Jul 31, 2014

The Weakness And Timidity In The Plan To Cut Social Security Disability

     Sam Johnson, the Chairman of the Social Security Subcommittee of the House Ways and Means Committee, posted a summary of his proposed “Stop Disability Fraud Act of 2014” yesterday. The title makes it clear that he believes that there is rampant fraud in Social Security's disability programs but the significant aspects of this proposal have nothing to do with fraud and everything to do with simply making it much harder to get on Social Security disability benefits.
     The impression of weakness is underlined when you look at the most important aspects of the proposal:
Sec. 201-Requires the Commissioner to conduct quality reviews of hearing dispositions in sufficient numbers to ensure compliance with laws, regulations, and other guidance issued by the Commissioner. These reviews include reviews both before and after a case has been finalized, or “effectuated.” The Commissioner is also required to annually report the results of these reviews to Congress.
Sec. 202- Requires the Commissioner to establish standard qualifications for all decision makers and their advisors (medical consultants, medical advisors, and vocational consultants) involved in the disability determination process.
Sec. 301-Requires the Commissioner to update the 1979 medical-vocational regulatory guidelines for determining disability by considering new employment opportunities made possible by advances in treatment, rehabilitation and technology. (Effective as soon as possible after the date of enactment)
Sec. 302-Expands current research and demonstration authority to:
     ·Develop instruments to assess function that are rapid, reliable,and objective to inform the disability determination process. (To be completed no later than the end of calendar year 2016)
     ·Study the availability and effects of more fully considering assistive devices and workplace accommodations in the disability determination process. (To be completed no later than the end of calendar year 2016).
     Notice a common theme here? None of this actually changes a thing about Social Security disability. It just tries to force the Social Security Administration to change things.
     The big problem with the approach of trying to make the Social Security Administration do the dirty work is that the agency can do essentially nothing if it wishes. It can tell Congress that it is already conducting quality reviews of Administrative Law Judges to the extent that funding allows. It can tell Congress that it already has "standard qualifications for  decision makers and their advisors" and that it sees no need to change those. It can tell Congress that it has reviewed the medical-vocational rules and that it sees no need to change anything about them or even that they need to be liberalized. (Yes, Social Security Subcommittee staffers reading this, whether you believe it or not, updated vocational information may push Social Security in the direction of liberalization of the grid regulations. More people than ever work in offices but those jobs can't be done by Americans who have reduced cognitive abilities and that's most people who file claims for Social Security disability benefits. The number of sedentary jobs that can be done by people with reduced cognitive abilities has gone down significantly over the last 40 years.) Social Security can "study" functional capacity evaluation methods and tell Congress that it still finds them unreliable. Social Security can tell Congress that it has studied the "workplace accommodations" in the Americans with Disabilities Act and still believes that they have no place in disability determination.
     If you genuinely want to change Social Security disability in the ways indicated in this bill, it would make a lot more sense to directly change Social Security disability. You could order Social Security to review each and every hearing decision that grants benefits. You could specify the "standard qualifications" you wanted for Administrative Law Judges, such as, say, quotas on the percentage of claims they could approve. You could change the definition of disability so that age would not be considered or would be given less consideration. You could order Social Security to use functional capacity evaluations. You could order consideration of Americans with Disabilities Act accommodations.
     There's a reason that Mr. Johnson's proposal wouldn't actually force any of this. He's scared to do so. He wants all of his proposal to become fact but he doesn't want his fingerprints on it. He knows that Republicans in Congress generally want all of this but also don't want their fingerprints on it. They're all scared of Social Security. They want to dramatically cut Social Security disability but they're afraid to do so. They want to force the Social Security Administration to make the unpopular changes and then blame the agency and the Administration for the changes.
     And, by the way, the proposal does nothing to extend the life of the Social Security Disability Trust Fund which suggests that Congressional Republicans are scared that their base will be intolerant of doing anything to help disability recipients continue receiving benefits.


Anonymous said...

To solve the disability trust fund problem,several areas of the program must be acted upon.

cdr must be continuingly used.

Reduce the salary of $100,000 employees such as aljs.

Eliminate alj unions so SSA can punish aljs when needed.

Raise taxes on wealthy individual particularly those who create a small number of jobs in the u.s.a,such celebrities.

FYI,i have disabilities

Anonymous said...

The salary of ALJs has no connection to the trust fund, and so cutting ALJ salaries or executive salaries (Baltimore, Falls Church, etc) would make no difference.

Eliminating the ALJ union is not feasible and would not be a good idea for anyone, because the actions by SSA would likely be inappropriately vindicative, as is often the case now. If there is truly a problem ALJ -- too low productivity, too low pay rate, too high pay rate -- SSA already has the means to address the problem if it wants; instead, it has a tendency to try to punish ALJs who question management behavior.

the best way to improve the disability portion of the trust fund is to tighten the rules so that being disabled truly means being unable to work, not just "older" and limited to sedentary or light work

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Anonymous said...

"The salary of ALJs has no connection to the trust fund, and so cutting ALJ salaries or executive salaries (Baltimore, Falls Church, etc) would make no difference"

SSA is not in a fiscal position to argue against every dime that may keep it operational. So yes a reduction in salaries may help.

1:01 PM, July 31, 2014-signed

Anonymous said...

It's the economy, stupid.

If you want to reduce the disability rolls, you need a strong economy and a tight labor market. With these conditions in place, employers would be forced to hire persons with severe impairments who need accommodations in order to work. Strong enforcement of the Americans with Disabilities Act (ADA) and the Age Discrimination in Employment Act would also help.

I think the federal government, including Congress, should take the lead in this by setting aside 50% of all sedentary government jobs for those needing accommodations.

A major problem in our disability system is that we only take into account jobs in our economy and not jobs available to persons with severe impairments who need accommodations to work. The job market, though improving, is very competitive right now. What sense does it make to say that there are jobs in the economy that the claimant can perform if we know that the claimant will be competing with young, healthy applicants and most likely not be hired for those jobs.

We can reduce the disability rolls but we need more than just CDR's and rules that make it more difficult to get benefits. We need to look at the reasons we have more people on the rolls.

Anonymous said...

ALJs make about the same as a 1st year associate with no experience at a large law firm. If the private sector paid lawyers less, I might agree with you that ALJ salaries could be reduced. As is, the agency has difficulty recruiting top quality lawyers for the job.

ALJ salaries are fairly close to those of federal Mag. and D.Ct. judges, but with those positions you at least get more intellectual stimulation that makes up for the salary cut one experiences coming from the private sector. As a result, you get top quality candidates still willing to be considered for those positions despite the salary cut.

If you want quality ALJs, don't cut ALJ salaries. Paying them less money is only going to result in recruiting from the bottom of the barrel of attorneys in the private sector. What's a starting ALJ make nowadays? $120k? And they top out at what, $165k or so? Those are awesome salaries for non-lawyers, not so awesome compared to what a good lawyer with 7+ years of experience can get in the private sector.

Does a portion of SSA's operating budget not come from the trust fund? I thought that was why it was generally designated a Limitation on Administrative Expenses. It was an amount that the agency could draw from the trust fund to administer T2. I feel like I've seen some effort to split the administrative cost of T16 from T2 in appropriations bills as T2 admin costs were taken from trust fund while T16 came from the general fisc. Could be wrong - looking for someone in the know to elaborate.

Anonymous said...

That is so cool that Charles is allowing other disability firms to advertize for claimants on his site. I didn't think he was that big a man. Congratulations Charles. Or is that your little sister??

Anonymous said...

Social Security already employees lots of people with low cognitive functioning to high paying, sedentary work. I know...I work with them everyday!

Anonymous said...

To engraft upon the Social Security System a concept of "accrued property rights" would deprive it of the flexibility and [363 U.S. 603, 604] boldness in adjustment to ever-changing conditions which it demands and which Congress probably had in mind when it expressly reserved the right to alter, amend or repeal any provision of the Act. Pp. 610–611. 3. Section 202 (n) of the Act cannot be condemned as so lacking in rational justification as to offend due process