ALJs And CLE

Here is the text of a letter posted on the ALJ Improvement Board concerning the problem that many of Social Security's Administrative Law Judges (ALJs) have with meeting a recent requirement of the Office of Personnel Management that they maintain active bar membership. Many of the ALJs have not been taking enough Continuing Legal Education (CLE) courses to meet the requirements necessary to keep their bar membership current:

ASSOCIATION OF ADMINISTRATIVE LAW JUDGES, INC.
Henry Reuss Federal Plaza, Suite 880
310 W. Wisconsin Avenue
Milwaukee, Wl 53203

April 23, 2007

The Honorable Frank Cristaudo
Chief Judge
Office of Disability Adjudication and Review
Social Security Administration
One Skyline Tower, Suite 1500
5107 Leesburg Pike
Falls Church, VA 22041-3255

Re: OPM Final Rule Regarding Bar Status of Administrative Law Judges

Dear Chief Judge Cristaudo:

Effective April 19, 2007, Office of Personnel Management ("OPM") issued a Final Rule that requires active state bar membership as a qualification for service by incumbent Administrative Law Judges. Although we have had discussions with OPM regarding our objections to the Final Rule, and we have instituted a legal challenge to the Final Rule, there are several practical questions regarding the implementation of the Final Rule.

As you may be aware, there are a significant number of SSA Administrative Law Judges who are not currently compliant with the active state bar membership requirement. OPM has taken the position that these Administrative Law Judges are not qualified to serve as Administrative Law Judges because they fail to meet a continuing requirement of their position. As to those affected Administrative Law Judges, we would like guidance regarding:

• whether they are obligated to advise the claimants in their pending cases that they do not meet a continuing requirement for their position under the Final Rule;

• whether they must cease scheduling cases until they can come into compliance with the Final Rules' requirements;

• whether they are required to cease the adjudicatory process on cases pending before them, i.e. decision making processes; and

• whether they have to take any action to notify claimants in cases where a decision has been rendered, whether on appeal or not, that they did not meet a continuing requirement for their position under the Final Rule when they issued their decision?

We raised these issues with OPM in our informal discussions, but OPM directed us to raise these concerns with the individual agencies. As you know, there is a substantial backlog of cases at the Social Security Administration. We hope that your response to this inquiry will help alleviate any possible disruptions to the adjudication process caused by the issuance of the Final Rule

In view of the importance of the issue, I trust that you will give this matter your attention and respond to this inquiry as soon as possible.

Sincerely,


Ronald G. Bernoski
President

Astrue On Today Show -- Reveals Top Baby Names

According to ivillage, Michael Astrue, Commissioner of Social Security, was on the Today Show on NBC this morning to reveal last year's top baby names. I did not see the show and have been unable to find the video. Anyway, here's the list of most popular baby names from last year from Social Security's website:

Boys:	Girls:
1) Jacob 2) Michael 3) Joshua 4) Ethan 5) Matthew 6) Daniel 7) Christopher 8) Andrew 9) Anthony 10) William	1) Emily 2) Emma 3) Madison 4) Isabella 5) Ava 6) Abigail 7) Olivia 8) Hannah 9) Sophia 10) Samantha

Notice Of ALJ "Examination" Closure

From the Office of Personnel Management (OPM):

Examination Closed: Vacancy Announcement Number 2007ALJ – 134575 for the Administrative Law (ALJ) examination, issued on May 4, 2007, is closed to the receipt of applications.

The announcement will remain closed, except as required by 5 CFR 332.311, while the Office of Personnel Management (OPM) processes the applications. Applicants who successfully complete the ALJ examination under Vacancy Announcement Number 2007ALJ – 134575 will have their names placed on a new ALJ register. Once this new register is established, the previous register used to fill ALJ positions (from Announcement Number 318, as amended) will be terminated.

The new ALJ register will be used as the source of names to make referrals to agencies for employment consideration when they have entry level ALJ vacancies to fill. Names are referred in numerical score order, based on the duty location of the position(s) to be filled and the geographical preference of applicants. It is the responsibility of the agencies to make selections from the list of candidates referred for employment consideration from among the highest three available names, taking into consideration veterans' preference rules regarding order of selection.

It is OPM’s responsibility to ensure that the register maintains the names of a sufficient number of high-quality ALJ candidates to meet the projected hiring needs of agencies. Consequently, OPM will periodically re-open the ALJ examination. Future open periods for the ALJ examination will be posted by a vacancy announcement on OPM’s website at: http://www.usajobs.gov

Ninth Circuit Rules Against Opting Out of Social Security On Religious Grounds

From Reuters:

A U.S. federal appeals court dismissed a case on Monday in which a Las Vegas attorney argued his Mormon religion should exempt him from Social Security taxes.

"I don't believe in it, I don't like it, I think it is Satanic," Jonathan Hansen said in a telephone interview, adding that to date he has paid his Social Security taxes. "I belong to a religion that will take care of me. I don't need the Social Security system and I don't want it."

"It violates my religious beliefs and it violates the teachings of my church as I interpret them."

The U.S. 9th Circuit Court of Appeals disagreed with such arguments and backed a lower court's dismissal of Hansen's claim.

POMS On Work Incentives

Social Security has added a new section in its POMS Manual summarizing the work incentive rules for those receiving disability benefits from the agency. Can anyone read this and not come to the conclusion that these rules need dramatic simplification? How can anyone expect a person receiving Social Security disability benefits to understand all this? Even experienced agency personnel have trouble with the subject. No wonder most who receive disability benefits from Social Security are frightened to go back to work. Also, it should be no wonder that many of those who do return to work end up with overpayments.

ALJ Job Opening Closed

Last Friday, the Office of Personnel Management (OPM) started taking new applications to become an Administrative Law Judge (ALJ). The announcement indicated that applications would only be taken until May 18 or until the end of the day upon which OPM received a total of 1,250 applications. It took less than a week. OPM has now closed the application period, apparently having received 1,250 ALJ applications.

More Social Security ALJs: Is That Gross Or Net?

At the House Social Security Subcommittee hearing, Commissioner Astrue talked of hiring 150 new Administrative Law Judges (ALJs). By the time Astrue got to Ohio for a meeting a couple of days ago, he was talking about hiring 160-170 new ALJs.

At the Social Security Subcommittee hearing, Astrue made casual mention of a factoid that I had not heard before. The average time that an ALJ stays on the job with Social Security is about 20 years. If my math is correct, this means that Social Security loses about 5% of its ALJs each year due to retirement, death and other reasons. Since Social Security currently has about 1,100 ALJs, this means that Social Security can expect to lose about 55 ALJs a year, or about 80 between now and the end of the next federal fiscal year, September 30, 2008.

If Astrue is talking about hiring only 150 new ALJs total in the next fiscal year, the net gain would only be about 70 new ALJs, an increase of only 7%. If he is talking about a net gain of 170 ALJs, Social Security would need to hire about 250 new ALJs, which would yield a 16% increase in the number of ALJs. My opinion is that Social Security should aim for more than a 16% increase in its ALJ corps in the next fiscal year, but first we need to find out exactly what Astrue is talking about. Is he talking about hiring 150-170 new ALJs period or a net increase in the number of ALJs of 150-170? The difference is significant. What Astrue has said so far has been ambiguous and no one has publicly pinned him down.

SSAB Meeting Agenda

I would have posted the agenda for the Social Security Advisory Board's meeting on May 8. However, their website still says only that "a detailed agenda will be available at a later date."

Lawyers Scamming On PTSD?

From StrategyPage.com:

As feared, lawyers are increasingly soliciting troops coming back from duty overseas, and urging them to claim they have Combat fatigue (or PTSD, post-traumatic stress disorder) and apply for disability benefits. This recently became big news in Australia, but the involvement of crooked lawyers in disability scams has been big business in the United States for decades. ...

The problem with the lawyers assisting troops in scamming the government for benefits payments is nothing new. It has been going on for years in the civilian disability insurance and social security disability systems. Lawyers involved in class action suits, for large numbers of victims have been caught doing coaching, and records falsification, on a large scale.

I have no idea what this person is talking about. There have been issues with plaintiff lawyer behavior in asbestosis class action law suits, but lawyers have hardly been involved in Veterans benefits cases. The only scandals concerning "civilian disability insurance", by which the author must mean long term disability benefits under pension plans, have been scandals concerning the conduct of insurance companies. As for attorneys representing Social Security claimants, there are far too many real disability cases out there to think about concocting something. As a practical matter, to win on a PTSD disability claim with Social Security, the claimant needs to be under regular psychiatric treatment. Who is going to see a psychiatrist on a regular basis with a feigned mental condition? It is hard enough to get people who suffer from unquestioned mental illness to see a psychiatrist on a regular basis!

New GAO Report

The Government Accountability Office (GAO) has issued a report on Social Security's implementation of the Medicare Part D Low Income Subsidy program. Here is a summary:

SSA approved approximately 2.2 million Medicare beneficiaries for the low-income subsidy as of March 2007, despite barriers that limited its ability to identify individuals who were eligible for the subsidy and solicit applications from them. However, the success of SSA’s outreach efforts is uncertain because there are no reliable data to identify the eligible population. SSA officials had hoped to use Internal Revenue Service (IRS) tax data to identify the eligible population, but the law prohibits the use of such data unless an individual has already applied for the subsidy. Even if SSA could use the data, IRS officials question its usefulness. Instead, SSA used income records and other government data to identify 18.6 million Medicare beneficiaries who might qualify for the subsidy, which was considered an overestimate of the eligible population. SSA mailed low-income subsidy information and applications to these Medicare beneficiaries and conducted an outreach campaign of 76,000 events nationwide. However, since the initial campaign ended, SSA has not developed a comprehensive plan to distinctly identify its continuing outreach efforts apart from other agency activities. SSA’s efforts were hindered by beneficiaries’ confusion about the distinction between applying for the subsidy and signing up for the prescription drug benefit, and the reluctance of some potential applicants to share personal financial information, among other factors.

In all fairness, Social Security was given a difficult task. There was no hope for a neat, seamless implementation, especially given Social Security's acute staffing shortages.