January 9 Deadline For Comments On Scheduling Regulation Proposal

The final day to post comments on the proposed regulations that would allow the Social Security Administration to remove any control that an individual Administrative Law Judge (ALJ) has on scheduling hearings is January 9, 2009. If you have something to say on this topic, say it now. Comments may be filed online.

Here are the comments that I filed:

I have been representing Social Security claimants for almost thirty years. I think this is a bad proposal for six reasons.

First, this is distraction from the real problem causing the hearing backlogs -- lack of staff. This proposal does not have the capacity to significantly reduce these backlogs, but may cause Congress to delay giving Social Security the funding it needs to hire the employees who can actually reduce the backlog.

Second, my opinion is that many ALJs are already holding more hearings than they should. I have noticed a significant decline in the quality of the process as ALJs struggle to do something about the backlogs. Forcing ALJs to hold even more hearings is a bad idea. It will just make the process even more deficient than it is now. I get the feeling that high officials at Social Security wish to hold down the number of ALJs and then work backward from some predetermined number of ALJs to decide how many hearings an ALJ should hold. We need to decide how many hearings an ALJ should be expected to hold and then base the number of ALJs upon that. My opinion is that ALJs should be asked to issue 400-500 decisions per year, not 500-700. My opinion is based upon long experience. Where does the 500-700 figure come from other than a desire to hold down the number of ALJs?

Third, I think this proposal places the sole responsibility on ALJs for the number of hearings they hold now. This is just not true. Many ALJs would hold more hearings if their staffs could get more cases ready for hearings.

Fourth, this proposal concentrates upon a small number of ALJs who seem to have low productivity, without noticing that many of these low producing ALJs are in supervisory positions or were out of work due to illness or retirement during a large portion of the reporting period. Many of the rest have health issues, including psychiatric problems that limit their effectiveness. ALJs are human. Inevitably, some of them have psychiatric problems. There is no way of eliminating these psychiatric problems and Social Security has no ready means of quickly firing ALJs who struggle with psychiatric problems.

Fifth, if this is adopted, I expect significant practical problems as Social Security tries to schedule hearings on a national basis when there are so many local variables. There are the schedules not just of the ALJ, hearing reporter, vocational expert, medical expert and attorney, but often scheduling issues at the hearing site, including arranging security guards. I think it is a pipe dream to think that some computer program is going to take account of all of this. Social Security has quite a history of believing that new computer software will perform miracles and then being disappointed when the computer software is put to the test. Do not believe everything that the salespeople say.

Sixth, ALJs who do not feel ready to hold a hearing scheduled for them can easily defeat this proposed system by continuing the case at the last minute. I expect that this will happen regularly with some ALJs. Last minute continuances actually waste resources.