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.

We Need More Immigration, Not Less

This appears to be expressed as a percentage of GDP

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.

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.

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.

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). ...

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.

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?

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 www.socialsecurity.gov/OACT/TR/2019/.

     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

Happy Easter

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.

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?

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.

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.

https://www.ssa.gov/OACT/STATS/dibGraphs.html

     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.

https://data.bls.gov/timeseries/LNS14000000

       

      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.

Unacceptable Service Draws Criticism

     From the Rochester Democrat and Chronicle:

Saying that the Rochester field office has one of the poorest records in the state, Sen. Charles Schumer on Monday called on the Social Security Administration to increase staffing to address long wait times and a backlog of cases.

Schumer said the Administration's internal reporting showed that the Rochester office only answered about 41 percent calls from customers seeking help on the phone in January.  Those that ventured into the office had to wait an average of 30.4 minutes to be seen by a screener and hours longer to meet with a claims representative to discuss their problem.  Hundreds simply gave up and went home. ...

Fred Happel’s Place In Social Security History

Happel’s original design

     From Social Security’s website:

Fred Happel of Albany, N.Y. designed the original Social Security card back in 1936. He was commissioned by the Social Security Board to submit three designs, one of which was ultimately selected. Mr. Happel was paid $60 for his work. (Mr. Happel was a skilled artist who also designed the famous "Flying Tigers" logo used by General Chennault's forces during World War II.)

They Were Waiting For The Right Person To Call

     From the Milwaukee Journal Sentinel:

Imagine paying your utility bill and having the cashed check to prove it, but still getting threatened over and over with having your power turned off.

Wendy Arnold ran into a scenario like this, but it was the giant Social Security Administration that couldn't figure out that she had sent back an overpayment of disability benefits for her 27-year-old son, despite the evidence she kept waving at them. 

What part of the $17,615 she mailed to the SSA didn't they understand? They kept telling Arnold, 62, her son's payee, to pay up and threatening to dock her own Social Security benefits if she didn't.

This has been going on for eight months. ...

 I'm happy to report the problem suddenly is fixed, and all it took was one news media contact to the Social Security Administration. Within a couple of hours of my call, Arnold received a voicemail from a Social Security rep saying, "We have zeroed out the overpayment that was on your son's record, and it's currently reflecting a zero balance now." ...

No Match Letter Worries

     Fruit growers are starting to worry about "no match" letters from Social Security telling them that an employee's name and Social Security number don't match.

How Is A Disabled Person Supposed To Look?

     From Imani Barbarin, writing for Forbes:

A new policy proposal by the Trump Administration calls for the surveillance of disabled people’s social media profiles to determine the necessity of their disability benefits. The proposal, which reportedly aims to cut down on the number of fraudulent disability claims would monitor the profiles of disabled people and flag content that shows them doing physical activities. When it comes down to it, the policy dictates that disabled people shouldn’t be seen living their lives for fear of losing vital financial aid and, possibly, medical care. ...

The proposal, like many of its policies regarding disabled people, shows a fundamental misunderstanding of disability and takes advantage of how social media operates in order to cut them off from the support they need. Disabled people don’t all function in the same way and disability is not a set of stereotypes like taking selfies staring longingly at the world. They live lives while managing their energy for the activities they can handle and trying to make those they cannot more accessible. ...

The truth about disability is that it isn’t a series of down moments but both highs and lows that comprise their lives. Simply because disabled people are seen exercising, dancing or shooting hoops does not mean that they have the ability to sustain that level of energy all day. ...

New HALLEX Provision Makes Me Wonder

     From material newly added to Social Security's HALLEX manual, which contains policy and procedure material for Administrative Law Judges (ALJs) and the Appeals Council:

When an ALJ approved a final draft decision but is unavailable to sign the decision, the HOCALJ has the authority to sign the final decision and any associated orders if the ALJ gave the HOCALJ written authorization to sign the decision on the ALJ's behalf. Any such written authorization must be associated with the claim(s) file and must include the following affirmative statements:

• The ALJ has read the decision and any associated order;
  
• The ALJ concurs with the decision (and any associated order) as written or concurs with the decision (and any associated order) with specified changes previously reviewed and approved by the ALJ before authorization; and
  
• “HOCALJ [NAME]” is authorized to sign the decision and any associated order on the ALJ's behalf.
  

The ALJ may give written authorization via email, fax, or any other writing. However, unless the authorization is provided through an official agency email, the ALJ must sign the written authorization with his or her “wet” signature (facsimile transmission is accepted). The ALJ may not use a rubber stamp or other mechanical signature. A HOCALJ may not use this procedure on his or her own initiative without specific written authorization from the ALJ.

If all of the requirements are met, the HOCALJ may sign the decision and any accompanying order.

     Previously, the rule had been that another ALJ subbing for a departed ALJ could sign only a fully favorable decision. A denial decision could not be sent out without a new hearing. I think this new provision is legally dubious. It treats the hearing as if it's a meaningless formality.
     Oddly, in North Carolina in recent months we've had several ALJs suddenly retire with no advance warning when they had hearings scheduled and decisions to be written. There were in the office on Friday and gone on Monday. The reports we've received indicate no dramatic health development in any of the cases. Each of the ALJs involved was an outlier, in one cases approving claimants at a low rate and in the rest of the cases approving claimants at a high rate. In one case there were signs of pressure from the agency but in that case I think there was universal agreement that pressure was merited because the ALJ, who approved only a low percentage of claimants, had a huge and growing backlog of decisions to be issued. In the other cases, there has been no sign of pressure. However, this cluster of cases seems very odd. I haven't heard of other examples from other parts of the country but this new provision in HALLEX makes me wonder.

First Lucia Remand

     I have received the first report of a case remanded by Social Security's Appeals Council on account of the Supreme Court decision in Lucia v. SEC. It was sent back to a different Administrative Law Judge.

Social Security Offfers Employees Early Retirement -- Except For ALJs

     From Federal News Network:

For at least the third time in the last seven years, the Social Security Administration is trying to reduce the average age, if not the size, of its workforce.

SSA sent out a note to all employees April 2 saying it would be offering Voluntary Early Retirement Authority (VERA) to all employees except for administrative law judges. ...

Employees must have at least 20 years of federal service and be at least 50-years old, or have at least 25 years of federal service regardless of age.

     It's interesting that ALJs are excluded. The Office of Hearings Operations, where the ALJs work, is probably the only part of Social Security with a declining backlog.

New Hearing On Enhancing Social Security

     From a press release:

House Ways and Means Social Security Subcommittee Chairman John B. Larson (D-CT) announced today that the Subcommittee is holding the third hearing in its series on “Protecting and Improving Social Security.” The hearing, “Comprehensive Legislative Proposals to Enhance Social Security,”  will take place on Wednesday, April 10, 2019, at 9:00 a.m., in room 2020 of the Rayburn House Office Building.

SSA Employee Alleged To Have Created Fictitious Identities So He Could File False Claims

     From a press release:

A federal grand jury has indicted Cheikh Ahmet Tidiane Cisse, age 43, of Baltimore, Maryland, on federal charges in connection with a scheme in which Cisse allegedly filed fraudulent claims for Social Security benefits using fictitious identities and the identities of actual individuals, and attempted to collected over $236,000.  The indictment was returned on April 3, 2019. ...

Cisse was employed by the Social Security Administration (SSA) as a Claims Specialist.  The 14-count indictment alleges that between July 2018 and March 2019, Cisse used his position at SSA to create fictitious identities within the SSA’s social security number database in order to file fictitious claims for benefits.  The indictment alleges that Cisse used both fictitious identities and the identities of actual individuals to file the fraudulent claims and stole or attempted to steal over $236,000 from SSA.

The indictment alleges that Cisse would input false information into SSA systems indicating that he had witnessed original documents, such as birth certificates, and marriage and divorce decrees, when in fact he had not.  In one instance, when SSA withheld payment due to suspected fraud, the indictment alleges that Cisse contacted SSA’s payment center and falsely relayed that the purported beneficiary had called inquiring about the whereabouts of the payment, which caused the payment center to release the funds.  Cisse allegedly directed payments on the fraudulent claims into accounts he controlled, then spent the funds through cash withdrawals and retail purchases. ...

     I've said it before. Social Security spent a lot of money getting sophisticated software intended to catch sophisticated schemes by attorneys representing Social Security claimants. It looks like what they've found instead has been some not so sophisticated Social Security employee schemes. Anybody at the operational level could have told you, Eric Conn was a bizarre one off.

Websites Back Up

     I had posted earlier this week that Social Security’s websites showing the number and total amount of attorney fees that Social Security has paid each month and contact information for its payment centers had disappeared. They’re back up now. I have no idea what happened.

More Disability Recipients Returning To Work?

     Scott Horsley at National Public Radio is looking for stories of people who have gone back to work after being on Social Security disability benefits. He thinks that an increasing number are going back to work. I don't think that's accurate.

Nuggets From NADE Newsletter

     The National Association of Disability Examiners (NADE), an organization for personnel who make initial and reconsideration determinations for Social Security, has posted its Spring 2019 newsletter. Here's a nugget from a summary of a meeting with Jim Julian, Social Security's Deputy Associate Commissioner for the Office of Disability Policy:

... Disability Modernization: This is an initiative to update our vocational regulations to reflect changes in medical and vocational practice, technology, and the work force.

SSA [Social Security Administration] is in the early stages of studying cases to learn the impact of potential Vocational Rules Modernization (VRM) policy updates.

The agency will use this information to develop and publish a notice of proposed rulemaking.  ...

     And here's a nugget from a write-up of a  meeting with Grace Kim, Acting Deputy Commissioner of Operations and John Owen, Associate Commissioner for the Office of Disability Determinations: 

A tool being developed for disability adjudicators in the DDS [Disability Determination Services] and currently being piloted in the Iowa DDS is the IMAGEN (Intelligent Medical-Language Analysis GENeration) tool. IMAGINE is a tool to visualize, alert, summarize, search and more easily identify relevant clinical content in medical records. IMAGEN provides decisional guidance and enables disability adjudicators to leverage various machine learning technologies and predictive analytics to support data driven decisions.This program will eventually incorporate other Artificial Intelligence (AI) functions and have the ability to learn new information, adapt and evolve.

FY 2018 Waterfall Chart

     Here's the fiscal year 2018 "waterfall chart" showing the outcomes of Social Security disability claims:

Click on image to view full size

     Note all the Administrative Law Judge dismissals. I expect most of this is related to how difficult it is to win. Attorneys who represent Social Security disability claimants don't take the case of everyone who seeks their help. We only work with those we deem to have a reasonable chance. If you're a claimant and you call several attorneys seeking representation and they all turn you away, what are you going to do? Probably you won't show up for your hearing and your case will get dismissed. Attorneys are, to some extent, gatekeepers. It's a role I'm uncomfortable with but there's no other way to make a living representing Social Security disability claimants in such a harsh environment.

Accidental Or Intentional?

     I check in each month to see the number and total amount of fees that Social Security paid the prior month. Social Security has been posting that data for many years. Now, that website is gone with no explanation. It's not just that. Social Security had posted contact information for its payment centers. That website is gone as well.

     This could be the result of some reorganization in Social Security's web presence but it would have to be a clumsy reorganization. There should be links to new URLs. There's no sign that I can find that these have been moved to new locations. They've just disappeared.

     Have other useful parts of Social Security's web presence disappeared? Does anyone know what's going on? If these have been removed intentionally, I'd have to call it a rather petty act.

Acting Commissioner's Budget

     The President has submitted to Congress his proposed budget for Fiscal Year (FY) 2020 but since the Social Security Administration became an independent agency the Social Security Commissioner has been required to submit his or her own proposed budget for the agency. I'm almost surprised that the Acting Commissioner could work up the gumption to request anything beyond what the President has proposed but she has. Buried at the very end of the President's budget is the Acting Commissioner's proposed budget. She proposes $13.48 billion, about half a billion more than the President requested.

     Of course, by the time there is any serious consideration of Social Security's operating budget, there may be a confirmed  Commissioner whose opinions might be of some modest consequence.

The 6th Circuit Has Spoken So Let's Put These Claimants Back On Benefits

     From WLEX:

... On Sunday, attorneys filed a pleading in Federal Court seeking class action relief for the more than 800 former clients who lost their Social Security benefits as a result of the largest fraud case in the history of the agency.

The move comes after the U.S. 6th Circuit Court of Appeals denied the agency’s request for a rehearing of a November decision.

That decision found the Social Security Administration’s actions were unconstitutional when it tossed all medical records from four doctors associated with Conn’s scheme. As a result, hundreds of former clients lost their benefits.

“We’re hoping that, as of Friday, the Social Security Administration will acknowledge these hearings were unconstitutional and restore the benefits of 800 to 900 people up here,” said Ned Pillersdorf, an attorney who has represented former clients of Conn’s. ...

     It's not completely clear from this article but the class action relief sought at the moment is for the claimants involved to be placed back in payment status.
     My prediction is that Social Security will stall, saying they need more time to consider whether to ask the Supreme Court to hear the case. Ultimately, they won't ask for Supreme Court review because there is no clear reason why the Supreme Court would hear the case but the agency can delay resumption of benefits for these claimants for several months this way. No one at Social Security wants to be responsible for pulling the plug on their Eric Conn debacle. They'll want to let it wait until there's a confirmed Commissioner.

OHO Backlog Coming Down

     Below is the monthly Caseload Analysis Report for Social Security's Office of Hearings Operations (OHO) for the month ending February 22, 2019. It was obtained by the National Organization of Social Security Claimants Representatives (NOSSCR) and published in their newsletter, which is not available online to non-members. Click on the image to view full size.

     Note in the far right hand column the number of receipts daily per available ALJ for the first six months of fiscal year 2019 -- 1.50. Note a bit further down in that column the ALJ dispositions daily per available ALJ -- 2.22. That means that each month OHO is processing about one and one-half months work. You can actually see that number further down the column as the DISP/REC Ratio -- 1.49. We started out with horribly high backlogs and we still have an unacceptably high backlog but while it's taking time the backlog is coming down rapidly.

     By the way, note the amount of overtime hours at OHO. Something tells me that number is going to go down as the backlog goes down. The field offices, teleservice centers and payment centers need help but giving them OHO's overtime won't be much more than a drop in the bucket of their needs.

    

SCOTUS Rules On Biestek

     The Supreme Court has issued an opinion in Biestek v. Berryhill, a Social Security case. Here's an excerpt from the Supreme Court's syllabus of its opinion:

  ... Biestek proposes a categorical rule that the testimony of a vocational expert who refuses a request for supporting data about job availability can never clear that bar. To assess that proposal, the Court begins with the parties’ common ground: Assuming no demand, a vocational expert’s testimony may count as substantial evidence even when unaccompanied by supporting data.

If that is true, is it not obvious why one additional fact—a refusal to a request for that data—should make an expert’s testimony categorically inadequate. In some cases, the refusal to disclose data, considered along with other shortcomings, will undercut an expert’s credibility and prevent a court from finding that “a reasonable mind”could accept the expert’s testimony. But in other cases, the refusal will have no such consequence. Similarly, the refusal will sometimes interfere with effective cross-examination, which a reviewing court may consider in deciding how much to credit an expert’s opinion. But other times, even without supporting data, an applicant will be able to probe the strength of the expert’s testimony on cross-examination.Ultimately, Biestek’s error lies in his pressing for a categorical rule, applying to every case in which a vocational expert refuses a request for underlying data. The inquiry, as is usually true in determining the substantiality of evidence, is case-by-case. It takes into account all features of the vocational expert’s testimony, as well as the rest of the administrative record, and defers to the presiding ALJ, who has seen the hearing up close.

     By the way, here's an excerpt from the dissent of Justice Gorsuch, joined by Justice Ginsburg:

 ... Veteran Social Security practitioners must be feeling a sense of déjà vu. Half a century ago, Judge Henry Friendly encountered Kerner v. Flemming, 283 F. 2d 916 (CA2 1960). There, the agency’s hearing examiner offered “nothing save [his own] speculation” to support his holding that the claimant “could in fact obtain substantial gainful employment.” Id., at 921. The Second Circuit firmly explained that this kind of conclusory claim is insufficient to meet the substantial evidence standard. In response,the Social Security Administration began hiring vocational experts, like the one in this case, to document the number of jobs available to a given claimant. But if the government can do what it did in this case, it’s hard to see what all the trouble was for. The agency might still rest decisions on a hunch—just so long as the hunch comes from an agency contractor rather than an agency examiner. ...

     Justice Sotomayor also dissented separately but mostly agreed with Justice Gorsuch. It sound odd for Gorsuch, Ginsburg and Sotomayor to be on the same side but Social Security cases don't fall easily into some simple liberal-conservative dichotomy.