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Last updated May 21, 2004 9:400 p.m. Central Time
May 13, 2004 Remarks of SSA Chief
Administrative Law Judge David Washington
The following are notes of the presentation of new Chief ALJ David
Washington on May 13, 2004 at the plenary session of the NOSSCR San Diego
conference. The notes are incomplete
and not a direct transcription. There may be mistakes.
Judge Washington has been an SSA ALJ since June 1995.
Prior to then he worked as the general counsel of a public housing authority
and in other capacities. He took the
job of CALJ after being assured by Mr. Gerry and Mr. Thurmond that, indeed, SSA
was dedicated to change.
JudgeWashington noted that OHA is the largest
ajudicatory organization in the Western world. There
are 10 Regional Chief ALJs and more than 1,000 ALJs.
Judge Washington’s office is responsible for processing
complaints about individual ALJs. When
unfairness or abuse is alleged, the audiotape of the oral hearing is audited.
Currently, an (unnamed) ALJ is being investigated for requiring an oath
to be made on a Bible.
OHA disposed of 570,000 cases last year. 642,000
cases are pending. OHA is doing more
with less. There were 9,000 more
dispositions in April 2004 than in April 2003.
But there is a limit to how much work an ALJ can do.
The Agency loses about 50
ALJs per year to normal attrition. Work
at OHA is “dull”. The work
is not easy. The Agency loses ALJs
to retirement, other agencies, etc.
At present, 52 or 53 ALJs
are in training. They began ALJ school on April 26, 2004. They will
be at work in June 2004. They will
be deployed geographically according to need.
Commissioner of Social Security Barnhart is
deeply concerned with the backlog.
The Agency is authorized to
hire 50 additional ALJs this Fiscal Year. These
additional ALJs will start training in June 2004 and be at work after Labor Day.
After working for 9 months, an ALJ disposes of cases at full speed.
85% of claimants are
represented before ALJs. For those
claimants who are unrepresented, the HALLEX requires a knowing waiver of the
right to proceed with a representative. OHA
spot checks that ALJs comply with the requirement that a knowing
waiver be obtained. A reminder has
been sent to ALJs regarding eliciting a valid waiver of a right to proceed with
a representative.
The recent model OHA rules have been rescinded.
They were rescinded due to concerns from within OHA and representatives.
There is a problem with postponements of oral hearings.
Last year, 27% of hearings were postponed.
A significant number of hearings were postponed due to the need for
additional medical evidence. OHA and the
claimant share the burden to obtain medical evidence.
Representatives should carry their responsibility to obtain and submit
medical evidence.
The CALJ handles complaints about representatives.
Sometimes claimants complain about representatives for the delay in
adjudication. Judge Washington
realizes that representatives often are unable to make a claim move any faster.
Judge Washington
reviewed the function of the Reviewing Official
(RO) position discussed by Commissioner Barnhart at the San Diego conference.
See also www.socialsecurity.gov/disability-new-approach/.
This is an exciting time in the history of the disability process,
especially with respect to technology. Judge Washington
was dragged kicking and screaming into the era of technological progress.
He is now with the technological program.
Judge Washington discussed his participation in the hearings for
the 911 victim compensation fund. The
Department of Justice used digital recording of hearings just like OHA will do.
Judge Washington remarked that technological change may move faster than legal change.
15,000 OHA video hearings have been held. Judge Washington
does not believe that in-person hearings are essential to disability
adjudication and some credibility determinations.
Thus, MEs and VEs need not be physically present at the oral hearing.
In any case, MEs should still not rely on their personal observation.
Maybe some hearings will be held with the claimant and representative at
the representative’s office and the ALJ and any experts at different
locations. (Eric Schnaufer Note: Judge Washington did not suggest
that claimants not be allowed inperson ALJ hearings.)
Judge Washington
discussed the transfer of the Medicare caseload
to HHS by October 2005. The
transfer starts in July 2005. Last
year, OHA handled 70,000 Medicare claims.
There are 40,000 Medicare claims now pending.
Judge Washington
will manage OHA from a national perspective.
Cases will move around the regions and involve ALJ travel.
Judge Washington
is working with ALJs on travel issues. Again,
given the geographic dispersion of cases and ALJs, videoconferencing is
valuable.
OHA has set up a central screening unit in Falls Church,
VA to see where backlogs are. In April
2004, 500 [?] cases were screened in Falls Church.
The ALJ corps has traditionally been male and White.
Because claimants are a diverse group, the ALJ corps does not match the diversity of claimants. At the
present time, there are 1,058 ALJs of which 45 are African-American, 15 are
Native-American, 41 are Hispanic, and 8 are Asian-Americans or Pacific
Islanders. There are 143 women ALJs.
There is a lot of work to do to get the ALJ corps to reflect the diversity in
the population. OHA will take
affirmative steps such as reaching out to bar organizations and publicizing the
availability of ALJ positions.
Judge Washington
is a firm believer in increasing communication.
He has started a series of meetings with the HOCALJ association.
He is meeting with HOCALJs via teleconference or videoconference.
Although OHA’s model local rules have been rescinded, there are 2
concerns: dismissals and HALLEX interrogatory procedures.
Judge Washington
is concerned with the number of dismissals.
Under OHA rules, a hearing may be postponed when in any other agency, the
case would be dismissed. Judge Washington
will look at dismissals and how to reduce the number of dismissals.
The current HALLEX procedure for interrogatories is cumbersome.
The current procedure requires the ALJ to send proposed interrogatories
to the representative before sending them to the expert.
This process needs to be streamlined.
For example, OHA might have both the ALJ and the representative send
interrogatories to the expert at the same time.
This new process would involve a change in the HALLEX.
Judge Washington addressed the DAA Teletype.
http://www.ssas.com/daa-q&a.htm
He suggested that the Agency is
considering issuing an AR for DAA cases inconsistent with the Teletype.
[Eric Schnaufer Note: The Agency makes a profound mistake in
jurisprudence. Contrary to what the
Agency thinks, the Agency is under no obligation to apply a stricter standard
that a court may specify. A court
can raise the minimum standards. It
cannot bring down the maximum standards. Whether the Agency is too
generous is a political question, not a judicial question for the courts to
answer.]
Judge Washington
is meeting with stakeholders regarding SSA OGC
RVRs. Look extremely close at the quality of cases to avoid so many RVRs. Judge Washington
wants better quality of decisions. There
is a work group working on this.
Judge Washington
is looking at the whole issue of personnel
practices and personnel. OHA
needs a plan to identify unproductive ALJs.
In its recruitment of ALJs, the OHA is looking for a particular attitude:
productivity.
The new ALJs are top notch.
The
new ALJs will not be problem ALJs. Ted
Kennedy is attorney in CALJ’s office regarding the quality of ALJs.
If a representative has a complaint about an ALJ and if
action is needed,
the CALJ may not get back to the representative quickly.
A matter might be referred to the entity responsible for personnel.
In response to a question, Judge Washington
stated that he would take a close look at 20-day notice of hearing.
Should it be longer?
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