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The Future of Administrative Law Judge Selection

Posted November 8, 2019 by Premier Disability Services, LLC®

Administrative law judges (ALJs) are the workhorses of the administrative state. They preside over thousands of hearings annually in areas such as disability benefits, international trade, taxation, environmental law, occupational safety, and communications law, to name a few. There are nearly 2,000 ALJs employed by 28 agencies in the federal government, as compared to 870 authorized Article III federal judgeships.

Keeping this corps of ALJs fully staffed requires numerous appointments annually. Last year, in a decision that likely applies to most if not all federal ALJs, the U.S. Supreme Court held in Lucia v. SEC that SEC adjudicators are “officers of the United States” who must be appointed in accordance with the Constitution’s Appointments Clause. Assuming that ALJs are “inferior officers,” this clause allows Congress to delegate the appointment of ALJs to the President alone, to department heads, or to courts of law. Shortly after the decision in Lucia, President Trump issued an executive order that made significant changes to the ALJ hiring process.

Before Lucia and the executive order, most ALJs were already appointed by department heads, after a process administered by the Office of Personnel Management (OPM) that included a competitive examination and point rating system with a significant preference for veterans. Under the OPM process—which did not take subject-matter expertise into account—the three top-scoring applicants were placed on a list of eligible candidates. Agencies could hire only from that list unless they decided to reject all three candidates and request a new list or hire an incumbent ALJ away from another agency.

The reforms effectuated by the executive order were welcomed by many agencies that for decades felt hamstrung by the OPM hiring process. Many agencies acted very quickly, formulating and announcing new procedures for hiring ALJs when the ink on the executive order was barely dry. In fact, most agencies had been sidestepping the OPM process for years, hiring incumbent ALJs away from other agencies, mainly the U.S. Social Security Administration. The new process will allow agencies to hire their own ALJs directly without their desired candidates first needing to go through the OPM process, get hired by another agency, and then be hired away as a transfer.

Contact our office today if you or anyone you know would like to learn more about qualifying for Social Security Disability benefits.

Original article: https://www.theregreview.org/2019/10/29/beermann-administrative-law-judge-selection/

By: Joyce Trudeau of Premier Disability Services, LLC®

November is COPD Awareness Month!

Posted November 1, 2019 by Premier Disability Services, LLC®

Chronic obstructive pulmonary disease, or COPD, is a general term for several lung diseases, mainly chronic bronchitis and emphysema. These diseases are characterized by obstructed airflow through the airways in and out of the lungs. Both cause excessive inflammatory processes that eventually lead to abnormalities in lung structure and limited airflow. Both are progressive conditions that worsen over time.

COPD symptoms include shortness of breath, wheezing, and coughing. COPD also adds to the work of the heart, and can cause pulmonary heart disease. Treatment for COPD can include oxygen therapy, pulmonary rehabilitation, and various medications. The only known successful cure for emphysema is a lung transplant, but very few patients with emphysema are healthy enough to survive the surgery.

The Social Security Administration (SSA) has a disability listing laying out the requirements for getting automatically approved for disability for various chronic respiratory disorders, including COPD. If you meet the requirements of this listing, you automatically qualify for benefits. If your condition isn’t severe enough to meet the requirements of the official listing, you may still be able to prove that your COPD reduces your capacity to breathe and exert yourself so much that you can’t work.

Many people who suffer from COPD have other serious medical problems as well, such as coronary artery disease, high blood pressure, diabetes, and/or obesity, as well as mental issues such as depression. If you have multiple medical conditions that affect your ability to work, then you will have a better chance of getting benefits.

Contact our office today if you or anyone you know would like to learn more about qualifying for Social Security Disability benefits.

SSA’s respiratory listings: https://www.ssa.gov/disability/professionals/bluebook/3.00-Respiratory-Adult.htm

By: Joyce Trudeau of Premier Disability Services, LLC®

Common Reasons SSA Denies Benefits

Posted October 25, 2019 by Premier Disability Services, LLC®

Every year, millions of Americans file Social Security Disability Insurance (SSDI) and Supplemental Security Income (SSI) claims. Of these, roughly 70% are denied at the initial level of the claims process. There are various reasons why disability benefits would be denied, and there are a number of different ways that applicants can be better prepared for the process.

  • Lack of Medical Evidence. One of the most common reasons Social Security disability benefits are denied is the lack of concrete medical records. In order for your claim to be approved, you must provide substantial evidence to show that your medical condition hinders your ability to work your current job and will keep you from working in a similar role for at least one year. Having medical records from your primary care physician—indicating that your condition has affected your ability to work—is a requirement for the application process and is carefully reviewed by the Social Security Administration (SSA) during the claims evaluation.
  • Income Exceeds the SGA Allowance. To be eligible for disability benefits, you must be unable to engage in what is known as substantial gainful activity, or SGA. The SSA defines substantial gainful activity as work that involves significant and productive duties and work that pays more than the current monthly income limit. In 2019, the monthly income limit is $1,220 (or $2,110 for those who are visually impaired). If you are working part-time while applying for disability benefits, the SSA will consider your monthly income when deciding whether to approve your claim and how much you may receive in benefits. If your part-time income exceeds the SGA allowance amount, you will not be eligible to receive benefits.
  • Previous Denial. While it is crucial to file your initial claim as soon as you and your doctor determine that a medical condition may keep you out of work for more than a year, you should not immediately file a new claim if your original one is denied. If you do so, and nothing has changed, your new claim will be denied as well. If you are denied benefits for either a medical or non-medical reason, you may appeal the denial. If you need to file an appeal, the SSA allows you to complete an online appeals process, or you can reach out to a local Social Security office. You may also choose to hire an attorney or advocate to help you with the appeal process.
  • Failure to Follow Prescribed Treatment. It is imperative that you follow any treatment prescribed by your doctor, as this is a key variable in the claims decision process.  If you do not follow your treatment plan, SSA examiners will not be able to accurately determine whether your disability truly prevents your ability to work because you are not taking the proper steps to treat the condition. Failure to follow treatment also indicates a lack of care as to whether you get better and re-enter the workforce, which is a red flag for reviewers and will result in a denied claim.
  • Failure to Cooperate with the Claims Process. When applying for Social Security disability benefits, always follow the instructions for the application process and provide all documents and information needed by the SSA. If you fail to provide any necessary documentation—or fail to attend any scheduled meeting or medical exams—your claim may be denied. A full list of required documents and potential application questions is available online.

Contact our office today if you or anyone you know would like to learn more about qualifying for Social Security Disability benefits.

By: Joyce Trudeau of Premier Disability Services, LLC®