Frye Out As President Of AALJ

     Randall Frye of Charlotte has been the president of the Association of Administrative Law Judges (AALJ), the labor union that represents Social Security's Administrative Law Judges for some time. I understand that he has left that position. He is resuming his regular duties as an ALJ. I do not know the circumstances of Frye's departure from his position at AALJ.

Workers Comp Changes Costing Social Security

     From National Public Radio (emphasis added):

Ten ranking Democrats on key Senate and House committees are urging the Labor Department to respond to a "pattern of detrimental changes in state workers' compensation laws" that have reduced protections and benefits for injured workers over the past decade. ...

The letter also referred to NPR/ProPublica stories last week that detailed an emerging trend that permits employers to dump out of state-regulated workers' comp programs, write their own injury plans and limit benefits on their own. ...

The Center for Economic and Policy Research is releasing a study Wednesday that estimates that more than 20 percent of the increase in federal disability cases is due to cuts in workers' comp programs. ...

A 2007 study by J. Paul Leigh, a health economist at the University of California, Davis, estimated that workplace injuries not covered by workers' comp cost government programs about $30 billion a year.

Federal intervention may also come as the result of the "opt out" movement in Texas and Oklahoma, in which employers shun heavily-regulated workers' comp and are permitted to write and administer their own largely-unregulated workplace injury plans. South Carolina and Tennessee are considering opt-out laws now and proponents are aiming for a dozen states by the end of the decade. ...

Which Candidate Is More Interested In Protecting Social Security?

     From a New York Times  comparison of the effects of the Social Security plans of two Presidential candidates:

     Elements of the two plans:

• Christie would raise early retirement age from 62 to 64 and full retirement age from 67 to 69. Sanders wouldn't change either date.
• Christie would eliminate the FICA tax for those 62 and older. Sanders would apply the FICA tax to those with incomes over $250,000, in addition to the current FICA tax structure that applies FICA to incomes up to $118,500.
• Christie would reduce Social Security benefits to those with an income over $80,000 and eliminate all benefits for those with an income over $200,000. Sanders would increase benefits for all recipients, with the amount of the increase being between 2% and 9% depending upon work history. He would also add a special minimum benefit.
• Christie would reduce the Cost of Living Adjustment (COLA). Sanders would increase COLA.

Even WSJ Says COLA Unfair To Retirees

     Even the Wall Street Journal says that the formula used to compute Social Security's Cost Of Living Adjustment (COLA) is unfair to retirees.

Appeals Council To Stop Returning New Evidence

     From a Notice of Proposed Rule-Making (NPRM) that Social Security will publish in the Federal Register tomorrow: 

We propose to amend our regulations by revising our rules regarding the return of evidence at the Appeals Council (AC) level. Our current rules state that the AC will return to the claimant additional evidence it receives when the AC finds the evidence does not relate to the period on or before the date of the administrative law judge’s (ALJ) hearing decision. We are proposing these revisions to give the AC discretion in returning additional evidence that it receives when the AC determines the additional evidence does not relate to the period on or before the date of the ALJ decision.

We now use many electronic services that make the practice of returning evidence unnecessary. For example, we now scan most of the medical evidence into the electronic claim(s) file or appointed representatives submit it through our Electronic Records Express system. ... It is neither administratively efficient or cost effective for us to print out documents that have been submitted to us electronically by a claimant or appointed representative in order to return them to the claimant. ...

The administrative burden of processing and returning evidence also has increased significantly over the last few years. ...

It's OK With Me If You Pretend This Is New -- As Long As You Do It!

     From the Federal Eye column in the Washington Post:

When The Post dug into the backlog for disability benefits at the Social Security Administration a year ago, it discovered that the line was approaching one million applications long. The number of people in this queue was so large that it exceeded the population of six different states.

Since then, the line has only gotten longer, according to a new report...

In July, Social Security replaced the two officials in charge of the appeals office, shifting them to other jobs at the agency in favor of new leadership to tackle the backlog.

Three months later, the new head of the office says she is “putting the finishing touches” on a plan to reduce the number of pending cases and speed the system up.

Terrie Gruber said in an interview that her goal is “compassionate and responsive” service to applicants for disability benefits ...

"We’re committed to new ways of doing business,” she said.

One of the biggest changes will include better triage of cases, so many don’t ever get to a lengthy hearing before a judge. New, electronically-generated data has helped the agency determine which appeals could be screened by attorneys and federal claims examiners, who can make decisions themselves, faster than judges, Gruber said. The number of attorneys is being increased.

When cases do go before judges, a new initiative is assigning support staff to arrange the files in better order, getting rid of duplicate medical documents and evidence that take a long time for judges to sort through. ...

A primary goal is hiring more judges, Gruber said, about 1,800 to 1,900 by fiscal 2018, an increase of about 400. Also, she is making use of new technology to enhance the quality of video hearings in remote locations where there are no judges, and improving support staff’s communications with judges when video hearings are involved.

A new pilot program is creating “pre-hearing” conferences at a handful of  local Social Security offices, so applicants who don’t have attorneys can know what to expect when a judge hears their case.

     The statement that these plans show that the agency is "committed to new ways of doing business" is ridiculous. That doesn't mean I disagree with the plans. It's just that there's virtually nothing new here. I'm actually an enthusiastic supporter of the pre-hearing screenings part and I'd love to see more ALJs hired. The rest is harmless. Let's go through the elements of the plan:

• New, electronically-generated data has helped the agency determine which appeals could be screened by attorneys and federal claims examiners, who can make decisions themselves, faster than judges. This is just the revival of the Senior Attorney and re-recon programs that have been used successfully in the past. Social Security certainly didn't have to replace Glenn Sklar to do this since he supervised the exact same programs in the past. This can make a significant difference. They never should have been dropped. The only reason they were dropped was concern that the agency would be criticized for "paying down the backlog." By the way, ALJs, this is your Bat Signal. It's now OK to issue on the record reversals.
• [A] new initiative is assigning support staff to arrange the files in better order, getting rid of duplicate medical documents and evidence that take a long time for judges to sort through. There's nothing new about this. Support staff has been "pulling" exhibits for at least 37 years. I know. I've been involved with Social Security disability for 37 years. It wasn't new when I started. I don't know why this would even be listed. I can't imagine anything they could be planning that would be new. If anything, ALJs ought to be hearing cases on unpulled files! Yes, ALJs, that's been done before. No, I don't like cases being heard with unpulled files but I'm quite willing to put up with them if we can just get more cases heard. People are waiting two years for hearings. This is a horrible situation that demands urgent action. When cases are heard with unpulled files, the exhibits are eventually pulled, but only if it's going to be a denial.
• A primary goal is hiring more judges, Gruber said, about 1,800 to 1,900 by fiscal 2018, an increase of about 400. They're been saying something like this for at least twenty years. It seems like the Office of Personnel Management (OPM) always makes it impossible for the agency to hire as many ALJs as Social Security says it wants to hire. At least that's what Social Security has claimed.  I've never fully bought into OPM being the villain. I've always suspected that the real reason more ALJs aren't hired is that the agency's budget is way too tight and decisions have been made to devote resources elsewhere. I suspect that the agency uses OPM as its fall guy. I'm pretty sure that there are plenty of names on the ALJ register who could be hired almost immediately if the agency really wanted to hire them.
• A new pilot program is creating “pre-hearing” conferences at a handful of  local Social Security offices, so applicants who don’t have attorneys can know what to expect when a judge hears their case. Pre-hearing conferences haven't been done lately but they may date back a quarter-century. So claimants can know what to expect? Hardly. The primary reason for holding these pre-hearing conferences for unrepresented claimants is to weed out those who don't show up. Send them a show cause notice and then dismiss their cases when they don't respond. Dismissing these cases earlier makes the average numbers look better but it really doesn't reduce the workload by much. Many ALJs already schedule hearings for unrepresented claimants five minutes apart on the assumption that most won't show up. What may be new here is that the agency is talking about doing pre-hearing conferences at local Social Security offices.  Could it be field office personnel doing the pre-hearing conferences?

Opting Out Of The Workers Compensation Offset In Texas

     Let me explain first why I'm writing about a development in workers compensation law. Claimants receiving Social Security disability benefits as well as workers compensation benefits are subject to an offset. Usually, Social Security disability benefits are reduced because of the receipt of workers compensation benefits. Sometimes the offset works in the opposite direction. 

     The states of Texas and Oklahoma now allow employers to opt out of workers compensation. You read that right -- opt out of workers compensation. The employers have to set up benefits that parallel workers compensation but they can arrange things in ways that save money, such as refusing to pay for carpal tunnel syndrome or refusing to pay benefits unless a worker reports an injury by the end of his or her work shift or cutting off all benefits after two years. 

     In terms of workers rights, these plans are very worrisome but I'm writing about the Social Security implications. Social Security has decided that benefits under the company plans that substitute for workers compensation aren't subject to the workers compensation offset. This development is already costing Social Security's Disability Insurance Trust Fund money. Other states are studying what Texas and Oklahoma have done. There may be significant effects upon Social Security. Employers are trying to shift the burden of providing for workers injured on the job to Social Security and Medicare. This needs Congressional scrutiny.

Senate Hearing Postponed

     The Senate Homeland Security and Governmental Affairs Committee hearing on Understanding Social Security’s Long-Term Fiscal Picture that had been scheduled for October 20 has been postponed. No new date has been announced.