From material newly added to Social Security's HALLEX manual, which contains policy and procedure material for Administrative Law Judges (ALJs) and the Appeals Council:
When an ALJ approved a final draft decision but is unavailable to sign the decision, the HOCALJ has the authority to sign the final decision and any associated orders if the ALJ gave the HOCALJ written authorization to sign the decision on the ALJ's behalf. Any such written authorization must be associated with the claim(s) file and must include the following affirmative statements:
The ALJ may give written authorization via email, fax, or any other writing. However, unless the authorization is provided through an official agency email, the ALJ must sign the written authorization with his or her “wet” signature (facsimile transmission is accepted). The ALJ may not use a rubber stamp or other mechanical signature. A HOCALJ may not use this procedure on his or her own initiative without specific written authorization from the ALJ.
- The ALJ has read the decision and any associated order;
- The ALJ concurs with the decision (and any associated order) as written or concurs with the decision (and any associated order) with specified changes previously reviewed and approved by the ALJ before authorization; and
- “HOCALJ [NAME]” is authorized to sign the decision and any associated order on the ALJ's behalf.
If all of the requirements are met, the HOCALJ may sign the decision and any accompanying order.Previously, the rule had been that another ALJ subbing for a departed ALJ could sign only a fully favorable decision. A denial decision could not be sent out without a new hearing. I think this new provision is legally dubious. It treats the hearing as if it's a meaningless formality.
Oddly, in North Carolina in recent months we've had several ALJs suddenly retire with no advance warning when they had hearings scheduled and decisions to be written. There were in the office on Friday and gone on Monday. The reports we've received indicate no dramatic health development in any of the cases. Each of the ALJs involved was an outlier, in one cases approving claimants at a low rate and in the rest of the cases approving claimants at a high rate. In one case there were signs of pressure from the agency but in that case I think there was universal agreement that pressure was merited because the ALJ, who approved only a low percentage of claimants, had a huge and growing backlog of decisions to be issued. In the other cases, there has been no sign of pressure. However, this cluster of cases seems very odd. I haven't heard of other examples from other parts of the country but this new provision in HALLEX makes me wonder.
The old HALLEX language was: "If the reassigned ALJ intends to issue a fully favorable decision after reviewing the record and the audio recording, the ALJ need not conduct another hearing and will issue a decision. However, if the ALJ intends to issue a less than fully favorable decision based on the information before him or her, or the ALJ requires more information to make a decision, the ALJ will assess whether another hearing is necessary."
ReplyDeleteThis language was shifted to HALLEX I-2-1-55(F)(2) at the same time HALLEX I-2-7-40 was updated, so I do not believe there is much of an actual change in effect.
If the ALJ has read the decision and agrees with it and can sign an authorization to the HOCALJ, why would that ALJ just not sign the decision and have it sent out?
ReplyDeleteAnd if the answer is "because the ALJ is no longer an SSA ALJ" then what are they doing reading the decision? How are they getting it, if not through their official SSA email addresses? Are they also reading new evidence submitted in the claim? Seems like this could cause some PII issues.
@ 12:17PM You raise any interesting issue. The HALLEX provision contemplates that the ALJ (or former ALJ) may no longer have an agency email. If they no longer have an agency email then it would seem that they are no longer part of the agency and would have no right to access the proposed decision or any other information about the case.
ReplyDeleteThe new provision certainly raises concerns over why it was needed. Will the agency be forcing out more ALJs?
Maybe in 10-20 years there will be robots hearing these cases. You think I'm joking but it may happen.
ReplyDeleteI'm not seeing the connection between this and some alleged nefarious plot to clean house, but I can definitely agree that the provision is legally dubious. I can see it being ok in cases of illness/injury, but in cases of death, retirement, resignation, or some other permanent separation from the agency, well, SCOTUS just issued an opinion a month ago striking down the 9th Circuit's posthumous issuance of opinions authored or voted upon by Judge Reinhardt prior to his death on 3/27/18. Yovino v. Rizo, 586 U.S. ___ (2019):
ReplyDelete"The opinions issued by the en banc Ninth Circuit state that they were 'Filed April 9, 2018,' and they were entered on the court’s docket on that date. A footnote at the beginning of the en banc opinion states:
'Prior to his death, Judge Reinhardt fully participated in this case and authored this opinion. The majority opinion and all concurrences were final, and voting was completed by the en banc court prior to his death.' 887 F. 3d, at 455, n. *.
***
Because Judge Reinhardt was no longer a judge at the time when the en banc decision in this case was filed, the Ninth Circuit erred in counting him as a member of the majority. That practice effectively allowed a deceased judge to exercise the judicial power of the United States after his death. But federal judges are appointed for life, not for eternity."
When an ALJ departs before all of his/her decisions are written, the HOCALJ can sign for the recently departed ALJ. However, my understanding is that as long as the departing ALJ writes the decision writing instructions after the hearing but before departing, then the decision writer can write it and the HOCALJ can sign it after the departing ALJ has left, because the ALJ that held the hearing is the one making the decision. If the departing ALJ holds a hearing but leaves before issuing decision writing instructions that orders the final disposition of the case, then the case will more than likely be reassigned to another ALJ and they will hold a subsequent hearing because no decision had been rendered in the case prior to the ALJ departing.
ReplyDeleteAt least that is my understanding. Technically, the subseq ALJ could listen to the hearing audio and review the record and render the disposition (decision writing instructions) but that will almost never, if ever, happen. They will want their own hearing if the prior judge did not promulgate writing instructions before leaving.
@4:26
ReplyDeleteIt's not legally dubious as to why the ALJ was removed, it's legally dubious if the 1st ALJ intended to issue a favorable determination, but the 2nd ALJ renders an unfavorable decision without providing the claimant to be heard.
In regard to Yovino, that was pretty limited. The Supreme Court only vacated and remanded the one opinion, which was published, and more importantly, en banc meaning it would be of exceptional importance. They acknowledge on page 4-5 that in the event one judge on a 3 judge panel dies, if the remaining 2 judges agree, "innumerable court of appeals" have allowed the remaining two judges to issue the opinion without additional argument. So posthumous opinions are fine (or at least not an improper exercise of judicial power), as long as the single vote would not matter.
It's a little odd. My understanding was, the panel voted while Reinhardt was alive and the majority opinion had been written prior to his death. It just wasn't published till after his death. The issue was there were 5 concurring judges, meaning without Reinhardt, the vote would've been 5-5 according to Supreme Court. But actually, it was 6-2-2-1, since the 3 concurrences had 2 judges, 2 judges, and 1 judge respectively, so I don't see how the death makes a difference. It would just reduce the tally to 5-2-2-1. Even if they were to reconstitute the original en banc panel (usually random, but I think remand from Supreme Court returns it to same panel) and add a random judge, assuming the judges stick to their original positions, it won't change anything, it will just be the original tally of 5-2-2-1 with an additional vote added to one of the four opinions...or a fourth concurrence.
@10:34pm - Without a majority opinion, of which Reinhardt's 6th vote is required to make his written opinion the majority, it would not become binding precedence. They can still affirm or reverse, but without a majority opinion there will be no established guidance in the circuit, but the case could still be reversed.
ReplyDeleteInterestingly, Reindhardt added another dead judges name to an opinion in 2018 as well, Judge Harry Pregerson.
But on topic:
"If the ALJ is unavailable ... and the HOCALJ disagrees with the ALJ's proposed decision, the HOCALJ will discuss the case with the RCALJ before determining the next appropriate steps. In any event, public service will be the primary consideration when arriving at a resolution."
Umm, that's all well and good if it was favorable. But if partially or unfavorable, wouldn't a new hearing be a necessity? The policy is very similar to Rule 63 substitutions but only stresses "public service" instead of due process of the claimant.
This even happened in the Supreme Court with Scalia. If he cannot get his name signed after his death, then no removed, disabled or deceased ALJ should be able to, either.
This has always been the rule wrt FF decisions. This expansion just opens up this options for all decisions. It still requires the ALJ to have read the decision, but I'm guessing the Agency hopes that departing ALJs will just give authorization for management to sign all pending EDITs.
ReplyDeleteBut there are legitimate instances where this is useful. If an ALJ is leaving on extended leave and notices a draft where proffer was not done. The ALJ can read and approve the draft with the proffer language, got on leave, and assuming no substantive response to proffer, the HOCALJ can sign the decision.
It could also be useful in instances where there are technical difficulties that prevent an ALJ from signing a draft that they have already reviewed before leave/retirement.
We'd all love to know who the departed ALJs are, or, at the least, which offices.
ReplyDeleteWell of course the provision is "useful" ... to the agency, anyway. ALJs are always leaving, retiring, dying, etc., and leaving unfinished EDITs behind. The agency obviously would prefer to just push the decisions out rather than reassign them for new hearings. But if the ALJ *is no longer an ALJ* at the time he/she tells the HOCALJ "go ahead and sign all my EDITs," I fail to see how that is kosher at all. I have no problem with an ALJ who is out on leave authorizing someone else to sign, or a retiring/resigning ALJ giving blanket authorization on his/her last day, but an ALJ who has retired, resigned, or died *before* doing so is no longer competent to do anything official. This will not hold up if any case in that type of posture ever gets to a court.
ReplyDeleteThere's a bad faith assumption in all these descriptions of the potential problem with a new ALJ taking over after hearing and that is that the new ALJ would make a decision without sufficient information. Here's what I'm saying: the first/old ALJ held a hearing. That audio/transcript is available and I think we have to assume it was at least a decent hearing that covered what needed covering. But if new/second ALJ taking over post-hearing doesn't have sufficient evidence to make a decision, she can always schedule another hearing and do more of all kinds of other development in order to make her fully informed decision.
ReplyDeleteIf you assume a decent hearing was held and that any judge (specifically a new judge taking over a claim) would make sure they had all the evidence they needed to make a fully informed decision, a lot of your problem goes poof and floats into the ether. And I think that set of assumptions is the reasonable one to make rather than the set that says ALJs will routinely hold bad hearings and new ALJs on post-hearing cases will allow themselves to make less than fully informed decisions.
What y'all are really upset about is the very specific instance of a likely-payer being replaced by a likely non-payer. That's legitimate, but it isn't as big and doesn't implicate as much as your original phrasing would like to.
@ 2:24PM You make the assumption that the new ALJ will actually listen to the hearing tape and review the evidence. That is a grand assumption and there is no way to verify that that has taken place.
ReplyDeleteAssume they new ALJ actually listens to the tape, you then make the assumption that there is no difference in evaluating the credibility of witnesses between being in the actual hearing and just listening to the tape.
I wouldn't imagine the situation of an ALJ leaving before being able to sign off on decisions happens with great frequency so having the new ALJ conduct a new proceeding doesn't seem to be much of a burden.
You are ignoring the far more increasingly likely scenario of the hearing ALJ being out of the office on discipline.
ReplyDelete4:59 listen to yourself! You're banging me over the head for assuming an ALJ will do literally the basics of their job. Of course any decent ALJ would listen to that hearing!!!
ReplyDeleteDang, dude--you've clearly got a very specific ALJ or scenario in mind to so thoroughly trash making an assumption that an ALJ would do the literal bare minimum of what's expected.
Sorry y'all are so upset with the hypothetical scenario where Mr. 95% payer is replaced by Mr. 5% on all your cases. You sound like the unhinged right wing folks that take a news story, make up a scenario with at least one key fact added/changed so as to render the situation terrible/absurd/etc., then start screaming about the original scenario as though it were the absurd one or, even more stupidly, yell about the purely hypothetical situation concocted and extant only in their minds.
@ 8:30 AM 4:59 here. I base my assumption that some ALJs will not listen to the hearing recording based on prior circumstances where cases have been remanded to different judges by the AC or USDC and the ALJs have told me they would not be listening to the claimant's prior hearing testimony in a case. These were not isolated instances. So I don't see the circumstances contemplated by this HALLEX to be any different that suddenly these ALJs would feel the need to listen to the recording. ALJs have enough work to do and if they can cut a corner, and just accept what the departing ALJ was going to issue, I am sure there is a certain percentage who will just sign off on it.
ReplyDelete