Monday's Federal Register will contain new final regulations from Social Security on Hearings Held by Administrative Appeals Judges of the Appeals Council. You can read the regulations today. The effective date is December 16. I do not expect that these regulations will be implemented during the Biden Administration. It is possible that they will be disapproved under the Congressional Review Act. Neither a filibuster nor the Senate Majority Leader can prevent a Congressional Review Act vote.
The explanatory material published contains this sentence (emphasis added): "Because AAJs and ALJs have similar levels of training, will follow the same set of policies, and have equivalent decisional independence, we anticipate that when AAJs are used at the hearing level, they will provide the same level of service and fairness as ALJs do." I can't say that I take that statement at face value. In fact, if true, I don't know what the point of these regulations is.
16 comments:
I wouldn't question the sentence about training. Even the analysts at the AC receive more front end training than the ALJs do, and the gap grows wider as time passes since ALJs aren't required to participate in the ongoing training mandated for other OHO staff. Apparently learning about changes to the law and how to apply it infringes too much in their decisional independence or something- or so the ALJs and their union have claimed. The ALJs are supposed to learn from their remands as well, but I think we all know how effective that has proven to be.
They do not have equivalent independence. ALJs are a product of the APA, which recognizes the need to shield the judges from undue influence. AAJs have no such protection.
Yet another well-crafted solution to a non-existent problem.
ALJs participate in all the agency trainings regularly throughout the year and spend a month in intensive agency training plus an extended period of training in their hearing offices before they hear their first case. They are also periodically retrained by the agency and many attend yearly AALJ training which has included agency update training by OGC, ethics training, training presented by highly qualified doctors on a range of diseases, disorders and impairments, as well as training by the National Judicial College. A number of ALJs attend NOSSCR, local disability bar, and other state bar trainings. So to the comment above, you have no idea what you are talking about. The agency chooses what it trains on and the ALJs attend it as it is required of them just like writers, managers and others.
11:54 AM, AAJs get those trainings as well, just saying.
SSA loves to make untrue statements in policy and then rely on those statements to support the policy. i.e. the old 96-6p statement that State agency medical and psychological consultants are highly qualified physicians and psychologists who are experts in the evaluation of the medical issues in disability claims under the Act. And then citing to this statement when they relied on the opinion.
AAJs are on their own and have been so for years with hostility from all sides, fewer statutory protections and no union support. Unless you want them at the whim and mercy of management, things need to change. Mrs. Colvin will hopefully make this matter a priority to at least have the appearance of a fair hearing process at the AAJ level.
So an AAJ conducts a hearing and denies, who do you appeal to?
10:45, since AAJs are technically non-judicial (the position description says "attorney examiner", and AAJs exist to review files, not conduct on-the-record proceedings), the best use of AAJs would be as an adjudicatory level below ALJs. Like the old "Federal Reviewing Official" scheme under Commissioner Barnhart several years ago. DDS --> AAJ --> ALJ --> District Court. Having to appeal an ALJ decision to a lower level before going to up District Court has always been a bizarre conceit.
Any time a legally trained person is somehow reporting to someone who is not legally trained all kinds of problems arise. So, whether someone is an ALJ or AALJ, the problems will exist as long as that structure is in place.
11:53 PM, the conceit and arrogance of your comments are mind boggling. Both the ALJ and AAJ positions are defined by statute, and more importantly neither are real judges like those in the federal courts. Your comments harken to the decade’s long perception of the toxic above everyone and untouchable ALJ. So my advice, take it down a notch and offer real solutions not soiled in hubris.
ALJs and AAJs need sufficient protections to ensure the public's confidence in the fairness and integrity of the hearings and appeals process.
"ALJs and AAJs need sufficient protections to ensure the public's confidence in the fairness and integrity of the hearings and appeals process."
Public confidence in the fairness and integrity of these decisions would be something new, wouldn't it?
@11:53 Hubris and ALJ's go hand in hand. That's why so many do not think much of so many ALJ's. They are more concerned with status than doing their jobs well.
6:48 PM It's difficult to have "confidence in the fairness and integrity" in a system that denies people who really can't work and a Federal Court system that rubber stamps those decisions on the basis of "substantial" evidence that is often far less than the preponderance of the evidence, let alone the plethora of the evidence. First of all, there is no statutory standard of proof, either at step 3 or step 5. This allows ALJ's "flexibility."
As stated in DANDRIDGE v. WILLIAMS, "Social welfare legislation...involves drawing lines among categories of people, lines that necessarily are sometimes arbitrary...In enacting legislation of this kind a government does not deny equal protection 'merely because the classifications made by its laws are imperfect. If the classification has some "reasonable basis," it does not offend the Constitution simply because the classification "is not made with mathematical nicety or because in practice it results in some inequality."
So, arbitrary rules, applied by "flexible" decision makers, with no statutory legal standard...with VEs that give basically unchallengable possible "jobs", that may or may not actually exist, to hypothetical questions of a hypothetical functional capacity, that may or may not be correct or include ALL nonexertional limitations...where the burden of proof is SUPPOSEDLY on the agency, but often doesn't work that way in practice...that all leads to dramatically different outcomes in similar cases, or, in other words, "some inequality."
And SSA wonders why some question the "fairness and integrity" of their decisions. And the Federal Courts wonder why their "fairness and integrity" is questioned when they uphold these decisions. Just remember, the Federal Court ruled 2-1 against Tom Brady...not on the facts (The NFL head attorney ADMITTED that they Had NO EVIDENCE that Tom Brady knew of or participated in a scheme to deflate footballs, or, that any scheme actually existed!)...but, that Roger Goodell had the power to make ANY decision he wanted to. Isn't that where we are with ALJs?
There are very bad ALJ's. There are very good ALJ's. And there are a whole lot of people who are ALJ's just trying to do a good job. In my career as an ALJ I've never seen an ALJ act with the amount of hubris and air of superiority that many on this board have assigned to all ALJ's. I know these people exist. Just like bad lawyers and good lawyers exist. But to consistently vilify the ALJ's and foment the animosity between bench and bar is not productive.
AAJ's are not the same as an ALJ in many ways. Allowing them to hold hearings will degrade the existing system and the rights of the individuals appearing in front of them. The hostility of the admin towards the ALJ's and the federal unions when combined with this latest move only furthers the idea that the admin wants disability gone and will effectuate that with the death by a thousand cuts. It will wither and eventually die. I hope the new admin can remedy much of this.
"Allowing them to hold hearings will degrade the existing system and the rights of the individuals appearing in front of them."
Hard to degrade a system which already has so little regard for the rights of the individuals involved. Not much that can make it worse. Who knows, maybe this could make it better.
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