In August Social Security asked the Office of Management and Budget (OMB) to authorize final regulations to allow Administrative Appeals Judges (AAJs), who currently only handle cases at the agency's Appeals Council, to hold hearings in place of the Administrative Law Judges (ALJs) who currently hear them. ALJs would still be allowed to hold hearings even under these regs. It's just that AAJs could start doing it as well. Those regs have just been approved by OMB. This must have been considered a very high priority matter. OMB rarely acts that quickly on regs.
You may think, AAJs, ALJs, what difference does it make? They're all judges, right? Not really. Unlike ALJs, AAJs enjoy zero decisional independence. There would be nothing to prevent Social Security from imposing quotas on AAJs, telling them they could approve benefits for no more than, let's say 25% of the cases they hear. They can't do that with ALJs. I don't know what point there could possibly be in these regs unless you wanted to remove that decisional independence.
To be honest, there is something that might prevent Social Security from imposing quotas on AAJs and that is public opposition. My feeling has long been that if ALJs didn't exist, Social Security would have to invent them. As problematic as they can sometimes be, ALJs add a necessary legitimacy to the process. Take them away and you'd soon have a crisis and the AAJs themselves would be screaming the loudest about their lack of decisional independence. I doubt that the people behind these regs realize that. A maximalist, public opposition is a sign I'm on the right track, attitude is part of this Administration's DNA.
Social Security will make these regs final by publishing them in the Federal Register. Unless they're even more bloody minded than I think, I expect they'll wait until after the election to publish these.
They can't make ALJs disappear immediately. Even if you told ALJs they could either become AAJs or be riffed, which would be the harshest way of doing this, it would take months if not years to accomplish.
If Trump is re-elected, expect to see a big controversy over implementation of these regs. Don't expect knee-jerk support for this from Congressional Republicans. Republicans apply for Social Security disability benefits. In fact, rural areas, where the GOP is strong, produce a higher rate of disability claims than urban areas where Democrats are strong.
If Trump loses, this will go away, one way or another. The most likely way is the Congressional Review Act that allows Congress to hold an up or down vote on regs adopted in the last few months before a change of Administration. Even the current Senate might well vote these regs down. If that fails a Biden Administration could refuse to implement the regs and could eventually go through the rulemaking process to repeal them.
Congrats to Gruber and Neagle. A huge huge win for them, following a five year game plan and open defiance of the Senate.
ReplyDeleteIn response, could Congress pass legislation amending 42 U.S.C. § 405(g) to replace the “substantial evidence” standard of review with “de novo” review or some other less deferential standard? That way if SSA is going to use decision-makers who are not independent then the courts should, in turn, no longer give much deference to those findings?
ReplyDeleteThose same mechanisms that are intended to preserve "decisional independence" also shield ALJs from any sort of meaningful oversight. I dare anyone to look at how much money the agency spends on EAJA fees and re-litigating remanded claims and tell me with a straight face that the status quo is worth preserving.
ReplyDelete@11:47
ReplyDeleteInteresting idea. The issue is, ALJs/AAJs are fact-finders, not law-finders. Real judges are law-finders, not fact-finders.
Not that I'm against it. Just curious how the courts would adjust to that.
Please stop perpetuating the line and myth that AAJs have no decisional independence. It is not accurate, correct, or true.
ReplyDeleteYes. If Trump is re-elected, then his attack on the SSA and push for privatization will provide huge backlash from seniors. The disabled has very little clout. And obviously, Trump already disrespected the disabled in mocking the disabled reporter. Feel like he views disability and the inability to work as weak and the disabled are losers.
ReplyDeleteBut if he goes after older Americans, then Repubs might join the fight against him. All this goes away if this malignant narcissist silver spooned cry baby is voted out after Nov. 3.
@12:05 PM
ReplyDeleteThat's nonsense. "Real judges" make findings of fact all the time. Most civil trials are conducted without a jury. So they'd probably handle this the way the handle the majority of their civil cases.
12:04, tell me with a straight face that you think there will be fewer District Court remands, less EAJA action, and better decisions, under AAJ hearings. Statistically the AC remand + pay rate is minuscule compared to the ALJ level. Fed Court litigation would surge, not retreat.
ReplyDelete12:35, then stop calling them AAJs. Their proper job title on the PD is attorney Examiner.
@1:28
ReplyDelete12:05 here. Yeah I know that, I just meant they don't in the context of SSA cases, historically. I would be curious to see how that developed if the rules were to change.
If they cant be called "judge" all the time, would reps still apply for the jobs when they come open? Asking for a friend.
ReplyDeleteWhat do you think the J in AAJ stands for?
Delete1:40 And, yet OPM calls them Administrative Appeals Judges ("Administrative appeal judges (AAJs) are individuals in positions the duties of which are not classifiable above GS-15 under 5 U.S.C. 5108 and which involve reviewing decisions of administrative law judges appointed under 5 U.S.C. 3105 and rendering final administrative decisions. AAJs are paid under 5 U.S.C. 5372b". (https://www.opm.gov/policy-data-oversight/pay-leave/pay-administration/fact-sheets/administrative-appeals-judge-pay-system/)).
ReplyDeleteI think we should probably go with OPM's nomenclature.
Actually, if the Presidents recent Executive Order goes into effect and the ALJs are deemed Section F employees, they can be fired in one fell swoop on January 20.
ReplyDelete2:28 Yes, the crappy reps that dream of earning over 100k for the first time in their life would still apply.
ReplyDeleteI was on the Council from 1982 to 87. Just before I got there some members of the Council had been on tdy for 90 days to hold hearings as a training exercise. I don't know what the legal predicate for this was. Members at that time were touted as meeting all the qualifications to be an ALJ. Not true, regarding specific experience, at that point; not true later, on occasion.
ReplyDeleteCuidado re: amending 405(g);
ReplyDeleteWhen the SSI program was designed the original standard of review was findings of fact are conclusive.
I briefed when working in OGC nearly 50 years ago a concurrent case arguing that substantial evidence supported the Title II decision, and that the Title XVI decision correctly applied the law to the conclusive findings of the ALJ.
That dual standard of review was clumsy. It was quickly discarded, along with the original yellow checks for SSI "payments," not "benefits." These separate but equal (not quite) initiatives were abandoned after advocates argued against stigmatizing the welfare recipients.
In the current climate, amending 405(g) might not come out as desired.
The prior leadership of the AALJ defeated this very same proposal in 2016 when both houses of Congress were majority Republican. They smartly used a Republican lobbyist who got a hearing in front of the Senate Subcommittee on Regulatory Affairs and Federal Management. T. Gruber was unable to explain why SSA needed AAJs to hold hearings instead of hiring more ALJs and Senior ALJs. AALJ shined in testimony. SSA withdrew the proposal after that hearing. Current AALJ leaders fired the Republican lobbyist immediately when elected in early 2018 and used a DIY approach to lobbying despite no qualifications. This is the result.
ReplyDeleteThere are times when I feel like the AALJ is working for SSA and not for ALJs. Sigh.
ReplyDelete