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The hiring of Social Security administrative law judges has its origins with the passage of the Administrative Procedure Act (the “APA”) on June 11, 1946.  The APA was passed by Congress to allay Congressional, and public concern about the propagation of autonomous federal agencies created as part President Franklin D. Roosevelt’s New Deal.    The APA sets out to regulate these federal agencies.  The APA also sets the standard for Federal administrative law judges.   The goal is the ensure the independence of these judges so that the public will have confidence in their decisions.

 

Under the APA, the U. S. Office of Personnel Management is the federal agency which serves as the gatekeeper for administrative law judge candidates. Other federal agencies select these candidates, including the Social Security Administration.  Within the Office of Personnel Management is an Administrative Law Judge Program Office.  This office is responsible the recruitment of administrative law judges.   It also conducts interviews and general background checks of potential administrative law judges.  It administers the testing for the potential administrative law judges.

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The Social Security Administration has recently changed its rules about the weight it gives to other agencies who have made awards.  Before September 2016, the Social Security Administration had regulations, 20 CFR 404.1512(b)(1)(v) and 416.912(b)(1)(v), and a Social Security Ruling, 06-03p, which dealt with the weight given to other agency decisions.  These other agencies were primarily the Department of Defense, the Veterans Administration and the Office of Personnel Management.  Under these earlier regulations and ruling, the decisions of these other agencies were not binding on the Commissioner of Social Security during the Commissioner’s evaluation of the disability claims process.  The reason that the decisions of other agencies were not binding was that the Commissioner of Social Security thought that the requirements used by the other agencies to give an award, did not mirror the disability requirements of the Social Security Administration.  Even so, SSR 06-03p, indicated that Social Security adjudicators must not ignore and must consider the evidence from another agency which made a disability assessment.

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The analysis of “past relevant work” in the context of a Social Security Disability case is important.  The reason that this analysis is important is that at step 4 of the sequential evaluation process, a determination must be made about whether a claimant can perform his/her past job.  There are three main issues to consider when determining whether the job constitutes past relevant work: was the job recently performed, was it performed at the substantial gainful level and was the job performed for a long enough period so that it could be learned.

The recent component has to do with work which the claimant has done in the past 15 years.  (20 C.F.R. § 404.1506 (b)(1).)  The Commissioner of Social Security uses 15 years as a cutoff for considering which jobs fall into the category of “past relevant work.” The 15 years has to do with the acknowledgment that there is a change which occurs in most jobs in the nation.  When those changes do occur, according to the Commissioner of Social Security, it is no longer fair to think that whatever skills have been learned or acquired performing those jobs, continue to be relevant for those jobs.  (Social Security Ruling 82-62.)  In other words, once a claimant has stopped working in a particular job and has not done that job in 15 years or more, Social Security assumes that the skills learned in that job are no longer applicable to how a person performs the job today.  A corollary question to consider when looking at the 15 years, is “15 years from what date?”  The answer is that the look back period is the 15 years before the specific time of determination or adjudication of the claim.  For example, if the review of the claim is at the initial stage, then the 15 years look back is from the time of initial stage back 15 years.  If, however, the claim is at the hearing stage, then the look back is 15 years from the hearing.  Given the fact that there are lengthy delays (often time years) to have a hearing, jobs within the 15-year range at the initial stage, may not be in that range by the time a hearing occurs.

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Illustration © Robert Wilson

Last week the Trump administration rolled out its first budget proposal.  Included in the proposal were deep cuts to the Enviromental Protection Agency (31.4%); State Department (28.7%); Labor Department (20.7%); Agricultural Department (20.7%); U.S. Army Corps of Engineers (16.3%) to name a few of the double digit agency reduction and not to mention program cuts and other programs which the Trump administration proposes to zero out or eliminate.  The budget proposal also include a 10% increase, to 54 billion, in the defense spending.

During the press conference for the role out, Office of Management and Budget Director, Mick Mulvaney, was asked if there would be cuts to Social Security and Medicare.  Largely silent on answering this

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(Illustration by © voinsveta)

Remember back in the summer of 2014 when golf pro celebrities began a “the ice bucket challenge” by either pouring a bucket filled with ice water on their heads or paying $100 (or both) to raise awareness of amyotrophic sclerosis (ALS), sometimes known as Lou Gehrig’s disease?  By the end of the summer of 2014, over 2million videos were seen on social medial, especially Facebook, showing ice water being poured onto the heads of millions of people.

ALS is a terrible disease striking about 2 people per 100,000 per year in the U.S. and U.K. alone.  ALS strikes normally when a person is in his or her early sixties.  It attacks the muscle system, making them weak at first and then causing issues with speaking, swallowing and later breathing.  Sadly, the average time which its victims survive is 2 to 4 years from onset.

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Photo by © Andrea Izzotti

The U. S Supreme Court back in April 2016 approved three changes to the Federal Rules of Civil Procedure.  These approved changes are effective December 1, 2016.  The changes are to rule 4 (which deals with the time within which a summons needs to be issued); rule 6 (which deals with counting response time for a due date of a pleading); and rule 82 (which removes reference to a statute which has been repealed).

Rule 82 simply removed the reference to 28 U.S.C. § 1392 when suggesting that admiralty or maritime claims under rule 9(h) are governed by that statute.  28 U.S.C. § 1392 has been repealed.  The new statute which took the place of 28 U.S.C. § 1392 is U.S.C. § 1390. So, 28 U.S.C. § 1390 is now the the statute contained in rule 82.

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© samrith

It is not uncommon in Social Security disability cases that people claim, as part of their disability, intractable knee pain.  Their pain becomes worse after sitting for short periods of time and after waling short distances.  Standing is out of the question.  But what happens if the treatment prescribed is known or recognized in the medical literature as being  just as effective as another type of treatment? Continue reading

Statistics on Medical Bases for Social Security Disability

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As of June 2016, there were about 10 million disabled people receiving monthly Social Security disability benefits.  Stressing the importance of the national disability program, the Social Security Administration wrote in one of its publications that a 20 year old worker has a high chance (about 1 in 4) of becoming disabled before that person reaches his or her retirement age.  A logical question is what causes a worker to become disabled? Continue reading

Journaling In Social Security Disability Cases

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Many people journal nowadays.  20 years ago it was called keeping a diary.  (Remember those small books with a lock on it?).  Today there are numerous apps which facilitate creating and maintaining a journal.  People journal for different reason:  some journal to obtain a cathartic effect; others journal to keep a running history of the days, weeks and months.  Still others journal to become introspective.  Some believe that the mere act of writing creates an emotive reaction that allow you to be in touch with your emotions, feelings and thoughts.  Typically journals are not meant to be to be read by others (especially that prying brother or sister).

Journaling for a Social Security disability case, while employing some of the same techniques of “private” journaling, is very different in purpose and form.  The purpose of journaling for a Social Security disability case is to document an event.  The form is brief and historical.

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