Dec 10, 2018

Looking Forward To The First Social Security Subcommittee Hearing Where Andrew Saul Testifies

     I thought I would dig up three old posts I made in 2007 concerning appearances of Michael Astrue, who had recently taken over as Commissioner of Social Security, before the House Social Security Subcommittee which had recently passed from Republican to Democratic control. See any parallels to today? Of course, I'm assuming that Andrew Saul will be confirmed as Commissioner. That hasn't happened yet but there seems to be no obstacle to that happening. A few things are different today, however. Michael Astrue came into those hearings with a history of solid accomplishment in other positions that gave him far more credibility with Subcommittee Democrats than Andrew Saul will enjoy. While service overall at Social Security is terrible, the hearing backlog, while still too high, has gone down recently, reducing the impact of one important flashpoint. One important difference is that Michael Astrue's predecessor as Commissioner, Jo Anne Barnhardt, another Republican, was a snake oil salesperson whose deceptions eventually caught up with her. Subcommittee members were still mad about Barnhart's mismanagement in 2007 even though she was gone. At least Saul won't have that legacy to deal with.

February 14, 2007:
The heated nature of the Social Security Subcommittee hearing today on disability backlogs should be making it clear to the Commissioner of Social Security that he will have to do something about those backlogs or Subcommittee members will make his life very difficult.

Representative Stephanie Tubbs Jones of Ohio pressed Commissioner Astrue on why Social Security had not hired more ALJs and demanded to ask questions about this of Deputy Commissioner Linda McMahon, who was along but not scheduled to testify. McMahon said she has been told that the Office of Personnel Management (OPM) is nearly done with a new register from which ALJs could be hired -- after a ten year delay. Jones made no effort to hide her anger about the situation and said at one point that she did not want to hear any more "crap" about regulations and (OPM) holding up getting more ALJs.

Representative Pomeroy of North Dakota said that he thought he had been "lied" to by former Commissioner Barnhart and others about the problems in hiring more ALJs. He said that he wants a Subcommittee hearing with the Director of the Office of Personnel Management and former Commissioner Barnhart as well as the current Commissioner testifying so that he could get to the bottom of why more ALJs have not been hired. Representative Pomeroy talked about the incompetence of OPM and called it a "god-damned outrage."

If anything, my summary understates just how angry Jones and Pomeroy were.
I would not want to be the director of OPM if there is another hearing on the ALJ register issue -- and there probably will be.
Even the ranking Republican member, Sam Johnson of Texas, referred to the OPM situation as
 February 15, 2007:
I want to thank Representatives Jones and Pomeroy for their intemperate outbursts at yesterday's Social Security Subcommittee hearing. In a narrow sense, their remarks were unfair to the current Commissioner of Social Security and their criticisms were misplaced, but in a larger sense hitting the Commissioner with a verbal two by four was exactly the right thing to do.

Their remarks were unfair to Commissioner Astrue because he had just started on his job two days earlier. He can hardly be blamed for any mess at Social Security. It is a wonder that he was willing to show up for any Congressional hearing when he may not have even finished filling out his W-4.

The criticisms were also misplaced. Jones and Tubbs were focusing upon the narrow issue of why the Office of Personnel Management has still not produced a new register from which Social Security could hire Administrative Law Judges (ALJs) after having worked on the problem for ten years. This is absurd and unbelievable, but the sad fact is that even if OPM had produced a new register eight years ago, things would be little different at Social Security today. The problem is that there has not been enough money in the budget to hire as many ALJs as have been needed. Social Security has been able to hire the limited number of ALJs they could afford off the old register, making a new register less urgent than it might seem at first blush. Of course, Social Security may have told Jones and Tubbs and others in Congress that the problem was OPM instead of the budget or, at least, implied this. Anyone responsible for such a deception should be ashamed.

In a larger sense, there was an urgent need for the Social Security Subcommittee to demonstrate to upper management at Social Security that there is a new sheriff in town and things are going to change. Social Security needs to understand that frankness about the agency's service delivery problems is essential. There can be no more happy talk that minimizes the current problems while promising that some grand plan to be implemented in the future will solve all of Social Security's problems. That is no longer an option. Upper management must realize that Social Security's staffing situation is dire and urgent action is essential. Solutions that were unthinkable last October because they could be criticized as "paying down the backlog" should be urgent necessities today.

 May 3, 2007:
I have posted a good deal on Tuesday's hearing at the House Social Security Subcommittee as well as posted links to accounts in the news media, but there is one subject that I think that I and others have only hinted at and that is the tenor of the hearing.

The head of the Office of Personnel Management (OPM) was bound to catch hell. That was inevitable and justified. However, it was surprising just how much hell Michael Astrue, the Commissioner of Social Security, was catching. Virtually all of the panel members present asked questions of Astrue that suggested a concern about whether Astrue was doing all that he could about the horrendous backlogs at Social Security. None of the panel members was asking softball questions. Representative Tubbs Jones was openly hostile and angry, but Congressman Sander Levin was the most devastating. In a quiet, soft voice Levin said that he did not understand how Astrue and others at Social Security could live with themselves because he felt they were not doing all they could about the backlogs. I really wish I could attach a video of what he said to this blog. Astrue could probably tell himself that Tubbs Jones was just a junior Congressperson who was being a jerk. He cannot dismiss Sander Levin in that way. He is a very senior member and he was expressing great sadness rather than anger.

Why would the Subcommittee members be talking to Astrue like this? He has only been on the job for about two and a half months. Clearly, he is not responsible for the backlogs at Social Security. Everyone who has any familiarity with the situation knows that there are serious limits on what can be done about these backlogs this fiscal year. More budget is clearly needed. Astrue was honest in telling the Subcommittee that the problem with hiring more ALJs has not been OPM but Social Security's budget, which meant that he was telling the Subcommittee that his predecessor had misled the Subcommittee. That should have gotten him some points with the Subcommittee.

There were references to regular meetings between Astrue and the Subcommittee staff. These meetings were referred to as being "frank." The word "frank" is used in diplomacy to indicate open, perhaps angry disagreement. I suspect that "frank" may have been used in the same way to describe the meetings between Astrue and Subcommittee staff. I can only guess at what brought about disagreement, but Astrue's personality probably did not help. Apparently, Astrue may be a bit prickly and he is not the world's best listener. The subjects that are likely to have been the subject of disagreement are Astrue's apparent unwillingness to rapidly expand the ALJ corps, his possible foot dragging on short term measures to keep the hearing backlog from growing (such measures as senior attorney decisions, short form ALJ decisions and re-recon) and his apparent interest in trying to "manage" ALJs.

This hearing was not that far from breaking into a shouting match. If relations between Astrue and the Subcommittee are this bad this early in Astrue's career as Commissioner of Social Security, it is hard to imagine where we are going to be in a year or two. Michael Astrue would be wise to consider carefully how he can improve relations with the Social Security Subcommittee because they have the whip in their hands. Astrue must adjust to them.

Dec 9, 2018

Lucia Wasn't The End; It's Just Getting Started

     If you thought that the actions that Social Security and other agencies have taken in response to the Supreme Court's decision in Lucia v. SEC have taken care of all constitutional problems that may be raised concerning Administrative Law Judges, you'd be wrong. The right wing has additional issues that will be brought to a  Supreme Court that may be highly receptive to such arguments. Take a look at this piece by an attorney involved in the litigation. It's going to be one attack after another. Social Security isn't the target. They're getting caught in the crossfire aimed at the SEC, EPA and other regulatory agencies by zealots with extreme libertarian, almost anarchic, views.

Dec 8, 2018

CBO Versus OCA

     The Office of Chief Actuary at Social Security makes annual projections of the long term status of Social Security's trust funds but they're not the only ones. The Congressional Budget Office (CBO) makes its own projections. Those projections have gotten further apart than one might expect. Here's the CBO's graphic showing the comparison based upon CBO's December 2018 projection.

Dec 7, 2018

SCOTUSblog on Biestek Oral Argument

     SCOTUSblog has a report on the oral argument in Biestek v. Berryhill, the Supreme Court case on "whether the Social Security Administration may ground a decision to deny benefits on the opinion of a vocational expert who refuses to disclose the data on which that opinion relies." The bottom line:
... Both of the lawyers and several justices danced around a central underlying problem: Many people suspect that vocational experts’ opinions, whether favorable or unfavorable to claimants, have tenuous support. Indeed, vocational experts increasingly have become black boxes, churning out de facto decisions in many disability cases based on little more than guesswork. ...
The justices certainly identified several possible bases for a minimalist decision. They also, however, raised tantalizing hints of a broader ruling. If the court were to embrace the narrow view of the “substantial evidence” test, administrative agencies would have sweeping license to engage with arguments against their preferred decisions. On the other hand, several justices seemed disposed to force the Social Security Administration finally to address long-standing objections to the arbitrariness of vocational experts’ opinions.
     I think there's reason to worry that Social Security will not be ready for the Court's decision. It's not a mere suspicion, it's a fact, that, at best, vocational expert testimony is little more than guesswork. Mostly, though, it's based upon the Dictionary of Occupational Titles (DOT) which is almost 40 years old! Nobody, including Social Security, thinks the DOT is reliable in 2018.

What Can You Expect? She Only Tried 71 Times!

     From KUTV:
Every single time Laura Elise-Chamberlain calls the Social Security Administration, it goes the same way: the phone rings for five to 10 minutes, and then the line is disconnected.
Elise-Chamberlain is calling because she got a letter saying the SSA has about $4,000 of money that is rightfully hers. To claim it, call, the letter says.
With that not working, Elise-Chamberlain tried a work-around.
“I've gone to the social security office in person just to see, waited for two hours, and was told that they can't help me," she said.
Elise-Chamberlain has been persistent, calling 71 times, she showed Get Gephardt [apparently a reporter at the TV station] in her phone’s call log.

Dec 6, 2018

SSI Income And Resources Limitations Are Indefensible

     From Real Change:
His name isn’t Wyatt Avery, but when this reporter asked him, jokingly, what name he’d like to use for the piece you’re currently reading, the question left him a bit flummoxed.
“Oh, I don’t know — Katie,” Avery said, laughing the laugh of a person who really doesn’t care but feels like maybe they should humor you. A pity laugh.
As I continued to look into his story about why the government had decided to not just stop paying him the supplemental social insurance (SSI) money on which he depends, but also come after him, a homeless man, for nearly $4,000 for a mistake it acknowledged its office made, it became clear that his nom de plume would have to be Wyatt Avery. ...
SSI is challenging. It is hard to get into the program, hard to stay in the program and ultimately hard to transition away from it and support oneself should the opportunity arise. That’s because to qualify for SSI, you have to be incredibly poor; so poor that the amount of assets it would take to pay first and last month’s rent plus a security deposit in the city of Seattle would automatically get you kicked off of your primary source of income.
To qualify for SSI, an applicant can have no more than $2,000 in assets. That includes nearly everything you own, excluding your home (if you have one), your car (at least usually, according to SSA) and your burial plot. ...
Food benefits plus SSI meant that Avery had not quite $1,000 to sustain himself every month while he lived on the streets of Seattle. That meant he didn’t starve, but it also created one more barrier to getting indoors. On top of the usual difficulties in securing an apartment (background checks, credit checks, application fees, et al), Avery and other homeless people have a catch-22: Save up enough to get housing and lose your primary source of income in the process.
That was Avery’s problem. He had first and last month’s deposit squirreled away in the hopes of getting an apartment.
“They’re not going to check,” his payee, a person who helps with finances for people who can’t manage their own, told him. But they did.
“I had to spend $2,300 in two months,” Avery said. Because that happened, he has to wait until a housing voucher opens up rather than getting an apartment for himself.
Here’s the thing about that $2,000 asset limit: It isn’t very much. It wasn’t very much in 1984 when it was first established and was worth more than double what it is today — roughly $4,867.85 according to one inflation calculator. Income limits are even worse: According to the Center on Budget and Policy Priorities (CBPP), the government hasn’t adjusted income limits for the program since 1979. ...

Dec 5, 2018

OMB Director Still Wants To Cut Social Security And Medicare

     From the Washington Times:
White House budget director Mick Mulvaney said Wednesday there are still ways the administration can propose to trim spending on Social Security and Medicare without limiting basic benefits — something President Trump has said he won’t do.
He said the key is to find programs that siphon money from entitlements, but aren’t part of the core programs. He pointed to Medicare money going to pay students’ medical school tuition as the type of target the administration could try to tackle without cutting into Americans’ benefits.
“You can reform and save a ton of money in Medicare and Social Security and not touch the primary pillars for the next several years,” he told state legislators at an event hosted by the American Legislative Exchange Council. ...

Biestek Transcript Available

     The transcript of the Supreme Court oral argument in Biestek v. Berryhill, a case concerning whether vocational experts must produce the data they rely upon when testifying in Social Security hearings, is now available.

George H.W. Bush’s Most Important Social Security Moment

      From the Motley Fool:
Under George H.W. Bush, the single-most memorable [Social Security] moment was the signing of the Omnibus Budget Reconciliation Act (OBRA) on Dec. 19, 1989. OBRA contained 25 separate provisions related to Social Security, which included the requirement that the Social Security Administration send personal earning and benefit statements to persons working under Social Security. These statements allow workers to estimate what they'll receive from the program if claiming at full retirement age. 

Dec 4, 2018

Florida ALJ Arrested

     From the Tampa Bay Times:
A Pinellas County administrative law judge was arrested Sunday on charges of DUI and leaving the scene of a crash after driving the wrong way on Gunn Highway and striking another car, deputies said.
Arline Colon, 49, was driving a Jeep Wrangler south in the northbound lanes near Isbell Lane in the Odessa area shortly before 9 p.m. when she crashed into a Nissan Altima, according to the Hillsborough County Sheriff's Office....
Colon did not stop to provide any information and continued driving south, but the Jeep's front axle snapped and it came to a stop in the road near North Mobley Road, deputies said, about a mile from the crash scene. 
 A deputy arrived and found Colon sitting in a gray sedan parked nearby. She had a visible seatbelt mark on her body, her wallet was found in the Jeep's front passenger and her flip flops were found under the brake pedal, according to the Sheriff's Office. Deputies say Colon smelled of alcohol, had slurred speech, bloodshot and watery eyes and was unable to stand under her own power. ...
Florida Bar records show Colon is an administrative law judge for the U.S. Social Security Administration’s St. Petersburg office. ...
Records show Sunday's arrest is Colon's second this year.
She was arrested Aug. 17 and charged with providing false information to a law enforcement officer, a first degree misdemeanor. ...

User Fee Cap To $95 In 2019

     The cap on the user fee charged to attorneys and others who receive direct payment of fees coming out of the back benefits of the claimants they represent will be $95 in 2019. This is because of a cost of living adjustment. There is no cost of living adjustment on the maximum fee that may be paid. This means that because the cost of living has gone up my attorney fees are going down. Does this make sense to you?