Dismissals Resumed

     From the White Mountain Independent, of all places:

The Social Security Administration has lifted lifted the temporary suspension of issuing dismissals for untimely filed hearing requests and for failure to appear at a scheduled hearing.

That temporary suspension was implemented in October. Effective March 8, absent a showing of good cause, they will resume issuing dismissals in cases involving an untimely filed hearing request, or when neither the claimant nor the appointed representative, if any, appeared at a scheduled hearing.

Before issuing a dismissal, however, they will take additional steps to confirm that they are complying with established notice procedures including conducting quality reviews for these specific dismissals.

If they mail a notice of hearing at least 75 days before the date set for the hearing, but do not receive the acknowledgement form at least 30 days before the hearing, they will attempt to contact the claimant or appointed representative for an explanation.

Similarly, if they mail an amended notice of hearing or notice of supplemental hearing at least 20 days before the hearing date, but do not receive the acknowledgement form at least 10 days before the hearing, they will attempt to contact the claimant or appointed representative for an explanation. ...

For more information, contact Jack Burns, public affairs at Social Security Administration, 866-331-4359.

Proposed Amendments To Federal Rules Of Civil Procedure To Specifically Address Social Security Cases

      The Committee on Rules of Practice and Procedure of the Judicial Conference of the United States has produced a lengthy set of amendments to the Federal Rules of Appellate, Bankruptcy, Civil and Criminal Procedure. These include amendments to the Federal Rules of Civil Procedure to specifically address Social Security cases. The proposed changes concerning Social Security begin at page 231 of this 280 page document. 

     At first reading, these do not seem concerning to me but as lawyers know, any procedural rules have the potential to be outcome determinative.

     The public has until February 16, 2021 to file written comments on the proposed changes. There will be public hearings on the proposed amendments to the civil rules on November 10 and January 22. After this process, the Committee on Rules of Practice and Procedure, the Judicial Conference and the Supreme Court must all agree before these proposals come into effect.

Regs On AAJ Hearings Advance

      Yesterday, the Social Security Administration sent over to the Office of Management and Budget (OMB) proposed final regulations on Hearings Held by Administrative Appeals Judges of the Appeals Council. If approved by OMB, these will be published in the Federal Register and go into effect.

     Under the Congressional Review Act, the incoming Congress could overturn these regulations by a simple majority vote in each House of Congress. In the alternative, should Joe Biden become President, his Administration could refuse to implement the regulations and go through the longer process to undo them administratively.

Social Security Loses In CA3 On Issue Of When Lucia Argument Had To Have Been Raised

     After the Supreme Court held in Lucia v. SEC that Administrative Law Judges (ALJs) as then appointed were unconstitutional, there was the inevitable issue of which Social Security claimants would get new hearings. The Social Security Administration argued that the issue had to have been raised before the Administrative Law Judge or at least before the Appeals Council. They have now given up on the argument that Lucia had to have been raised before the ALJ and have remanded all of the cases where the Lucia issue was raised at least before the Appeals Council. The issue of whether the issue had to have been raised at least before the Appeals Council is being litigated in the federal courts. 

     We have our first Court of Appeals opinions in one of the post-Lucia Social Security cases, Cirko v. Commissioner, a Third Circuit case. Social Security lost. The Court held that it did not matter that the Lucia issue wasn't raised until after the matter reached the United States District Court.

     Social Security is still litigating this issue before other Courts of Appeals. It's possible that the agency will win elsewhere. If that happens, the issue will have to be decided by the Supreme Court.

Supreme Court Decision In Smith v. Berryhill

     From the syllabus of Smith v. Berryhill, a unanimous Supreme Court decision issued this morning: 

An Appeals Council dismissal on timeliness grounds after a claimant has had an ALJ hearing on the merits qualifies as a “final decision . . . made after a hearing” for purposes of allowing judicial review under §405(g).

Interesting Study On Federal Court Litigation

     The Administrative Conference of the United States (ACUS), a federal agency that does legal research and makes recommendations for federal agencies, has released A Study of Social Security Litigation in the Federal Courts. Here are a few excerpts (footnotes omitted): 

• This investigation revealed one obvious fact: federal judges know little about the path social security claims follow from initial filing to their chambers.
• District and magistrate judges tend to march in lockstep within districts. Districts with one judge who remands a lot of cases to the agency tend to have other judges who do so as well. Very few individual judges have decision patterns that depart significantly from what their district colleagues produce.
• Circuit boundaries are associated with a good deal of district-level variation. For example, the fact that the Eastern District of New York remands more cases than the Southern District of Florida seems to be significantly related to the fact that, over all, districts in the Second Circuit remand a greater share of cases than do districts in the Eleventh Circuit.
• A number of factors – judicial ideology, the degree of a district’s urbanization, the assignment of cases to district versus magistrate judges, ALJ [Administrative Law Judge] case loads, and others – have little association with case outcomes. 
• Most of the twenty-four ALJs we interviewed subscribe to what one labeled a “just in time” approach to case review.  An ALJ using this method first looks at a case anywhere from one day to a week before the hearing. 
• The agency can always appeal the district court’s decision, but it almost never does so. The courts of appeals might receive somewhere in the neighborhood of 650 social security appeals each year, no more than twenty of which are affirmative appeals by the Commissioner. In FY [Fiscal Year] 2014, the agency filed exactly one appeal. Several reasons might explain this low incidence of appeal, but one institutional fact is surely important: the Solicitor General of the United States must sign off on any appeal the SSA [Social Security Administration] might want to take.
• The hearing office that we studied in the low remand district came off as a model of institutional health. “I can’t begin to think of a better place to work,” one decision writer told us. The office has stable management, with a long serving Hearing Office Chief Administrative Law Judge (“HOCALJ”), and ALJs tend to stay once they are assigned there.
• Most of the hearing office personnel from the high remand district described a very different and more problematic work environment. Several ALJs complained of poor quality decision writing, and several expressed a preference for decisions written off-site in national case assistance centers. An ALJ described unstable, volatile management at a hearing office for much of the past decade, and ALJs and a claimant representative complained of the office’s capacity to perform basic administrative tasks. Some personnel described communication difficulties between ALJs and decision writers.
• Recommendation 1. Congress should give the Social Security Administration independent litigating authority. 
• Recommendation 2. Congress should enact enabling legislation to clarify the U.S. Supreme Court’s authority to promulgate procedural rules for social security litigation. The Judicial Conference should authorize the appointment of a social security rules advisory committee, and the U.S. Supreme Court should approve a set of social security rules drafted by this committee.
• Recommendation 3. A uniform set of procedural rules for social security litigation should contain (a) a rule requiring the claimant to file a notice of appeal instead of a complaint; (b) a rule requiring the agency to file the certified administrative record instead of an answer; (c) a rule requiring the parties to exchange merits briefs instead of motions; (d) a rule setting appropriate deadlines and page limits; and (e) a rule creating a presumption against oral argument. 
• Recommendation 4. The Administrative Office of the United States Courts, the Federal Judicial Center, the Administrative Conference of the United States, and the Social Security Administration should cooperate on several initiatives to improve communication among the agency, claimant representatives, and the judiciary, and to educate the judiciary in important aspects of the claims adjudication process. These initiatives should include the creation of social security standing committees for each district and the drafting of an introductory manual on social security law and processes.
• Recommendation 5. Congress should not replace the existing system of judicial review with a specialized court for social security appeals. The Appeals Council should issue opinions in a set of appeals each year that will benefit from Chevron deference and thereby reduce circuit-level variation. 
• Suggestion 1. The agency should investigate further the relationship between hearing office performance and work environment, on one hand, and remand rates in district courts, on the other. 
• Suggestion 2. The agency should add bottom-up, localized experiments to their quality assurance initiatives. This experimentation could include a pilot project in several hearing offices that uses district court decisions for guidance and critique.
• Suggestion 3. The Social Security Administration and the Administrative Office of the U.S. Courts should provide the federal judiciary with a database listing district and magistrate judge decision rates. 
• Suggestion 4. The Social Security Administration should attempt to quantify the “false positive phenomenon,” or the number of court remands that, once adjudicated again, do not result in the payment of benefits. 
• Suggestion 5. To the extent possible, the Social Security Administration should require that hearing offices assign court remands to the same decision writers who worked on the cases the first time.
• Suggestion 6. The Social Security Administration should study the issue of an OGC [Office of General Counsel] attorney’s ethical obligations and, where appropriate, provide clearer guidance.
• We nonetheless believe that only a dramatic reduction in ALJ caseloads could permit significant, across-the-board improvements in decision-making quality sufficient to cause the federal court remand rate to plummet sharply. To avoid a spike in the backlog of claims, the size of the ALJ corps would have to increase. Ultimately, this may be the most important reform of all.

Click on chart to view full size

Will The Time Ever Come When Recon Is Eliminated?

     Professor Jon C. Dubin of Rutgers School of Law -- Newark Center for Law and Justice has written an article for the Georgetown Journal on Poverty Law and Policy on ending the reconsideration level of review for Social Security disability claims. That article itself isn't available online at this time but an earlier draft of the piece is available at the Committee for a Responsible Federal Budget website.

     There are excellent reasons why "recon" should be eliminated. The problems with doing away with reconsideration, in the view of Social Security and Congress, are:

• If reconsideration is eliminated, more claimants will request hearings. At this time, both Social Security and Congress view hearings as inherently a bad thing.
• If more hearings are to be held, more Administrative Law Judges would have to be hired. At this time, both Social Security and Congress view Administrative Law Judges as sources of error.
• If more hearings are to be held, more claimants will be approved. The goal of both Social Security and Congress is to hold down the number of disability claims approved.
• More Administrative Law Judges would cost more money, far more than would be saved by doing away with reconsideration.

     I first became involved with Social Security disability in 1978. Doing away with reconsideration wasn't a new idea at the time. It's never come close to happening since that time. I regard it as a nice idea that stands no chance of happening in the foreseeable future.

Appeals Council Won't Return Evidence -- But They Won't Consider It

     From today's Federal Register:

This final rule revises our rules regarding returning evidence at the Appeals Council (AC) level. Under this final rule, the AC will no longer return additional evidence it receives when the AC determines the additional evidence does not relate to the period on or before the date of the administrative law judge (ALJ) decision.

Exactly How Is Social Security Trying To Cut 900 Former Clients Of Eric Conn Off Disability Benefits?

     I'm curious about exactly how the Social Security Administration is approaching the 900 or so cases in Kentucky and West Virginia in which it is trying to take away disability benefits from claimants who had been represented by Eric Conn. I wonder if some reader knows how, procedurally, the agency is doing this.

     Here are the possibilities that come to my mind and the problems associated with those possibilities:

• Reopening under 20 C.F.R. §§404.988(b) and 404.989 due to new and material evidence that some medical reports submitted by Conn were phony. This would be limited to cases where the initial determination (not the ALJ decision) was issued in the last four years. The argument could be made that Social Security already knew that the medical reports were phony. I don't know for sure but I suspect that the local ALJs would testify that everybody already knew, at least in rough terms, what was going on. Of course, if the ALJ decision relied upon the allegedly phony report, this might not matter. I suppose this is the most likely route. The claimants could still prove they were disabled anyway and most probably would.
• Reopening under 20 C.F.R. §404.988(c)(1) on the grounds that the favorable decisions were obtained by "fraud or similar fault." If Social Security has proof of "fraud or similar fault" how is Eric Conn still practicing before the agency?
• Termination of benefits under 20 C.F.R. §404.1579(d)(3) based upon a determination that the original decision putting the claimant on benefits was "in error." The problems here are that benefits could not be terminated retroactively without meeting the criteria specified above for reopening, the claimants would be eligible for interim benefits while they appealed their terminations and the agency would bear the burden of proving the "error."

     I know that all this may sound like a bunch of legalese but Social Security has to follow its own rules. You'll notice from what I've posted earlier and from many of the comments on my post that most lawyers think that cutting these folks off benefits is no slam dunk. There are reasons that Social Security is just now getting trying to do this. And remember, Social Security won't have an attorney present at any ALJ hearings on these issues and the attorneys representing these claimants will keep asking again and again why Social Security is going after the claimants but not going after Eric Conn directly.

     Update: This newspaper article suggests that Social Security is taking the third route, termination, since the 10 day window to get interim benefits applies only to terminations.

Remand Policy

From a recent Bulletin issued by Social Security's Chief Administrative Law Judge:

Remands of service area realignment cases in which the hearing office servicing the claimant’s address has changed since the initial hearing will remain at the servicing hearing office and will not be transferred to the hearing office of the ALJ who heard the case. ...

Remanded cases returning to the hearing office servicing the claimant’s current residence address which were heard in another hearing office as a result of a permanent case transfer, will be heard by an ALJ in the servicing hearing office.

I was under the impression that this was always the policy. It is good to see it in writing, however.

"Prototype" and "Single Decisionmaker" Experiments To Be Reinstated?

I have heard a credible report that New Hampshire will be reinstated as a "prototype" state in the disability redesign tests and that Maine and Vermont will be reinstated as "single decisionmaker" states. This is to return these states to the status they were in before the Disability Service Improvement (DSI) plan that former Commissioner Barnhart tried to implement and that current Commissioner Astrue ended.

This does raise the issue of whether the Social Security Administration should continue the "prototype" and "single decisionmaker" experiments. It is about time to fish or cut bait.

Effect Of Proposed Procedural Changes

The procedural changes proposed by the Social Security Administration yesterday will cause significantly fewer disability claims to be approved. That is not my assessment, but the Social Security Administration's assessment. The regulatory proposal contains an estimate of the expected effect upon the Social Security trust fund. The estimate is that the savings peak in 2012 with a $215 million reduction in benefit payments and that the total savings in benefits paid over ten years are $1.531 billion. That is a lot of claimants whose cases who would be denied as a result of this proposal, probably thousands each year.

What Does The Proposal Mean?

I have heard some skepticism that the Notice of Proposed Rule Making (NPRM) in the Federal Register today really means that henceforth remands and reversals will be for closed periods of disability only. I do not blame anyone for being skeptical since this seems so bizarre. Here is the exact language of the NPRM:

The administrative law judge's hearing decision in your case adjudicated the issues relevant to your case for the period of time up to and including the date the hearing decision was issued. If you or another party files an appeal of that hearing decision, or if the Review Board decides to review the decision on its own motion, the appeal and any subsequent proceedings will consider only that period of time ending with the date of the first hearing decision in your case. If the original hearing decision in your case is set aside, in whole or in part, by the Review Board or a Federal court and remanded to an administrative law judge for a new hearing or decision, the proceedings on remand will consider your case only with regard to the period ending on the date of the original administrative law judge decision in your case.

Any interpretation of this language other than to mean that remands are for closed periods only seems awfully strained to me.

Proposed New Rules Would Limit Remands To Closed Periods Only

My first reading was that the proposed rules concerning Administrative Law Judge (ALJ) decisions and the Review Board, which is to replace the Appeals Council, say that if the Review Board or a Federal Court remands a case that the ALJ may only consider the time period up to the initial ALJ decision. I am surprised to say that my second reading is the same. This would mean that on any remand, an ALJ could only award a closed period of disability up to the date of the initial ALJ decision.

To say this comes out of left field is to put it mildly. I had not heard anything previously indicating that such an idea had ever been under consideration. I cannot imagine that this was under consideration for more than a short time before publication, since word would have leaked out if this proposal had been around long.

I do not see how this comports with the medical improvement standard, which applies to closed period cases. In remand cases, benefits would be cut off even though the evidence would show no improvement and might well show a decline in the claimant's condition. Indeed, the claimant might be dead and yet his or her benefits would be summarily cut off as of the date of the first ALJ decision. The claimant would have to show all over again that he or she was disabled.

If the Social Security Administration has the power to do this, the logical corollary would be that the Social Security Administration has the power to limit any determination of disability at any level of review to a closed period of disability, meaning that once any claimant was approved for Social Security disability benefits, he or she would have to immediately begin a new claim for disability benefits if he or she wished more benefits. Obviously, this would make a mockery of the medical improvement standard and, indeed, would make Social Security disability benefits a never ending merry-go-round that would eventually exhaust any claimant, no matter how disabled.

I do not see how the Social Security Administration may limit the effect of a United States District Court remand in this way. I would expect that many District Courts would issue specific orders to the contrary.

I am surprised that the Social Security Administration would undertake such a dramatic change in its procedures without any prior notice to Congress as best I can tell. I think this will not play well with the Senate Finance Committee and House Social Security Subcommittee.

On a more personal level, why was it that neither Michael Astrue nor Lisa De Soto mentioned anything about this when they spoke at the conference of the National Organization of Social Security Claimants Representatives (NOSSCR) just a weeks ago? They mentioned other items from this proposal but did not mention this dramatic item. (And, by the way, there are other bad items in this that they did not mention. This is just the most dramatic. I will get to the others as I have time.) Why speak at all if you are going to do this?

What is not completely clear to me is whether the proposal would limit the effect of any reversal by the Review Board or a United States District Court to a closed period. I think this is what is intended, but I have so far been unable to find any language in the proposal that specifically covers this situation. It would be inconsistent if this is not what was intended. The lack of clear language on this point adds to the impression that this part of the regulatory proposal was drafted hurriedly.

I think what bothers me the most about this is that it creates a classic trap for the unwary. Experienced Social Security attorneys can mostly get around the problem created by this provision by having the claimant file a new claim in addition to an appeal. By the time any remand happens, there will be a new claim to be consolidated with the remand in order to get full justice for the claimant. It will only be the claimants represented by inexperienced attorneys or who are unrepresented who will be hurt by this.

If Congress can add a budget rider that limits the Social Security Administration's ability to close field offices, Congress can certainly add a budget rider prohibiting the expenditure of funds for preparing final regulations based upon this proposal. It may be necessary for Congress to take action to preserve the status quo until the Bush Administration leaves office.