AALJ Files Suit

Anonymous posters on the ALJ Improvement Board are stating that the Association of Administrative Law Judges (AALJ) has filed suit in the United States District Court for the District of Columbia over a recent decision by the Office of Personnel Management that requires that federal Administrative Law Judges (ALJs) retain active bar status. A copy of the complaint has been forwarded to me. The named plaintiffs in addition to the AALJ are David Agatstein of Milwaukee, WI, Karl Alexander of Morgantown, WV, Jon Hunt of Raleigh, NC, John Kraybill of Oakbrook, IL, James Norris of Indianapolis, IN, Cheryl Rini of Cleveland, OH and Edwin Shinitzky of Chicago, IL, all of them Social Security ALJs.

The problem with retaining active bar status is that one must meet continuing legal education (CLE) requirements. Many ALJs are not in compliance with the CLE requirements of their state bars.

Social Security Subcommittee Hearing

From the Social Security Subcommittee of the House Ways and Means Committee:

McNulty Announces a Hearing on Protecting the Privacy of the Social Security Number from Identity Theft

Congressman Michael R. McNulty (D-NY), Chairman, Subcommittee on Social Security of the Committee on Ways and Means, today announced that the Subcommittee will hold a hearing to examine the role of Social Security numbers (SSNs) in identity theft and options to enhance their protection. The hearing will take place on Thursday, June 21, in room B-318 Rayburn House Office Building, beginning at 10 a.m.

In view of the limited time available to hear witnesses, oral testimony at this hearing will be from invited witnesses only. However, any individual or organization not scheduled for an oral appearance may submit a written statement for consideration by the Subcommittee and for inclusion in the printed record of the hearing.

BACKGROUND

As many as ten million Americans fall victim to identity theft every year. The effects of identity theft can be catastrophic to the lives of affected individuals. The reported costs are significant - according to the Federal Trade Commission, businesses lose $50 billion and consumers expend another $5 billion annually to recover from identity theft. The SSN is a critical tool for identity thieves looking to establish a credit account in someone else’s name. And it is often the key that identity thieves use to gain access to other personal information such as bank accounts.

Because it is a unique piece of personal information that does not change over time, the SSN provides a convenient way to track individuals throughout public and private records. As a result, SSNs have become ubiquitous in these records, and they are being used for purposes far beyond their original role of tracking earnings in order to compute Social Security benefits. While the widespread use of SSNs can be advantageous to business and government, it is also useful for identity thieves and other criminals. Moreover, records containing the SSN are increasingly available in electronic form, and easily accessible over the Internet. Thus, the need for streamlined business processes and openness of public records must be balanced against the increasing risks of identity theft and other crimes.

Despite its widespread usage, there is no Federal law that requires comprehensive confidentiality protection for the SSN. An SSN may be found on display to the general public on employee badges and in court documents, or offered for sale on the Internet. Some limited protection of SSN confidentiality is provided by the Fair Credit Reporting Act (P.L. 91-508) and the Gramm-Leach-Bliley Act (P.L. 106-102), which restrict the use and disclosure of SSNs by financial institutions. Also, many states have enacted legislation to restrict the use, disclosure or display of SSNs. Still most private sector use of the number remains unregulated.

In the 108th Congress, the Committee on Ways and Means approved comprehensive legislation to enhance SSN privacy to protect against identity theft (H.R. 2971; H. Rept. 108-685). Among other provisions, the bill would restrict the use, sale, purchase or display of SSNs. Members of Congress concerned about the magnitude of identity theft and its devastating effects on victims have introduced similar legislation this year.

In announcing the hearing, Chairman McNulty stated “there is no question that we need stronger protections for Social Security numbers to combat the growing crime of identity theft. Identity theft can destroy an individual’s or family’s financial well-being with a touch of a button. We must begin to place some common-sense limits on the use of the SSN by government and business in order to ensure the privacy of the information and prevent theft.”

FOCUS OF THE HEARING

The Subcommittee will examine what role the SSN plays in identity theft, and the steps that can be taken to increase SSN privacy and thereby limit its availability to identity thieves and other criminals. The hearing will examine how SSNs are currently used, what risks to individuals and businesses arise from its widespread use and options to restrict its use in the public and private sectors.

Markup Of House Appropriations Bill Delayed

The House Appropriations Committee website shows that the markup session for the Labor-HHS appropriations bill that covers Social Security's administrative budget has been canceled. A dispute over earmarks is the likely cause. See this article from the Green Bay Press Gazette.

New EAJA Payment Issue

The Equal Access to Justice Act (EAJA) reimburses civil litigants who sue or who are sued by the federal government for their legal fees if the government's position is not "substantially justified." EAJA is used far more often by claimants suing the Social Security Administration than by any other group of litigants.

EAJA has evolved into a well understood routine for the Social Security Administration and attorneys who represent Social Security claimants. The end result if EAJA is approved has been that Social Security makes a direct deposit of the fee into the attorney's bank account. Since the EAJA fee is almost always received long before any other fee in a Social Security case and, indeed, before the claimant is paid, the EAJA fee is just used to reduce the fee that the attorney would otherwise receive coming out of the claimant's benefits.

The problem is that the Department of Justice -- not Social Security -- is insisting that the EAJA fees be sent to the person who has sued or been sued by the federal government. This means the end of payments to the attorney. Instead, the Social Security claimant, who generally has not yet received any Social Security benefits, will be paid the EAJA fee, leaving it to the attorney to try to collect the fee directly from the client. I have heard directly from Social Security today that a memo has come out directing Social Security's attorneys from refusing to agree to an EAJA payment that goes directly to the claimant's attorney.

This is going to lead to two things. First, there will be efforts to get Social Security claimants to agree to assign the EAJA fee to the attorney. Second, there will be litigation that will probably get to the Supreme Court eventually, if some new Attorney General appointed after George W. Bush leaves office decides that this is not worth fighting over.

House Appropriations Bill Only $100 Million Over President's Proposed Budget For SSA

Despite a mistaken press release from the House Appropriations Committee and despite an erroneous report from the Disability Policy Collaboration, I am being told that the fiscal year 2008 Labor-HHS appropriations bill that covers Social Security is currently only $100 million over the President's proposed budget for the Social Security Administration (SSA), instead of the $400 million expected.

I know you are thinking, a hundred million dollars here or there, what difference does it make? Trust me, $300 million in the context of Social Security's budget is REAL money that will make a real difference in how well or how poorly the agency performs.

The $100 million figure has been reported out of Subcommittee. The entire House Appropriations Committee takes up the matter on June 14 at 9:00. You can watch it live on your computer in streaming video, although the vast majority of the markup session will be about other agencies. Although a small matter in the context of the entire bill, the Social Security appropriation seems certain to get some discussion. The public confusion we are getting on this is probably the result of some behind the scenes differences of opinion.

An Old Error Corrected

From The Day of Connecticut:

Montville — A local man was recently awarded more than 25 years worth of disability benefits, retroactive to the Reagan era.

Uncasville resident Robert Kram, 64, could receive about $150,000 in benefits dating back to December 1982, according to his lawyer, Thomas Albin. ...

Kram was granted Social Security disability benefits in July 1970, when he was 27 years old, based on chronic schizophrenia that was diagnosed and well-documented, according to Albin. Kram was paid monthly disability checks until the Social Security Administration, pursuant to a policy initiated by President Reagan, determined in December 1981 that Kram had made significant medical improvement.

Kram, living with his parents at the time, did not contest the decision and went without funds for many years while his parents took care of him.

“His parents didn't know how to go about filing an appeal, so instead, the following year they filed a new application,” Albin said.

His new application was also denied and not appealed.

In 1995, Kram's sister, Dorothy Smith of Quaker Hill, brought Kram to Albin's office to see what recourse he might have. ...

everal years passed and several court appearances followed. Kram's parents died during the appeal process, and another sister, Dolores, moved in to his Uncasville home to take care of him. ...

At a hearing in March, Billings S. Fuess, a medical expert, testified that Kram's condition had been disabling at all times, that he had never made any significant improvement and that his condition would have prevented him from filing his own appeal.

Administrative Law Judge Ronald Thomas found that Kram was impaired by schizophrenia and that he had not engaged in substantial activity since his diagnosis in 1970. He noted that Kram's condition had not improved, and the claimant meets the criteria to receive disability benefits.

Monthly Social Security Stats

The Social Security Administration has issued its monthly packages of statistics on Social Security and Supplemental Security Income.

Hearing Office Backlogs Correction

Let me correct something I posted yesterday. I said that the hearing backlog numbers that Social Security is releasing to the public understate the severity of the problem, since they do not include backlogs that delay requests for hearing reaching Social Security's hearing offices. I am pretty sure this is now incorrect.

The problem of Social Security's hearing backlog statistics being inaccurate because they counted only the time from the date the appeal reached a hearing office rather than from the date it was filed was one that existed in the old Hearing Office Tracking Systems (HOTS), but that has been replaced by the more accurate Case Processing Management System (CPMS), which apparently solved this problem. There is a report from Social Security's Office of Inspector General that discusses the improvements in going from HOTS to CPMS.

Remember, I am an attorney in private practice. I have never used either HOTS or CPMS.

The problem of data entry backlogs at Social Security's Field Offices to which I referred is a very real and growing problem that is receiving virtually no attention.