Association Of ALJs Complaint

I had posted earlier about the lawsuit filed by the Association of Admininstrative Law Judges (AALJ). I had not posted a copy of the complaint even though I had seen a copy of it that was floating around. I did not post it because it appeared that it might have been a draft that was never filed.

Someone on the Association of Attorney Advisors Board has retrieved and posted the complaint off the Pacer system used in the federal courts. However, you will have to register to read it on that board. You can register ever if you are not a member of that organization.

I have retrieved the document, extracted the text and posted it on the second blog that I established as a group blog. So far, I have only gotten one response indicating an interest in the group blog, so, for now, I will use it as a place to post lengthy documents. It is in very rough shape there. There are problems because the document has segments in it which, accidentally, replicate HTML language. It seems almost impossible to get all of this out and reformat it properly, so I have just left it very raw.

The complaint does go into two subjects -- requiring current Administrative Law Judges (ALJs) to be fully licensed to practice law and the short notice given for applicants for the new register from which new ALJs will be hired. The point has been raised by others that the ALJ Association does not have standing to raise the issue about the application period for the new examination. However, the complaint has a couple of named plaintiffs who are not ALJs, but attorneys in private practice who did not find out about the application period in time to apply. They should not have a standing problem. There may be an issue of misjoinder, that is of two issues being raised by one lawsuit that are too disparate to be raised in one lawsuit, but that is a technical matter which would not defeat the case in and of itself. Joinder and misjoinder is an obscure byway of civil procedure with which I am unfamiliar.

The bigger issue here is the wisdom of the ALJ Association bringing this lawsuit at all, especially the part of it having to do with the application period. The lawsuit may be causing dissension among ALJs. Although ALJs may have a point about being misled on the necessity of maintaining bar membership, for the vast majority of ALJs who are now merely inactive bar members, becoming active again should not be much of a problem -- get a little continuing legal education and fill out a state bar form. Those who allowed their bar membership to lapse completely were taking a chance that most lawyers would find astonishing. Few other than ALJs are sympathetic to any part of the lawsuit. I do not think anyone, especially current ALJs, wants to delay hiring more ALJs. This lawsuit does has the potential to cause delay.

Commisioner Makes Many Personnel Changes

A memorandum that went out yesterday:

Date: June 25, 2007 Refer To: S7K

To: Senior Staff

From: Michael J. Astrue /s/
Commissioner

Subject: Organizational Realignments and Related Executive Personnel Assignments - INFORMATION

Let me begin with an update regarding the status of our 2008 appropriations. While one can always get last-minute surprises in Washington, it looks like we are in the best budget shape for next year that we have been in for a long time. The House appropriations funding level is $100 million over the President’s FY 2008 budget request and it appears that the Senate level will be $125 million over the President’s budget request. While we will probably have new costs to absorb, I am optimistic that most components will be able to stay at current staffing levels instead of managing more attrition. We should all be grateful to Dale Sopper, Bob Wilson and their staffs for their fine work on the appropriations bills.

In my first four months as Commissioner, I have been heavily engaged in examining the 2006 disability regulations and related business processes, examining the hearings workloads and stepping up efforts to reduce the backlogs. These reviews have led to today’s organizational realignments which will let key offices focus on their primary mission activities and return some functions to more logical organizational homes.

While I would ideally mention many individuals who have made great contributions to their organizations, I do want to offer my special thanks to Manny Vaz for his outstanding service as Acting Deputy Commissioner for Disability and Income Security Programs. He came into a challenging assignment on short notice, quickly made some important immediate decisions and provided thoughtful advice for moving the organization forward.

Over the course of the next few weeks, the following organizational and leadership changes will become effective:

The Regulations Staff will move from the Office of Disability and Income Security Programs to the Office of the Commissioner and will report to David Rust. Dean Landis, currently in the SES Candidate Development Program, will serve as the Acting Director.

The Office of International Programs will move from the Office of Disability and Income Security Programs to the Office of the Commissioner and will report to Deputy Commissioner Andrew Biggs. Rogelio Gomez remains the Associate Commissioner for International Programs.

Myrtle Habersham will move from the Office of the Chief Strategic Officer to be Senior Advisor to the Chief Information Officer. She will report to this assignment upon her return from the Office of Federal Housing Enterprise Oversight at the end of September 2007.

We are currently in negotiation with and are confident that we will reach a successful outcome that will return Dalmer Hoskins to SSA as Chief Strategic Officer. Dalmer is currently Senior Policy Advisor at AARP and prior to that the Secretary General for the International Social Security Association.

Laraine Williams will continue to serve as the Deputy Chief Strategic Officer; the strategic management function and staff remain and the organization will continue to report to the Office of the Commissioner.

The competitive sourcing function and staff from the current Office of Competitive Sourcing will move to the Office of Budget, Finance and Management.

The workforce analysis function and staff from the Office of Workforce Analysis will move to the Office of Quality Performance.

Jacy Thurmond will move from Assistant Deputy Commissioner for Disability Adjudication and Review to Senior Advisor to Deputy Commissioner Andrew Biggs.

Frank Smith has accepted a detail assignment as Acting Assistant Deputy Commissioner for Disability Adjudication and Review. While Frank is on assignment, Kristi Schmidt will serve as the Acting Regional Chief Counsel for OGC in Kansas City.

Eileen McDaniel will be the Associate Commissioner for Management, Office of Disability Adjudication and Review.

Pat Jonas will move from Assistant Deputy Commissioner for Disability and Income Security Programs to be Director of the National Hearing Center, ODAR.

Marianna LaCanfora will move from Deputy Associate Commissioner for Public Service and Operations Support (Operations) to be Assistant Deputy Commissioner for Disability and Income Security Programs.

Alan Lane will move from the Deputy Chief Quality Officer, Office of Quality Performance, to be Associate Commissioner for Income Security Programs, ODISP.

Fritz Streckewald will move from Assistant Deputy Commissioner for Disability and Income Security Programs to be the Deputy Chief Quality Officer and Chair of the Immigration Reform Task Force.

Pam Mazerski will move from Associate Commissioner for Program Development and Research, ODISP, to be Associate Commissioner for Quality Support, OQP. Richard Balkus, who has been the Acting Associate Commissioner for Disability and Income Assistance Policy, OP, will serve as Acting Associate Commissioner for Program Development and Research. Susan Wilschke will serve as Acting Associate Commissioner for Disability and Income Assistance Policy.

Mary Chatel will report to the Associate Commissioner for Disability Programs and will be leading outreach activity, including quarterly public hearings in the area of compassionate allowances and listing improvements.

David Morado has been appointed as the Regional Chief Counsel in OGC’s Seattle office. David joins the Agency from the Department of Housing and Urban Development’s Seattle General Counsel’s office and brings a wealth of litigation experience to this assignment. Please join me in welcoming David to SSA.

Web Phillips, Associate Commissioner for Legislative Development in the Office of Legislation and Congressional Affairs, has announced that he will retire July 3, 2007.
Tom Parrott, currently in the SES Candidate Development Program, will serve as the
Acting Associate Commissioner upon Web’s retirement.

Linda Hill will move from Deputy Chief of Staff in the Office of the Commissioner to be Senior Advisor to the Deputy Commissioner for Legislation and Congressional Affairs.

Upon Dale Sopper’s retirement August 3, Mary Glenn-Croft will be the Deputy Commissioner for Budget, Finance and Management.

Roger McDonnell will move from Associate Commissioner for Public Service and Operations Support to Assistant Deputy Commissioner for Operations.

Mark Blatchford will move from Associate Commissioner for Automation Support to Associate Commissioner for Public Service and Operations Support.

Michelle King will serve as Acting Deputy Associate Commissioner for Public Service and Operations Support.

Debbi Russell will move from the Office of Retirement and Survivors Insurance Systems (Systems) to be Associate Commissioner for Automation Support.

Please remember in commenting upon this that the individuals changing jobs are career employees.

Want To Be A Blogger?

I am starting a separate group blog for others interesting in blogging on Social Security issues. Read on if you might be interested in being one of the bloggers on this group blog.

I have commented here about the relatively small number of blogs on the topic of Social Security. With over 50,000 employees at Social Security, perhaps 15,000 to 20,000 at the state disability determination agencies, 3,000 plus attorneys and non-attorneys actively engaged in representing Social Security claimants, and millions of Social Security claimants and beneficiaries, one might expect a more active Social Security blogging community. There is a message board for those who represent Social Security claimants and another message board for those interested in issues concerning Social Security's Administrative Law Judges and an online group for Social Security claimants, but these are far from covering the waterfront of those who are interested in Social Security topics.

Perhaps, you have thought about blogging about Social Security, but did not think anyone would read what you had written. Perhaps you did not want to start a blog because you did not think you would be able to post on a regular basis. Perhaps, you just did not know where to start. A group blog helps with all of these problems.

If you are interested, use the feedback button on the right side of this page to e-mail me. You can post under your own name or under a screen name. (Just do not post from your office if you are a Social Security employee.) I could use a number of bloggers for this group blog with differing backgrounds and viewpoints. After some minor formalities, I authorize you to post on the group blog. You then post what you want, when you want to post it.

Remember, although I will not be posting on this group blog myself, I still own it. I can take down offensive posts and ban those who post them. In the end, on this group blog, I make the rules, I interpret the rules, I can change the rules whenever I want and I enforce the rules. There is no right of appeal. Of course, you can always start you own individual blog anytime you want and put up with essentially no rules.

A Question

My recollection is that some years ago there was a program by which the Office of Hearings and Appeals (OHA), as it was known then (and as I hope it will eventually be known again) had a program to pre-notify Social Security's payment centers when an Administrative Law Judge (ALJ) was about to issue a decision approving a Social Security disability claim, so that implementation could begin even while the ALJ's office was still writing the decision.

I was under the impression that pre-notification had been quietly dropped many years ago. At least I had seen no evidence that it still existed. However, today I received an attorney fee payment less than a week after I received a favorable decision from an ALJ -- and, no, there was no delay in my receiving the ALJ decision. Given the time frames involved in getting a check issued, I find it hard to believe that the ALJ decision could have been implemented that quickly unless there was pre-notification.

Did the pre-notification of ALJ decisions never really end? Has it been re-implemented?

An Image From 1970

Fraud In Blountville, TN

The Tri-Cities Times News reports that William D. Pickel of Blountville, TN has pleaded guilty to one count of Social Security fraud. He had failed to report occasional employment as a truck driver and later as owner of a truck line while drawing Social Security disability benefits.

Social Security And Supported Employment

From the San Antonio Express News:

The Social Security Administration is sponsoring an important four-year study of supported employment to determine how to best assist those living with mental illness. ... Supported employment offers some close supervision and skill coaching to assist the individual in coping with work stress and demands, and the demands of the illness. ...

The Mental Health Treatment Study extends an earlier pilot study in 1996 ...

Based on this earlier success [what earlier success?], the government is further investigating the Individual Placement and Support Model in a larger national study. The IPS model involves providing job coaching (only two weeks of pre-employment training so individuals can begin working sooner), a rapid job search and an emphasis on mainstreaming individuals rather than referring them to "enclaves." ...

The national study will include 22 sites this time instead of nine. From our site [in San Antonio], the study is recruiting 150 Social Security Disability Insurance beneficiaries who have mental illness; those already enrolled in supported employment cannot participate in the study.

Bad Day For Claimant: Legal Malpractice And A Possible Privacy Act Violation

From a recent opinion published in Social Security's Program Operations Manual Series (POMS):

The evidence provided indicates NH [Number Holder] reached a compromise settlement with his employer through the South Carolina Workers' Compensation Commission (SCWCC) in his workers' compensation case. NH was rated as having a 28% impairment to his spine. As part of the settlement, NH's employer agreed to pay NH a sum of $140,000. The parties agreed the sum would include attorney's fees and costs and $93,055.34 over NH's life expectancy of 57 years at the rate of $31.40 per week ...

... when a disability beneficiary receives a lump-sum settlement that is a commutation of, or substitute for, periodic workers' compensation benefits, the Act requires the Agency to prorate that lump-sum payment. Act § 224(b), 42 U.S.C. § 424a(b), 20 C.F.R. § 404.408(g). The Act instructs the Agency to prorate the lump-sum payment in a manner that "will approximate as nearly as practicable the reduction" that would have been applied had the beneficiary received his or her workers' compensation payments on a weekly or monthly basis. Id.. To accomplish this, the Agency must determine the amount of workers' compensation payments the beneficiary would have received weekly or monthly had he not opted for a lump-sum payment, prorate the lump-sum award using the prorated amount, and impose the statutorily prescribed offset accordingly. To guide Agency adjudicators, the longstanding policy in the POMS sets forth a three-tiered set of priorities for prorating state lump-sum workers' compensation awards at an established rate. In priority order, the Agency is to prorate the award at:

1. The rate specified in the lump-sum award.

2. The latest periodic rate paid prior to the lump-sum, if no rate is specified in the lump-sum award.

3. The state's maximum workers' compensation in effect in the year of the injury/illness, if no rate is specified in the award and there was no preceding periodic benefit.

POMS DI 52001.555(C)(4)(a). However, the Agency has for some time been aware that attorneys have seized upon the opportunity offered by these POMS instructions to insert artificially low rates in settlement agreements to lessen or perhaps avoid entirely the reduction that otherwise would be required by section 224 of the Act. While the Agency's long-standing interpretation of section 224 has been that the Act requires it to look to state law to determine what rate would have been paid had the workers' compensation been made on a periodic basis, see § 224(a)(b) of the Act, 42 U.S.C. § 424a(a)(b); 20 C.F.R. § 404.408(g) (2006), the Act still places the ultimate responsibility for determining the offset rate in the hands of the Commissioner. See B~ v. A~, 150 F.3d 177, 181-182 (2nd Cir. 1998). ...

In the settlement, the parties state this weekly allocation rate is based on a life expectancy of 57 years which was determined pursuant to S.C. CODE ANN. § 19-1-150. However, in reviewing this statute, we find that the SCWCC erred in calculating NH's life expectancy. The proper application of S.C.CODE. ANN. § 19-1-150 reveals that a person of NH's age of 57 actually has a life expectancy of 23.10 years. See S. C. CODE ANN. § 19-1-150. Therefore, the SCWCC's life expectancy determination was incorrect in light of the South Carolina statute relied on by the parties. (emphasis added) ...

The life expectancy determination by the SCWCC was incorrect. The Agency is not bound to follow the weekly allocation rate set forth in NH's settlement agreement as would be customary under step one of POMS DI52001.555(C)(4)(a).

If you are following this, the attorney representing this claimant based the worker's compensation settlement upon a life expectancy of 57 years, but 57 was how old the claimant was. His life expectancy was actually 23.1 years.

By the way, I will not repeat it here, but this opinion happens to list the actual name of the claimant. Only his Social Security number is redacted. It may not just the claimant's attorney who fouled up. I wonder if Social Security has some obligations under the Privacy Act in this case.

Statements To House Social Security Subcommittee On Identity Theft and SSNs

Several of the written statements to the House Social Security Subcommittee for today's hearing on protecting the privacy of Social Security numbers from identity theft are now available online. The statement of Marc Rotenberg of the Electronic Privacy Information Center contains this interesting information:

H.R. 948, the Social Security Number Protection Act of 2007, has passed before the Committee on Energy and Commerce and has been reported to the House. The purpose of H.R. 948 is to prohibit the display and purchase of Social Security numbers in interstate commerce pursuant to rules to be promulgated. ...

Sections 3(a)(1) through (3)(a)(3) of H.R. 948 create a facially broad prohibition on the public display of Social Security numbers on the Internet, the requirement to use an individual’s Social Security number as a password for access to any goods or services, and the display of Social Security cards on any membership or identity card. However, Section 3(c) grants the Federal Trade Commission open-ended authority to promulgate exceptions to the prohibitions contained within the bill.

Senate Finance Committee Written Statements

The written statements for the Senate Finance Committee's hearing today barriers to work for Social Security disability recipients are now available online.

The only witness whose written statement suggests a strong attachment to the delusion that some change in policy could return vast numbers of disability recipients to work was Dr. David Stapleton of the Cornell University Institute for Policy Research. Stapelton has been receiving a good deal of grant money from Social Security. Could considerations of his own self-interest have something to do with this paragraph at the close of his statement?

I urge this Committee, all government leaders, and advocates for people with disabilities to support the design, testing, and eventual implementation of transformative disability policy changes – changes that will help people with disabilities achieve both greater economic self-sufficiency and more fulfilling lives. Within that framework, the highest priority should go to efforts that will reduce the premature exit of workers with disabilities from the labor force and
into SSDI.

I would like to read even one report or statement from one of these researchers that did not call for more research dollars to be funeled to them.