Dec 29, 2016

Are ALJs Unconstitutional?

     A panel of the United States Court of Appeals for the 10th Circuit has held in Bandimere v. SEC that Administrative Law Judges are unconstitutional because they are not appointed by the President. The Social Security Administration employs most federal ALJs. This decision may receive en banc review, that is by the entire 10th Circuit instead of just a three judge panel. If en banc review is denied or if there is the same result after en banc review, the case is certainly headed to Supreme Court review.

24 comments:

Anonymous said...

Unconstitutional, no. Overpaid insurance adjusters yes. Take away the title, call them claims adjudicators and cut the salary by half. No need for a "judge" for an entitlement program, its ridiculous.

Anonymous said...

@12:04 - especially when they've been stripped of judicial independence and instead proceed, due process be damned, to rubber stamp outcomes based on binders full of approved if/when/thens rather than applying the regulations and case law as they should.

Anonymous said...

I think the agency will view this as a windfall to be able to downgrade what they do not like, in favor of cheaper claims-adjudicators who fit into the system better. This decision may be able to Trump APA kinds of considerations.

Anonymous said...

@12:43 judicial independence they should have never had and that is unneeded in processing a simple insurance claim for benefits. Dress the pig as you wish (even in robes and how about a powedered wig), they are insurance claims processors. The day an ALJ was needed was the day the system should have been simplified.

Anonymous said...

between this and an incoming Congress and administration that won't give or care two cents about unions, I'm sure the AALJ is peeing in their pants or at least running back and forth to the restroom now.

how does working with the horrible evil Agency sound to you now ALJ union, maybe too late now

Anonymous said...

"Referees" and "Hearing Examiners" were not originally set-up for disability examination purposes, which was not part of the SSA until the mid 1950s, and the 'honorables' APA status has always been questionable.


From a strict application of the U.S. Constitutional, which has been the traditional Republican view, the 10th Circuit panel has a point about "judges" needing to be under Article III, ignoring cost and efficiency [not always key values in government], then words should have meaning. The simplest answer is they "an' really judges" no matter what they want to call them.

Tim said...

A rose by any other name... What difference does it make what title you give them? If they can't be called judges, would changing their title satisfy the "real" Judges? I am more concerned with their decision making.

Anonymous said...

As a former ODAR ALJ, it may surprise some to learn that I agree with the original poster. I "adjudicated" much more complex disability claims as a GS 9-13 at another federal agency before being "robed" at SSA. Frankly, even then I think I was overpaid.

"What difference does it make what title you give them?" Well, I found that many of my former colleagues experienced a precipitous rise in their IQs the first time they were referred to as "Judge," along with an overall increase in their good looks and wit. The souls who were afflicted most by this phenomenon (sometimes referred to as "robitis") quickly found themselves climbing the management ranks, where they jealously guard the title which is inextricably intertwined with their self-esteem. Really- these positions require very little in the way of legal acumen or specialized medical knowledge, At other federal agencies, employees with bachelor's degrees in history, psychology, and English do a very good job of applying regulations to medical evidence and reaching a disability decision.

Tim said...

10:33 PM I know this is off topic, but I need to know what "wins" for a typical ALJ when it comes to widespread arthritic joint pain (back, shoulders, hands, knees, etc.) I have a Good work history; longtime, progressive pain; other, non-exertional limitations. I have tried to get doctors to fill out an RFC form, but they are very reluctant to do so. Any Advice? Thanks!

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Amishboy51 said...

Looks like the haters are really out today. Happy New Year all!

Anonymous said...

Tim, hire a lawyer. Immediately.

Anonymous said...

I guess the name/title doesn't really matter, but I do love to throw the "I'm a judge" thing in ALJs' faces when I can. I mean, what other "judge" do you know of that can literally do NOTHING if, say, an officer of the court told them to go to hell in a hearing on the record?

Our ALJs can do literally nothing more than stop the hearing and tell them to leave in that circumstance. No contempt powers, no ability to sanction them. Heck, they can't even report the offender to their State Bar since we attorneys within the walls of SSA are forced to take those complaints up the chain and wait and see if OGC or whoever is willing to pursue them--we would literally face trouble with SSA if we reported ourselves. Not to mention they are unable to set precedent, use equity (aside from the really rare circumstances the regs or Act allow equity like with overpayment issues or SSI eligibility stuff), etc. etc.

So let them keep their title, whatever. But just always remember they have basically none of the powers held by those evoked to mind when we hear the word "judge."

Anonymous said...

Since ALJ's are nothing more than glorified insurance adjusters is nothing more than a huge waste of tax payer money and a huge travesty of justice for those needing benefits in the SSA bogus court. Why not qualified Senior attorneys in the SSA be elected for AlJs's in the SSA by the president? This certainly does sound unconstitutional on its face that these ALJ's who aren't even attorney erst the while being given the judicial authority to make judicial decisions on people's necessity for their disabilities. It all sounds like nothing more than conflicts of interests with the insurance cartel running everything including being on govt boards and being pronounced judges in the SSA.

Anonymous said...

@4:28 Your accurate observations make it even more pathetic that so many invest so much in their status as a Social Security "judge." I am reminded of of a line of dialogue from the departed. Despite how much you may want or need it, being an ALJ "don't add inches" to any aspect of you anatomy or intellect. Nor does it rehabilitate failed character.

Anonymous said...

I hear they are close to highly realistic sex bots for our pleasure. Perhaps SSA should consider life size robot ALJ's who are programmed to say deny all of the time. fix them to spit out a cut and paste paper decision with a few lines personalized for the poor subhuman on trial. I've seen good and bad ALJ's. I hardly think it is a simple job. The good ones make all the difference in the world' One thing they do is they do a little justice when the agency has been outrageously wrong in denying benefits at the lower levels. They give the American citizen at least somewhat of a feeling that they have a functioning government that actually thinks they are worth having a judge in a robe decide an important issue for. Don't tell me that what goes on in most courts across our country is not pretty mundane and mechanical on a daily basis. Sensational jury trials over highly complex issues are not the norm. Mundane criminal and civil matters are. I have seen new ALJ's with prior judicial or prosecutorial experience take a pretty long time to become highly proficient at SSA as judges. One person from recent years never even became able to pose questions to the vocational expert after six years. However, some of the good ALJ's I've encountered are smart enough to be good in any system. We need more quality people at the ODAR level. My ODAR local ODAR was getting hearings up in under nine months just a few years ago before the witchhunt set in.

Margaret Kibbee said...

Love what 9:28 AM just said and agree. I have been doing hearings of one sort and another since 1970. Welfare hearings which once did disability hearings were conducted by loyal employees and were good only if you were very lucky. Unemployment 'hearings' were a joke until they were turned over to administrative law judges. We have all met some good and bad law judges, but I am not in favor of changing the system. If we lower the requirements and the status, we will get what we pay for. There are many things I would like to change about the social security disability system, but this is not one of them.

Anonymous said...

This thread may be the first time in the history of ever (or, at least, since that Edward G. Robinson movie) that people are holding up insurance claims adjusters as models of probity and efficiency. Man, the right wing trolls are *everywhere* this week, intellectual honesty be damned. For the record, I've held both jobs, and the ALJ position is much more demanding and involved. Unlike being a paid right-wing comments troll, the ALJ job is something I can't do in mom's basement wearing my underwear. Also as an insurance company person, the claimant couldn't Google my name and see what my pay/deny ratio was...

Anonymous said...

Yes, the ALJ job can be challenging, but the point remains that if the lower court's decision is eventually upheld by the Supremes there's going to be a need for some other type of hiring authority and mechanism for the ALJ position.

As I read the court's rationale, if the effected portion of the APA is found unconstitutional, the ALJs will need to be direct agency hires, being selected by the particular agency or department head. in the case of SSA ALJs, this would be the Commissioner of Social Security.

Anonymous said...

so basically if this stands ALJs will be like AAJs and be hired directly through the commissioner and not by proxy.

Anonymous said...

"the ALJ job is something I can't do in mom's basement wearing my underwear."

You can two days a week (more if your HOCALJ approves), and with that eight hours of credit yall can earn via telework on weekends, that's another day away from the office each week.

I doubt my office is the only one where many (most?) ALJs are only here two days a week and very much "do work" (maybe not in their mom's basement) in their undies at home the rest (majority!) of the time ;)

Anonymous said...

@2:01 AM, January 01, 2017

An ALJ (Almost Like a Judge) is still just doing one,ONE,thing, decide a disability insurance claim. That's it. I am sorry, you are not a medical expert, you look for the keywords and test results the same freaking way as a DDS or Workers Comp claim adjuster. ROM, FEV1 and 2, blah blah blah. How on earth is it more complicated? Because you are working for SSA? Every single claim you deny is proof that DDS did it right and did it cheaper. You couldn't cut it in the open market, took the comfy lifetime job with decent pay and get to tell the unknowing you are a judge. Who is divorced from intellectual honesty? Any ALJ that doesn't think I can take any college grad off the street and pay them $65k to do the same job in about 8 months.

Anonymous said...

@9:51- Amen.

@8:45- Let's not forget all the time those highly competent and judicious folk spend monitoring and posting to an online website on a daily basis. It is a testament to their cleverness and superior intellects that they can do so during work hours with no diminution in their quality or quantity of work. Thank goodness they can be so efficient, lest we mourn the squandering of the tax dollars they so rightly deserve.

Anonymous said...

I am looking forward to see how the Supreme Court rules. I would not shed a tear to see the ALJ jobs at SSA end. Too many of them don't do their jobs well and should be fired.