Zahm Elected To Head AALJ

     From the Buffalo Law Journal:

A judge from Buffalo has become the first woman to head the union of federal judges that hear Social Security disability cases.

The Hon. Marilyn Zahm was elected president of the Association of Administrative Law Judges. AALJ said that she will serve a three-year term.

Zahm is the first woman to head the AALJ, which represents 1,200 federal judges across the nation involved in Social Security disability cases. ...

Zahm defeated Miami-based AALJ member Thomas Snook in a runoff election, 335-296. She succeeds Judge Randall Frye, an administrative law judge based in Charlotte.

OIG Report On Households With Multiple Children Receiving SSI Due To Mental Impairments

     The Social Security Administration's Office of Inspector General (OIG) has recently completed a report on Households with Multiple Children Receiving Supplemental Security Income Payments Because of Mental Impairments. If you're expecting it to be a big expose of rampant fraud or, indeed, of any fraud you're going to be disappointed. It's mostly about efforts the agency has taken and can take to make sure there isn't fraud. 

     Please don't make the assumption that there's fraud just because a family exists which has multiple children with mental impairments. That's not a justified assumption. To give a couple of examples where this might occur, consider a couple who adopts multiple children whom they know have mental impairments or consider a family where one child is born with a congenital mental impairment who then have another child who happens to have the same congenital mental impairment. I've seen these cases.

A Novel Idea

     Henry Aaron and Lanhee Chen have a novel idea for how to deal with the terrible hearing backlog at Social Security. Turn over the process for vetting applicants to become Administrative Law Judges (ALJ) to some other agency, perhaps the Administrative Conference of the United States (ACUS). 
     This assumes that Social Security has really been wanting to hire more ALJs for years but has been held up by the Office of Personnel Management (OPM) that persistently fails to provide the agency with an adequate number of ALJ candidates and the only solution is to take it out of OPM's hands. The first problem with this theory is that Congress recently passed legislation providing:

Notwithstanding any other provision of law, the Office of Personnel Management shall, upon request of the Commissioner of Social Security, expeditiously administer a sufficient number of competitive examinations, as determined by the Commissioner, for the purpose of identifying an adequate number of candidates to be appointed as Administrative Law Judges ... The first such examination shall take place not later than April 1, 2016 and other examinations shall take place at such time or times requested by the Commissioner ...

     Why isn't that enough? Are we already assuming that OPM will fail to do what it has been explicitly ordered to do? Wouldn't transferring this responsibility to ACUS just cause more delay as ACUS struggles to get up to speed?
     The second problem is that there is reason to question how much delay OPM has caused. If you look around the Social Security Administration there are backlogs everywhere. Has Social Security really, really wanted to hire far more ALJs only to be held up by the dastardly OPM or is the bigger part of the problem lack of budget and lack of will at Social Security? Take a look at the Appeals Council. There's a huge backlog there. OPM is no obstacle to hiring there. Why haven't they hired more?

     The third problem is that anyone who thinks that ACUS can take on this job must not know much about ACUS. ACUS arranges for studies of administrative issues and holds conferences on these issues. I'm not aware of them ever taking on any line responsibility for anything. It's hard to imagine these academics wanting to take on such a responsibility or being able to do so effectively. It would be like turning over the responsibility for running a publishing company to the English department of some university. Yes, publishers and English professors are both interested in the written word but that's about the extent of the overlap.

Social Security Proceeding On Gun Control

     The Social Security Administration has sent proposed regulations to the Office of Management and Budget (OMB) on "Implementation of the NICS Improvement Amendments Act of 2007." NICS is the National Instant Criminal Background Check System. The NICS Improvement Amendments Act of 2007 was passed in the wake of the mass shooting at Virginia Tech. That Act was designed to allow NICS to better obtain information about individuals who have a history of severe psychiatric problems which might make them dangerous.

     Before anyone gets too excited about this, let me give a brief sketch about what happens next in the process which must be followed if these proposed regulations are to come into effect. First, OMB must approve them. Ordinarily, this takes at least a few weeks. Second, Social Security must publish the proposed regulations in the Federal Register in what's called a Notice of Proposed Rule-Making (NPRM). The public is allowed comment on the NPRM. Generally, the public is given 60 days to comment but this time period is usually extended for an NPRM that attracts much public attention. Social Security must then review the comments, perhaps alter the proposed regulations to some extent, and them publish them in the Federal Register again so that they may go into effect. This process normally takes a year or more even for regulations that attract only a few comments. This NPRM will attract thousands of comments. They'll be repetitive but employees still have to catalog them. I have no idea how long it will take Social Security to deal with the comments but it will be a big job. Without truly extraordinary efforts there is no way this proposal will go into effect while Barack Obama is still President.

Hearings Proceeding Rapidly For Eric Conn's Prior Clients

     Ned Pillersdorf, the lead counsel for the class action lawsuit to halt Social Security's attempt to cut off the disability benefits of about 1,500 former clients of Eric Conn, has obtained some numbers on the ongoing Administrative Law Judge hearings in those cases. So far about two-thirds of the hearings have been held. About 49% of the claimants who have had gotten decisions have won. About 57% of those who have an attorney have won.

     It's not in Pillersdorf's Facebook posting but the early signs are that the Appeals Council is rushing out denials of review in the cases of those who are denied by ALJs. They're coming out within a month after the request for review.
     The United States District Court for the District of Kentucky is about to be hit by an avalanche of cases. The judge who has been sitting on the motion for preliminary injunction may wonder why he didn't take care of these cases en masse instead of one by one.

Colvin Can Continue As Acting Commissioner Even If Eanes Is Confirmed

     The "Open Executive Session" of the Senate Finance Committee to consider the nomination of Andrew Lamont Eanes to become Deputy Commissioner of Social Security, as well as some other nominations, which had been scheduled for today, has been postponed. No new date has been announced.

     I have been saying that if confirmed that Eanes will become Acting Commissioner of Social Security replacing the current Acting Commissioner, Carolyn Colvin. That's exactly right as things stand now. If Eanes is confirmed, Colvin is out of a job and Eanes as Deputy Commissioner automatically becomes Acting Commissioner. However, it appears that there is a plan to change that. The plan is to create some other position at Social Security, I assume in the Senior Executive Service (SES), for Colvin. The President could then alter the order of succession to make the person holding that position the Acting Commissioner. There are no formalities to this. All that's needed is a simple memorandum from the President. While the Social Security Act provides that the Deputy Commissioner becomes the Acting Commissioner, it also provides that the President can designate someone else.

     I find this weird. The job of Deputy Commissioner at Social Security has only one defined duty -- to become Acting Commissioner if the Commissioner's job is vacant -- and the President would be taking away that duty. What's the point of having a Deputy Commissioner if you take away the only duty of the office? I don't mean to suggest that Eanes won't have anything to do if confirmed. I'm sure he'll be given something to do but if he can't be Acting Commissioner he really seems like a fifth wheel. It also seems weird to me because a person holding a statutory position where he had to be confirmed by the Senate will be reporting to a person holding an SES position which doesn't require Senate confirmation. I wonder how often that happens in the federal government.

     Whose idea was it to confirm Eanes but to retain Colvin as Acting Commissioner? Why would you do this? Why bother nominating or confirming Eanes if you have such a low regard for him that you want to make sure he has no power, at least for now?

Senate Finance Committee To Vote On Eanes Nomination

     The Senate Finance Committee has scheduled a vote for March 2 on the nomination of Andrew Lamont Eanes to become Deputy Commissioner of Social Security. Barring any last minute problem, Eanes is likely to be confirmed by the Senate in the near future.

     If confirmed, Eanes will immediately replace Carolyn Colvin as Acting Commissioner of Social Security. Let me explain why that is. Social Security's Commissioner and Deputy Commissioner do not serve at the pleasure of the President. They serve set six year terms. Colvin's term as Deputy Commissioner ended about three years ago if I remember correctly. She has stayed in office only because the statute allows a Commissioner or Deputy Commissioner to stay in office until a successor is confirmed. The last Commissioner of Social Security, Michael Astrue, resigned some time ago. If Eanes is confirmed, Colvin is immediately out of a job. Eanes will immediately succeed her as Acting Commissioner. There is no pending nomination for Commissioner. Colvin had been nominated in the last Congress but President Obama did not re-nominate her after the 2014 Congressional election.

Rudolph Patterson 1939-2016

     I regret to report that Rudolph Patterson of Macon, Georgia, who was one of the founders of the National Organization of Social Security Claimants Representatives (NOSSCR), has passed away. Rudolph was an invaluable part of NOSSCR for three decades. He trained thousands of attorneys in Social Security law and remained an inspiration to many.

     I first met Rudolph at the first NOSSCR Conference, help in New Orleans in the fall of 1979. I remember being disappointed that I got into town too late to take Rudolph up on his offer of dinner at Antoine's. I think he invited all the attendees to dinner. Rupolph was always generous with his time and his considerable expertise. He certainly helped me greatly.

     Rudolph was NOSSCR's Atticus Finch, the role model to which we all aspired and should still aspire.