May 23, 2019

Black Nomination Advances

     The Senate Finance Committee has scheduled a meeting today to consider reporting out the nomination of David Black to become Deputy Commissioner of Social Security.

May 22, 2019

Resumption Of No Match Letters

     From the New York Times:
The Trump administration is notifying tens of thousands of employers that the names of some of their employees do not match their Social Security numbers, a move that is forcing businesses across the country to brace for the loss of thousands of workers who lack legal status.
The Social Security Administration has mailed “no-match letters” to more than 570,000 employers since March, sending shock waves through the hospitality, construction and agriculture industries, which rely heavily on undocumented workers. The letters have left many employers conflicted, uncertain whether to take action that could result in losing workers or to risk fines down the road. ...
“There is a high level of anxiety over these no-match letters,’’ said Angelo Amador, regulatory counsel at the National Restaurant Association, which represents about one million food-service establishments. He said the association has been barraged with emails and phone calls from concerned companies. ...
The government officially suspended the use of no-match letters in 2012, although the practice had actually been discontinued years earlier, after the government faced litigation. The resumption appears to be a response to the “Buy American, Hire American” executive order signed by President Trump to protect American workers and reduce illegal immigration. ...
Mark Hinkle, the Social Security Administration’s acting press secretary, did not respond to a question about whether the administration was sharing its data with the Immigration and Customs Enforcement agency. ...

May 21, 2019

That New Obesity Ruling

     It's hard to evaluate the new Social Security Ruling on the evaluation of obesity on its face. It's only precise when it sets forth what Social Security won't do -- find any particular level of obesity to even be a severe impairment much less an impairment that significantly affects function or exacerbates the effects of other impairments such as osteoarthritis. This is the sort of thing that's standard in these Rulings. The agency wants to say something on a subject but also wants to be very sure that no one can say that the agency has established a standard that it can be accused of not having followed.
     To find the real intent of this Ruling, you have to contrast it to its predecessor, Social Security Ruling 02-01p. When you do, you notice a couple of things that were in 02-01p that didn't make it into 19-2p. The old Ruling specifically said that failure to follow prescribed treatment would rarely, if ever, be grounds for denying a claim based upon disability. That language didn't make it into the new Ruling. Also, the old Ruling said that "... if the obesity is of such a level that it results in an inability to ambulate effectively, as defined in sections 1.00B2b or 101.00B2b of the Listings, it may substitute for the major dysfunction of a joint(s) ... and we will then make a finding of medical equivalence." Again, that language didn't make it into the new Ruling. 
     The problem with the old Ruling is that it established standards that the agency could be accused of not having followed. They couldn't have that so the Ruling was changed.

May 20, 2019

New Ruling On Obesity

     A new Social Security Ruling, SSR 19-2p, is out on "Evaluating Cases Involving Obesity." My initial reading is that the Ruling will have limited practical effect. What do you think?

May 19, 2019

Annual Statistical Supplement Out

     The Social Security Administration has issued its annual grand compendium of statistical information, the Annual Statistical Supplement For 2018
     By the way, did you know that 60,293 people are receiving benefits under the U.S.-Japan Social Security totalization agreement? That's more than even the U.S.-Canada agreement, the most of any country.

May 17, 2019

You Might Want To Do Something About This

     From Work-Related Overpayments to Social Security Disability Insurance Beneficiaries: Prevalence and Descriptive Statistics by Denise Hoffman, Benjamin Fischer, John T. Jones, Andrew McGuirk, and Miriam Loewenberg, published in the Social Security Bulletin (emphasis added):
For decades, Social Security Administration (SSA) efforts to increase employment among Social Security Disability Insurance (DI) beneficiaries have been a focus of considerable interest among both policymakers and researchers. However, beneficiary work activity sometimes results in benefit overpayments, and research on the extent of those overpayments—and the characteristics of affected beneficiaries—has been relatively limited. ...
DI overpayments account for a substantial sum of money and create administrative and fiscal management challenges for SSA. Work-related overpayment amounts ranged from $831 million in fiscal year 2010 to $980 million in fiscal year 2012. ...
Anecdotal evidence suggests that overpayments and their aftermaths can be traumatic experiences for beneficiaries and may function as disincentives to work. ...
[W]e find that overpayments are probable among at-risk beneficiaries (of whom 71 percent were overpaid). The median duration of work-related overpayments was 9 months and the median amount they accrued was $9,282. Overpayments were most prevalent among traditionally disadvantaged or vulnerable populations, including beneficiaries who are black or Hispanic, those with low monthly DI benefit amounts, those for whom medical improvement is not expected, and those with less than a high school education, holding other characteristics equal. ...
     I don't know all of what should be done about this but, I guess, the first step would be to acknowledge that, in the main, this is a systemic problem rather than the fault of claimants trying to cheat. I think the second step would be to acknowledge that collection of these overpayments should not be the priority. The system is too complicated. We can't keep blaming the claimants for these overpayments. Most of these overpayments should be quickly waived if we want to avoid discouraging attempts to return to work. 
     Social Security's Inspector General, in particular, needs to give some serious thought to the pressure it puts on the agency to aggressively find and collect any and all overpayments.

May 16, 2019

FCEs Are Still Invalid

     There's long been a desire to determine disability with "scientific" tests of functional ability. There are people who designed and administer such tests, usually referred to as Functional Capacity Evaluations or FCEs. In the real world, such testing is usually paid for by insurance companies who are trying to limit how much they pay for workers compensation benefits.  There have been those who want Social Security to use FCEs. You can guess what goal they're trying to achieve.
     The National Academies of Sciences, Engineering and Medicine recently did a study of these function assessments for Social Security. The report is basically an elaboration of what was already known by anyone who has taken a look at these tests -- they're unreliable. The biggest problem is what I'll call the marathon problem. These tests take at most a few hours. Thus, at most, they show what an individual can do over a relatively short period of time. However, work is something you do five days a week every week. Relying upon a short test is like saying that someone who can run 100 meters at a certain pace can run a marathon at the same pace. You can no more determine how fast a person can run a marathon from how fast they run 100 meters than you can determine how a person can work day in and day out from testing them for a few hours.
     This study was a waste of money. It only tells us what anyone who had looked at this kind of testing already knew. FCEs have, at best, highly limited validity and cannot be used as a shortcut for disability determination.

May 15, 2019

How Do Other Countries Handle Vocational Factors In Disability Determination?

     The most recent edition of the Social Security Bulletin, the Social Security Administration's scholarly journal, contains an article titled Vocational Factors in Disability Claim Assessment: A Comparative Survey of 11 Countries by David Raines and Tony Notaro. Basically, they find what you might expect -- significant differences among the countries. Here's a table from the piece.
Click on image to view full size. OECD is the Organization for Economic Cooperation and Development.
     Here's the authors' summary of how the U.S. compares to other countries:
...[W]e note the following significant differences between U.S. disability programs and those of most of the other sampled countries:
  • U.S. programs do not extend eligibility to claimants with partial and/or temporary disabilities;
  • Workers in many other countries receive sickness benefits for 1 year or longer before becoming eligible to claim long-term disability benefits;
  • Although SSA assesses residual work capacity in the later stages of the five-step U.S. process, many of the other countries conduct their assessment in the initial determination phase; and
  • Several other countries involve the claimant's employer in the assessment process.
We also note the following significant attributes that the U.S. disability programs share with those of other countries:
  • The assessment is carried out in sequential steps (although agencies in other countries do not always spell out those steps quite as definitively as does SSA); and
  • Medical experts are consulted to confirm diagnoses and evaluate disablement....
 To briefly summarize our findings on each VF [Vocational Factor], we observe that:
Age is not used in the disability determination processes of most of the countries we survey. The use of age as an explicit factor in determining whether certain claimants are disabled (as in step 5 of the U.S. sequential evaluation process) is rare. However, age is considered in determining eligibility for certain sickness and partial- or long-term disability programs. In general, advancing age is thought to increase the likelihood of disablement, and therefore increase the claimant's chance to receive a benefit. Sweden uses age in determining program eligibility and Australia uses age in deciding the frequency of reassessment for disability benefit eligibility.
Education is generally not directly considered during disability determination. The United States is the most notable exception, directly considering education in step 5 of its sequential evaluation process. Likewise, Denmark and the Netherlands consider education in determining the claimant's ability to perform other work in the general economy. In the same way, formal schooling or training may suggest a claimant's ability to undertake available vocational or rehabilitative options or employment opportunities.
Work experience is considered in the disability determination processes in each of the surveyed countries. Work experience is a central factor in assessing a claimant's transferable skills, which in turn constitute a central component of the RFC assessment that drives many disability assessment procedures.

May 14, 2019

Appropriations Bill Moves Forward With Many Directives For Social Security

     The House Appropriations Committee has reported out the bill that includes the appropriation for the Social Security Administration's operations. As expected, it includes a $300 million increase for Social Security. This is barely enough to keep up with inflation. The Senate bill is likely to be worse for Social Security.
     As usual, the Committee report on the bill includes a number of directives for the agency, which start at page 228 of the report. This year's bill includes a high number of these directives. Here's a list:
  • Prepare report within 60 days on Administrative Law Judge selection;
  • Include more information in Beneficiary Verification letters;
  • Prepare report on negotiations with employee unions;
  • Encourage proper consideration of headache disorders in determination of disability;
  • Prepare update for Committee on agency's information technology modernization;
  • Brief Committee on mailing paper statements;
  • Prepare report on utilization of Social Security programs by persons suffering from muscular dystrophy;
  • Prepare report on occupational information system project;
  • Prepare proper research designs for all pilot projects and prepare a report on all such pilots;
  • Prepare report within 180 days on improving Disability Determination Services process, including addressing the role of the reconsideration stage;
  • Stop the proposal to charge fees for replacement Social Security cards;
  • Stop pursuing the plan to consider social media postings in determining disability;
  • Strongly urges agency to not proceed with plan for mandatory video hearings;
  • Provide report within 90 days on strengthening vocational expert program;
  • Strongly urges agency to not go forward with proposed regulations that would eliminate inability to communicate in English as factor in determining disability.
     One thing that didn't make this long list is a directive to strongly consider increasing the cap on fees that attorneys and others can charge for representing Social Security claimants.

May 13, 2019

The "You Were In The Neighhborhood Where A Crime Was Committed So You Must Be Guilty" Standard

     I had heard that there were allegations of Social Security disability fraud in Puerto Rico. Until recently I was under the impression that this just concerned a small number of claimants. There's now a class action lawsuit that's in the process of being filed against Social Security concerning these cases that tells us that this is huge. Here's an excerpt from the class action complaint (note that this link expires on May 20) that will be filed once a motion to consolidate is granted:
... Starting around 2013, SSA invoked §405(u) to reconsider plaintiffs’ final favorable disability determinations. The impetus was the discovery of a fraud scheme in Puerto Rico involving non-attorney representative Samuel Torres Crespo. Torres Crespo allegedly worked with four doctors—José Hernández González, Wildo Vargas, Rafael Miguez Balseiro, and Erica Rivera Castro (together, the “implicated doctors”)—to submit fraudulent medical evidence in support of some applications for Title II benefits. After a lengthy investigation that started in 2009, the government indicted Torres Crespo and the implicated doctors in 2013. The indictments charged the individuals with making false statements or representations to SSA. Ultimately, Torres Crespo, Hernández González, and Vargas pled guilty to making (or participating in a conspiracy to make) false or misleading statements to SSA. Miguez Balseiro and Rivera Castro each pled guilty to a misdemeanor count of inadequate recordkeeping; their charges for making false statements or representations to SSA were dismissed with prejudice.
After the indictments were filed, SSA initiated redetermination proceedings for nearly 7,000 disability beneficiaries, including plaintiffs, whose files included evidence from Torres Crespo and/or one or more of the implicated doctors.
As a result of these redetermination proceedings, plaintiffs and approximately 1,000-1,500 other beneficiaries in Puerto Rico lost their disability benefits. ...
With respect to members of the Exclusion Class, SSA excluded all medical evidence associated with Torres Crespo or the implicated doctors without permitting the affected
beneficiaries any opportunity to dispute SSA’s allegations that the evidence was tainted by fraud.
With respect to members of the Non-Exclusion Class, SSA initiated the redetermination process based on a preliminary suspicion that evidence submitted by Torres Crespo and/or one of the implicated doctors was fraudulent. Later, however, SSA made a formal finding that there was no reason to believe that fraud was involved in the beneficiaries’ applications. ...
     Note the allegation that some of the claimants were caught up in this not because fraudulent evidence was submitted in their cases but merely because they had been represented by someone who submitted fraudulent evidence in other cases. Social Security acknowledged that there was no reason to believe there was fraud in the case of these individuals but still redetermined their cases and cut off their benefits. It's a standard of "you were in the neighborhood where a crime was committed so you must be guilty."

May 12, 2019

Yeah, They Really Are Sick

     The most recent issue of the Social Security Bulletin, the agency's scholarly journal, contains an article by Jeffrey Hemmeter and Paul S. Davies on Infant Mortality Among Supplemental Security Income Applicants. The bottom line is that child SSI applicants die at a fairly high rate compared to other children.
Click on image to view full size

May 11, 2019

You Have To Be Disabled But Not Too Disabled

     From the National Law Review:
An employee who applies for and receives Social Security disability benefits may be judicially estopped from bringing a disability discrimination claim under the Americans with Disabilities Act (the “ADA”) according to a recent Louisiana District Court case. Tanner v. BD LaPlace, LLC. ...
The Court held that Tanner was precluded from bringing an ADA claim because of his sworn testimony provided to the SSA that he was “totally disabled” as of February 10, 2016. Relying on the Supreme Court’s decision in Cleveland v. Policy Mgt. Sys. Corp., 526 US 795, 806 (1999), the court here determined that it was Tanner’s responsibility to explain the contradiction, which he failed to do. ...

May 10, 2019

Social Security's List Of Top 10 Baby Names For 2019

Rank Male name Female name
1 Liam Emma
2 Noah Olivia
3 William Ava
4 James Isabella
5 Oliver Sophia
6 Benjamin Charlotte
7 Elijah Mia
8 Lucas Amelia
9 Mason Harper
10 Logan Evelyn

From Social Security Administration

Delay In Saul Confirmation?

     There was a Senate Finance Committee hearing yesterday on the nomination of David Black to become Deputy Commissioner of Social Security. The opening statement of Senator Ron Wyden, the ranking Democrat on the Committee, contained this interesting language:
... This morning, while we consider this nomination for SSA deputy commissioner, I also want to remind the committee that Social Security has not had a confirmed commissioner in place since February 2013. Bottom line, that’s far too long for the top position to go unfilled. Just like any government agency or any private business, SSA runs best when it has strong leadership with a vision for how to improve. In my judgement, the Senate should not confirm a deputy commissioner before confirming the commissioner.
Andrew Saul’s nomination to serve as commissioner has been approved by this committee twice. I hope he’s able to get on the job soon. I also note that, in terms of going forward on the Senate floor, it would be appropriate to take up the nomination of the commissioner before taking up the nomination of the deputy commissioner. ...
     Obviously, Wyden wants Andrew Saul confirmed as Commissioner and he's worried that there will be a delay in that confirmation even though he's not expecting delay in Black's confirmation as Deputy Commissioner. I wonder what's going on. Democrats can't hold up nominations in the Senate very long these days. Republicans changed the rules.

May 9, 2019

Social Security Scams Escalating

     From the New York Times:
Move over, Internal Revenue Service. Criminals now prefer the Social Security Administration as their cover agency when they try to swindle Americans over the phone.

The I.R.S. has long been a popular choice for telephone scammers, who call pretending to be federal tax representatives to extract money, personal information or both from consumers. 

But federal authorities say they have seen fraudulent calls from Social Security Administration impostors “skyrocket” over the past year, overtaking the fake I.R.S. calls.
“In the shady world of government impostors,” the Federal Trade Commission said in a report in April, “the S.S.A. scam may be the new I.R.S. scam.” ... 

People filed over 76,000 reports about Social Security impostors in the 12 months ending in March, with reported losses of $19 million, according to the F.T.C., which investigates consumer fraud. About 36,000 of the complaints and $6.7 million of the losses were reported in February and March. 

By comparison, the agency said, consumers reported $17 million in losses to the I.R.S. scam at its peak, during the 12 months that ended in September 2016. The data comes from the F.T.C.’s Consumer Sentinel Network database, a pool of millions of consumer complaints. ...

OHO Caseload Analysis Report

       This was obtained by the National Organization of Social Security Claimants Representatives (NOSSCR) and published in their newsletter, which is not available online:
Click on image to view full size

May 8, 2019

72,100 Hours?

     From The Tennessean:
The Social Security Administration is best known for running the nation's largest retirement program. But it's also responsible for deciding whether millions of Americans qualify for disability benefits.
If you want to understand how those decisions are made, it's going to cost you: $2.3 million.
That was the administration's response to a USA TODAY NETWORK request for public information. Reporters are trying to scrutinize the performance of doctors hired in each state to review federal disability applications, including their workload and how fast they reviewed application files.
The agency's extraordinary price tag indicates that Social Security has no central database, but rather allows each state to manage doctors differently — a policy that, in at least one state, led to an unusually high denial rate and hefty doctor paychecks.  ...
In October, the USA TODAY NETWORK submitted a Freedom of Information Act request seeking doctor performance data for each state. 
The agency responded in April, indicating they would need 72,100 hours to get such information. That’s the equivalent of nearly 60 employees working full-time on the request for a full year – without taking vacation or holidays off. ...

May 7, 2019

Democratic Leaders Express Opposition To Disability Proposal

     From a press release issued yesterday:
Top Democrat Committee leaders in the House and Senate today called on the Social Security Administration (SSA) to withdraw a proposed rule, “Removing Inability to Communicate in English as an Education Category.” House Ways and Means Committee Chairman Richard E. Neal (D-MA), House Ways and Means Social Security Subcommittee Chairman John B. Larson (D-CT), House Ways and Means Worker & Family Support Subcommittee Chairman Danny K. Davis (D-IL), Senate Finance Committee Ranking Member Ron Wyden (D-OR), and Senate Finance Social Security Subcommittee Ranking Member Sherrod Brown (D-OH) sent the letter to Acting SSA Commissioner Nancy Berryhill.

In [the proposed rule], SSA makes a harmful and unjustified attempt to deny Social Security and Supplemental Security Income disability benefits to older workers with long-term or fatal medical impairments who are severely limited in their functional capacity and who cannot communicate in English. We request that SSA withdraw this proposed rule,” the members wrote.

House Members Object To Anti-Union Actions

     From Government Executive:
A bipartisan group of more than 150 House lawmakers last week urged the Social Security Administration to rescind a number of “anti-labor” proposals from its contract negotiations with a federal employee union, citing their similarity to provisions of three controversial executive orders that a federal judge ruled unlawful last year.
In a May 1 letter to acting Social Security Commissioner Nancy Berryhill, 157 lawmakers, led by Rep. Jan Schakowsky, D-Ill., said they were “dismayed” by the agency’s adherence to a number of collective bargaining proposals that have led to a “breakdown” in negotiations with the American Federation of Government Employees.
The lawmakers cited proposals to evict AFGE from its offices within Social Security Administration buildings, the confiscation of all computers and printers used by employees during representational work, and requiring union employees to request permission in advance to use official time. The lawmakers described these provisions as “extreme and similar in anti-union tone to certain provisions” of a series of workforce executive orders that were struck down last August by U.S. District Judge Ketanji Brown Jackson. The Trump administration has appealed that decision. ...
     I don't know what's going on behind the scenes but it bothers me that career employees are doing this. This may not be a good career move. I'm sure that AFGE is taking down names.

Some Worry About Making A Living; Others Worry About Bad Publicity

     From Law 360 (emphasis added):
... A U.S. Supreme Court ruling [in Culbertson v. Berryhill] earlier this year created a uniform method for allocating fees across judicial jurisdictions, ensuring attorneys will have access to higher fees regardless of where they practice. Practitioners are mixed on the impact of the ruling but hope it will attract more attorneys to the field of Social Security disability law so more people like Gammon can get help. 
They also hope it will secure them enough money to sustain their practices' financial health, which can be precarious due to the nature of accepting jobs without a guaranteed fee.
Gammon's attorney, Rick Culbertson of Orlando, Florida, is the one who brought the fee dispute to the Supreme Court , and he said that's what he hoped for.
"Those of us trying to make a living doing this, it'll make it more likely we'll be able to get by. We still won't get rich, but we'll be able to get by helping people who need us," he said. ...
"Lawyers who want to maximize their earning capacity don't do Social Security law. They would be crazy to do Social Security law," said Charles Martin of the Law Offices of Martin & Jones, an Atlanta disability attorney who has been practicing in the field for decades. ... 
"I'm worried it will be bad publicity for Social Security attorneys. It'll make it seem like [they] are greedy," said Barbara Silverstone, executive director of the National Organization of Social Security Claimants' Representatives. ...

May 6, 2019

Weak Funding For SSA Operations To Continue

     From a Center on Budget and Policy Priorities summary of the Labor-HHS appropriations bill, which includes Social Security, reported out of subcommittee in the House of Representatives:
Social Security Administration (SSA). The bill would raise SSA’s operating budget by about $300 million to $11.4 billion. This increase is welcome but would barely enable the agency to keep up with inflation and wouldn’t offset years of underfunding. SSA’s operating budget fell nearly 11 percent between 2010 and 2019, after adjusting for inflation, even as the number of beneficiaries grew by more than 16 percent. This disinvestment has forced the agency to close field offices, shorten office hours, and shrink its staff, undermining customer service as costs and workloads grow. Even with the proposed increase, funding would still be more than 10 percent below the 2010 level, adjusted for inflation.
     And this is the House version of this appropriations bill. The Senate bill is likely to be much worse.

Deputy Commissioner Nomination Moves Forward

     The Senate Finance Committee has scheduled a hearing for May 9 on two nominations. One of the nominations is for David Fabian Black to become Deputy Commissioner of Social Security. Here's the biographical information given by the White House when Black's nomination was announced:
Mr. Black currently serves as the White House Senior Advisor at the Social Security Administration.  He served as SSA’s General Counsel from October 2007 until July 2015.  From 2004 through 2007, he served as the Deputy Assistant Secretary in the Department of Education’s Office for Civil Rights.  Mr. Black is a Lieutenant Colonel in the U.S. Army Reserve where he deployed to both Afghanistan and Iraq in support of the Global War on Terrorism and earned a Bronze Star Medal.   Mr. Black holds a J.D. from the University of Minnesota and a B.A. in political science, summa cum laude, from the University of North Dakota.

May 5, 2019

Good Luck With That Plan

     From an op ed in the Washington Examiner, a right wing newspaper:
... It's time for Washington to cut millennials a deal and give us a chance to get off the ship before it sinks, saving our wallets and the nation's ballooning deficit. Congress ought to pass a Social Security buyout to anyone who wants it.
The government has promised Social Security payments to Americans who have spent a lifetime paying into the system. Given the structure of the program, that requires taxes from Americans working today. A buyout that required Americans to pay double or triple the amount of Social Security taxes for a finite amount of time in exchange for being released from the program for the rest of their lives could circle the square. Current retirees would be funded by increased Social Security taxes on Americans taking the buyout, and millennials could be saved from a lifetime of paying into a broken system....

May 4, 2019

SSA Had No Time For This Reporter

All day long, 5 On Your Side Investigators have been fighting for answers to your social Security questions all while visiting our nation’s capitol. Prior to coming to D.C., we tried to get an on-camera interview with the top people at SSA. We called. We emailed. They declined. So, we printed your concerns and took them straight to the SSA building in Baltimore. 
“I’m Jonathan Walsh from News 5 up in Cleveland. I’m here to interview somebody about the concerns our viewers have,” we told the security staff that stopped us at the front doors. We were trying to help the agency to understand the problems that are happening. SSA refused to send anyone down to talk to us. We were then kicked out. “We’re just trying to get answers for the folks who keep contacting us,” we told them, but it made no difference. ...
     But he did get an interview with Senator Sherrod Brown and Lisa Ekman, Director of Government Affairs at the National Organization of Social Security Claimants Representatives (NOSSCR).
     Yeah, I know the reporter sounds awfully self important but communicating with the public is part of the job description for Social Security management. If Senator Brown had time for the guy, why didn’t Social Security?

May 3, 2019

Proposed Regs On Hearings Held By Appeals Council Judges Move Forward

     The Office of Management and Budget (OMB) has cleared a package of proposed regulations on Hearings Held by Administrative Appeals Judges of the Appeals Council. Social Security may now publish this proposal in the Federal Register. The public will be allowed to file comments. Social Security must then consider the comments. While comments from the public never seem to matter, the opinions of Andrew Saul, if he is ever confirmed as Commissioner of Social Security, and Congressional leaders do matter.
     We cannot know what is in this proposal. The fear would be that it would mark the beginning of the end for the use of Administrative Law Judges at the agency. No one would get an in person hearing. They would just be some big building holding hundreds of Appeals Council judges all holding video hearings without any pretense of independence.

May 2, 2019

Criticism For Biestek Supreme Court Opinion

     From “Has the Supreme Court Endorsed the Use of Junk Science in the Administrative State?”  published in The Regulatory Review:
In its famous opinion in Daubert v. Merrell Dow Pharmaceuticals, the U.S. Supreme Court took a major step toward assuring that our legal system functions on the basis of sound scientific principles. The Court held that judges must apply criteria based on such principles when they decide whether to admit expert testimony. ...
Daubert requires an expert witness to disclose the data and methodology they relied on as the basis for any opinion they propose to offer in court. The judge then decides whether the data and methodology are sufficiently reliable to support admitting the expert’s testimony. If the opposing counsel challenges the reliability of the data or methodology, the judge conducts a hearing during which opposing counsel has the opportunity to test the reliability of the data and methodology by cross-examining the witness.
Earlier this month, the Court issued a potentially infamous opinion that encourages agencies to rely on junk science. The facts of Biestek v. Commissioner of Social Security are simple. Biestek applied for Social Security disability benefits. At a hearing before an Administrative Law Judge (ALJ), Biestek claimed that he was so disabled that he could not perform the functions required by any job that is available in significant numbers in the U.S. economy. ...
In such a hearing, the government has the burden of proving the availability of a significant number of jobs that can be performed by someone with the age, education, experience, and health state of the applicant. The Social Security Administration (SSA) used a vocational expert as a witness, who testified that there were 120,000 jobs available for “sorters” and 240,000 jobs available for “bench assemblers” that Biestek could perform.
When asked to describe the basis for these numbers, the witness referred to two sources—the Bureau of Labor Statistics (BLS) and private surveys the witness had conducted for other clients. Since BLS does not report job availability statistics with the specificity required to support the number of jobs of a particular type the witness claimed to be available, the only possible basis for those numbers were the private surveys.
Biestek’s lawyer asked the witness to provide the private surveys. The witness refused on the basis that they were part of her confidential client files. ...
The majority [of the Supreme Court] reasoned that the ALJ could rely on the unsupported opinion of the witness for two reasons: the evidence satisfied the substantial evidence test and the Federal Rules of Evidence (FRE) do not apply to SSA disability hearings. The first reason is based on a misunderstanding of the substantial evidence test, while the second is based on a misunderstanding of the reasons why Congress decided that the FRE do not apply to agency hearings. ...
The Court’s opinion in Biestek has the potential to produce an administrative state in which many important decisions are based on junk science. As Jason Johnston has explained, many agencies have relied on junk science as the sole basis for decisions that have serious financial consequences. For instance, some decisions in which the U.S. Environmental Protection Agency (EPA) has required firms to incur billions of dollars in costs are based on findings from researchers who have refused to provide anyone, including EPA, with the data and analysis on which the findings are based. It is impossible to know whether those findings are supported by reliable data and analysis. ...
The Daubert Court did not indulge the naïve assumption that an expert should be believed simply because she has impressive credentials and an impeccable reputation. ...

May 1, 2019

Social Security Wants To Learn Lessons

     A Request for Information posted by Social Security seeking to hear from potential contractors:
Request for Information Requisition to seek a partner to assist in a synthesis of the lessons learned from the tests of new policies (i.e., demonstrations) that SSA has conducted. The contractor will convene a research conference, edit the resulting papers, and publish a volume targeting policymakers and others interested in Social Security Disability Insurance (SSDI), Supplemental Security Income (SSI), and related policies.

Apr 30, 2019

House Ways And Means Democrats Urge Social Security To Negotiate In Good Faith With Employee Union

     A press release from the House Ways and Means Committee:
Today, Ways & Means Committee Chairman Richard E. Neal (D-MA), Social Security Subcommittee Chairman John B. Larson (D-CT), and Worker and Family Support Subcommittee Chairman Danny K. Davis (D-IL) sent a letter to Social Security Administration (SSA) Acting Commissioner Nancy A. Berryhill, highlighting their concerns with SSA’s failure to negotiate in good faith with the American Federation of Government Employees (AFGE), which represents 45,000 of the agency’s employees. In its contract negotiations, SSA is deliberately pursuing several anti-union policies that a U.S. District Court previously blocked. 

“SSA’s employees touch the lives of millions of Americans, ensuring that they are able to receive the benefits they have earned,” wrote Neal, Larson, and Davis. “Every day, they make sure that workers can afford to retire, that people with disabilities can live with dignity, and that widows and dependents are protected from destitution after losing a breadwinner’s income. Undermining SSA employees’ fundamental workplace rights and collective bargaining rights will immediately weaken the agency’s ability to fulfill its mission – delivering quality Social Security services to the public. We will not stand by while that happens.”
The members urged SSA to return to the bargaining table with AFGE and negotiate in good faith.
Full text of the letter is available HERE.

Apr 29, 2019

We Need More Immigration, Not Less

This appears to be expressed as a percentage of GDP

Apr 28, 2019

Youth Transition Pilot Shows Promise

     From the Arkansas Democrat Gazette:
A program aimed at moving Arkansas youths from the disability rolls to employment is showing early signs of success, according to Brent Thomas Williams, an associate professor of counselor education at the University of Arkansas. ...
Williams is principal investigator for Arkansas Promise, a five-year, $36 million program focused on finding jobs and opportunities for Arkansas teenagers who receive Supplemental Security Income. ...
Richard Luecking of the Center for Transition and Career Innovation at the University of Maryland said early reports from all six projects are highly encouraging. ...
After 18 months, participants in all six pilot projects were more successful at finding work than members of a control group. In four cases, they also saw their earnings increase by a statistically significant amount, according to Mathematica Policy Research, a Princeton, N.J.-based organization that analyzed the data.
The Arkansas experiment, which wraps up this year, surpassed the others, however, in terms of youth employment and youth earnings. 
Roughly 2,000 Arkansas youths participated in the research project. Half received Arkansas Promise services; the others did not.
Participants received training, "intensive case management" and assistance finding jobs. An earned income exclusion allowed them to make money without jeopardizing their SSI payments.
Fifty-six percent of the participants in Arkansas Promise said they had held paying jobs, compared with 20 percent in the control group, officials said. Arkansas Promise participants reported earnings in the previous year of $1,960. The control group had earnings of $747. ...
     In general, I'm very pessimistic about programs to encourage disability benefits recipients returning to work. There's a long history of failure. However, I don't feel that way about youth transition programs. Young people have a far greater capacity to make adaptations that allow them to overcome obstacles than do older people. I've seen too many cases where young people with developmental disabilities leave high school without receiving any help in making the transition to employment. Predictably, they fail to hold down jobs. Give them a counselor to help point them in the right direction and help them find employment and then give them a job coach and many can make it.

Apr 27, 2019

My First Social Security Scammer Robocall

     I got my first Social Security scammer robocall yesterday. The message told me that my Social Security account had been "frozen" because of illegal activity on the account in Texas. Of course, I just hung up. Don't fall for this.

Apr 26, 2019

Congressional Hearings On Trustees Report?

     In past years there were Congressional hearings on the annual report of Social Security's Board of Trustees on the state of the Trust Funds on the same day the reports were issued or shortly thereafter. So far this year no hearings have been announced. Maybe it's because the report was issued the day after Easter while Congress in in recess. Maybe there just isn't the interest this year.

Apr 25, 2019

Benefit Statements Are Missed

     From Mark Miller writing for Reuters:
It is one of the most important retirement documents you will ever receive - but fewer Americans are reviewing their Social Security benefit statement nowadays due to cost-cutting and a government push to online services that is falling short.
Until about a decade ago, all workers eligible for Social Security received a paper statement in the mail that provided useful projections of their benefits at various ages, along with reminders on the availability of disability benefits and Medicare enrollment information.
But the Social Security Administration (SSA) decided in 2010 to save money by eliminating most mailings of benefit statements. Instead, we would all be encouraged to obtain this information online.
It is now abundantly clear that this is not working out.
The number of workers accessing their statements online has been just a fraction of those who once were reached by paper statements. And the cost-benefit tradeoff is poor.
Forty-two million Americans have created online accounts with the SSA since they were first offered seven years ago, the agency says, compared with the 155 million paper statements that were mailed in 2010, before the cost-cutting began. Meanwhile, the number of online account-holders who accessed their statements fell dramatically in fiscal 2018, from 96 percent to 43 percent, according to a report issued in February by the SSA’s Office of the Inspector General (OIG). ...

Apr 24, 2019

Some Academic Support For The Grid Regulations

     From The Relationship Between Occupational Requirements and SSDI Activity by Matthew S. Rutledge, Alice Zulkarnain, and Sara Ellen King:
Evaluations of Social Security Disability Insurance (SSDI) applications are based not just on poor health, but in most cases consider the vocational factors of age, education and work experience to determine whether individuals can work. These criteria indicate that SSDI applicants must not only be in poor health, but in poor health that actually conflicts with the requirements of their occupation (and other occupations). Yet little is known about the relationship between SSDI activity and the ability to meet occupational requirements. This study devises a Health Mismatch Index, which is the share of workers in an occupation citing health-related difficulties in the Survey of Income and Program Participation that would prevent them from performing at least one requirement marked as essential for their occupation in the Occupational Requirement Survey. 
The results show that the most common difficulties in required abilities that result in health mismatch are lifting 25 lbs., standing for one hour, or hearing well in a conversational setting. Furthermore, occupations with a high Index have lower earnings, are more exposed to hazardous environments, and place less emphasis on high performance and problem-solving. Jobs with higher rates of workers who experience at least one difficulty with a job requirement have a higher share of workers receiving SSDI benefits within a 16-month period. Although the share of the population receiving SSDI increased from 1997 to 2010, the Index fell from 7.4 to 6.1 percent, suggesting that the increase could have been higher if not for the decline in health mismatch.
     Note that it says the jobs with higher disability rates "place less emphasis on high performance and problem-solving." Another way of putting that would be "low skill" jobs. Why do people take low paying, low skill jobs? Because that's all they're suited to do. To give a dated reference, we don't live in Lake Woebegone. Not all the children are above average. Some are below average. Those are the ones who take the low paying, low skill jobs because that's all they're cut out to do. These jobs usually have higher physical demands that are more difficult for these workers to meet as they get older.

Apr 23, 2019

What's Going On At The Appeals Council With The Lucia Cases?

     I posted on April 8 about the first Appeals Council remand that I had heard of referring to Lucia v. SEC, the Supreme Court case that held that Administrative Law Judges (ALJs) who had not been appointed by an agency head were unconstitutionally appointed. That remand wasn't for a claimant represented by my firm. Since that time I've seen a redacted copy of the Appeals Council order in that case. It looked like a case that was going to be remanded anyway. I have heard of no other Lucia remands at Social Security. I have heard of no cases where the Appeals Council tried to rewrite an ALJ decision to somehow skirt Lucia. Also, I have seen no changes to the HALLEX manual that is used to disseminate new policies and procedures at the Appeals Council.
     After Social Security issued Social Security Ruling 19-1p on Lucia, I assumed that the agency knew what it wanted to do. I'm beginning to think that they still don't know what they want to do although that makes me wonder how the Ruling got issued. 
     More and more Social Security seems like an agency adrift with an Acting Commissioner who feels she lacks the authority to lead even on something like this where there's really only one course of action that's even doable -- remanding all the cases where a Lucia objection was made. There's not enough staff at the Appeals Council to rewrite all those decision, not to mention that doing so probably wouldn't pass muster in the federal courts. How is this a tough decision?

Apr 22, 2019

A Massive Change In Disability Trust Fund Projection

     From a Social Security press release (emphasis added):
The Social Security Board of Trustees today released its annual report on the long-term financial status of the Social Security Trust Funds. The combined asset reserves of the Old-Age and Survivors Insurance and Disability Insurance (OASI and DI) Trust Funds are projected to become depleted in 2035, one year later than projected last year, with 80 percent of benefits payable at that time.
The OASI Trust Fund is projected to become depleted in 2034, the same as last year’s estimate, with 77 percent of benefits payable at that time. The DI Trust Fund is estimated to become depleted in 2052, extended 20 years from last year’s estimate of 2032, with 91 percent of benefits still payable. ...
View the 2019 Trustees Report at
     The change in the estimate for the Disability Trust Fund must be the most massive correction every made by the Chief Actuary in Social Security's long history. That correction tells me that the Disability Trust Fund projection is nearly meaningless. The Chief Actuary doesn't know what's going on. Nobody does.
     By the way, back when the Disability Trust Fund balance was going down, I kept saying that it was coming closer and closer to being in balance, that it might survive even without a legislative fix. We had a legislative fix to temporarily shunt more money into the Disability Trust Fund but I still wonder whether that was necessary. Would the Disability Trust Fund have ever run out of money if nothing had been done?

BOND Experiment A Complete Failure

     While looking for something else, I happened upon a report on the BOND experiment. It was issued last October but Social Security made no effort to publicize it. Here's an excerpt explaining what BOND is or was and what the results have been:
Congress directed the Social Security Administration (SSA) to test alternative Social Security Disability Insurance (SSDI) work rules designed to increase the incentive for SSDI beneficiaries to work and reduce the total amount of SSDI benefits paid to beneficiaries. In response, SSA has undertaken the Benefit Offset National Demonstration (BOND), a random assignment test of alternative SSDI program rules governing work and other supports. BOND tests a $1 for $2 benefit offset applied to annual earnings above the BOND Yearly Amount (BYA)—the annual equivalent of SSDI’s substantial gainful activity amount. As a result, beneficiaries in the treatment group are able to retain some of their monthly cash benefits while earning more than BYA. The benefit offset reduces yearly SSDI benefits by $1 in SSDI benefits for every $2 in annual earnings above BYA (in other words, reduces yearly SSDI benefits by half the amount that annual earnings exceed the BYA threshold). ...
The analysis finds no confirmatory evidence of an impact of the benefit offset on average earnings in either the nationally-representative Stage 1 or in the Stage 2 sample of volunteers. In contrast, the analysis finds confirmatory evidence that, relative to current law, the benefit offset policy increased the average amount of SSDI benefits due to beneficiaries over five years. In the nationally-representative Stage 1, the positive impact on SSDI benefits was $143 per year (or about $12 per month)—an increase of slightly more than 1 percent of the current-law average benefits. ... 
For the nationally representative Stage 1 sample, the benefit-cost analysis found a net social cost of the BOND offset. The very small estimated increases in earnings were not sufficient to offset the deadweight loss from increases in taxes needed to fund larger SSDI benefit payments. Distributional effects were much larger, with SSDI beneficiaries gaining income by receiving larger SSDI benefits and countervailing losses to the Disability Insurance Trust Fund. ...
     In case the verbiage confuses you, the result is clear.  BOND costs more than it saves. Social Security paid out more in benefits without inducing additional claimants to return to work or at least not enough of them to outweigh the additional benefits. BOND, just like all other efforts to induce Social Security disability recipients to return to work, is a failure. I think I understand why Social Security wasn't trumpeting this report.
     I think it's past time to consider the possibilities that Social Security disability recipients:
  • Are generally quite sick
  • Are generally getting sicker as they age -- very few ever improve
  • Have little potential to return to work

Apr 20, 2019

The Gig Economy And Social Security Disability

     I wish we had a good study on how the "gig economy", that is people who work in various sorts of non-traditional employment such as temp work, being an Uber driver, etc., affects Social Security disability. Some researchers associated with the Center for Retirement Research at Boston College have a report out on the subject. Unfortunately, it doesn't answer any questions that seem important to me but, at least, it's a start. Maybe these researchers or others will keep working on it. 
     I'd really like to know whether the existence of the gig economy helps people avoid filing disability claims. Maybe they can't sustain regular, full time employment but maybe they can sustain intermittent employment, so long as they can choose when they work. If it does, is this truly a good thing? Gig employment, from what I've seen, mostly leads to impoverishment. It just takes a bit longer to get there than if you're fully unemployed.

Apr 19, 2019

National Stagger Walk Case

     One of my firm’s legal assistants e-mailed me yesterday afternoon with a question. She had been on the phone with a Social Security employee inquiring about a delay in benefit payment to a client. She had been told that it was a “national stagger walk case.” She wanted to know what that was. It took me a few minutes but I eventually figured out that she must have misunderstood what had been said, that the Social Security employee must have been referring to the Steigerwald v. Berryhill class action on computation of SSI back benefits when the claimant had been represented and there was also a Disability Insurance Benefits claim.  I think I need to get out some information about Steigerwald to the legal assistants at my firm.
     This raises the question: What is going on now with Steigerwald at Social Security? Have they conceded that they’ll have to make the recomputations? How do they plan to do it? How much disruption will this cause?

Apr 18, 2019

Why Wasn't There Anyone At This Town Hall To Challenge Him?

     Tom Reed is the Ranking Republican member on the House Social Security Subcommittee. He recently held a town hall meeting on Social Security in his district. The Olean Times Herald report on the town hall says that Reed was asked about the impending shortfall in the Social Security trust funds. Reed  answered that "We need to make sure we keep the economy humming and get people working.” That means he doesn't want increased taxes which means the only way to deal with the shortfall that is acceptable to him is to cut Social Security benefits, although Reed certainly didn't say this. Congressional Republicans carefully avoid saying that. They always imply it's some sort of puzzle that someone needs to figure out, as if there's some way of dealing with the shortfall that doesn't involve cutting benefits or raising taxes, which is nonsense. Apparently, no one at the meeting challenged Reed on this.

Apr 17, 2019

Some Thoughts On The Declining Number Of Disability Claims

 Why Are There Fewer Social Security Disability Claims Now?

     There has been a 32% decline in the number of disability claims received by the Social Security Administration between the peak year of 2010 and 2018. See the chart below.

     There must be some explanation for this dramatic change. I'm going to explore what might be behind this.

Reduction In Unemployment Doesn't Fully Explain What's Happened

     The most commonly given explanation is the reduction in unemployment between 2010 and 2018, which is shown on the chart below.
      It just makes sense that disabled people would have a harder time holding down a job in a time of high unemployment. 
     The theory that the answer is unemployment appeals to many on the right because it allows them to claim that disability benefits are thinly disguised unemployment benefits. In their view, many of those drawing disability benefits aren't really disabled; they just can't find jobs. Of course, they don't want to give them unemployment benefits either but that's another story. 
     This theory never made sense to me as an explanation for the earlier increase in the number of disability claims. It wasn't what I was seeing on the ground. I did see a few disabled people who had been struggling to hold down a job who became the first to be laid off during the great recession but not many.
    Don't rely upon my anecdotal account of what was going on during the great recession, though. The big problem with the unemployment theory is that while the unemployment rate went down dramatically between 2010 and 2016, the reduction started flattening out in 2017 and there was little or no reduction in 2018 and so far in 2019 yet the number of disability claims filed has continued its steep decline in 2018 and early 2019. Why would that be if unemployment is the answer?
     While it's certainly possible that the reduction in unemployment was a factor in the decline in the number of disability claims, it certainly cannot be the only factor at work.  

No Fewer Disabled People Now

      One possible explanation that has occurred to me is that fewer people regard themselves as disabled than was the case a few years ago. Maybe it's medical advances. Maybe it's more people able to get medical care as a result of the Affordable Care Act. 
     The chart below suggests otherwise. The number of people who described themselves as disabled went up between 2010 and 2016 as the rate of unemployment went down and has stabilized since. That doesn't match up at all with the number of disability claims.

From Federal Reserve Bank of St. Louis

Increased Labor Force Participation Rate Isn't The Explanation Either

     The unemployment rate is only the percent of those who are looking for work who can't find work. People who are neither working nor looking for work don't show up in the unemployment rate. Maybe the improving economy drew more people into the workforce and away from disability claims. However, the chart below suggests that didn't happen at all. The labor force participation rate actually went down as the rate of unemployment went down. That's the opposite of what you would expect if more disabled people were working instead of filing disability claims. If anything, this data undermines the theory that there's a strong link between unemployment and disability claims.
From Federal Reserve Bank of St. Louis

Increased Labor Force Participation By The Disabled Isn't The Explanation Either

      I've wondered whether the disabled population was participating in the labor force at a greater rate even if the rest of the population isn't but that isn't the case. I don't have a chart for it but in June 2010 21.7% of persons with a disability age 16 and over were participating in the civilian labor force while in 2018 20.8% were participating. That's a minor reduction, not an increase. Again, if anything, this data undermines the theory that unemployment and disability claims are closely linked.

Demographics May Be A Part Of The Answer

     The incidence of disability goes up sharply as people age as shown on the chart below from the Urban Institute. Age 50 is an important break point around which the incidence of disability starts going up significantly.
     During the Great Depression and World War II the birth rate in the United States was quite low but that changed dramatically after World War II. However, the number of births didn't eventually just level off. They actually started going down in 1962 and didn't start picking up again until 1979. See the chart below.
U.S. Live Births and Birth Rate
1910 2,777,000 30.1
1915 2,965,000 29.5
1920 2,950,000 27.7
1925 2,909,000 25.1
1930 2,618,000 21.3
1935 2,377,000 18.7
1940 2,559,000 19.4
1945 2,858,000 20.4
1950 3,632,000 24.1
19523 3,913,000 25.1
19533 3,965,000 25.1
19543 4,078,000 25.3
1955 4,104,000 25.0
19563 4,218,000 25.2
19573 4,308,000 25.3
19583 4,255,000 24.5
19593 4,295,000 24.3
19603 4,257,850 23.7
19613 4,268,326 23.3
19623 4,167,362 22.4
19633 4,098,020 21.7
19643 4,027,490 21.0
19653 3,760,358 19.4
19663 3,606,274 18.4
19674 3,520,959 17.8
19683 3,501,564 17.5
19693 3,600,206 17.8
19703 3,731,386 18.4
19713 3,555,970 17.2
1972 3,258,411 15.6
1973 3,136,965 14.9
1974 3,159,958 14.9
1975 3,144,198 14.8
1976 3,167,788 14.8
1977 3,326,632 15.4
1978 3,333,279 15.3
1979 3,494,398 15.9
1980 3,612,258 15.9

     Fifty years after the decline in births was 2012. That's about when the number of Social Security disability claims started going down. Also, by that time, the oldest of the baby boom generation had aged out of Social Security disability because they had hit full retirement age. Maybe there were just fewer people in the most disability prone age group.
     There's reason to believe that this demographic change has something to do with the decline in Social Security disability claims. However, demographics can't fully explain the rapid rise then 32% fall in the number of disability claims. The change in the birth rate in the 1960s wasn't anywhere near that dramatic.

Could Some Of It Be Discouragement?

     I don't have any charts or data to support or undermine this theory but I wonder if some of the change is discouragement -- claimants who delay filing disability claims either because they feel they won't be approved or because they find the process of filing a claim to be too daunting.
     People who stop work on account of illness or injury don't just rush in to file disability claims right away or, at least, few do so. There's usually a gap of at least a few months before they file a claim. It's not unusual for the gap to be years. Does the median gap between onset of disability and the date of filing a Social Security disability claim change over time?
     Those who are considering filing a disability claim often ask "Do I have a chance?" I think people ask the question because they're afraid of being crushed by a denial. My theory is the general fear of denial is affected by the political zeitgeist. If I'm right, people thought that the chances of success with a Social Security disability claim went down after the 2010 election put Republicans in control of the House of Representatives who started pressuring Social Security to deny more claims. I know that before that election I often heard clients say things like "If Social Security approved that lazy guy down the street, why haven't they approved me?" I don't hear that sort of thing so much today. I think it's because people now perceive that it's more difficult to be approved. That's true to some extent but not enough that people should be discouraged about filing a claim. Sitting around doing nothing as one's financial situation crumbles is a bad idea but most disabled people have very mixed emotions about filing a disability claim. It doesn't take much to cause many of them to delay filing a claim based upon a vain hope that their medical condition will improve.
     People may also be discouraged by the increased difficulty in actually filing Social Security disability claims. It became much harder to get through to the agency on the telephone after the 2010 election. The agency's budget suffered. Wait times on the 800 line and at the field offices soared. Yes, it's possible to file some disability claims online but it's a lot harder than filing a retirement claim and you can't file an SSI claim online. On the whole, I'm pretty sure that disability claimants have a harder time filing any kind of claim online than retirement claimants. Disability claimants have, on average, less education, fewer computer skills and greater psychiatric difficulties interfering with their ability to use online resources. Disabled people usually have very mixed emotions about filing disability claims. It doesn't take much to discourage them because they keep hoping they'll get better.
     I would like to see numbers on how the median difference between alleged onset date and claim date has changed over the years. I suspect the gap went up substantially after 2010. Perhaps the data would support my theory. Perhaps not.

In Summation, I Don't Know And I Don't Think Anyone Else Knows

     I wish I had a good explanation for what has happened and what is happening. If anything, I may have somewhat knocked down the theory that it's the unemployment rate without being able to substitute an alternative theory that fully explains what has happened. I'd be interested in the theories that others have. Please give data to support your theories.