Tom Temin Commentary

Social Security to fire Chekhov’s pistol

The Social Security Administration wants to activate 80-year-old legal authority for hearing disability cases.

Tom Temin@tteminWFED

February 25, 2020 9:55 am

3 min read

It says it’s had the authority since the Roosevelt administration, but never used it. But soon the Social Security Administration will take that gun down off the wall and pull the trigger.

It’s going to let administrative appeals judges (AAJs) do the work of administrative law judges (ALJs). Under SSA practice almost since the beginning, the ALJs — they haven’t always been called that — have conducted hearings and made rulings for people appealing denial of benefits. The roughly 1,200 ALJs work under a unit called the Office of Hearings Operations (OHO). In latter day practice, they mostly deal with disability benefits appeals. Unhappy appellants can take ALJ decisions to Social Security’s Appeals Council.

The Appeals Council, with its 100 judges and officers, can dismiss a request, make a different decision, for send it back to the OHO. It doesn’t conduct hearings. Under SSA’s rule, for which comments closed last week, it will. Results of the Appeals Council’s new hearings would be appealable to the Appeals Council itself. SSA said it would “preclude an AAJ who conducted a hearing or issued the decision, or dismissed a hearing request, from participating in any action associated with a request for Appeals Council review in that case.”

In proposing this rule, SSA officials cite the backlog of disability claims appeals. The number of people waiting for administrative judge hearings stands at around 540,000. It said people wait up to 20 months for a hearing. It said letting the Appeals Council hold hearings “will increase our adjudicative capacity.”

Melissa McIntosh, an AJL and the president of the Association of Administrative Law Judges, told me she thinks if SSA wants to increase its hearings capacity, it should hire more ALJs. She and others dispute the agency’s assertion that ALJs and AAJs have similar skills.

ALJs regularly conduct live hearings with real people and their lawyers. Administrative Appeals Judges, she said, merely read documents.

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There’s another difference. ALJs are hired under a competitive process and have the independence of judges. The administrative appeals judges are appointed as excepted employees. McIntosh said the AAJs are therefore more potentially subject to undue influence through their performance reviews. AAJs “just don’t have our level of independence,” McIntosh said.

Now some Democratic members of Congress are challenging SSA Commissioner Andrew Saul to abandon the proposed rule. They sent him a 52-page letter explaining why.

For one thing, having the Appeals Council do hearings would flatten the four-layer appeals process by one step. They members also say that while, yes, statues going back to 1940 do give the council the right to hold hearings, doing so would violate the later Administrative Procedures Act. The APA, they write, was modeled deliberately on practice at the Social Security Administration. “SSA has … long recognized (through its well-established policies and procedures) that its hearings comport with the APA and must be presided over by an ALJ.”

The members also disagree that ALJs and AAJs have matching skills.

Signers include Rep. Richard Neal (Mass.), chairman of the House Ways and Means Committee; Sen. Ron Wyden (kan.), ranking Senate Finance Committee member; and Rep. Carolyn Maloney (N.Y.), chairwoman of the House Committee on Oversight and Reform. Their letter is highly legalistic and detailed, with a long appendix of documents relating to ALJ and AAJ jobs and qualifications.

While not stated, it may be that Social Security under Saul is trying to rein in disability spending. The proportion of Americans receiving disability has been ratcheting up, at least until recently. SSA’s own statistics show the aging-boomer-fueled rise in incidences might be running its course because the incidence rate has been falling since 2010. Note that doesn’t mean fewer people are receiving disability.

Whatever, this proposed rule — perhaps not widely known to the public — has a potentially big impact on and important group of public servants, and on the public itself.