OHO Caseload Analysis Report

 

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ALJ Hiring

      Social Security has posted an announcement that it is accepting applications for Administrative Law Judge positions. The announcement is only open until Wednesday.

ALJ Hiring?

      Posters on an online message board mostly frequented by wannabe Administrative Law Judges seem convinced that Social Security will soon be hiring more ALJs. We’ll see.

This Is Going To Be A Trip For Those Of You Who Have Never Watched John Oliver Before

ALJs Push Annual Leave Change

     From Government Executive:

Officials with a union that represents administrative law judges at the Social Security Administration are preparing for a push to pass legislation to expand the amount of annual leave they can carry over each year. ...

The Association of Administrative Law Judges said it has been hard at work in recent months to build bipartisan support in Congress for a legislative proposal to increase that cap to 90 days. Officials said the change would be fairer to ALJs who undergo more scrutiny than most other General Schedule employees and could offer a novel way to retain a highly specialized and aging workforce. ...

[The union president] said her organization’s proposal could help the agency in two ways. First, the agency has already seen the headcount of its ALJ corps shrink from 1,645 in 2018 to only 1,170 last year. Data from an internal survey of AALJ members found that in fiscal 2023, SSA administrative law judges forfeited an average of 27 hours of leave per year due to the annual leave cap, compared to just 0.75 hours of forfeited leave on average across the General Schedule from fiscal 2019 to 2023.

At a time when the agency projects the number of initial disability determinations to increase by more than 300,000 this fiscal year—and with them, appeals of those determinations—a boost to the leave cap could allow judges to take more cases. ...

    This sounds like a hard sell to me.

Monthly OHO Report

 

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Monthly OHO Report

 

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Backlog Of ALJ Decisions

     Over the last few months there's been a dramatic increase in the wait time to receive a decision from an Administrative Law Judge (ALJ) here in North Carolina. It affects multiple hearing offices. 

    I can't tell. Is this a national problem? Regional?

    What's behind this problem? I know that some decision writers were detailed to work with Disability Determination on the huge backlogs of initial and reconsideration determinations but this new backlog to receive an ALJ decision seems far beyond anything that could be explained by that.

    Why are they scheduling ALJ hearings if they can't get out decisions?

A Golden Oldie

      It’s a slow time in Social Security world so let me reprise a post from almost ten years ago. The themes coming from shills have changed but the problem hasn’t gone away. I’ve become quicker to delete comments that look phony to me. I do note comments now that appear to me to come from employee unions but it’s hard to tell since there are obvious reasons why many Social Security employees agree with union talking points.

Bombarding This Blog — From November 8, 2013

If you read the comments posted on this blog you might come to the impression that everyone knows that:

• Social Security employees do most of their "work" from at home but they don't really work because they're all lazy. The agency has way too many employees.
• Social Security's Administrative Law Judges are particularly lazy. They approve Social Security disability claims because they're lazy. A lot of the judges are crooks in cahoots with crooked disability claimants and their crooked attorneys.
• Most Social Security disability claimants are just crooks trying to scam the program.
• It's way too easy to get on Social Security disability benefits, especially for "mental illness." Anyone can get on Social Security disability benefits for "mental illness" just by pretending to be crazy.
• SSI child's benefits are the biggest scam. It's nothing but lazy, drug addicted mothers coaching their kids to act crazy. They get child after child on SSI child's benefits and then steal the money to support their drug habits.
• Attorneys who represent Social Security claimants are lazy. They're paid huge sums of money by Social Security but they do nothing for their clients. If anything, they're just crooks who assist their crooked clients in perpetrating fraud.
• There is no money in the Social Security trust funds. The money was all stolen by Democrats. The U.S. government bonds that are supposed to be in the trust funds are meaningless pieces of paper.
• Social Security is going bankrupt.You'll never get back the money you paid in. It's all a scam.

     Some of this comes from individuals legitimately expressing their opinions. However, it's long been apparent to me that most of this is coming from people who have been paid to post online comments about Social Security. Often, these people pretend to be Social Security employees, Social Security claimants or Social Security attorneys. Often, their comments just don't ring true because they're pretending to be someone they're not.

     Does it seem outlandish, even paranoid to think that someone would be paid to post slanted comments online? Take a look at this article from the Baltimore Sun. Officials at the University of Maryland had a problem. They wanted to shift the University's athletic programs from the Atlantic Coast Conference to the Big Ten. They knew that many of the University's alumni would be furious with this move. Here's what they did:

Brian Ullmann, the university's assistant vice president for marketing and communications ... wrote that the school planned to "engage professional assistance in helping to drop positive messages into the blogs, comments and message board sites. I will arrange for this service today." ...

Lee Zeidman, the corporate communications consultant who helped Maryland draft letters and talking points, said Wednesday that it is "standard operating procedure" in the business world to weigh in directly on message boards. "There are special PR agencies who work in the digital space who bombard blogs and newspaper sites where no one puts their name," Zeidman said.

     Who would pay online shills to post on Social Security issues? Pete Peterson and the Koch brothers are the prime candidates. They're tossing around tens of millions of dollars in their fight against Social Security. They certainly wouldn't be going after just this blog. It's quite unlikely they know anything about it. They would mostly be going after message boards at news media sites. However, I don't know that there's any other web site quite like this one where there's an ongoing discussion on Social Security issues. If you're doing an online campaign to malign Social Security both as a social program and as an agency, you're going to come here.
    I wonder how someone who works as an online shill would feel about their job. Would it make them proud? Would they tell their children about what they do for a living?

ALJ Trends

     Social Security's Office of Inspector General has issued a report on Administrative Law Judge Trends.

    Below are three charts from the report. As always, click on the image to view full size.

ALJ Levinson Removed From Job

    Social Security wanted to fire Administrative Law Judge Michael Levinson of Macon, GA for some very unjudicial conduct. The Merit Systems Protection Board (MSPB) has jurisdiction over this kind of matter. An MSPB ALJ decided to suspend Levinson from his job as an ALJ for 2 years and to downgrade him in rank. Both Levinson and Social Security appealed to the full MSPB which changed Levinson's penalty to what Social Security wanted, firing.

    It's a tiny minority of ALJs who behave as Levinson did but we have to get them out of their jobs. I'm shocked that the MSPB ALJ thought that anything less than firing was appropriate. The behavior here was way beyond the pale.

    By the way, Levinson approved claims at a somewhat higher rate than most ALJs. Would things have proceeded differently if Levinson had a low allowance rate?

OHO Caseload Analysis Report

 

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Why Are Fewer People Drawing Disability Benefits Now?

     From What Factors Explain the Drop in Disability Insurance Rolls from 2015 to 2019? by Siyan Liu and Laura D. Quinby for the Center for Retirement Research at Boston College:

In 2015, the number of individuals receiving Social Security Disability Insurance (DI) benefits began to drop for the first time in two decades. This drop was caused by a wave of terminations, as beneficiaries aged into the Old-Age and Survivors Insurance (OASI) program, combined with a steep decline in the incidence rate (the number of new DI awards relative to the insured population). ...

The paper found that:

• A strong economy accounted for about half of the drop in the incidence rate.
• Policy changes – specifically the retraining of Administrative Law Judges – also accounted for about half the drop.
• Population aging put slight upward pressure on the incidence rate.
• In terms of the total number on the disability rolls, the impact of aging on terminations far exceeds its impact on new awards.

The policy implications are:

• The time may have come to somewhat rebalance the goals of DI from encouraging labor force participation to protecting vulnerable people.
• Congress may want to consider merging the DI and OASI trust funds. ...

    I'll pull out some interesting charts from this paper over the next few days.

Unhappy ALJs

      Some of Social Security’s Administrative Law Judges really don’t like that Washington Post piece on all the federal court remands of their decisions. Take a look at what they have to say.

Social Security Faring Poorly In Federal Court

     Lisa Rein at the Washington Post has written an article on how frequently Social Security loses when denied disability claimants appeal their cases to federal court. Here are a few snippets:

• In the last two fiscal years, federal judges considering appeals for denied benefits found fault with almost 6 in every 10 cases and sent them back to administrative law judges at Social Security for new hearings — the highest rate of rejections in years, agency statistics show. ... The scathing opinions have come from district and appellate court judges across the political spectrum, from conservatives appointed by President Ronald Reagan to liberal appointees of President Barack Obama.
• The high rate of rejections for cases handled by administrative law judges and the attorneys who write their decisions is driven by stringent monthly quotas set by Social Security officials and growing pressure to deny more cases, according to current and former officials, audits and attorneys who represent the disabled. The agency’s policies have been reshaped to give less deference to the expertise of doctors who, in some cases, have treated claimants for years, and its policies routinely depart from federal appellate court rulings. ... Social Security has stacked the cards against the approximately 2 million people each year who apply for help when they can no longer work.
• Social Security has also tilted the scales in recent years away from key medical evidence, critics say, in another sign of the shift toward granting fewer claims. While administrative law judges once based much of their decision on evidence from primary care doctors or psychiatrists who best understood their patients’ medical issues, that policy changed in 2017. Now judges are free to disregard the opinions of these treating physicians and rely heavily instead on contracted doctors who examine claimants for as little as 15 minute.
• Less weight is given to certain musculoskeletal conditions, for example. IQ tests that show mental impairments do not automatically grant benefits.

Phone And Video Hearings Not Going Away

     Not that there was any doubt, but Social Security has decided to make telephone and video hearings a permanent option.

    This is extremely convenient for "national" firms representing disability claimants.

High Standards Required

     When I read that Supreme Court Justice Clarence Thomas received private extremely valuable considerations from those interested in the Court’s business, I am reminded of a Social Security Administrative Law Judge who got into trouble because a local attorney allowed the ALJ to park his boat on a vacant lot the attorney owned.

Every Bad Idea For Social Security That The GOP Has Ever Had, In One Document

    Republicans in the House of Representatives have put forth their plan for what that they hope to extort from the President by threatening to put the U.S. government into default on its debts. Here's what their plan would do to Social Security retirement benefits (begins at page 80):

• Implement a new minimum benefit of 15% of the average wage index;
• "Modernize" the Social Security benefit formula, which is a euphemism for reducing future benefits for those now 54 and younger;
• Increase Full Retirement Age to 70 between now and 2040;
• Eliminate the retirement earnings test for those who are under Full Retirement Age;
• Eliminate auxiliary benefits for high wage earners.
  

    The plan also includes changes in disability benefits (begins at page 74):

• Enact a benefits offset experiment that would reduce disability benefits by $1 for every $2 earned (they must not know that this experiment is underway already);
• Allow FICA reductions for employers with high rates of employee retention, which is supposed to help handicapped people stay employed (which would disadvantage manufacturers);
• Require employment in six of the last ten years, instead of five;
• Time limited disability benefits for some recipients; 
• "Update" the grid regulations;
• Make disability benefits contingent on medical improvement (I don't think they meant to say that but that's what they said);
• Prevent those drawing unemployment benefits from drawing disability benefits;
• Eliminate withholding of attorney fees for representing claimants (at least I think that's what they're saying but they only thing clear about it is that they bear a lot of ill will towards attorneys);
• Close the record "after a reasonable period of time";
• Require Social Security to conduct periodic reviews of ALJ decisions, particularly those of "outlier" judges;
• Prohibit reapplications within 12 months of a denial;
• Increase the waiting period for Medicare from 24 months to 60 months;
• Eliminate the ability to apply for both early retirement and disability benefits at the same time;
• Allow employers and employees a reduced FICA rate if the employer provides long term disability benefits.

OHO Caseload Report

 

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Good Decision Out Of CA4

    The Fourth Circuit Court of Appeals issued an important decision yesterday in Shelley C. v. Commissioner of Social Security.

    The Court found that summary statements assigning "little weight" to the opinion of the treating physician on the grounds that it "is on an issue reserved for the Commissioner and . . . is inconsistent with the medical evidence of record. [His] treatment notes do not indicate any significant symptoms that would render [Shelley C.] unable to perform basic work activities” does not comply with the agency's own regulations. An ALJ decision must identify the alleged inconsistencies between the treating physician's opinion and the medical evidence. The Court also held that the ALJ decision must explicitly show consideration of each of the six factors in 20 C.F.R.§404.1527(c). I think that in practical terms the Court held that merely using canned language won't cut it. If an ALJ gives "little weight" to a treating physician's opinion, the ALJ is going to have to explain why.

    By the way, the Court didn't even deign to discuss the "opinion reserved to the Commissioner" language in the ALJ decision, which is about how much attention one should pay to makeweight language implying that Social Security has some right to summarily make decisions without regard to the evidence and without being held to account by anyone. Taken at face value, that arrogance would render judicial review meaningless.

    The Court also held that the ALJ "could not dismiss Shelley C.’s subjective complaints based entirely upon the belief that they were not corroborated by the record’s medical evidence."

    The Court did not remand the case. It reversed it and ordered payment of benefits. That is uncommon at the District Court level and quite rare at the Court of Appeals level. This was a bad day for Social Security's Office of General Counsel and for canned boilerplate in ALJ decisions. Show your work, ALJs.