New Requirement For Those Representing Claimants

     Social Security has issued a newly amended section of its HALLEX Manual on Rules and Standards Governing The Conduct Of Representatives. By the way, HALLEX doesn't stand for anything. It's just the name of the agency's Hearings and Appeals Manual. This part of the section appears to be new:

 [A] representative must: ...

Disclose in writing, at the time a medical or vocational opinion is submitted to SSA or as soon as the representative is aware of the submission, if:

1. The representative's employee or any individual contracting with the representative drafted, prepared, or issued the medical or vocational opinion; or

2. The representative referred or suggested that the claimant seek an examination from, treatment by, or the assistance of, the individual providing opinion evidence.

NOTE 1:

The agency must report to the Office of Management and Budget (OMB) the number of disclosures received pursuant to 20 CFR 404.1740(b)(5)-(9) and 416.1540(b)(5)-(9). To assist with disclosure reporting requirements, Office of Hearings Operations (OHO) and Office of Appellate Operations (OAO) staff will ensure that any disclosures described in this subsection (Hearings, Appeals, and Litigation Law (HALLEX) manual I-1-1-40 A.5.) are filed into the electronic claim(s) file (eView) using the document type “Required Disclosure – Medical (3076)” or “Required Disclosure – Vocational (1088),” depending on the type of evidence submitted with the disclosure.

NOTE 2:

A representative must submit a separate disclosure each time they submit opinion evidence that meets the requirements in 20 CFR 404.1740(b)(5) and 416.1540(b)(5) and described in this subsection. A single disclosure for multiple opinions that meet those requirements is not sufficient. ...

    I question whether the agency can impose an affirmative duty such as this "Required Disclosure" in a footnote to a staff manual. How does a mere staff manual bind members of the public? Doesn't this require notice and comment under the Administrative Procedure Act? If nothing else, this appears to violate the Paperwork Reduction Act.

    It's unclear whether this provision applies to forms provided by attorneys to doctors to complete. Generally, attorneys place a legend on these forms saying where the form came from in order to satisfy the agency. Does this special reporting requirement apply to situations where the attorney merely provides a form but does not help with completing the form?

Social Security Finally Acknowledges That Phony Mailing Dates Are A Problem

    The dates that Social Security places on its outgoing mail are mostly fictitious. Most outgoing mail is printed and mailed from a central printing operation that serves the entire agency.  This correspondence bears the date upon which some agency employee sent it to be printed but the date printed and mailed is actually several days later. 

    There are time limits to file appeals. If these time limits are based upon a date that is several days prior to the date that the correspondence was actually mailed, the claimant is being cheated out of those days to file an appeal. Appeals can be dismissed -- and have been dismissed -- based upon these phony dates.

    Social Security has finally acknowledged the problem. The agency's HALLEX manual for hearings and appeals has been amended. Now, notices sent out centrally will be presumed to have been sent out three days later than the date they bear.  This is in addition to the five days given for the mail itself.

    I have not seen this changed in the POMS manual that serves the whole agency but maybe I've missed it. It's needed there since appeals also get dismissed at field offices and payment centers. 

    Wouldn't it be simpler to put accurate dates on these notices to begin with? This doesn't seem to be a problem beyond the limits of human ingenuity. 

Does This Matter?

      An addition to Social Security’s HALLEX manual:

A.

General

Hearing office (HO) staff will initiate and conduct a prehearing case analysis and workup when the HO receives a claim(s) file. HO staff will consult with the administrative law judge (ALJ) and HO management on the issues discussed below, as needed.

B.

Prehearing Analysis of Evidentiary Issues

As part of the prehearing case analysis, HO staff will review the claim(s) file to determine whether the claimant informed the agency about additional evidence that is not in the record. If the evidence is not in the record, HO staff will develop the evidence according to the regulations and instructions in Hearings, Appeals and Litigation Law (HALLEX) manual I-2-5-13.

If HO staff determines additional evidence may be needed for a full and fair inquiry into the matters at issue, they will consult with an ALJ to determine whether to develop the evidence. See HALLEX I-2-5-2. If the ALJ decides that he or she needs additional evidence, the HO will develop the evidence before scheduling the hearing.

C.General Overview of Prehearing Analysis and Workup

In addition to performing a prehearing analysis of evidentiary issues, as discussed in subsection B above, HO staff (or the ALJ, if otherwise stated in the referenced citation), will take the following actions:

• Ensure the claim(s) file is associated with the correct claimant.

• Assess whether there is a prior claim(s) file. See HALLEX I-2-1-13.

• Determine whether special handling procedures apply. See HALLEX I-2-1-55 D.

• Determine who is a party to the hearing. See HALLEX I-2-1-45.

• Determine the issues in the case. See generally HALLEX I-2-2.

• Ensure concurrent claim(s) or requests for escalation of claim(s) are associated with the case. See HALLEX I-2-2-22.

• Determine whether special notices are required. See HALLEX I-2-3-45 and I-2-3-50.

• Document whether the claimant has objected to appearing at the hearing by video teleconferencing. See HALLEX I-2-0-21.

• Note whether the case may be appropriate for a decision on-the-record, or whether the claimant has waived the right to a hearing. See HALLEX I-2-1-82.

• Select the proposed exhibits and prepare an exhibit list. See HALLEX I-2-1-15 and I-2-1-20.

• Determine whether an interpreter or other special accommodations are needed at the hearing. See HALLEX I-2-0-15 C, I-2-1-70, I-2-1-72, I-2-1-74, and I-2-3-10.

• Determine whether expert testimony is needed at the hearing. See HALLEX I-2-5-34 and I-2-5-50.

• Determine whether the testimony of any other witness is needed at the hearing. For instructions regarding when field office employees can be called as witnesses, see HALLEX I-2-5-71.

• Give the claimant or the representative the opportunity to examine the claim(s) file. See HALLEX I-2-1-35.

• Schedule a prehearing conference, if appropriate. See HALLEX I-2-1-75.

• Schedule a hearing and send a notice of hearing (if applicable). See HALLEX I-2-3-10 and I-2-3-15.

• For claim(s) remanded by the Appeals Council, request clarification before scheduling a hearing if the ALJ cannot carry out the directive(s) set forth in the remand order, or if the directive(s) appears to have been rendered moot. See HALLEX I-2-1-8.

Did It Matter?

     About two and a half years ago Social Security changed its policies on voluntary remands, that is cases where the agency agrees that a case on appeal to the United States District Court should be remanded to the agency.

     I'm curious. Has there been a change in the rate at which Social Security agrees to voluntary remands since that change in policy? Has there been a change in what they do after voluntary remands? Did the policy change matter?

Why Not Just Ban The Testimony Outright?

     From the summary of a change to Social Security's HALLEX manual:

We clarified that an ALJ must obtain concurrence from the Hearing Office Chief Administrative Law Judge (HOCALJ), Regional Chief Administrative Law Judge (RCALJ), and Regional Commissioner (RC) of the appropriate region to request the testimony of a particular FO [Field Office] employee at an appearance. We removed the phrase stating that the RCALJ may waive notification of the request because RCALJ's concurrence is now required.

     How might this come up? Let's say it's the testimony of a claimant that a particular field office employee, that he can identify by name, told him that he could not file a claim for Social Security benefits and that advice was incorrect and cost the claimant money. The Social Security Act would allow backdating of a claim in this circumstance. Wouldn't the field office employee's testimony be relevant?

New HALLEX Provision Makes Me Wonder

     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 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.
  

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.

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.

Change In Policy On Voluntary Remands After Allowance Of Subsequent Claim

    From Transmittal I-1-90 explaining a change to HALLEX §I-1-10:

... [E]xcept in unusual circumstances, the AC [Appeals Council] will not stipulate to affirm a subsequent allowance when considering whether to voluntarily remand a pending court case in a prior claim because such a stipulation would limit the AC's ability to correct other possible issues in the subsequent claim(s), such as unreported earnings. ...

     I'm not going to bother trying to explain this. If you do much federal court work on Social Security appeals, you understand its significance. If you don't, you probably don't care.
     I will say that if the agency wanted to do so it would be easy to draft a stipulation to affirm a subsequent allowance while leaving open a narrow window for unexpected issues such as unreported earnings. I don't think the agency would have trouble getting plaintiff's attorneys to agree to properly drafted language. I think this is more likely a reflection of increased contentiousness at Social Security. It will result in the agency having to defend weaker decisions in federal court. I don't think that's a good idea for Social Security.

New Remand Procedure

     From HALLEX, the manual for Social Security's Office of Disability Adjudication and Review (ODAR) (and no, the name hasn't changed yet):

I-2-5-12 Remand for Revised Determination Last Update: 8/3/17 (Transmittal I-2-211)  

A.When to Remand for a Revised Determination After a claimant files a request for hearing but before an administrative law judge (ALJ) holds a hearing, an ALJ may, under certain circumstances, remand a case to the Disability Determination Services or other component that issued the determination. See 20 CFR 404.948(c) and 416.1448(c). An ALJ may remand for a revised determination on his or her own initiative, or at the request of a claimant. An ALJ will only remand a case for a revised determination if there is reason to believe the revised determination would be fully favorable to the claimant. While the regulatory language is quite broad, the ALJ will only consider this requirement met if the ALJ is reasonably certain a revised fully favorable determination will be issued on remand. For example, the ALJ may receive new and material evidence that appears to change the outcome, or a change in the law permits a favorable determination. ...

New Prehearing Reviews

     From HALLEX, the manual of Social Security's Office of Disability Adjudication and Review (ODAR) whose name will be changed to OHO this fall:

I-2-5-10. Prehearing Case Review by Other Component Last Update: 8/3/17 (Transmittal I-2-211) 

A.General After a claimant files a request for hearing but before an administrative law judge (ALJ) holds a hearing, an ALJ may, under the circumstances outlined in subsection B below, forward a claim for a prehearing case review to the Disability Determination Services or other component that issued the determination the claimant is appealing. On receipt of the claim(s), the receiving component will decide whether to revise the determination based on a preponderance of the evidence. See 20 CFR 404.941 and 416.1441. Under these procedures, the Social Security Administration may only issue a revised determination if it is fully or partially favorable to the claimant. NOTE: While a prehearing case review is pending, the ALJ retains jurisdiction of the claim and will not dismiss the request for hearing. 

B.When an ALJ May Refer a Case for Prehearing Case Review As set forth in 20 CFR 404.941 and 416.1441, an ALJ may refer a case for a prehearing case review if: Additional evidence is submitted; There is an indication that additional evidence is available; There is a change in the law or regulation; or There is an error in the file or some other indication that the prior determination may be revised. In screening cases for the regulatory criteria, the ALJ will only refer cases for a prehearing case review in which application of the criteria may result in a fully or partially favorable decision. 

Sanitizing The File

     Let's say you're an attorney and you have evidence that a particular Administrative Law Judge (ALJ) is prejudiced against a certain group of people. I'm not talking about suspicion or an opinion or belief. I'm talking about specific evidence. I'm not talking about a specific case but let's say you make a Freedom of Information Act request for statistics on the rate at which an ALJ is approving claims depending upon the race of the claimant. You fight the agency for months, if not years, but eventually get the statistics showing a huge disparity. You get a hearing scheduled before this ALJ with a person whose disability claims the agency rarely approves. You file a motion asking for the ALJ to recuse himself or herself attaching the evidence showing the pattern of discrimination. The ALJ refuses. The ALJ goes on to deny the claim but makes sure to remove from the file all the evidence that you submitted showing the pattern of discrimination so the Appeals Council and a federal court can't see it. Can an ALJ do this? Sure, under a recent change to Social Security's HALLEX manual, the ALJ is supposed to remove from the file any evidence you submit concerning the ALJ. If the attorney submits an affidavit to the Appeals Council concerning the ALJ's behavior in the case, that must also be removed from the file.

You Do Know We Can Read This, Don't You?

     From an newly amended section of HALLEX, Social Security's manual for hearings and appeals:

When determining disability, the Social Security Administration (SSA) will use each of the age categories applicable to a claimant during the period for which SSA is determining whether the claimant is disabled. SSA will not apply the age categories mechanically in a borderline age situation. If a claimant is within a few days to a few months of reaching an older age category (hereinafter “higher age category”), and using the higher age category would result in a determination or decision that the claimant is disabled, SSA will consider whether to use the higher age category after evaluating the overall impact of all the factors of the case. ...

If the administrative law judge (ALJ) decision is supported by substantial evidence, including the findings regarding the existence of a borderline age situation and whether to apply a higher age category, and there is no other basis for granting review present, the Appeals Council (AC) will deny review.

When denying review is appropriate but the ALJ did not expressly state in the decision that he or she considered a borderline age situation and whether to apply a higher age category, the AC will add the following language to the “What We Considered” section in the denial notice:

We considered the borderline age situation in this case, and we found that the factors in the record do not support application of the higher age category.

     The first paragraph is standard Social Security policy. There's nothing objectionable about it. The rest is apparently based upon the theory that the only thing that matters isn't what you actually did; it's what you said you did. How can the Appeals Council say that the Administrative Law Judge (ALJ) "considered" an issue when the ALJ said nothing about the issue? How can the Appeals Council say that it "considered" an issue when it tells the world upfront that it isn't really going to "consider" the issue; it's just going to say it "considered" the issue.
     This newly amended section is about checking off boxes. You couldn't have a clearer statement of the agency's cookie cutter approach to justice.
     The ironic thing is that the language quoted above will be cited to the courts as evidence that Social Security's "considered" language is a lie. More cases will be remanded, not fewer.

New Instructions For Conn Cases

     Social Security just updated its HALLEX manual section pertaining to cases involving alleged "fraud or similar fault." Here are some excerpts with my comments in brackets:

• Except in unusual circumstances where individual case instruction is more appropriate, ODAR will draft specific processing instructions for any group of cases involving the same source(s) believed to have committed fraud or similar fault. [Did I miss the specific processing instructions for the Eric Conn cases or did SSA not release them? Are there secret instructions for these cases?]
• If SSA determined that fraud or similar fault was involved in the individual's application, SSA will provide detailed information regarding relevant criminal, civil, congressional, or administrative investigative findings and how they relate to the individual's application for benefits. SSA will associate copies of any relevant material(s) with the notice and in the claim(s) file. [I don’t remember seeing this “detailed information” in the Conn cases.]
• Under sections 205(u) and 1631(e)(7) of the Act, adjudicators do not have discretion to reconsider the issue of whether the identified evidence should be disregarded when based on an OIG referral of information or a referral based on information obtained during a criminal or other law enforcement investigation.
• However, when the redetermination is based solely on an SSA finding of fraud or similar fault, an adjudicator can consider a beneficiary's or recipient's objection to the disregarding of certain evidence. If the adjudicator is satisfied that fraud or similar fault was not involved in providing the evidence, he or she will consider the evidence. However, if the adjudicator disregards the evidence because a preponderance of the evidence shows that fraud or similar fault was involved in providing the evidence, he or she will address the beneficiary's or recipient's objection in his or her decision. [What? This sounds contradictory.]
• If the beneficiary or recipient submits evidence of an impairment that existed at the time of the original allowance date, but was not alleged on his or her application, SSA will generally consider that evidence. However, if the particular circumstances involved require that a certain type of evidence be disregarded, SSA may also disregard any newly submitted evidence involving that type of evidence. [What’s the standard here? What “particular circumstances” are you talking about?]

The Goat Rodeo Continues For Eric Conn's Former Clients

     I've learned a few things about Social Security's re-adjudication of the disability claims of Eric Conn's former clients. Let me share some of what I've heard:

• In at least one case, Social Security's file contains reports from Drs. Huffnagel and Adkins, two of Eric Conn’s pet physicians. The report from Dr. Huffnagel has been excluded from consideration but the report from Dr. Adkins is supposed to be considered. Even though he also did work for Conn, Adkins was also working for Social Security. The agency wants the report that Adkins did for them considered. However, any reports that Adkins did at the behest of Eric Conn are excluded from consideration. He was an upstanding physician when he did work for Social Security but he was a crook when he did work for Eric Conn.
• The claimants who had medical exams at the behest of Eric Conn universally describe the exams as reasonably thorough. The claimants say the exams took about twenty minutes. The write-ups of the exams seem professional. There may be problems with forms completed by these physicians but there's no sign of problems with the exams or the exam reports themselves. For example, there seems to be no reason to disbelieve a report by one of these physicians that he detected crepitation in a claimant's knee. Nevertheless, everything from these physicians has been excluded – unless SSA ordered the exam.
• None of the claimants involved reports having been contacted by Social Security's Office of Inspector General (OIG) or the FBI.
• I had thought that Social Security must have given Administrative Law Judges (ALJs) more instructions for these cases than what is contained in the agency's HALLEX manual. It looks like I was both right and wrong. I was right in believing that they should have been given more instructions but wrong in believing that they must have given additional instruction. It appears that they didn't. The result is confusion. At least one ALJ has refused to admit any evidence dated after the prior ALJ decision. Other ALJs are pondering whether they should admit into evidence the reports from Conn’s pet physicians. Nobody has any idea what the process is for asking permission to consider developments in the claimant’s health condition after the date of the prior ALJ decision. It’s not clear that there is a procedure or that any such procedure would be consistent with the agency's regulations, ALJ independence and the prohibition on ex parte contacts.
• There are signs suggesting that no one at Social Security's St. Louis National Hearing Center, which is hearing the vast majority of these cases, has much enthusiasm for the task they’ve been given.
• So far, it looks like well over half of the claimants involved have not sought legal help. There is reason for concern that these claimants are so intimidated by the criminal investigation that they are too scared to do anything even though none of them has done anything remotely criminal.
• We’re still waiting on action from the District Court on the lawsuit aimed at stopping these hearings. The delay doesn’t seem like a good sign for these claimants since the Court knows that the hearings have begun. I’m pretty sure that there are those at Social Security who decided not to worry too much about what the agency was doing in these cases since they figured that the courts would intervene to stop this mess. I thought so too but it looks like we may have been wrong. The Court may dismiss the case on narrow technical grounds. That won't prevent these claimants from eventually getting relief. It just delays it until after these cases grind through the administrative process for a year or two.

Some Social Security Home Cooking Planned For Eric Conn's Former Clients

     I posted yesterday about the special rules that Social Security has cooked up to try to prevent Eric Conn's former clients from ever seeing the evidence of "fraud or similar fault" that is supposed to justify requiring them to prove all over again that they're disabled. Of course, these special rules also block any hearing on that issue. Let's look now at the special rules that the agency has adopted to make these readjudications easier for the agency. Below are some excerpts from section I-1-3-25 of Social Security's hearing and appeals manual, HALLEX, on Processing Multiple Cases When Fraud or Similar Fault Involved (“Redeterminations”). These were adopted last summer, obviously for Conn's former clients. My bolded and italicized comments are interpolated:

• When redetermining a claim(s), an adjudicator will be directed to consider the claim(s) only through the date of the final and binding determination or decision on the beneficiary's application for benefits (i.e., the original allowance date). But what if the claimant wasn't disabled at the time of the prior decision but has become disabled since then. How does this issue get adjudicated? The statute provides that a Social Security claim stays in effect until a final decision on the claim. 42 U.S.C. §402(j)(2). How can one say that there was a final decision on these cases if the agency is vacating the prior decisions? Shouldn't these cases be treated like remands where everything is up for grabs? Back benefits on a claim for Disability Insurance Benefits can only go back up to one year prior to the date of the claim. Supplemental Security Income benefits can only go back to the beginning of the month after the month in which the claim is filed. Note that in these cases we would be talking about reduction of an overpayment rather than actual benefits to be paid but that's still important to these claimants since the overpayments may be collected out of their future benefits. A new claim filed now can't make a claimant whole yet these claimants couldn't have filed new claims while they were drawing benefits. Unless Social Security comes up with some new process these claimants can't file new claims while these adjudications are proceeding.
• During redeterminations based on fraud or similar fault, SSA will not generally develop evidence beyond the original allowance date. However, an adjudicator may consider evidence submitted by the beneficiary that post-dates the original allowance date if that evidence relates to the period at issue in the redetermination. For example, if a beneficiary submits evidence of an IQ test dated after her original allowance, and that evidence, with the remaining evidence of record, supports her claim that she met Listing 12.05C as of the date of her original allowance, SSA will consider that evidence during a redetermination. How convenient for you! There's a period of years with no medical evidence in the record but you absolve yourself from any obligation to obtain this evidence. Remember, many, perhaps most, of these claimants will be unrepresented.
• If the beneficiary submits evidence of a new impairment unrelated to those alleged in the application being redetermined, and the onset date is after the original allowance date, the adjudicator will usually not consider or develop the evidence of the new impairment during the redetermination, unless objective evidence shows a new critical or disabling condition. In that instance, the ODAR adjudicator will consult with ODAR management to determine the appropriate course of action.  I-1-3-25. What's a "new critical or disabling condition"? Why does the condition have to be new? What's the statutory justification for this? How can you tell what's new and what isn't? If the evidence at the time the claimant was originally found disabled showed that he or she was a diabetic and the evidence now shows that the claimant has lost a leg due to that diabetes, is that a new condition? You've already said that you're not going to adjudicate disability after the date of the original approval. Now you say you might but that "ODAR management" will tell ALJs whether they can. What's the process here? How does the claimant ask for this? Who in ODAR management makes this decision? When do they make it? Can the decision be appealed? It sounds like this section of HALLEX was drafted by a committee and that there was disagreement on this whole issue. This was probably a compromise solution but it just doesn't make sense. These claimants and their attorneys, to the extent they have attorneys, would like to know the rules going into this process. Is that unreasonable?

     If the issue is only whether the claimant was disabled at the time of the prior decision approving the claim let's use round numbers and say that 50% of the claimants will be approved. However, if the issue is whether the claimant was disabled at that time or any subsequent time, I'd guess that 75% or more will be approved with some onset date found. Most Social Security disability claimants keep getting sicker as time goes on. This is a big deal. Sure, maybe they would be approved on a new claim but that may take three years and they won't be able to mitigate their overpayment as much as they should.

Social Security Making Up Special Rules For Eric Conn's Former Clients

     Social Security made up some special rules just for Eric Conn's former clients. The main point of the rules is to make sure the agency can decide in its absolute, unreviewable discretion that there has been "fraud or similar fault" without ever having to produce any evidence showing this or having to justify its decision before a neutral adjudicator.

     Take a look at sections I-1-3-15, I-2-2-101, I-2-10-8, I-2-10-10, and I-2-10-14 from the agency's hearings and appeals manual, HALLEX. These provide a process whereby an Administrative Law Judge (ALJ) will give notice of a hearing on the issue of whether there was "fraud or similar fault", hold the hearing, possibly take testimony from a witness from the agency's Office of Inspector General (OIG), and make a decision on the issue on the basis of the preponderance of the evidence. All of these sections other than I-2-2-101 were adopted on June 25, 2014. This is the traditional approach to administrative justice.

     Then take a look at section I-1-3-25, Processing Multiple Cases When Fraud or Similar Fault Involved (“Redeterminations”), also adopted on June 25, 2014. Here are some excerpts with my interpolated comments bolded and in italics.

• The Deputy Commissioner of ODAR [Office of Disability Adjudication and Review] will determine which ODAR component is designated to redetermine the affected case(s). Wait, who adjudicates whether there was "fraud or similar fault" justifying a redetermination in the first place? Does the head of ODAR get to make this decision in her absolute, unreviewable discretion? When does the claimant get to see the evidence upon which this decision is based? When does the claimant get a chance to counter this evidence? It sure looks like the agency is afraid of having to justify what it's doing before a neutral adjudicator.
• ODAR will draft specific processing instructions for any particular batch of cases. Right, you just make it up as you go along.
• When an adverse redetermination is necessary, ODAR will send the claimant an appropriate notice based on the circumstances. The notice may include issues relating to benefit continuation or the opportunity for a supplemental hearing. May include information on benefit continuation? Sounds like you can't make up you mind on this issue. Supplemental hearing on which issues? Additionally, the notice may include the opportunity and time-frame for submitting arguments or rebuttal evidence. I-1-3-25.  But what about the right to a hearing on the issue of "fraud or similar fault? Isn't that required as a matter of administrative law and due process? Does the process you've designed consist of you telling me you've already made up your mind but I can say something which you'll ignore since you've already made up your mind and you can't possibly change your mind because Congressional Republicans will attack you? It sure looks like the agency is afraid of having to justify what it's doing before a neutral adjudicator.
• Based on OIG referrals of information pursuant to section 1129(l) of the Act or information obtained through other criminal, congressional, or administrative investigation, the agency may direct an ODAR adjudicator to disregard certain evidence. The agency can just summarily decide which evidence can be considered in its absolute, unreviewable discretion? How does this square with the right to submit arguments and rebuttal evidence? Sounds like that's no more than window dressing since "the agency" has already made up its mind. It sure looks like the agency is afraid of having to justify what it's doing before a neutral adjudicator.

     Why is it that the agency made up these rules last summer, obviously for Conn's cases, but is only just now getting around to acting on the cases? The statute says there is supposed to be an "immediate" readjudication when there is "fraud or similar fault." It looks like the agency can't make up its mind what it wants to do. Maybe that's because the evidence of "fraud or similar fault" isn't all that strong. Convincing 60 Minutes, which is far more interested in good TV than in justice, is one thing. Convincing a neutral adjudicator is another. They don't trust the ALJs to make the "right decision" -- the one that Congressional Republicans demand -- so they want to take the issue out of their hands.

How Do You Answer The Question?

     From a section added to Social Security's HALLEX manual last week:

Before closing the hearing, the administrative law judge (ALJ) will remind the claimant that he or she must inform the ALJ about or submit, in its entirety, all evidence known to him or her that relates to whether he or she is blind or disabled. See 20 CFR 404.1512 and 416.912. If the claimant has a representative, then the ALJ will remind the representative that he or she must help the claimant obtain the information that the claimant must submit. See 20 CFR 404.1512, 404.1740, 416.912, and 416.1540. The ALJ must ask the claimant and the representative if they are aware of any additional evidence that relates to whether the claimant is blind or disabled.

Did They Even Read Their Own Regs?

     I have no idea why they believe this to be consistent with their own recently adopted regulations but Social Security is now taking the position that claimants are not just under an obligation to inform the agency of evidence that "relates to" their disability claim but to submit such evidence, regardless of the expense or difficulty, and are to be hounded to do so.

HALLEX Gets Columbia Law Review Attention

     Timothy Gray has written a note for the Columbia Law Review on Manual Override?Accardi, Skidmore, And The Legal Effect Of The Social Security Administration’s HALLEX Manual.

No Peeking At The Internet While Adjudicating Disability Claims

     From HALLEX I-1-3-16 updated on August 30, 2013:

Generally, when adjudicating a claim, staff and adjudicators may not rely on information from the Internet that has not been corroborated by a Cooperative Disability Investigations Unit (CDIU). Further, entering an individual's personally identifiable information (PII) in an Internet search engine or social media network may compromise the confidentiality of PII. The responsibility to protect PII within an employee's control applies at all times, regardless of whether the employee is at an official duty station, another official work location, an alternate duty station, or off duty. This policy applies whether the individual is using a computer or personal device such as a smartphone. ...

The AC [Appeals Council] will also consider whether a referral to the Office of the Chief Administrative Law Judge (OCALJ) may be appropriate. ...

     However, another new transmittal, this one to HALLEX I-2-5-69, says that "While it is acceptable to verify inmate information on the Internet, it is not acceptable for an ALJ to instigate an independent investigation of a claimant's criminal history on the Internet." Does this mean that an adjudicator can verify that the claimant is a current inmate but not that he or she is a former inmate?

Proffering

From an update to Social Security's HALLEX Manual:

HALLEX Sections I-2-5-42 Obtaining Medical Expert Opinion Through Interrogatories and I-2-5-57 Obtaining Vocational Expert Opinion Through Interrogatories are amended to reflect that administrative law judges (ALJ), attorney adjudicators, and hearing office (HO) staff (with the authority to issue interrogatories in cases not yet assigned to an ALJ under the direction of the Hearing Office Chief Administrative Law Judge (HOCALJ)) need not proffer proposed pre and posthearing medical expert (ME) and vocational expert (VE) interrogatories to claimants or representatives prior to submission to the ME or VE. After the completed interrogatories are received, they must continue to be proffered to claimants and representatives.

This is the first update for HALLEX since August 7, 2009.