I don't think that Astrue should be given credit or blame for anything that was going to happen regardless of who was Commissioner. For instance, there was going to be a significant improvement in online services and an increase in their use over the last six years regardless of who was Commissioner. Service was bound to improve at Social Security between 2006 and 2010 because Democrats controlled Congress and gave the agency more adequate funding. Service was bound to deteriorate between 2011 and the present because Tea-Party influenced Republicans control the House of Representatives and the agency's funding has once again become seriously inadequate. Astrue had some influence over exactly how online services have been implemented, over how the agency lobbied for appropriations and over exactly how Social Security coped first with an improved budget situation and then with a constricted budget situation but he did not create these dynamics.
The thing that initially struck me and which still strikes me about Astrue is the contrast with his predecessor, Jo Anne Barnhart. She seemed indifferent to service delivery problems at Social Security except to the extent that they were a public relations problem. She managed the service delivery problem as a public relations problem. She loudly decried the service delivery problems and promised that she had a plan that would solve the problems. Her "plan" was even emptier than Richard Nixon's plan to end the war in Viet Nam but she managed to use her "plan" to evade responsibility for terrible service throughout her term as Commissioner. Her "plan" had the effect of convincing Congress that Social Security's service delivery problems could be solved through management initiatives, an illusion which badly undercut agency lobbying for an adequate administrative budget. Astrue inherited this mess. To his credit, he made a major effort to do something about the service delivery problems. He told Congress from the beginning that there was a direct relationship between Social Security's appropriations and the service it could deliver. He lobbied hard for the money needed to run the agency. He avoided vanity projects like Barnhart's "plan" apart from the harmless "compassionate allowances." It was not a given that a Republican Commissioner would set to work on Social Security's service delivery problems with a purpose. Jo Anne Barnhart never did. At his confirmation hearing, Astrue said that he believed that "brute force" in the form of additional manpower would be required to deal with the backlogs he had inherited. Jo Anne Barnhart would not have said anything like that. I also don't think that Barnhart would have used the term "callous Kumbaya attitude" or anything like it, to describe the completely unjustified state furloughs of disability determination employees. Astrue was genuinely frustrated with this fecklessness and it showed. I believe that Astrue worked diligently throughout his term to improve service at Social Security or in the last two years to slow down erosion in service. I commend him for this.
On the other hand, I have been struck by how much Astrue conformed to Republican norms in ways that I cannot laud. Fortunately, he was blocked in most cases. Here are some examples:
- Astrue attempted to develop a new occupational information system to replace the Dictionary of Occupational Titles (DOT) in a way that would be thoroughly controlled by Social Security management. An occupational information system should be, to the extent possible, a neutral document based upon the facts on the ground, not something controlled by the agency. Realistically, that's the only way a new occupational information system could survive judicial review. Astrue's effort ultimately failed but it caused an unnecessary delay of several years in the creation of a new occupational information system. We're adjudicating disability claims based upon an occupational information system that everyone concedes is ridiculously out of date. This sad state of affairs will continue for some time to come because of decisions made by Michael Astrue. In my opinion, this is Astrue's biggest failure.
- Social Security's practices in evaluating disability claims based upon mental illness became harsher during the time that Astrue was Commissioner. I've been around long enough to say that Social Security's treatment of disability claims filed by those who suffer from mental illness is the harshest it's been since the early 1980s. What was going on then was a disgrace. When a significant number of schizophrenics are being denied at the initial and reconsideration levels, something is seriously wrong. That happened in the early 1980s. It's happening now. I do not buy the argument that this is the result of decisions made below Astrue's level. Astrue tried twice to adopt new mental impairment Listings. We don't know what his first attempt looked like but judging by what he tried later, it's only reasonable to guess that his first effort would have been terrible. He withdrew the first proposal after Obama was elected President. His second attempt at new mental impairment Listings included language that would have significantly reduced the number of disability claims approved based upon mental illness.
- Astrue was hostile to the employee unions for the most part. (Apparently, he had good relations with the National Treasury Employees Union but it has only a small presence at Social Security.) I carry no brief for the unions. I have not forgotten that the AFGE bears much responsibility for the Hearing Process Improvement (HPI) debacle at the end of the Clinton Administration and the beginning of the Bush Administration. HPI led to the horrible hearing backlog that persists at Social Security. I am also aware that AFGE management uses harsh, unjustified rhetoric in talking about Social Security management. If you read AFGE publications you would think that the Haymarket Riot had just happened and that Joe Hill was still alive. AFGE has been provocative but the blame for this doesn't all fall on the union.
- After the 2010 election, Astrue implemented new policies preventing claimants from filing a new claim while an old claim is pending at the Appeals Council and keeping the identity of an Administrative Law Judge secret until the day of the hearing. One can give justifications for both but I think that both decisions were unjustified. I don't think a Democratic Commissioner would have done either. For that matter, I don't think Astrue would have done either before the Republican victory in 2010. The secret ALJ policy is ending because it cannot withstand judicial review.
- Astrue proposed regulations that would have limited remands of disability cases to closed periods only. This would have been terribly harsh, unworkable and almost certainly would have been found to be illegal. Because of external pressure, Astrue was forced to back off this idea.
Astrue made important information technology decisions but I cannot evaluate them. Some of these decisions sparked mild controversy, although nothing that the wider public was aware of. The vastly expensive new National Computer Center was a major decision that sparked little or no controversy but I have to wonder about it. Businesses and other government agencies are closing large computer centers but Social Security is spending huge sums of money to build one? Wasn't there a less expensive option? I am sure Astrue's information technology decisions will have a lasting influence on the agency but I don't know how these decisions will be viewed in a few years.
On the whole we could have done far worse than Astrue. His predecessor is proof of that. However, I'm looking forward to his successor.
Astrue is gone to write poetry and follow his beloved Patriots. This blog needs to move on and start focusing on Caroln Colvin for the time being until a permanent replacement is announced.
ReplyDeleteAs an attorney, I am baffled by reps who are angry about 11-02p.
ReplyDeleteIf you have a pending claim, why in the world should you be able file another claim for the same issues/time? Please point me to any other area of law where you can file multiple, identical claims in the same forum.
@ 12:07
ReplyDeletethe problem with SSA disability practice is that it has NO relation to legal practice in any other area.
SSA is non-adversarial with no rules regarding ethics and no rules regarding evidence. Lawyers can ask leading questions, withhold evidence and basically rely entirely on unsupported testimony to bring a claim. Furthermore, they don't have to write a brief or motions and can rely on SSA to obtain most evidence. every time SSA tries to make a change that is sensible or bring the process even close to an actual legal proceeding, NOSCAR and reps in general flip out and claim that claimants are being denied due process.
I thought the panel for OIS was started in 2008 with a charter to expire in 06/2012? It was my understanding that everything fell apart when SSA could not get anything done with the panel because no one on it would agree to anything. The rep lobby, the providers, disability groups all wanted to put way more into the OIS than SVP, Physical Demands or Enviornmental Conditions. Now there is no money for the project and we are still using the 70's DOT. When NADR and NOSCAR hired lobbyists and publisist it was all over. SSA had no choice but to try and salvage something an move ahead without the input of groups that would not compromise. To me that is a point to Astrue, taking charge and making an unpopular decision to benefit the agency and all those involved with the disability process.
ReplyDeleteDisability by behavioral health conditions becoming harder is also a reflection of the psych community changing over the last several years. Sorry, but not everyone is disabled if they take Zoloft. Psych issues are over diagnoised to the point where the DSM is changing dramatically to reduce the range of conditions for Bipolar, Autism and other spectrum disorders to provide a more clear cut approach to handling these conditions without having everyone suffering from a mental impairment. I do not think the stats would hold up to this being as bad at the Regan years, the number of claims approved with a psych or behavior health condition apprear to be up overall, like back claims.
Hostile to the union, well good for him! The AFGE should not exists, federal employees do not need a union. Be more hostile or active ignore the AFGE till it goes away. They are over paid, over compensated with cheap benefits, days off and an outrageous sick time program not available in any private sector position. AFGE is to blame for its own situation.
11-02p was a great way to reduce the number of useless filings. If you just lost at and AC is pending, you are not disabled. If you want to be disabled now, quit the AC claim and loose the past due benefits. If you are that desperate and that ill, take what you can and not be greedy. Point again to Astrue.
Picking on the NCC is silly, everyone needs to update, lets face it, the Agency does not have a great reputation with technology, MISSICS and MCS are still COBAL. The system is huge, accessed by more and more different programs for different purposes. They need to update the hardware.
Looking forward to the new, we will see, it will likely be another 30 years before SSA, if it is still around in a recognizable form, has a Commissioner stay the entire 6 year appointment. Expect more confusion, lack of direction and half baked errors we see when temps are in charge fo 6 to 18 months at a time.
What's funny about reps and due process concerns is that, at least from my vague memory of Admin Law, the only people entitled to a hearing from SSA are those whose benefits are to be cut (Goldberg). Applicants for benefits aren't constitutionally entitled a hearing of any kind to receive benefits, yet every time SSA tries to change something about the (unbelievably friendly, easy, and SSA-does-all-the-work process) benefits application/pursuit process, these clowns scream "Due Process!!!!"
ReplyDeleteForgive me--Goldberg was welfare. Mathews tells us that even a termination of SS benefits does not require a pre-termination hearing. So then, the reps are even more absurd...
ReplyDeleteThank you for the balanced review, Charles.
ReplyDeleteThe quality of ALJ decisions is deteriorating. They don't adjudicate the full period up to the DLI, they don't adjudicate concurrent claims when one claim has been escalated after the first hearing request, they don't make their own past relevant work determinations but leave it to VEs with inadequate info, they accept inane testimony from VEs, etc, etc. A denial by an ALJ does not equate to the claimant not being disabled. And, AC is not a failsafe remedy -- they can deny review even when ALJ errors are glaring. The people filing these disability claims are hurting, often literally and figeratively, and they are not filing for disabilty in order to engage in some sort of intellectual exercise. They should not have to give up their right to appeal, simply to be able to file again and possibly get some relief based on a later onset date.
ReplyDeleteBy the time a claim has made it to AC in most states (prototype states not included) it has been reviewed by DDS at least twice, a senior atty and then an ALJ, all who agreed the Claimant did not meet listing level. AC very rarely finds the mistake so glaring as to issue a favorable decision. Mostly it is a technical issue, the supplemental Hearing returned to the judge hits the points covered by the AC remand and the Hearing is over in 15, minutes or less. Nothing gained. I am unclear on a stat for how many AC Remands result in Fully Favorable Decisions or even an Amended Onset Offer, but my gut instinct would tell me less than 20%.
ReplyDelete@ 9:06...in my experience, if it was "close" case, many ALJ's simply award a FF decision after AC remand to avoid having to write/decide a "tough" decision. Others, where it was a technical mistake typically get denied at the rates you mentioned.
ReplyDelete