May 31, 2019

OIG Report

     Social Security's Office of Inspector General (OIG) has filed its Semiannual Report to Congress. Here's a map from the report showing all of the OIG Cooperative Disability Investigation offices:
Click on image to view full size
     OIG obtained 372 criminal convictions or civil actions in the first half of the fiscal year and many of those did not concern disability benefits.
     By the way, why is it that these are disability investigation offices? Why don't they do investigations of other types of Social Security wrongdoing?

May 30, 2019

Finding Humor In The Death Master File

     Former Social Security Commissioner Michael Astrue gave an interview to This American Life on, of all things, Social Security's Death Master File. The interviewer found the concept of a Death Master File droll.

May 29, 2019

Forum On Social Security Disability

     The Committee for a Responsible Federal Budget has scheduled what they call "a conversation with some of the nation’s top disability experts and policymakers" for June 6 in Washington. Two of the speakers have focused their attention on ways to encourage disabled people to return to work. One speaker is a Democratic staffer for the House Ways and Means Committee and another is a career staffer at the Office of Management and Budget (OMB). Two Senators may speak.

More On SCOTUS Opinion In Smith v. Berryhill

     SCOTUSblog has posted an analysis of yesterday's Supreme Court opinion in Smith v. Berryhill. As usual, it's excellent.

May 28, 2019

Supreme Court Decision In Smith v. Berryhill

     From the syllabus of Smith v. Berryhill, a unanimous Supreme Court decision issued this morning: 
An Appeals Council dismissal on timeliness grounds after a claimant has had an ALJ hearing on the merits qualifies as a “final decision . . . made after a hearing” for purposes of allowing judicial review under §405(g).

The Changing Face Of Social Security's Backlog Problem

     I recently noticed that my firm's database shows that we have more cases awaiting either an initial or reconsideration determination than we have awaiting action by the Office of Hearings Operations. I don't think I've seen this since the 1980s.
    For good reason, we've had a lot of attention to Social Security's hearing backlog but that one is coming down rapidly. I haven't seen the national figures but even though the number of claims filed is down the state agency backlog seems to be growing.  It's certainly not shrinking. I've personally got a couple of cases stuck at the initial level since last July but I'm now getting cases scheduled for a hearing within six months after the request for hearing. Maybe one reason the hearing backlog is going down so rapidly is the increasing backlogs at the initial and reconsideration levels.

May 27, 2019

Memorial Day 2019

May 26, 2019

Why Let The Facts Stand In The Way Of The Story You Want To Present?

     From National Public Radio:
During and after the Great Recession, people turned to disability rolls in large numbers to make ends meet. This accelerated what had been going on for a generation, as the federal government's disability insurance program saw steady growth.
But now, for the first time in decades, the disability rolls are shrinking. More people with disabilities are returning to work and holding on to their jobs. With unemployment at a nearly 50-year low, companies are struggling to find workers. And that means people who had trouble finding a job in the past are suddenly in demand. That includes people with disabilities. ...
It's still unusual for people to leave the disability program and return to work. Less than 1% of recipients do so each year. But the numbers have been growing as the job market has improved. In 2017 more than 51,000 people traded disability checks for paychecks, up from about 32,000 four years earlier. ...
At the same time, aging baby boomers are moving from disability into retirement, and the government has made it harder to qualify for disability benefits. ...
When jobs evaporated during the Great Recession, many people turned to disability as a kind of de facto unemployment insurance. By 2013, nearly 1 out of every 4 workers in parts of Alabama was collecting a disability check. ...
Click on image to view full size
     NPR presents it as a fact that Americans are leaving Social Security disability benefits to go to work but then presents evidence that, in fact, very few people are leaving Social Security disability to go to work. There's been an increase but it has had only a trivial effect. They then present it as an established fact that during the Great Recession people turned to disability benefits as "de facto unemployment insurance" with no proof. Their own graphic demonstrates there's been almost no change in the labor force participation rate by disabled people over the years which completely undermines the story they're presenting. It's like they gathered the evidence about what happened and then decided to ignore it in favor of the simplistic story they wanted to present.
     I mean, just look at their chart! How do you look at that and then say that disabled people are streaming back to work?

May 25, 2019

At Least He Had A Good Reason

     From the Sacramento Bee:
A 97-year-old Arizona woman was last seen in December 2018 — and now local authorities have figured out where she went.
Daniel Shannon, 66, buried his mother Leonie Shannon in the backyard of a San Tan Valley home after the woman died on Dec. 21 rather than reporting his mother’s death, according to a Pinal County Sheriff’s Office news release. That meant that he could keep collecting his mother’s VA and Social Security benefits even though she had died, deputies said.
Shannon was arrested Wednesday on charges of fraud and concealment of a body, though he could face further charges in the ongoing investigation, deputies said.
“Shannon told detectives that he needed to keep getting the benefits to help pay for the patent on his invention,” authorities said.
Asked what the patent was for, Sheriff’s Office spokesperson Navideh Forghani wrote “here is the invention” in an email to McClatchy and shared a link to a 2008 news article with the title “Man invents self-closing toilet.”
That article in the Loveland, Colorado, Herald-Reporter said that Shannon “created a self-closing, self-contained toilet seat, the Smart Lid, which is powered by kinetic energy from lifting the lid, requires no electricity and can be installed like any standard toilet seat.” ...

Read more here:

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May 24, 2019

On This Day In History

Benjamin Cardozo, author of Helvering v. Davis
     On this day in 1937 the Supreme Court upheld the constitutionality of the Social Security Act.

Black Nomination Advances

     The Senate Finance Committee voted unanimously yesterday to report out favorably the nomination of David Black to become the Deputy Commissioner of Social Security. I have no idea what the schedule will be for consideration by the entire Senate of this nomination or that of Andrew Saul to become Commissioner of Social Security. That's up to the Senate Majority Leader.

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 18, 2019

The South Likes Ava But The West Likes Emma; Liam Is Big In A Lot Of States

Click on images to view full size

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.