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Post by valard on Jun 19, 2011 9:46:33 GMT -5
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Post by workdrone on Jun 19, 2011 10:53:12 GMT -5
Thanks for the update! The direct link of the House letter to SSA OIG is here: waysandmeans.house.gov/UploadedFiles/ALJ_Letter.pdfJust glancing at the disposition data from FY10, it looks like one can readily find at least 4 - 5 more ALJs who fit Daugherty's statistical profile. Looks like OIG is going to be busy for a while. Looks like more trouble ahead.
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Post by mcb on Jun 19, 2011 11:03:54 GMT -5
Thanks for the update! The direct link of the House letter to SSA OIG is here: waysandmeans.house.gov/UploadedFiles/ALJ_Letter.pdfJust glancing at the disposition data from FY10, it looks like one can readily find at least 4 - 5 more ALJs who fit Daugherty's statistical profile. Looks like OIG is going to be busy for a while. Looks like more trouble ahead. If they're looking for outliers, they might as well investigate: a few ALJs with very high denial rates; 4 ALJs with over 1,000 dispositions in 8 months (regardless of statistical profile), including one who has nearly 2,500 dispositions; a few low producers; and a few ALJs whose total disposition number consists of 1/3 (or more) dismissals.
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Post by mcb on Jun 19, 2011 12:24:38 GMT -5
For an interesting read on ...investigating "outlier" ALJs v. judicial independence... read: Barry v. Bowen, 825 F. 2d 1324 (9th Cir. 1987) (see below for the complete decision) ... at 1326-1327 BACKGROUND In 1980, Congress passed the Social Security Disability Amendments of 1980, including the provision known as the Bellmon Amendment. The amendment provided that: The Secretary of Health and Human Services shall implement a program of reviewing, on his own motion, decisions rendered by administrative law judges as a result of hearings under section 221(d) of the Social Security Act.... Social Security Disability Amendments of 1980, Pub.L. 96-265, § 304(g), 94 Stat. 441, 456 (1980) (codified at 42 U.S.C. § 421 (1982)). Following enactment of the Bellmon Amendment, the Social Security Administration ("SSA") put into effect in October 1981 the "Bellmon Review Program." The SSA described the contours of the program as follows: n accordance with the statutory mandate, [the Office of Hearings and Appeals] will conduct a comprehensive, ongoing program under which a prescribed percentage of administrative law judge decisions involving the issue of disability, particularly those allowing previously denied claims for disability benefits, will be evaluated prior to their effectuation, even though there is no request for review. When appropriate, the decision will be referred for possible review by the Appeals Council. SSR 82-13 (1982).
This program was to be implemented, as stated in the Bellmon Amendment, by the 1327*1327 Secretary's use of "own motion" review. See Pub.L. No. 96-265, § 304(g), 94 Stat. 441, 456 (1980). The SSA announced that four categories of cases would be considered for possible own motion review:
(1) A national random sample of cases; (2) allowance decisions of new ALJs; (3) decisions referred by the SSA's Office of Disability Operations; and (4) decisions of particular ALJs. See AALJ v. Heckler, 594 F.Supp. 1132, 1134 (D.D.C.1984).
Barry's underlying case concerned only the fourth category and questioned the validity of a policy in which the SSA targeted ALJs with high allowance rates.
When Bellmon Review was initiated, the SSA targeted for review those ALJs having an allowance rate of 66 2/3% or higher. Barry v. Heckler, 620 F.Supp. at 781. By April 1983, the Bellmon Review Program had been expanded to target ALJs not only on the basis of their allowance rate but also on the basis of their Appeals Council reversal rate. The ALJ who heard Barry's case had been targeted for own motion review. Id. at 781. When the ALJ granted Barry's claim, the decision was reviewed by the Appeals Council. The Appeals Council reversed, concluding that Barry was not entitled to disability benefits.
Barry sought review of this decision in the district court, claiming that the Review Program's targeting of certain ALJs had denied him due process. In defending against Barry's due process claim, the Secretary took essentially three positions: (1) that the district court could not hear plaintiff's constitutional claim because its jurisdiction is limited to an inquiry into whether the Appeals Council decision was supported by substantial evidence, (2) that a due process analysis was irrelevant so long as the Appeals Council decision was supported by substantial evidence, and (3) that Barry lacked standing because he had won his case before the ALJ.
The district court rejected all of these arguments and found in Barry's favor in a carefully reasoned opinion. See Barry, 620 F.Supp. 779. The district court noted that Bellmon Review "put pressure on selected ALJs to reduce their precentage of benefit allowances, thereby denying claimants of their right to an impartial ALJ" and, in addition, sent a message that "impermissibly affected the Appeals Council." Id. at 782-83.
... at 1330-1331
We turn first to the underlying government action in targeting the decisions of certain ALJs. As the district court held, Bellmon Review placed pressure first on ALJs to deny benefits and then, if the applicant was nevertheless successful, insinuated that the Appeals Council should reverse. See Barry, 620 F.Supp. at 782-83. It thus impaired the impartiality of the decisionmakers.
Administrative decisionmakers do not bear all the badges of independence that characterize an Article III judge, but they are held to the same standard of impartial decisionmaking. See Schweiker v. McClure, 456 U.S. 188, 195, 102 S.Ct. 1665, 1670, 72 L.Ed.2d 1 (1982); Hummel v. Heckler, 736 F.2d 91, 95 (3d Cir.1984); Stieberger v. Heckler, 615 F.Supp. 1315, 1386-87 (S.D.N.Y.1985), injunction on another issue vacated, 801 F.2d 29 (2d Cir.1986). Thus a program or policy that creates systemic, structural bias plainly falls outside the range of appropriate own motion review. See, e.g., AALJ, 594 F.Supp. at 1141-43. Bellmon Review was such a program. Indeed, every court that has addressed the issue has concluded that the program did have this pernicious effect. See Salling v. Bowen, 641 F.Supp. 1046, 1056 (W.D.Va.1986) ("If there ever was a chilling of judicial independence, this is it. This is like threatening a lawyer with disbarment if he takes a case of a controversial nature. This is the same as saying that every law judge in the country should be deciding a certain percentage of cases against the claimant."); W.C. v. Heckler, 629 F.Supp. 791, 799-800 & n. 15 (W.D.Wash.1985) ("To designate high allowance ALJs for ongoing review of their allowance decisions inexorably tends to discourage these ALJs from allowing benefits in close cases."), aff'd, 807 F.2d 1502, 1505 (9th Cir.1987); AALJ, 594 F.Supp. at 1141-43 (the SSA's "unremitting focus on allowance rates in the individual ALJ portion of the Bellmon Review Program created an untenable atmosphere of tension and unfairness which violated the spirit of the APA, if no specific provision thereof").
Due process infirmities are not the only problems the government has faced with this program. Subsequent to the ruling below, this circuit held that the Bellmon 1331*1331 Review Program was unlawfully adopted without the notice and comment rulemaking required by the Administrative Procedures Act, 5 U.S.C. §§ 551(4), 553(b) & (c) (1982). See W.C. v. Bowen, 807 F.2d 1502 (9th Cir.1987), modified, 819 F.2d 237 (9th Cir.1987). The underlying action that the government sought to defend in this case had serious legal defects.
scholar.google.com/scholar_case?case=9075691812438898374&hl=en&as_sdt=2&as_vis=1&oi=scholarr
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Post by factfinder on Jun 19, 2011 14:52:27 GMT -5
I agree you cannot penalize the claimants without rule making or public comment - the issue in Barry. But, you sure as God made little green apples, take action against Yahoos, without taking action against the claimants, who strain common sense - like the guys who decides 2000+ cases - that is just a laugher. I hope they go after that egomaniac and get rid of him.
That being said, ODAR management has been delighted to make use of these human decision mills (HDMs) to make goal. The way I read the letter from the Ways and Means Committee is that is going to have to be rethought. Could be HDMs will be regulated and it is just so easy to do - just simply assign no more than 18 cases or less per week.
Anyway, what a hoot, ODAR management may find they have no clothing after all! Or as some may say, at what cost is success?
In any event, the backlog is a joke, it is like the song from Man of la Mancha - the unreachable dream. Unless we increase staff by 20% per year (including judges) we will not be able to keep up with the workload that increases by this much. Similarly, the "wonderful" WSJ published a problem with no CDRs. Bottom line, things will have to change - we will have to get control of our dockets, and some of the following changes will have to be made - also to get the costs under control:
1. No evidence within 5 days of a scheduled hearing.
2. No new evidence to the AC.
3. No SSI monetary benefits for children.
4. Judges, not the RCALJ, must have the discretion to disapprove fees to crummy lawyers.
5. Lawyers who submit duplicate records will be sanctioned -- $$$.
6. No SSI benefits to felons within five years of release from prison or no benefits at all (they circulate manuals on how how to make successful SSI claims).
7. People who cause their disability with medical non-compliance - a but for test, will not be eligible for benefits.
8. No benefits to anyone who abuses drugs or ETOH within 6 months of application for benefits.
9. No ODAR Management Official can get any kind of cash award for making a numerical processing quota.
A lot of these will be hard sells, but this is the right Congress to do it with, as will any new Congress with the Trust Fund in such a hurt. In addition, these are suggestions almost every ALJ I have ever discussed things with agrees with to some degree.
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Post by workdrone on Jun 19, 2011 21:22:19 GMT -5
WSJ published a problem with no CDRs. Bottom line, things will have to change - we will have to get control of our dockets, and some of the following changes will have to be made - also to get the costs under control: Good suggestions! Additionally, I would like to see the option to award a fixed term of disability (maybe up to 3 years) as an alternative to the current "permanent" disability with a CDR recommendation that usually never gets done. This way, for the claimant's who may need help right now (i.e. just had a back surgery), we can award benefits without worrying about them staying on the rolls forever because of the CDR backlog. And for those that doesn't get better, they can always file again and prove their case. We had some sensible reforms back in the mid-90s when the alcohol/drug & obesity listings were removed. Hopefully we'll be able to have some additional reforms in the near future to make the program less wasteful.
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Post by factfinder on Jun 20, 2011 7:00:38 GMT -5
Workdrone-your suggestion is right on, plus it brings to mine other obvious ones I have heard that I forgot.
First, most judges agree with your term suggestion, it would put the burden where it belongs, the claimant afterwords-especially true of folks under 45.
2d-abolish the grid or move the years up by 5-7 years. People live much longer.
3rd-Teach the AC what deference and substantial evidence actually means or--abolish the AC-the only folks who really like it are the reps and the USDCs.
There are many other worthy suggestions, but these have teeth and will have impact on $$, processing time, and backlog without hurting the trully meritorious.
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Post by mcb on Jun 20, 2011 7:51:02 GMT -5
I think district courts would be overwhelmed if this occurred. Don't see it happening.
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Post by factfinder on Jun 20, 2011 9:34:52 GMT -5
I think district courts would be overwhelmed if this occurred. Don't see it happening. Exactly! USDCs are in favor of the AC, but tough tooties. Let them really apply Chevron if hey have too many appeals, which they rarely do. Same with the Circuit Courts (but not all). Fr the DIB program to survive, changes are required.
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Post by mcb on Jun 20, 2011 12:41:22 GMT -5
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Post by workdrone on Jun 21, 2011 10:13:21 GMT -5
Fr the DIB program to survive, changes are required. Agreed. And another thing that came to mind is the dichotomy between the SGA amt and the earnings required for coverage. Makes zero sense when only 4k is required for T2 coverage yet we need 12k to find PRW. The two numbers should be the same and indexed for inflation.
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Post by Propmaster on Jun 22, 2011 17:42:55 GMT -5
Fr the DIB program to survive, changes are required. Agreed. And another thing that came to mind is the dichotomy between the SGA amt and the earnings required for coverage. Makes zero sense when only 4k is required for T2 coverage yet we need 12k to find PRW. The two numbers should be the same and indexed for inflation. It's possible I misunderstand you, but I don't think you need 12.000 of earnings to show PRW - you only, really, need one month of unskilled SGA work: A claimant’s work experience is “past relevant work” when it was done within the last 15 years, lasted long enough to learn to do it, and was performed at the level of substantial gainful activity. Usually, work an individual did 15 years or more before the time the decision is made is not considered. A gradual change occurs in most jobs so that after 15 years it is no longer realistic to expect that skills and abilities acquired in a job done then continue to apply. If an individual has no work experience or worked only off-and-on or for brief periods of time during the 15-year period, these jobs generally do not apply. If a claimant has acquired skills through past work, he or she is considered to have these work skills unless they cannot be used in other skilled or semi-skilled work that the claimant can now do. If the claimant cannot use his or her skills in other skilled or semi-skilled work, the work background is considered the same as unskilled. However, even with no work experience, a claimant may be considered able to do unskilled work because it requires little or no judgment and can be learned in a short period of time (20 CFR 404.1565 and 416.965). Unskilled work is learned in 30 days or less. Thus, one month on the job is enough to learn it, and would constitute PRW.
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Post by masondixon on Jun 22, 2011 21:49:47 GMT -5
Are you able to make that inference in adverse disability decisions and have them withstand scrutiny on appeal? Your proposed approach is clever but I wonder about its practical legal defensibility, especially in the federal courts.
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Post by bartleby on Jun 22, 2011 22:24:35 GMT -5
I think Propmaster is spot on and legally defensible in our realm, working within our regulations and the confines of our VE's.
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Post by notyet on Jun 22, 2011 23:51:05 GMT -5
From Propmaster's post: "If an individual has no work experience or worked only off-and-on or for brief periods of time during the 15-year period, these jobs generally do not apply." It seems to me that jobs that last only a few months should not be considered to be PRW in cases where claimants have spotty work records.
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Post by mcb on Jun 23, 2011 0:03:45 GMT -5
I think Propmaster is spot on and legally defensible in our realm, working within our regulations and the confines of our VE's. If it's an unsuccessful work attempt, even if it reaches SGA, I don't think it's PRW. (see quote from SSR 05-02 below; see also 20 CFR 404.1574(c)) If you quit working - after making SGA at unskilled work for a month - and it has nothing to do with an UWA, technically it may be considered PRW, though that position seems to be at odds with working "off-and-on or for brief periods of time during the 15-year period, these jobs generally do not apply." SSR 05-02 "Your earnings from an unsuccessful work attempt will not show that you are able to do substantial gainful activity." www.ssa.gov/OP_Home/rulings/di/03/SSR2005-02-di-03.html20 CFR 404.1574(c) The unsuccessful work attempt—(1) General. Ordinarily, work you have done will not show that you are able to do substantial gainful activity if, after working for a period of 6 months or less, your impairment forced you to stop working or to reduce the amount of work you do so that your earnings from such work fall below the substantial gainful activity earnings level in paragraph (b)(2) of this section, and you meet the conditions described in paragraphs (c)(2), (3), (4), and (5) of this section. www.ssa.gov/OP_Home/cfr20/404/404-1574.htm
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Post by workdrone on Jun 23, 2011 0:32:57 GMT -5
It's possible I misunderstand you, but I don't think you need 12.000 of earnings to show PRW - you only, really, need one month of unskilled SGA work: A claimant’s work experience is “past relevant work” when it was done within the last 15 years, lasted long enough to learn to do it, and was performed at the level of substantial gainful activity. Unskilled work is learned in 30 days or less. Thus, one month on the job is enough to learn it, and would constitute PRW. I like the way you present it. Unfortunately, the analysts at the AC don't seem to agree. I have seen more than a few decisions come back from the AC on Step 4 denials merely because the past wages were below SGA amount. While your position might be correct technically, it's easier to just do a Step 5 denial when you have below SGA earnings then to have a large paragraph explaining what you noted and risk it getting kicked back by some AC analyst. That being said, my real point was that the amount of earnings required for T2 coverage is way too low. It should be the same as the SGA amount and indexed for inflation.
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Post by factfinder on Jun 23, 2011 6:00:32 GMT -5
Workdrone's point is a good one. Essentially, folks with a spotty employment and earnings history end up earning a windfall because they have "enough" quarters. It also goes to the question of regular SS benefits as well. If Congress wants to be serious, then they need to have SSA adjust the benefits. Obviously a very controversial topic, but for DIB, it is a no brainer.
Re step 4-I admit I will skip to Step 5 for exactly the reasons cited by the other posters. I will use it when I have 60 year-olds who golf, fish, and hunt, etc., and are allegedly sedentary with an executive (sedentary) PRW history.
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Post by runningman on Jun 23, 2011 8:24:11 GMT -5
I understand WD's and FF's points, but quarters of coverage are applicable for retirement and disability. Seasonal workers (especially agriculture) may earn all of their quarters of coverage in three or four months; part-time workers may work all year and never meet SGA; and some full time workers do not earn SGA. Should all of those persons be "penalized" for retirement or disability benefits because they do not earn SGA? The point of retirement benefits is to provide some income for elderly persons if they worked regularly over a period of years.
I disagree with FF, and I do not think any adjustment of benefits is required. The easiest fix would be to adjust significantly upward, or remove altogether, the current income cap on taxes withheld for social security (currently $106,800). Another option: there are still county and city governments who were allowed to opt out of paying into social security years ago. If those local governments were required to opt in, that could also add significant revenue. Other options exist, but those two could generate significant contributions.
Just my two cents...
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Post by arkstfan on Jun 23, 2011 8:36:35 GMT -5
I found PRW for a waitress job. Worked there for just over three years on a part-time basis while enrolled in college never hitting SGA. But wrote it as an alternate Step 5. It defies logic that an employer would keep a person even part-time for three years if they had not learned the duties of the job.
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