In the twilight days of the Trump Administration, Social Security adopted new regulations allowing Administrative Appeals Judges (AAJs) to hold hearings on disability claims. Previously, only Administrative Law Judges (ALJs) were able to hold such hearings. AAJs have only handled cases pending on review at the Appeals Council. This has been concerning since AAJs, unlike ALJs, have not been thought to enjoy decisional independence.
The Congressional Review Act (CRA) permits Congress to disapprove "midnight" regulations adopted as an Administration is leaving office. CRA resolutions may not be filibustered. A CRA resolution was introduced to disapprove the AAJs regulations. The problem with CRA resolutions is that they must be acted upon within a certain number of days. The computation of when the days start to run is a little tricky but, apparently, the time ran out yesterday but no action was taken on the CRA resolution on the AAJ regulations.
I would be surprised to see any AAJ hearings scheduled in the near future. There's no plausible justification since there are enough ALJs to handle the current workload and Democrats control the White House, Senate and House of Representatives. Further out, who knows?
Many were mystified when SSA didn't finalize their proposed Rule to increase the frequency of CDRs for beneficiaries; the Congressional Review Act contains the explanation. For those that don't know: once a Rule has been has been repealed through use of the CRA, the agency involved is prohibited from proposing the same or similar Rule in the future. Finalizing their CDR Rule a few months ago would risk it being struck down -for good; instead, SSA has made the purely political decision to hope for more "favorable conditions" in 2 or 4 years and try to force this on the disabled community again. Shameful stuff.
ReplyDeleteIt's not like AAJ's would do the job any better than ALJ's. So, why bother?
ReplyDeleteALJs cannot be told your pay rate is too high or your pay rate is too low. ALJs cannot receive bonuses based on subjective performance metrics management sets. ALJs do not get performance ratings. ALJs cannot be refused an ME at a hearing or be mandated to not grant postponements. ALJs cannot be removed unless you get the thumbs up from MSPB first. None of this applies to AAJs. Think they will do a better job and have safeguards to be independent as ALJs are then you may get your wish soon.
ReplyDelete@10:56PM, I’m not trying to sound dismissive but it looks like we’re no longer in an ALJ only world. If what you listed is that necessary to a fair process, then advocacy groups should be up in Washington DC demanding AAJs have the same safeguards you mentioned. It looks like the horse has already left the barn on this one, and no one had a Plan B at the ready.
ReplyDeleteAt this point if we really care about claimants and the fairness of their hearings and appeals, we should be demanding Biden and Congress institute parity in safeguards for ALJs and these AAJs. Otherwise we are blowing steam and not accomplishing much. Can someone explain why the AAJ union is MIA in all of this?
AAJs do not have a union because they are considered management officials. They have decisional independence and are required to follow the law and apply it to the evidence, just like ALJs. Theoretically, could the President (Executive Branch) and COSS dictate certain outcomes to an AAJ? Maybe, but not without serious pushback and whistleblowing. In actuality, Federal courts do more dictating of case outcomes to the SSA than the COSS does. As appellate adjudicators, AAJs must apply the substantial evidence standard, so they are not supposed to re-decide cases when they review ALJ decisions. BUT, AAJs have always had the ability to make preponderance decisions and remove hearings from the ALJs. This authority has rarely been exercised because a) the Appeals Council already has the review and court related workloads, and b) the nationwide infrastructure (equipment, schedulers, experts, hearing reporters) and budget to do enough AC hearings did not and may not yet exist. At the end of the day, SSA wants the ability and flexibility to be able to use any of its independent adjudicators (ALJs and/or AAJs) as the workload and staffing dictates, so that claimants are not waiting years for the APA hearings that some ALJs believe only they and they alone can provide. Perhaps the goal is not to dictate decision outcomes or to make this a contest between ALJs vs. AAJs (there are good and bad in both groups), but to give more options and provide more service to claimants?
ReplyDelete