Nov 20, 2013

Yesterday's Oversight Hearing

     I had a chance today to listen to the recording of yesterday's House Committee on Oversight and Government Reform Committee hearing on Social Security disability while I ate lunch and did some other things. I'd like to compliment the chairman of the Subcommittee, James Lankford, and the Subcommittee members for holding a hearing without partisan rancor, a hearing directed at informing the Subcommitte members. I'm tired of listening to Congressional hearings where the members are just trying to score meaningless political points or attacking career federal employees who have done nothing wrong. It's good to see that a Congressional hearing can still be done in an appropriate manner. 
     Marianna LaConfora testified that Social Security hoped to design a new occupational information system in such a way that no changes in the agency's regulations would be required. That's exactly what I expected and exactly the problem. I don't want the agency to massage the data so that it justifies what they're already doing. Follow the data where it goes. Amend the regulations if need be. If you're wondering why an attorney who represents Social Security disability claimants would be insistent on this, it's because I'm pretty sure that the data is going to show that the cognitive demands of employment have increased significantly over the years putting claimants with low cognitive abilities at a huge disadvantage. That's a lot of my clients. Add significant health problems on top of low cognitive abilities and you've got disability in my book. The United States is not Lake Woebegone. Not all the children or adults have even average cognitive abilities. That portion of the population in the lowest 20% of cognitive abilities account for a outsized portion of the disability claims filed. All those new computer jobs that have been created in the last thirty years are useless to those with low cognitive abilities. I don't think we're doing justice to people with lower cognitive abilities now. I don't like hearing a suggestion that Social Security will try to find a way to avoid following the data which should result in more of these claims being approved.
     I did hear references during the hearing to the "truly disabled." Let me repeat a point I've made many times before. There is no gold standard for determining who is disabled, truly disabled or truly, truly disabled. There is no way to say with certainty that an Administrative Law Judge (ALJ) who is approving 80% of the claims he or she hears is any more or less accurate in determining disability than an Administrative Law Judge who is approving 40% of the claims. You can call an ALJ who approves 80% of the cases he or she hears an outlier if you want but it's completely inappropriate to say that that ALJ is doing anything wrong and it would be wildly inappropriate to suggest that there is anything criminal or abusive going on when an ALJ is approving 80% of the cases he or she hears. A 99% reversal rate looks fishy but not an 80% reversal rate or even a 90% reversal rate. 
     By the way, I think that almost everyone agrees that ALJs who issue huge numbers of decisions are worrisome, regardless of their reversal rate. That sort of outlier worries everyone involved in the process, not because those ALJs have done anything criminal but because there's only so many hearings you can hold and so many hearing files you can review and do justice to the interests involved. Social Security could have reined in the handful of ALJs issuing well over 1,000 decisions a year but didn't do so until recently. They should have.
     Also, just in case any Subcommittee member or staffer reads this blog, they should be aware that the proposal pending at the Office of Management and Budget (OMB) to require attorneys representing Social Security claimants to obtain and submit all medical records on their clients is almost certainly unworkable. Scroll down and read my posts on this subject and the comments that others have posted. The proposal sounds great but I'd be very surprised to see it become a final rule.


Anonymous said...

what really needs to be done is to create a job category for people limited to less than sedentary.

There are millions of jobs out there currently where you literally sit all day with a standing/walking requirement of zero minutes. But under SSA, if you can't stand/walk for 2 hours, you are by definition disabled. This is so bogus. People in wheelchairs work all the time. Make a catergory that lists jobs for people who are perfectly capable of working where they can sit all day

Anonymous said...

People in wheelchairs are mostly receiving specific accommodations under the ADA, too. It would be stupid to create a "category" to cover, under a grid, the minuscule number of less than sedentary workers who can do and sustain work in a competitive environment.

Anonymous said...

one isn't automatically disabled if he has a residual functional capacity for less than sedentary exertion. please brush up on SSR 96-9p among others.

Anonymous said...

I guess I should have been more clear. find me a VE who will cite jobs in the DOT that can be performed with a stand/walk limitation of 0.

Anonymous said...

We've had a VE testify that a security monitor job can be performed by someone who can lift no weight. Zero, nada. Not a file, a mouse, a pen.

Yes, people in wheelchairs work. A fair number of the wheelchair bound, particuarly those with congenital conditions, are more mobile than those with extreme wtanding / walking limitations.


Anonymous said...

Charles is absolutely right re: the changes in the American job market in relation to cognitive abilities. I'm a decision writer and consider myself fairly down-the-middle in my view of cases, but I'm frustrated by the number of step 5 denials I'm asked to write based upon VE testimony that's just plain dumb. I know they're providing testimony under the existing framework, so my problem is with the framework, not the VEs. Mockery of the DOT is pretty common in our office, even among some judges...and among most writers. I'm eager to have a better system in place, including modernized and reliable occupational data, but I agree that the regs need to be adjusted to correspond to the data, not vice versa. It isn't surprising that they're taking that tack, but it is disappointing.

Separately, it's good to hear that the hearing was conducted professionally. Clearly doesn't happen enough, and in my view, both parties are to blame for that pissy state of affairs...