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Post by bowser on Oct 28, 2020 9:22:54 GMT -5
Hey, don't despair. Maybe this means ALJs will get to decide remands!  (Yet another in the endless stream of moves it isn't worth trying to figure out. Just keep your head down and keep slogging away until someone directly tells you something changed.) |
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Post by pumpkin on Oct 28, 2020 10:36:44 GMT -5
Assuming ALJs can’t be converted for the moment. Need a hardship transfer? Must accept position change to AAJ. No such thing as a hardship transfer for ALJs. Perhaps in days of yore, but the hardship transfer ship sailed in the prior (2016?) contract. You know, the same one that eliminated the 90 day transfer list opportunity. |
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Post by ssaogc on Oct 28, 2020 16:03:09 GMT -5
It's ridiculous how quickly this site now defaults to blaming everything on the current administration. Group think of simpletons. Hmmm. Never thought of it that way. I guess you are right. It’s probably Hilary’s emails or The Deep State that issued this EO and the regs. Only after the disgusting pedophiles have had a good cannibal meal. |
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Post by jimmy224 on Nov 13, 2020 18:55:09 GMT -5
Looks like appeals council will start holding hearings and issuing decisions You can read agency’s comments here public-inspection.federalregister.gov/2020-23856.pdfThe Supreme Court approved the “three-hat” role of our adjudicators in Richardson v. Perales, without addressing the APA’s separation-of-functions requirements.27 In Perales, the Court was less concerned with the position title of our adjudicators than with ensuring that the hearings process worked fairly and efficiently. The Court declined to consider whether a Social Security hearing was a formal adjudication under the APA because, in the Court’s view, our hearings process, including the “three-hat role” for the adjudicator at the hearing, was fair and worked efficiently to process our tremendous volume of cases.28 The fairness and efficiency of the process, however, did not depend on the fact that an ALJ, as opposed to another type of adjudicator, presided over the hearing. |
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Post by ssaogc on Nov 13, 2020 19:32:59 GMT -5
Looks like appeals council will start holding hearings and issuing decisions You can read agency’s comments here public-inspection.federalregister.gov/2020-23856.pdfThe Supreme Court approved the “three-hat” role of our adjudicators in Richardson v. Perales, without addressing the APA’s separation-of-functions requirements.27 In Perales, the Court was less concerned with the position title of our adjudicators than with ensuring that the hearings process worked fairly and efficiently. The Court declined to consider whether a Social Security hearing was a formal adjudication under the APA because, in the Court’s view, our hearings process, including the “three-hat role” for the adjudicator at the hearing, was fair and worked efficiently to process our tremendous volume of cases.28 The fairness and efficiency of the process, however, did not depend on the fact that an ALJ, as opposed to another type of adjudicator, presided over the hearing. Folks believe the AAJ hearings will be held from their location but if this goes through you can expect the AAJs to be assigned to hearing offices and to hold video hearings from home. Claimants will not have a choice of an ALJ or an AAJ or video/in person hearing. but as noted in the Hall Blog, the Biden administration would likely reverse this solution that was crafted for a problem that does not exist. |
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Post by jimmy224 on Nov 13, 2020 20:19:10 GMT -5
It look like this rule is a done deal set to officially go into effect December 16. Below are some of comments from agency related to new rule. My understanding from the agency is that the appeals council job and hearings office job is the same job. So the Alj does same job as aaj (both hold hearings and issue decisions -but the Alj job has more job protections than aaj job even though it is same job from what agency is getting at.
Also agency seems to be arguing apa does not apply to social security, so not sure how that factors into Alj job security going forward
The legislative history of both statutes highlights the differences between formal, adversarial adjudications by regulatory agencies and informal, non-adversarial proceedings by agencies that administer certain Federal benefit programs.21 Most notably, under our “inquisitorial” hearings process, an ALJ fulfills a role that requires him or her to act as a neutral decisionmaker and to develop facts for and against a benefit claim. The ALJ’s multiple roles involve, in essence, wearing “three hats”: helping the claimant develop facts and evidence; helping the government investigate the claim; and issuing an independent decision. The APA, on the other hand, specifies that “An employee or agent engaged in the performance of investigative or prosecuting functions for an agency in a case may not, in that or a factually related case, participate or advise in the decision. . . .”22 The APA, therefore, embodies an internal “separation-of-functions” in agency adjudications that are subject to that statute. Indeed, ensuring such an internal separation-of-functions was one of the APA’s fundamental purposes.23 The internal separation-of-functions required in formal adjudications under the APA is inconsistent with the concept of the “three-hat” role of an adjudicator in a Social Security hearing, which by its very nature, is an investigatory function.24 Thus, contrary to the restrictions noted in the APA, the SSA adjudicator both performs an investigative function for SSA and participates in the decision.
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Post by grassgreener on Nov 13, 2020 20:27:48 GMT -5
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Post by bettrlatethannevr on Nov 13, 2020 20:27:57 GMT -5
Comically buried in a mere 12 lines on page 31 of a 104-page document, the agency's explanation as to why AAJs with no structural independence will be as independent as ALJs in decision-making is that AAJs "would be required to follow the same rules as ALJs." 2021 can't come soon enough.
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Post by roymcavoy on Nov 13, 2020 21:47:45 GMT -5
It look like this rule is a done deal set to officially go into effect December 16. Below are some of comments from agency related to new rule. My understanding from the agency is that the appeals council job and hearings office job is the same job. So the Alj does same job as aaj (both hold hearings and issue decisions -but the Alj job has more job protections than aaj job even though it is same job from what agency is getting at. Also agency seems to be arguing apa does not apply to social security, so not sure how that factors into Alj job security going forward The legislative history of both statutes highlights the differences between formal, adversarial adjudications by regulatory agencies and informal, non-adversarial proceedings by agencies that administer certain Federal benefit programs.21 Most notably, under our “inquisitorial” hearings process, an ALJ fulfills a role that requires him or her to act as a neutral decisionmaker and to develop facts for and against a benefit claim. The ALJ’s multiple roles involve, in essence, wearing “three hats”: helping the claimant develop facts and evidence; helping the government investigate the claim; and issuing an independent decision. The APA, on the other hand, specifies that “An employee or agent engaged in the performance of investigative or prosecuting functions for an agency in a case may not, in that or a factually related case, participate or advise in the decision. . . .”22 The APA, therefore, embodies an internal “separation-of-functions” in agency adjudications that are subject to that statute. Indeed, ensuring such an internal separation-of-functions was one of the APA’s fundamental purposes.23 The internal separation-of-functions required in formal adjudications under the APA is inconsistent with the concept of the “three-hat” role of an adjudicator in a Social Security hearing, which by its very nature, is an investigatory function.24 Thus, contrary to the restrictions noted in the APA, the SSA adjudicator both performs an investigative function for SSA and participates in the decision. were this not 2020, any idea that someone can be impartial and potentially fired for failing to toe a line set by whatever present administration would be laughably violative of due process... I mean, why develop the record if there is a chance you may uncover facts that require you to grant benefits? |
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Post by jimmy224 on Nov 14, 2020 0:35:13 GMT -5
The agency is basically saying the appeals council job and hearings office job is all the same (so then in that case appeals council and hearings office should all have same job protections number of job advancement opportunities etc
Comment: One commenter said that AAJs use other SSA employees, known as analysts, who do the bulk of the work for them. The commenter said that the analysts are not vetted as ALJs are, and more importantly, they are subject to performance evaluations.
Response: We disagree that analysts do the bulk of the work for AAJs. In any event, ALJs also receive support from non-adjudicator employees, known as “decision writers,” who are subject to performance evaluations. Decision writers assist ALJs in preparing for hearings and drafting decisions, and the ALJ/decision writer relationship is analogous to the AAJ/analyst relationship.
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Post by hopefalj on Nov 14, 2020 10:36:21 GMT -5
The agency is basically saying the appeals council job and hearings office job is all the same (so then in that case appeals council and hearings office should all have same job protections number of job advancement opportunities etc Comment: One commenter said that AAJs use other SSA employees, known as analysts, who do the bulk of the work for them. The commenter said that the analysts are not vetted as ALJs are, and more importantly, they are subject to performance evaluations. Response: We disagree that analysts do the bulk of the work for AAJs. In any event, ALJs also receive support from non-adjudicator employees, known as “decision writers,” who are subject to performance evaluations. Decision writers assist ALJs in preparing for hearings and drafting decisions, and the ALJ/decision writer relationship is analogous to the AAJ/analyst relationship. They’re either being intentionally obtuse, or they’re every bit as intelligent as I’ve always suspected. I’ll leave it to their expert discretion to figure out which one applies. |
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Post by shoocat on Nov 14, 2020 12:01:56 GMT -5
Between the EO and new reg permitting AAJs to hold hearings, due process has been destroyed for both employees and claimants. Assuming ALJs can’t be converted for the moment. Need a hardship transfer? Must accept position change to AAJ. Promoted to HOCALJ, now HOAAJ. ALJs will be phased out. Imagine that morale. ALJs in same office as AAJs. One with rights, one without rights. One who went thru OPM grind, one who is someone’s favorite. I don’t even know how this would work. Some cases decided by AAJs and others by ALJs. Appeals to AAJs. Whenever the reg becomes official, SAAs should request job audit and try to get reclassified as AAJs. LMAO. One who can get bonuses and one who can't by law. |
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Post by statman on Nov 14, 2020 21:19:13 GMT -5
The current AAJs are simply not competent. Based on the decisions I have seen from the AC - reversal decisions - they simply do not have a clue.For example they decided there were no transferable skills from prw without any VE testimony.
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Post by jagvet on Nov 14, 2020 21:49:31 GMT -5
Does anyone have inside information that Biden would fire Andrew Saul before his term expires January 19, 2025? Otherwise, however, there will be no changes at SSA for at least 4 more years while Saul is commissioner.
Even if Biden could make changes, why does anyone here think his administration would do so? I looked carefully. I have not seen one mention of SSA ALJs in any speech or platform.
AAJ, ALJ, AC. I don't think Biden or his people really care. Show me somewhere that I'm wrong.
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Post by roymcavoy on Nov 14, 2020 23:22:52 GMT -5
Does anyone have inside information that Biden would fire Andrew Saul before his term expires January 19, 2025? Otherwise, however, there will be no changes at SSA for at least 4 more years while Saul is commissioner. Even if Biden could make changes, why does anyone here think his administration would do so? I looked carefully. I have not seen one mention of SSA ALJs in any speech or platform. AAJ, ALJ, AC. I don't think Biden or his people really care. Show me somewhere that I'm wrong. let’s pretend that a Biden administration would cease the EOs and attacks on unions. I don’t think C.Saul could allow/continue the assault on those same unions and keep his job. He may resign or be fired. Who knows. The code separately defines “ALJ” and “Commissioner” (20 CFR 404.002). While the granting/denial of benefits is ultimately a determination made on behalf of the commissioner, the code specifically grants powers to the ALJ to do many, many things. These powers are not granted to the Commissioner to delegate. For example, 404.929 states, “The Deputy Commissioner for Hearings Operations, or his or her delegate, will appoint an administrative law judge to conduct the hearing.” This does not say they will delegate the hearing to an AAJ, or even that they can delegate it to who they see fit. It specifically refers to the term of art identified above. In my humble opinion, this is yet another example of a situation where the current Admin has a lot of leeway to do things they want, but as CJ Roberts noted in earlier cases regarding the APA, I am not sure that they have followed the law in doing so. The assumption here seems to be that “management” agrees with AAJ’s holding hearings because DC Gruber et al argued for it and they are holdovers from prior admins. More realistically, upper level management does what they are told from their bosses so as not to get fired and if a new admin says “no AAJs” they will change course. Just a hunch. |
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Post by superalj on Nov 15, 2020 14:57:50 GMT -5
That’s why the Union needs to lobby Congress as well as the new Administration. As it stands now, claimants do have a right to an in person hearing and eventually we will return to our offices. I cannot foresee AAJs leaving the beltway, the luxury of their AAs reviewing their files, having to deal with reps, and actually doing the job as an ALJ, a job that requires a totally different set of job skills.
I think members of Congress will complain when their constituents have their disability claims denied without an in person hearing and from an AAJ instead of a properly appointed judge. Moreover, reps that lose cases will appeal their legally dubious denials. Lastly, I try very hard to be objective about my remands but over half are bush league in my opinion. if the AC struggles to properly do their own job, how can they expect do do ours, a much more difficult job with much less support unless at the NHC.
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Post by jagvet on Nov 15, 2020 15:26:34 GMT -5
I guess I'm still right. Saul won't resign. Congress, with each party controlling a chamber, won't do anything related to Social Security, and January 20, 2025, whoever is president will appoint a new commissioner, replacing Andrew Saul. Can Biden or Harris fire Saul? Maybe. Will they care that much about those ALJs to bother? No.
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Post by roymcavoy on Nov 15, 2020 20:33:45 GMT -5
I guess I'm still right. Saul won't resign. Congress, with each party controlling a chamber, won't do anything related to Social Security, and January 20, 2025, whoever is president will appoint a new commissioner, replacing Andrew Saul. Can Biden or Harris fire Saul? Maybe. Will they care that much about those ALJs to bother? No. the ALJ and “anti-union” measures were executive orders, many/most of which PJB will rescind/replace in the first few days/weeks of his term... those actions alone will reverse many of the current admin actions. Which was the entirety of my point. In order to effectuate any long term SSA changes, congress would have pass changes. AAJs holding hearings, etc, that are not CFR amendments passed by Congress will all be temporary (unless the Biden admin likes the changes and does not invalidate them through EO) |
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Post by lurkerbelow on Nov 15, 2020 20:43:43 GMT -5
Does the program analyst position require a law degree?
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Post by jimmy224 on Nov 15, 2020 20:58:51 GMT -5
Does the program analyst position require a law degree? Which analyst position? At the appeals council? Agency said analyst and decision writer positions are same. The AAJs are going to be holding hearings, and the appeals council analysts will be decision writers writing decisions for the hearings held by the AAJs (that is my understanding). They have paralegal decision writers, so I don’t see why you would need law degree for analyst job |
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