case processing by the Bush/Barnhart administration that it was slated for the dustbin of history? And that ever since dodging that bullet, those people have undertaken as their personal mission - almost religious in scope - to intertwine OAOs tentacles into as many areas of SSA as possible and so irrevocably that no future COSS would ever again consider cutting them loose?

Anonymous said...

That sound you heard...yeh, that was the last commentor dropping the mic and walking away...cause they just freaking won the internet for the weekend!

Anonymous said...

So this is anecdotal, but "Gerald Ray and his heat maps" actually seems to be helping the AC decision making process. AC analysts are assigned cases in groups that have similar characteristics (aged claimant, low back impairment without any mental allegations, etc.) In turn, these grouped cases often ended up having very similar outcomes, although obviously those outcomes were always individual to the facts in that particular claim. Did it help not to have to look up the same regulations, listings, grid rules, etc. for every case? Certainly it did in my experience. Now that we're part way into the process, it also seems to be lowering the number of court remands since we're catching common errors more frequently.