From a press release:
Top Democrats responsible for Social Security policy in the House and Senate yesterday called on the Social Security Administration to withdraw a proposed rule that would limit the right of Americans to receive an in-person appeals hearing if their initial application for Social Security benefits is denied. Workers who are eligible to apply for these benefits have contributed to Social Security for years, paying into the program with each paycheck.
“This change would deprive millions of Americans of their constitutional right to due process and result in hearings which are less fair and less efficient. This proposal is harmful and not justified and we request that SSA withdraw this proposed rule,” the members wrote.
The letter was signed by House Ways and Means Committee Chairman Richard E. Neal, (D-MA), House Ways and Means Social Security Subcommittee Chairman John Larson (D-CT), House Ways and Means Worker & Family Support Subcommittee Chairman Danny K. Davis (D-IL), Senate Finance Committee Ranking Member Ron Wyden (D-OR), and Senate Finance Social Security Subcommittee Ranking Member Sherrod Brown (D-OH).
In the letter, the members outlined why video hearings are inferior to in-person hearings. In a video hearing, the administrative law judge (ALJ) may be limited in their ability to thoroughly evaluate the impact that an individual’s impairments have on their ability to work, and disabled individuals may not be able to fully and effectively present their case. The Social Security Administration has a large backlog of individuals awaiting an appeal hearing, and the delays cause significant harm to individuals who have worked years to earn their Social Security benefits but have suffered a career-ending injury or illness. ...
The full letter can be found here.
13 comments:
A wonderful letter. A couple of minor issues demonstrating some unfamiliarity with the system (MEs are not permitted to examine claimants or rely on in-person observations such as in-hearing mental status questioning).
Other than that, a robust debunking of the Agency's devious NPRM.
However, zero Republicans signed this letter, so it's not bipartisan. And there isn't much Democratic voice within SSA management at the moment.
Will this letter fall on deaf ears?
And is another letter coming about the proposal to begin replacing ALJs with AAJs?
In a post Lucia world the untouchable ALJ and the anti-AAJ worldviews are really not going to hold up anymore. Both ALJ and AAJ are inferior officers and agency adjudicators. So, as long as the person who reviews and decides a case has decisional independence and due process is protected, it’s all going to be a wash at this point. People may not like it, but in a post Lucia world it is what it is. Doing this just makes sense and the energy should be focused on making sure this new group of people have the same level of independence as ALJ when holding hearings and making decisions. The rest is just working out all the details.
@7:38 chair of Ways and Means ALWAYS has significant ability to shape policy. Tying policy to budget approval has long be a normal way to do things.
1:02 pm - Wow, I'm not sure where to even begin with your post. I'm not sure why you conflate the Lucia decision with the idea of AAJs conducting APA hearings. Yes, Lucia held that some, and perhaps all, ALJs are inferior officers. AAJs may be inferior officers, as well. In fact there are many different inferior officers working for the federal government; it doesn't mean that Lucia held all of them are interchangeable when it comes to conducting hearings covered under the APA. I certainly don't recall Lucia holding that any inferior officer can conduct SEC hearings.
The Lucia decision did not find that the APA was unconstitutional. The APA specifically provides certain protections to ALJs from political interference in their decisionmaking process. AAJs don't enjoy that level of protection. The conversation should really stop there. If at the end of the year you have a performance review that can be affected by the way you decide your cases, it brings into question the due process rights of the litigants. And it is not the framework envisioned by congress when it enacted the APA.
To say that the "level of independence" issue can be resolved by "just working out the details" turns the APA on its head and ignores the long struggle SSA ALJs have gone through to maintain that judicial independence. As they say, the devil is in the details.
I remember when the ALJ's had to file a lawsuit about their independence once. Here we go again. It took years to get the system we have now, and we can improve it. We don't need to degrade it.
The majority of our hearings work okay by video, but I have had a few cases where I needed a face to face hearing. People with deformed joints need the judge to see them; narrative medical opinion doesn't seem to be offered in medical school. I also had an autistic young lady that needed a face to face hearing to appreciate the level of her disability.
Good letter.
ALJs always retreat to judicial independence, which for their APA-created selves is a very narrow privilege. ALJs have the ability to decide the way they think the evidence pans out, BUT THEY MUST FOLLOW THE LAW EXACTLY HOW THE AGENCY SAYS IT WORKS. That's how admin law works.
You aren't circuit court judges getting to tinker with policy or make novel rulings; in fact, you should go ahead and just pretend that federal appellate cases involving SSA don't even exist because for we administrative agency employees, that law DOESN'T exist to us in any meaningful way unless and until the agency chooses to publish an AR, change some regs, etc.
The ALJs and ALJ apologists I see running to their very narrow qualified judicial independence are always the ones that the Agency is pressuring the most, but this pressure NEVER has to do anything with making the ALJ come out one way or the other.
What really happens is SSA tries to flex its rightful power to dictate just what our legal/policy positions are and force ALJs to actually follow this law and policy. Actually following the law and policy sometimes forces or nearly forces certain outcomes simply based upon the factors at play, and the bad judges whose process starts with an outcome and works backward from there resent being told they can't do something.
Let me stress this--I've never heard once personally of ALJs being talked to about their pay rates (high or low) from Falls Church or Baltimore, and outside the random jerk HOCALJ NOBODY even hints at ALJs' pay rates with any sort of value judgment.
What happens is that bad judges get attention from the brass because they're rude, or they don't follow the law, or they do 200 cases a year, or whatever it is, and the first time the agency says "well, actually, you can't do this because it violates policy" they scream about their precious judicial independence being eroded.
Give me a break. Nobody at SSA cares about the pay rate or benefit payment totals. They want these ALJs to show up, not cause problems/be jerks, schedule close to 50 a month, and decide close to 500 a year. That's all they care about, and if you look closely at the supposed judicial independence, due process freedom fighters, usually you'll find a cruddy judge who's just trying to save their own skin.
1:29 PM. Interesting... So, you say the outcome is of little interest to Baltimore... Then, why is there such a consistent, persistent discrimination against those with certain disorders? Fibromyalgia cases at District Court are a dime a dozen and almost always follow the same pattern. ALJ claims the claimant is only "partially credible," there is a "lack of objective evidence," ALJ claims "not enough tender points," etc. Federal Judges say ALJ "used the wrong legal standard." Are these ALJ's aware of the 2012 changes? Is this just an "training" issue? Seems way to widespread and systemic to me. Perhaps it's an informal SSA "policy." Then again, it could be just incompetence? Any suggestions?
1:29 (and I'm guessing 1:02) - I think you need to seek counseling about this pent-up aggression you have toward ALJs. "Cruddy judge who's just trying to save their own skin" - really? So according to you, all ALJs that think qualified judicial independence is important must actually be "cruddy" and not following agency policy? Aside from the ad hominem attacks, I believe the history of the APA shows that Congress was concerned about these issues, as well. I'm sure they could've drafted a law that says any inferior officer can conduct administrative hearings. But they didn't. However, you know better because you know all ALJs, and the only ones that "scream" judicial independence are ones that are "rude" or "don't follow the law" or are lazy. You must personally visit a lot of OHO offices and know a lot of people.
"Let me stress this--I've never heard once personally of ALJs being talked to about their pay rates (high or low) from Falls Church or Baltimore, and outside the random jerk HOCALJ NOBODY even hints at ALJs' pay rates with any sort of value judgment." Perhaps you never hear about pay rates BECAUSE of the protections afforded to ALJs by the APA, not in spite of them. Just wait until none-ALJs start conducting hearings. Their supervisors will most assuredly start chatting with them about pay rates. And those discussions will change every four years based on the political climate.
I've never had a problem with claimants or representatives who object to video because they don't believe it provides an adequate hearing. I may disagree with them, but I respect their position. What I do have a problem with are (a) claimants who object to video because they don't understand the process and assume they're being asked to Skype in on a home computer they don't have and (b) representatives who object to video as a means of avoiding the NHC. Better explanation of the process might help the former situation. Asking for some reason for the objection - even without an option to approve or deny - would address both and provide the hearing office an opportunity to discuss the concerns, possibly leading to a withdrawal of the objection. To the extent it's an NHC issue, I'd much rather see the rep community dealing with whatever concerns they may have directly than creating more headaches for OHO schedulers and ALJs.
Disagree with @1:29. ALJ's do follow the law or try. That doesn't mean they all reach the same conclusions or come from the same place. The independent ALJ's are not cruddy.
@ 12:40. Why would any attorney who is bound to work in their client's best interest ever NOT object to VTC given not objecting possibly subjects a client to a hearing with a NHC ALJ. 3 of the 5 NHCs were in the top 12 of the lowest paying OHO/NHCs in the country last year.
Excuse my ignorance, but what is an NHC ALJ?
Most cases can be done by VTC fairly, but we should have the option. There are cases where the ALJ needs to see the claimant. Some of the hearing sites have better optics, and where it's good, a face to face hearing might not be necessary. But again, to keep the 'fair' in fair hearing, we need that option.
NHC National Hearing Center where Hearings are done. NHC ALJ Judge, former rep that wanted job security and to be called judge all the time.
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