Dec 18, 2012

Occupational Information System Plan And Secret ALJ Policy Both Crumbling As End Of Astrue's Term Approaches

     Even though the statute allows Social Security Commissioner Michael Astrue to stay in his position until a successor is confirmed, my understanding is that he intends to leave on January 19, 2013, the official end date to his term of office.  While he can look back on accomplishments as Commissioner, a couple of his initiatives have been falling apart as his term draws to an end.
     First, Astrue had a grand plan for an occupational information system (OIS) developed completely by Social Security to replace the Dictionary of Occupational Titles (DOT). A replacement for the DOT is badly needed. It's so outdated that its continued use in disability determination is indefensible.  The OIS project has been Astrue's single most important initiative. His go it alone plan had a couple of serious problems. It was very expensive. Tens, probably hundreds, of millions of dollars expensive. Getting that kind of money would be difficult in any budgetary environment and this is a terrible budget environment. Those who advocate for claimants were completely opposed to an OIS controlled by the Social Security Administration, feeling that it would be manipulated to the detriment of Social Security disability claimants. This opposition would have been a further obstacle to funding this project. Litigation could have blown up an OIS created by Social Security alone. Eventually, these two problems became too much. Social Security has abandoned its go it alone OIS project and signed an interagency agreement with the Bureau of Labor Statistics (BLS) that will build on the Department of Labor's existing O*NET system to meet Social Security's needs. I know that Social Security employees cannot access this document from their office computers since it's on Scribd and Social Security computers can't access Scribd. I'm sorry but I don't know where else I can upload it to. Access it from home or get it uploaded to your intranet.
     Second, Astrue took a swipe at attorneys and others who represent Social Security claimants by ordering that the identity of the Administrative Law Judge (ALJ) remain a secret until the day of a claimant's hearing. The secret ALJ policy has been a major annoyance for people like me who represent Social Security claimants. The response to the secret ALJ policy has been to make requests under the Freedom of Information Act (FOIA) to learn the identity of the ALJ. Once Social Security finally declined the FOIA requests, litigation followed. I don't have a link but Social Security has recently settled one of these FOIA lawsuits (Hoaglund v. Social Security Administration, Western District of Washington) by revealing the name of the ALJ and paying attorney fees. It looks like things worked out about as I had predicted. The justification for refusing the FOIA requests was weak and the Department of Justice had little appetite for defending the lawsuit. The secret ALJ policy is at odds with White House information policies. I suppose that Social Security can wait until after Astrue has left office to officially abandon the secret ALJ policy but I don't see how they can continue it much longer.

12 comments:

Anonymous said...

The case is Hoagland v. Social Security Administration. Western District of Washington, case no. 3:12-cv-05750-RBL

Anonymous said...

I don't necessarily know who my judge is going to be when I file a custody-related motion or have to defend a client in another forum in State or even Federal court. Why are whiny Social Security reps so entitled to know the identity of their ALJ in what is a non-adverse hearing?

Anonymous said...

You need to know the identity of the ALJ in advance so you know whether to advise your client to move to another jurisdiction and so you know what fake bias claim to allege.

Anonymous said...

Re 11:15. In the courts you reference you typically get one change of judge with or without cause. If you dont know this you need to take down your shingle.

Anonymous said...

11:57

you must be joking, a law student, or have no experience practicing in the real world. Yes, attorneys all the time are moving for recusals, changes of venue or forum, or judge changes. And courts will give you all the continuances you ask for until your favorite judge is rotated into your action's court. Get outta here.

Anonymous said...

I have seen little impact of not knowing the ALJ. If they have a special request, they are going to make it or send out the form they have made themselves, or request all Exhibits over 100pgs have a seperate review posted to the record. Nothing that changed the way a claim is worked or the Hearing held.

Since no commish has been able to update the entire DOT in the last three decades I do not see this as a failure either.

Under Astrue we got access via ARS to the EF, can upload documents, request ODAR to make HIT request (where you get VA MER in 72 hours not months!) and Hearing wait time is greatly reduced.

Upon review its a terrible legacy with a smaller budget every year.

Anonymous said...

12:06
The claims are assigned to an ALJ. If continued, they are still assigned to same ALJ. You cannot change the ALJ by motion aside from extraordinary circumstances. Troll somewhere else.

Anonymous said...

12:17, you seem to have poor reading comprehension or just jumped into that discussion late. I was comparing judge issues in practice in State/Federal courts to the whining about secret ALJs at Social Security. So when I mentioned continuing cases, I was talking about in State court (and how you cannot do that).

So I wasn't talking about ALJs. But even restricting the continuance discussion to ALJs and SS hearings, you're not completely correct. Sometimes you can get a different ALJ by continuing, especially for cases at remote hearing sites.

But thanks for playing ;)

Anonymous said...

11:57
You always know what Judge you are assigned to in state and federal court when the Judge is ASSIGNED. You can simply call and ask if you somehow don't know. In the SSA, a judge will get assigned to a claim months, sometimes even a year before the hearing and they don't let you know who your Judge is until you show up to argue the case.

Anonymous said...

Part of the problem is that the national hearing center VTC cases are assigned just days before the hearing. If the policy is changed, then NHC policy of handing cases to ALJs absurdly close to the hearings will be exposed.

Anonymous said...

It really doesn't matter much to me which ALJ has the case, but it matters a lot to the anxious claimant who is looking to me for my experience to explain what is going to go on at their hearing. Not knowing who the ALJ is, I can't tell them if the ALJ will ask the questions, or I will; whether their hearing will be 10 minutes or over an hour; whether their hearing will start on time, or if they (and whoever accompanies them) need to be ready to wait for a couple of hours. I can also usually tell them at the pre-hearing conference whether we are dealing with an ALJ who issues bench decisions, or never does.

Anonymous said...

@3:18

boo hoo. How many other lawyers practicing in other fields (with similarly sensitive questions/concerns from their clients) are unable to answer these and other similar questions for anxious clients for other reasons?

I appreciate that people applying for disability benefits are doing so because they believe (and many, many actually are) they are disabled. And that such people are deserving of care and compassion. But the lengths to which I see the Agency making ALJs and other employees coddle the claimants (and their reps, which makes no sense since they are not the disabled ones...) is absurd.

I am truly sorry that you reps can't know exactly how your hearing is going to end up for your client before it even happens. Oh, the horror...