 |
|
|
|
|
|
|
|
 |
|
||||||
 |
 |
 |
 |
 |
 |
 |
|
 |
 |
 |
|
||||
Social Security
Section
2011 Crystal Drive
Ste. 400
Arlington, VA 22202
Officers
Chair
Hon. Dana E. McDonald
SSA OHA
Century Center North
3105 Clairmont Rd NE
Altanta, GA 30329
(404) 325-3256
judgemcd@comcast.net
Vice Chair
Hon. Frederick R. Waitsman
2279 Chrysler Terrace
Atlanta, GA 30345
(404) 325-3256 ext. 3035
frederick.waitsman@ssa.gov
Treasurer
Cynthia C. Berger
Berger and Green
5850 Ellsworth Ave.
Pittsburgh, PA 15232
(412) 661-1400
Membership Chair
Hon. John Tobin
SSA-OHA
11000 Wilshire Blvd., Suite 8200
Los Angeles, CA 90024
(310) 966-4808
john.tobin@ssa.gov
Immediate Past Chair
Hon. Kathleen A. McGraw
Social Security Administration
Century Center North
3105 Clairmont Rd NE
Altanta, GA 30329
(404) 325-3256
judgekk@aol.com
Newsletter Editor
Vacant
Webmaster
Vacant
A Message from the Section Chair
This is my inaugural report as Section
Chair following my appointment in November. For those not aware, our leader
for the last several years, Judge Kathy McGraw, is now serving as the
FBA’s Section Coordinator, having responsibility over the Association’s
25 Sections and Divisions, including this one. As the Coordinator, Judge
McGraw is a member of the FBA’s Executive Committee. This is a real
achievement and I hope that those of you who may not have had a chance
will congratulate her on her new position.
This has been a busy time for the section, as we have been actively involved
in learning about the details of the Commissioner’s disability adjudication
reform plan announced in the Fall. In early December, Judge McGraw and
I, accompanied by Bruce Moyer, the FBA’s staff director of government
relations, had a series of meetings in Washington. On a very busy day
in December, we had four separate meetings with staff of the Social Security
Advisory Board, the GAO, the Senate Finance Committee, and the House Ways
and Means Committee. We had a healthy exchange of ideas about several
aspects of the Commissioner’s plan and learned a great deal about
Congressional reaction to it.
On January 13, Gary Flack, the
Section’s Legislative Committee Chair, Bruce Moyer and I met with
Commissioner Jo Anne B. Barnhart and Deputy Commissioner Martin H. Gerry,
and six members of senior staff to discuss the plan. Our focus at this
and the other meetings has been upon the following particular parts of
the plan. First, mindful of the FBA’s close ties with the Article
III and Article I judiciary, we have expressed our concern that the proposal
to abolish the Appeals Council is likely to have a serious effect upon
the caseload in the district courts. We had met the previous day with
the Associate Director of the Administrative Office of the United States
Courts, and learned of the Judicial Conference’s expression of concern
in 1994 when a proposal was then made to abolish the Appeals Council.
We explored briefly whether this might be an appropriate time to revisit
the question of an Article I Social Security Court in light of this history.
Second, we raised questions about the role of the Reviewing Official in
the proposed process. It is anticipated that with the elimination of the
reconsideration step, a reviewing official, a staff attorney, will evaluate
the record and either allow the case or prepare a disallowance recommendation.
A claimant would have a right to appeal from that recommended disallowance.
The Commissioner reiterated her commitment to ALJ de novo review. The
concern had been expressed that the Commissioner, in describing the process
to the House Ways and Means Committee, had indicated that the ALJ would
be expected to “describe in detail in the written opinion the basis
for rejecting the R.O’s Recommended Disallowance.” The Commissioner
reassured that this did not mean she contemplated something other than
de novo review by the ALJ. She also confirmed that it is expected that
the claimant would have to file an appeal from the recommended disallowance.
There was a discussion about whether requiring a separate appeal at this
stage would have a chilling effect upon claimants’ seeking to have
their cases heard by ALJ’s.
Third, there was a discussion about the role of the three-judge panel(s)
that would review ALJ decisions. Unlike the current system, the claimant
does not have the right to appeal from an unfavorable ALJ decision. The
mechanism by which cases are to be selected for review by three-judge
panels has not been firmly established, though itt was confirmed that
remands are not contemplated as a part of this quality review process.
When asked whether the panel would be authorized to review a fully favorable
decision and substitute a disallowance in it place, Deputy Commissioner
Gerry advised that that authority now exists, but that he was sensitive
to the thrust of the question. It is expected that this is an area to
be explored further.
Fourth, with regard to the closing of the record, the Commissioner confirmed
what she has indicated elsewhere: it is intended that the record would
close at the time of the ALJ decision (not the hearing date). Asked whether
there was room in the process for a claimant to bring issues of ALJ error
to the attention of those who could correct it, there was indication that
that matter was still being considered.
Finally, on the issue of medical experts, the Commissioner indicated that
it would be expected that the medical panels used to serve in this capacity
would not serve at more than one level. Further, the qualifications of
the medical persons and whether they would be expected to have ongoing
patient practices was discussed.
It would be most helpful to hear from you about these matters or others
that you think should be included in the discussions we are having (we
anticipate having more). In particular, I would solicit the member views
about the idea of a Social Security Court. My own thought is that such
a court could prove to be a helpful improvement over the current administrative
review process. It is an idea that a Social Security Advisory Board commissioned-study
recommended in 2002. Given the diversity of interests represented in the
FBA, ours would seem the logical group to consider whether consensus is
possible on this point.
Judge Dana E. McDonald
Social Security Section Chair
Past Events
Bench-Bar
Conference on Social Security Law
October 17, 2003
Location: U.S. District Court for the District of Maryland
Courtroom 1A, 101 W. Lombard St., Baltimore, Md.
For further information, contact
Geoffrey H. Genth at (410) 752-6030
Bench-Bar
Conference on Social Security Law
October 24, 2003
Location: The National Advocacy
Center, 1620 Penddleton Street,
Columbia, S.C.
For further information, contact
Nancy Bloodgood, South Carolina
Chapter president (843) 724-6659
Recent Events
In January, Rick Waitsman, chair of the Legislative Committee, Bruce Moyer, FBA's government relations counsel, and I spent a couple of busy days in Washington in late January on behalf of the FBA. We first met with the chair of the Social Security Advisory Board, Hal Daub, and many of the board's staff members. We had a lively discussion focusing primarily on process unification, government representation at hearings, and closing of the record. The latter two issues are the subject of a forthcoming report by Professors Verkuil and Lubbers, and Daub has a keen interest in these reforms. We made it clear that the Social Security Section has not reached consensus on either issue and is not prepared to take a position at this time. Daub, nonetheless, requested that we provide him with thoughts about closing the record presuming such a change were to be implemented. We provided our response in a letter of March 13. As always, we seek input from our members on these and other issues.
We next met with Kathryn Olson, the Democratic staff director for Congressman Matsui, the ranking Democrat on the Subcommittee on Social Security, followed by a meeting with Kim Hildred, the Staff Director for Congressman Clay Shaw, chair of the Subcommittee on Social Security. We had met with both Hildred and Olson on previous visits to the Hill. In both meetings we reiterated our support for withholding of attorney fees in SSI cases, as well as our opposition to withholding for non-attorney representatives. We expressed our ongoing concern about the failure of process unification, as well as the need to preserve the right to a due process hearing before an ALJ. The issue of closing the record came up. While the section has not taken a position, I did express my perception from responses we have received on this issue, that there is some movement toward acceptance of this concept within our membership. Let us know your thoughts!
Our second day, we met for a second time with analysts at GAO who work in the area of Social Security. We went over the same ground that we covered the previous day, and we learned that GAO is in the process of preparing a report on the status of process unification. Subsequent to that meeting, by teleconference Rick and I spoke with analysts preparing that report and provided information that they requested. Our afternoon included a meeting with Senate Finance Committee staffer Tom Klouda, and senior budget analyst, Alan Cohen. This was our first visit on the Senate side and it was productive in that we were able to answer a number of questions Klouda and Cohen had about the disability adjudication process. We also focused on the withholding of attorney fees in SSI cases and learned that there is a staffer with a particular interest in seeing withholding extended to non-attorney representatives.
Our final meeting was with Shawn Friesen, a legislative assistant to Congressman Mac Collins from Georgia, a member of the Social Security Subcommittee. It was the first time we met with Friesen so we covered our basic concerns and interests in the disability adjudication process, setting the stage for ongoing dialogue.
On the educational front, the section co-sponsored a Bench Bar Conference in Newark, N.J. on March 18 with the New Jersey Chapter. It was an excellent program put together with the help of Tony LaBruna, an assistant U.S. attorney, and Barbara Spivak, the regional chief counsel for SSA in New York. We had the gracious support and participation of U.S. District Court Judge Katharine Hayden, and panelists included a wide range of lawyers and judges. Bea Disman, the regional commissioner of SSA also made opening comments. On April 25, we had a program in Pittsburgh in conjunction with the Western Pennsylvania Chapter on April 25. There were three panels: the first was on ethics led by Professor Robert Rains of Dickinson Law School; the second was on the pros and cons of government representation in ALJ hearings; and the third was on appropriate hypotheticals for vocational experts based on mental impairments. It was an excellent thought provoking program.