Availability Of Representation At Social Security Needs Some Attention

     The Administrative Conference of the United States (ACUS) is a federal advisory body that makes recommendations for federal agencies, generally dealing with process issues in administrative rule-making and adjudication. ACUS is currently studying how agencies can improve representation in cases pending for administrative adjudication.

    Let me suggest that access to representation at Social Security could stand some attention. You say, "How can that be? I've seen TV ads for Social Security attorneys." First, you probably haven't seen nearly as many ads now as there used to be. The number of attorneys handling the cases is down dramatically. Profit margins are down. Television advertising is no longer cost effective for most firms. Second, and more important, while it's easy for SOME Social Security disability claimants to obtain representation, it's hard for MANY others to obtain representation. If you're 55 and older, you'll probably find an attorney without difficulty. If you're under 50, it may be difficult. Some firms explicitly refuse to take on cases of any claimants who are under 50 or 55. Almost all others are careful about taking on clients who are under 50. This makes sense as a business matter since profit margins are low. The chances of success are significantly lower for younger claimants. You can make money on clients who have, let's say, a 60% chance of success but you can't make money on clients with a 40% chance of success. Does that mean that younger people don't deserve representation? No, most of them deserve a fair chance at proving disability. A 40% chance of success doesn't equal a frivolous case. It's still a case that the claimant should have representation on, especially since that claimant needs more help, but, for the most part, he or she can't get it.

    I hear ALJs decry the number of no-shows for hearings. Do they notice how many of those cases are claimants under age 50 who are unrepresented? There's a reason those claimants don't show up. They got discouraged because they couldn't find attorneys even though they would have some reasonable chance of success if they were represented.. That's not good for those claimants and it's not good for the system.

    How do you make me as an attorney who represents Social Security disability claimants more interested in the cases of younger claimants? The only solutions that I know of are to make the cases less difficult to win or to let me charge a higher fee when we do win. 

    Don't dismiss consideration of whether it's too hard for younger disability claimants to get approved. My perception is that over the years that age has assumed a greater and greater weight in determining disability. I get the feeling that attorneys screening calls from prospective clients aren't the only ones applying quick and ready rules of thumb. Would anyone deny that problem exists at the initial and reconsideration levels? Has it crept into ALJ behavior? Age certainly should be important. People naturally become less adaptable as they age. (If you don't understand this, just wait. You'll get older and you'll understand eventually.) However, my impression is that age is too big a factor now. Younger claimants don't get a fair shake. If you're in severe pain, it doesn't matter whether you're 25 or 65, you're not going to be able to work. We're not giving enough consideration to the effects of cognitive limitations and mental illness, which make adaptation difficult even for younger people. We're expecting more of people than is realistic.

    Please, if you're a Social Security employee who thinks Social Security attorneys are foolish or mean or unprofessional for not taking on more cases of younger individuals, leave the agency and start representing claimants yourself. You'll find plenty of younger clients. We'll see how long you last.

Social Security Loses A Lot In Federal Court

     The Administrative Conference of the United States (ACUS) compiles a yearly report on the attorney fees paid by federal agencies under the Equal Access to Justice Act (EAJA) to those who sue them or are sued by them when the court determines that the agency's actions were not "substantially justified." 

     The Fiscal Year 2019 report has come out. It shows that the Social Security Administration paid out a total of $45,842,213.45 in 8,223 cases, an average of $5,574.88 per case. To give a comparison, the agency that paid out the second most dollars was the Department of Commerce with $6,068,000.00 in just three cases. In terms of numbers, the Department of Homeland Security was second at 46 cases. Overall, Social Security accounted for 99% of the number of EAJA awards and 78% of the dollar amount of all EAJA awards.

Interesting Study On Federal Court Litigation

     The Administrative Conference of the United States (ACUS), a federal agency that does legal research and makes recommendations for federal agencies, has released A Study of Social Security Litigation in the Federal Courts. Here are a few excerpts (footnotes omitted): 

• This investigation revealed one obvious fact: federal judges know little about the path social security claims follow from initial filing to their chambers.
• District and magistrate judges tend to march in lockstep within districts. Districts with one judge who remands a lot of cases to the agency tend to have other judges who do so as well. Very few individual judges have decision patterns that depart significantly from what their district colleagues produce.
• Circuit boundaries are associated with a good deal of district-level variation. For example, the fact that the Eastern District of New York remands more cases than the Southern District of Florida seems to be significantly related to the fact that, over all, districts in the Second Circuit remand a greater share of cases than do districts in the Eleventh Circuit.
• A number of factors – judicial ideology, the degree of a district’s urbanization, the assignment of cases to district versus magistrate judges, ALJ [Administrative Law Judge] case loads, and others – have little association with case outcomes. 
• Most of the twenty-four ALJs we interviewed subscribe to what one labeled a “just in time” approach to case review.  An ALJ using this method first looks at a case anywhere from one day to a week before the hearing. 
• The agency can always appeal the district court’s decision, but it almost never does so. The courts of appeals might receive somewhere in the neighborhood of 650 social security appeals each year, no more than twenty of which are affirmative appeals by the Commissioner. In FY [Fiscal Year] 2014, the agency filed exactly one appeal. Several reasons might explain this low incidence of appeal, but one institutional fact is surely important: the Solicitor General of the United States must sign off on any appeal the SSA [Social Security Administration] might want to take.
• The hearing office that we studied in the low remand district came off as a model of institutional health. “I can’t begin to think of a better place to work,” one decision writer told us. The office has stable management, with a long serving Hearing Office Chief Administrative Law Judge (“HOCALJ”), and ALJs tend to stay once they are assigned there.
• Most of the hearing office personnel from the high remand district described a very different and more problematic work environment. Several ALJs complained of poor quality decision writing, and several expressed a preference for decisions written off-site in national case assistance centers. An ALJ described unstable, volatile management at a hearing office for much of the past decade, and ALJs and a claimant representative complained of the office’s capacity to perform basic administrative tasks. Some personnel described communication difficulties between ALJs and decision writers.
• Recommendation 1. Congress should give the Social Security Administration independent litigating authority. 
• Recommendation 2. Congress should enact enabling legislation to clarify the U.S. Supreme Court’s authority to promulgate procedural rules for social security litigation. The Judicial Conference should authorize the appointment of a social security rules advisory committee, and the U.S. Supreme Court should approve a set of social security rules drafted by this committee.
• Recommendation 3. A uniform set of procedural rules for social security litigation should contain (a) a rule requiring the claimant to file a notice of appeal instead of a complaint; (b) a rule requiring the agency to file the certified administrative record instead of an answer; (c) a rule requiring the parties to exchange merits briefs instead of motions; (d) a rule setting appropriate deadlines and page limits; and (e) a rule creating a presumption against oral argument. 
• Recommendation 4. The Administrative Office of the United States Courts, the Federal Judicial Center, the Administrative Conference of the United States, and the Social Security Administration should cooperate on several initiatives to improve communication among the agency, claimant representatives, and the judiciary, and to educate the judiciary in important aspects of the claims adjudication process. These initiatives should include the creation of social security standing committees for each district and the drafting of an introductory manual on social security law and processes.
• Recommendation 5. Congress should not replace the existing system of judicial review with a specialized court for social security appeals. The Appeals Council should issue opinions in a set of appeals each year that will benefit from Chevron deference and thereby reduce circuit-level variation. 
• Suggestion 1. The agency should investigate further the relationship between hearing office performance and work environment, on one hand, and remand rates in district courts, on the other. 
• Suggestion 2. The agency should add bottom-up, localized experiments to their quality assurance initiatives. This experimentation could include a pilot project in several hearing offices that uses district court decisions for guidance and critique.
• Suggestion 3. The Social Security Administration and the Administrative Office of the U.S. Courts should provide the federal judiciary with a database listing district and magistrate judge decision rates. 
• Suggestion 4. The Social Security Administration should attempt to quantify the “false positive phenomenon,” or the number of court remands that, once adjudicated again, do not result in the payment of benefits. 
• Suggestion 5. To the extent possible, the Social Security Administration should require that hearing offices assign court remands to the same decision writers who worked on the cases the first time.
• Suggestion 6. The Social Security Administration should study the issue of an OGC [Office of General Counsel] attorney’s ethical obligations and, where appropriate, provide clearer guidance.
• We nonetheless believe that only a dramatic reduction in ALJ caseloads could permit significant, across-the-board improvements in decision-making quality sufficient to cause the federal court remand rate to plummet sharply. To avoid a spike in the backlog of claims, the size of the ALJ corps would have to increase. Ultimately, this may be the most important reform of all.

Click on chart to view full size

A Novel Idea

     Henry Aaron and Lanhee Chen have a novel idea for how to deal with the terrible hearing backlog at Social Security. Turn over the process for vetting applicants to become Administrative Law Judges (ALJ) to some other agency, perhaps the Administrative Conference of the United States (ACUS). 
     This assumes that Social Security has really been wanting to hire more ALJs for years but has been held up by the Office of Personnel Management (OPM) that persistently fails to provide the agency with an adequate number of ALJ candidates and the only solution is to take it out of OPM's hands. The first problem with this theory is that Congress recently passed legislation providing:

Notwithstanding any other provision of law, the Office of Personnel Management shall, upon request of the Commissioner of Social Security, expeditiously administer a sufficient number of competitive examinations, as determined by the Commissioner, for the purpose of identifying an adequate number of candidates to be appointed as Administrative Law Judges ... The first such examination shall take place not later than April 1, 2016 and other examinations shall take place at such time or times requested by the Commissioner ...

     Why isn't that enough? Are we already assuming that OPM will fail to do what it has been explicitly ordered to do? Wouldn't transferring this responsibility to ACUS just cause more delay as ACUS struggles to get up to speed?
     The second problem is that there is reason to question how much delay OPM has caused. If you look around the Social Security Administration there are backlogs everywhere. Has Social Security really, really wanted to hire far more ALJs only to be held up by the dastardly OPM or is the bigger part of the problem lack of budget and lack of will at Social Security? Take a look at the Appeals Council. There's a huge backlog there. OPM is no obstacle to hiring there. Why haven't they hired more?

     The third problem is that anyone who thinks that ACUS can take on this job must not know much about ACUS. ACUS arranges for studies of administrative issues and holds conferences on these issues. I'm not aware of them ever taking on any line responsibility for anything. It's hard to imagine these academics wanting to take on such a responsibility or being able to do so effectively. It would be like turning over the responsibility for running a publishing company to the English department of some university. Yes, publishers and English professors are both interested in the written word but that's about the extent of the overlap.

ACUS Seeks Consultant

     From a Request for Proposals issued by the Administrative Conference of the United States (ACUS):

The Administrative Conference is seeking a consultant or consultants to undertake a research project that will study federal court review of social security disability insurance and supplemental security income cases and make related recommendations. ... 
The study should : 

• Review and analyze the Social Security Act, as well as SSA’s implementing regulations, policies, and practices for adjudicating social security disability claims, including the standards of appellate review. Relevant academic literature should also be reviewed and analyzed. 
• Evaluate federal court interpretations and applications of SSA’s rules and regulations governing social security disability claims, noting patterns that show consistencies or inconsistencies among appellate and district courts. 
• Survey federal court practices and procedures for handling social security cases — including the Federal Rules of Civil Procedure and local rules and policies of individual federal courts — to identify varying approaches and differential impacts. 
• Examine SSA’s acquiescence rulings and how the agency applies decisions of federal appellate courts that are at variance with SSA’s national policies. 
• Survey or interview federal officials responsible for defending the agency’s litigation or administering its programs, as well as judges and lawyers, as appropriate. Given the breadth of the potential research, project submissions should offer concrete substantive proposals to address these topics and frame the scope of work. ...

     Hint to anyone wanting to submit a proposal: Paul Verkuil, the chairman of ACUS, has been calling for an Article I Social Security court for many years. Another hint: Verkuil seems to exhibit a concern that too many claims for Social Security disability benefits are being approved. A third hint: Harold Krent might have the inside track to get this contract.

ACUS Recommendations

     The Administrative Conference of the United States (ACUS) has issued its recommendations for "Improving Consistency in Social Security Disability Adjudications." In reading this document, it's quite obvious that ACUS thinks that too many claims are being approved by Administrative Law Judges (ALJs) and Something Must Be Done. It's also obvious that even after studying Social Security, ACUS barely has a handle on what happens at the agency but, still, Something Must Be Done. Anyway, here is a summary of the recommendations with my comments in brackets and bolded after each recommendation:

• Require attorneys and others representing claimants to submit pre-hearing briefs [Why?]
• "Expand" the use of video hearings [How? Why?]
• The Appeals Council should issue "Appeals Council Interpretations" with "greater frequency." [What's an Appeals Council Interpretation? I've never seen any document by that name. What makes ACUS think that Social Security management trusts the Appeals Council to issue policy guidance to ALJs.]
• Publish selected ALJ or Appeals Council decisions to serve as model decisions. [ACUS doesn't realize that ALJ decisions are mostly boilerplate disseminated by Social Security management.]
• Allow even more ALJs to serve even longer details with the Appeals Council. [Why?]
• Expand "own motion" Appeals Council review based upon "announced, neutral and objective criteria." [You don't understand, ACUS, that keeping the criteria (which are already used) a secret is of primary importance to Social Security. They can't tell the world what their criteria are because there's a good chance the world won't like the criteria, not to mention the fact that attorneys and ALJs will find ways to slide around criteria if we know what they are. You also don't understand, ACUS, that the Appeals Council doesn't have anything like the manpower needed to do more "own motion" review. They can't keep up with their workload as it is.]
• "SSA should revise its regulations ...to eliminate the controlling weight aspect of the treating source rule in favor of a more flexible approach based on specific regulatory factors." [Why? Really, why? Other than the fact that you'd like to see fewer claims approved, what is the basis for this recommendation? This is not happening with a Democrat in the White House. Probably not happening even with a Republican in the White House. Social Security would have a hard time explaining or justifying such a change. The fact that appellate courts all over the country have forced the treating physician rule on Social Security should tell you that the treating physician rule makes a lot of sense to a lot of people. If the agency is going to change this it's going to have to come up with reasons that go beyond saying it's based on the agency's "adjudicative experience." The agency has gotten away with that "explanation" in the past but I don't think it'll work on something so prominent and so easily understood by laypeople.]

ACUS Draft Report

     From a draft report of the Administrative Conference of the United States (ACUS) (emphasis added):

In order to promote greater decisional consistency and streamline the adjudication process at the ALJ [Administrative Law Judge] hearing stage, SSA [Social Security Administration] should consider: 

(a) requiring claimants or their representatives to submit pre-hearing briefs in a standardized format that, among other things , summarizes the medical evidence and justification for claimants’ eligibility for benefits; 
(b) expanding the use of video hearings, in a manner consistent with sound technological practices, that balances improved efficiency (i.e., timeliness and costs of adjudication) and fairness of the proceedings and participants’ satisfaction with them. SSA may wish to offer incentives to claimants who opt for video hearings, such as faster scheduling of hearings (as compared to in - person hearings) or more convenient hearing locations; and 
(c) exploring the assignment of decisionwriters and case technicians to specific ALJs in a hearing office (with Hearing Office Directors continuing to supervise such support staff ), while maintaining flexibility for changes in technological and operational needs....

Expanding “Own Motion” Review. In order to focus attention on the decisions that are most likely to warrant review, thereby enhancing both efficiency and programmatic consistency, SSA should expand the Appeals Council’s use of own motion review in a manner consistent with ALJ decisional independence. If necessary to achieve this goal, SSA should consider revising its existing regulations through notice - and - comment rulemaking. The Appeals Council should use published neutral and objective criteria, including focused statistical sampling , to identify those ALJs whose decision rates for allowances or denials place them significantly outside the rates of the majority of their peers. SSA must also ensure that selection of review criteria is do ne without referenc ing, or targeting, particular ALJs or other decisionmakers, and that inclusion of cases in such review does not serve as the basis for evaluation or discipline. ...

SSA should consider revising its regulations to eliminate the controlling weight aspect of the treating source rule. Instead, SSA should consider giving ALJs greater discretion and flexibility when determining the appropriate weight to afford opinions from treating sources, in line with the factors enumerated in the current regulatory scheme for evaluation of opinions from medical professionals who are not deemed “treating sources.”

      I wonder if the ACUS Chair will be testifying at the House Social Security Subcommittee hearing this week.

ACUS Wants To Study "Duty Of Candor And The Submission Of All Evidence"

     From a Request for Proposals (RFP) announced by the Administrative Conference of the United States (ACUS) as best I can tell on July 12:

The Administrative Conference is seeking a consultant to undertake a research project that will consider the Social Security Administration’s (SSA) statutory authority and current regulations regarding the duty of candor and the submission of all evidence in Social Security disability claims. Proposals are due by 6:00 pm Eastern time on July 16, 2012. ...

SSA [Social Security Administration] has requested that the Conference study its statutory authority1 and regulations2 regarding the duty of candor and the submission of all evidence in Social Security disability claims. Specifically, the agency is concerned about reports that some claimants’ representatives routinely withhold from the government, medical records which they believe to be potentially damaging to claimants’ claims.3 Accordingly, the Conference wishes to conduct a focused study of SSA’s statutory authority and current regulations regarding the duty of candor and the submission of all evidence, such as a claimant’s medical records and/or other evidence necessary to accurately develop the record in a non-adversarial proceeding. ...

... [T]he consulting fee has been estimated at $15,000 plus travel and research assistance expenses of $5,000. ...

[Applicants should] Propose a schedule for the project based on the September 2012 deadline for submission of the Office of the Chairman report to SSA. Because this project is under an unusually short time deadline, a draft report, which should be substantially complete and ready for review by the Chairman and Conference staff would be needed by the end of August 2012 and the final report by the middle of September 2012.

     You put out an RFP due four whole days later! How many proposals are you expecting in response? No, I'm not interested in submitting a proposal. Obviously, someone has already been picked for this (probably Harold Krent) and the RFP is just window-dressing. Is this the sort of administrative process that ACUS would recommend to agencies? And what's with the short time for this study? We're about to have a general election and the Commissioner of Social Security is a short-termer. It's not like anything is going to happen on this subject in the near future.

     I written about my concern that ACUS and its leadership have demonstrated that they are pathetically out of touch with reality when it comes to Social Security. I will be surprised if this study is of any help to anyone.
     Maybe the Republicans were right to defund ACUS years ago and Democrats were wrong to resurrect it. Perhaps, ACUS wants to get this study done quickly because it's afraid it will soon be out of business again.

     Update: One commenter has stated that the RFP date had actually been announced on June 8 and that July 16 was an extension of the deadline. I would appreciate it if someone could point me to any PUBLIC announcement of this RFP prior to yesterday. I receive the ACUS online newsletter. I didn't see any sign of this RFP prior to yesterday. I can't seem to find anything on the ACUS website. This is the URL for the RFP itself: http://www.acus.gov/wp-content/uploads/downloads/2012/07/SSA-Reps-Conduct-Project-RFP-6-21-12.pdf 
      Notice that date of June 21, 2012 at the end of the URL? Why would that date be on there if it had been announced on June 8?
     And, by the way, ACUS didn't announce this on FedBizOpp.gov either.
     Who knew about this prior to yesterday and how did they find out about it? I think it's a reasonable question.

From The NOSSCR Conference -- I

     The National Organization of Social Security Claimant's Representatives (NOSSCR) is having a conference in Philadelphia this week. Unfortunately, I am unable to attend. Eric Schnaufer was kind enough to take notes on the general session this morning. We'll start out with his notes, which I have edited slightly, on the presentation of Professor Harold Krent, the Dean of the Law School at the Illinois Institute of Technology Chicago-Kent School of Law:

Prof. Harold Krent spoke about his investigation for the ACUS [Administrative Conference of the United States], but not on behalf of the ACUS. The ACUS has not deliberated. The goal was for ACUS deliberations before the end of the calendar year. But that may not be possible. Krent stated that would have a draft in the late summer. His report will be sent to the ACUS and SSA. Then the ACUS will deliberate.

His investigation focuses on understanding inconsistencies in ALJ [Administrative Law Judge] adjudication, the character of ALJ hearings, and judicial review. He will not address State-agency adjudication or the Medical-Vocational Guidelines.

Prof. Krent will investigate whether various factors impact ALJ allowance rates: the pool of claims from the State agencies, the underlying health and poverty of the region, a “small town” bias, the elimination of reconsideration, etc. The statistical analysis is “very difficult.” The differential allowance rates on their face do not tell the “whole story.”

Prof. Krent stated that the Agency has not studied the differential allowance rates for VTC [Video Tele-Conference] and in-person hearings, if any. The significance of VTC hearings for the correctness of adjudication is unknown. Prof. Krent stated that there was no procedural due process right to in-person hearing. Prof. Krent believed that VTC was the “wave of the future.” (Prof. Krent was sympathetic to the Agency’s name removal policy. The Agency was “adamant” about this policy. It prevents “forum shopping.”)

Prof. Krent stated that the Agency has no data on whether allowance rates are associated with particular MEs [Medical Experts] and VEs [Vocational Experts]. The Agency does not track outcomes by the name of the ME or VE.

The Agency does not know how long hearings last or the correlation between the length of the hearing and the result. The CALJ [Chief Administrative Law Judge] should investigate the consistency of the length of hearings.

Prof. Krent stated that the recent public discussions had reduced the allowance rates.  Thus the publication of allowance rates were “not such a bad thing.”  The CALJ should address low and high allowance rate ALJs.

Prof. Krent does not know whether the newer ALJs with Agency experience adjudicate claims differently than longstanding ALJs with more “trial” experience.

Prof. Krent suggested that the Agency provide ALJs with generalizations about adjudicative outcomes given claimant characteristics.

In federal court, the fifty-percent relief rate was consistent over many years. Federal courts grant relief for new evidence in only five percent of cases. The top two reasons for granting relief in court are the treating-source rule and inadequate consideration of mental limitations in terms of functional capacity. There is significant variation from district court to district court in terms of relief.

The Appeals Council is looking at 2,000 cases per year post-effectuation. There were more errors in favorable than unfavorable decisions.

Wall Street Journal Article

     Damian Paletta has an article in the "Politics" section of the Wall Street Journal today. The article deals with two issues that have been discussed in this blog in the past:

• The Administrative Conference of the United States (ACUS) will do a study of Social Security's disability programs. This study will "focus" on Administrative Law Judges (ALJs). Harold Krent, dean of Chicago-Kent College of Law is to be the lead researcher. According to the article "A top Social Security Administration official had a conference call with roughly 300 managers Wednesday to express concern about the issue of outlier judges [mostly those who approve too many claims] and said he was hopeful the new study could provide ways to address the problem, a person familiar with the call said."
• Social Security will stop notifying claimants and their attorneys of the identity of the ALJ to hear a case. This is to be a secret until the day of the hearing.

ACUS Wants To Help

From a Request for Proposals issued by the Administrative Conference of the United States (ACUS):

The study should particularly address the following issues: ...

• The impact of SSA’s treating physician rules on the role of courts in reviewing SSA disability decisions. The study should consider measures that SSA could take to reduce the number of cases remanded to it by courts.
• The role of the SSA Appeals Council in reviewing cases to reduce any observed variances in ALJ’s decisional outcomes, hearing lengths, and application of agency policies. Legal and empirical consideration should be given to the efficacy of an expansion of the Appeals Council’s already existing authority to conduct more focused reviews of ALJ decisions; how the Appeals Council can select cases for review; when review should take place (i.e. pre- or post-effectuation); and the scope and manner of review. 
• Additional measures that SSA could take to identify and address issues posed by “outlier” ALJs, in order to reduce the observed variances, and to reduce other irregularities and improve quality in ALJ decisions. ... 

The Conference will provide a consulting fee of $15,000 for the study plus a budget for expenses.

The Question Of Social Security Experience At ACUS

When I posted my concern a few weeks ago that the new incarnation of the Administrative Conference of the United States (ACUS) lacks members with Social Security experience, I received comments reminding me that Paul Verkuil, the Chairman of ACUS, has done a good deal of research on Social Security and that Jerry Mashaw, a public member of ACUS, wrote a book about Social Security. Actually, I was well aware of that. They are exactly why I have concerns about the lack of hands on Social Security experience at ACUS.

Let me start out with Professor Mashaw. He published a book in 1983 that praised Social Security disability determination and particularly its quality assurance program at the initial and reconsideration levels. The book is the worst example of academese that I have ever had the misfortune to read. However, that is not the real problem with Mashaw's book. At about the same time as Mashaw's book was published, Social Security's quality assurance program was getting terrible reviews where it really mattered, the federal courts. They found that Social Security was using its secretive quality assurance program to deny claims based upon a policy of "non-acquiescence." "Non-acquiescence" meant that Social Security was refusing to abide by judicial interpretations of the Social Security Act. Social Security ignored what the courts said and plowed ahead with improper interpretations of the Social Security Act. The most visible of the non-acquiescence disputes concerned the standard for terminating disability benefits. Social Security's position was that it could force a claimant to prove over and over again that he or she was disabled. The courts held that once a claimant is approved for disability benefits that Social Security could only cut they off if they improved. Social Security ignored the courts and cut off benefits for hundreds of thousands of people based upon an illegal standard.

Social Security was also denying almost all disability claims based upon mental illness at the time based upon a bizarre interpretation that required anyone claiming disability based upon mental illness to prove that they met one of Social Security's listings. This was made especially difficult because the listings at that time were both harsh and antiquated. Social Security tried to keep this policy a secret even though it was used to deny hundreds of thousands of claims a year. Eventually, disability determination service physicians blew the whistle. The result was Mental Health Ass'n of Minnesota v. Schweiker, 554 F.Supp. 157 (D. Minn. 1982), a devastating loss for Social Security. I think it would be fair to say that Social Security management was embarrassed, even humiliated, by the revelations in the Mental Health Association of Minnesota case. Social Security's actions that led to this debacle could never have happened without the quality assurance program that Mashaw lauded.

My opinion is that non-acquiescence and the Mental Health Association of Minnesota case discredit Mashaw's book. In any case, Mashaw has, for the most part, stayed away from Social Security since then. At best, his Social Security experience was almost thirty years ago.

Professor Verkuil, for his part, has certainly written about Social Security over many years. Verkuil has consistently advocated for several changes at Social Security:

• A Social Security court
• Government representation at Social Security hearings
• Taking elaborate steps to prevent even the remotest possibility of a case being remanded due to new evidence
  

All of these ideas are, to put it kindly, rather musty.

There are good reasons why a Social Security court was never created. Social Security attorneys have strongly opposed it. Social Security has always worried that a court dedicated to Social Security might be even worse for them than the regular federal court system. Everyone has been concerned that it would be impossible to get adequate funding for a dedicated Social Security court. The experience at the Court of Veterans Appeals lends credence to everyone's concerns about about a dedicated Social Security court. It is not going to happen yet Verkuil keeps calling for it.

Government representation at Social Security hearings was tried many years ago. It got a good, full trial. I only heard the results of the government representation experiment second and third hand but I think I have a pretty good idea what the results were. It turned out that the fears of some that government representatives would be terrible for claimants turned out to be exaggerated. Social Security's unstated hope that many more claimants would be denied turned out to be wrong. The hopes of some that the process would yield demonstrably better results turned out to be wrong. Whether rightly or wrongly, the same people were being approved and denied. The government representation program turned out to be such a disappointment for Social Security that they never issued a public report on it. I have even heard that in recent years that Social Security has claimed that they cannot even find any report on the government rep experiment! (If you happen to have a copy of some report on the government rep resentation experiment in your personal archives, please send a copy to me. This ought to be preserved.) For good reason, the government representation program is not going to be revived yet Professor Verkuil keeps calling for it.

Professor Verkuil has long seemed obsessed with the idea that attorneys who represent claimants deliberately withhold medical evidence and submit it only on appeal in order to increase their attorney fees. In response to the concerns that he and others had, the Social Security Act was amended to say that a federal court could only consider new evidence if there was good cause why it had not been submitted earlier. The reaction of attorneys who represent claimants to this change was basically, "Who cares? We haven't been deliberately withholding evidence." This statutory change did not result in any significant change in the number of cases remanded by the federal courts. Social Security's regulations were also amended to make it essentially impossible to submit new evidence to the Appeals Council. The reaction of attorneys who represent claimants to this change was basically, "You're going a bit overboard here. There are a few cases where you should make exceptions but this really won't affect us since we haven't been deliberately withholding evidence." The result was the same. There was no significant reduction in the number of cases remanded. This was an imaginary problem.

Despite the fact that Verkuil's ideas have been adopted without any good effect, Verkuil seems obsessed with the idea that attorneys who represent claimants are evil people who distort the process. He keeps recommending that the record be closed in Social Security cases as early as possible and as utterly completely as imaginable. I think that if he had his way records would be closed before a claimant ever filed a claim! Verkuil seems incapable of understanding that disability claims are not static. Claimants get sicker. They get better. The develop new health problems. Old problems get new diagnoses. Claimants who seemed not to have been that sick are revealed in the fullness of time to have been just as sick as they said.

If Verkuil had practical experience with Social Security he might have an appreciation for why things proceed as they do with Social Security disability claims. In law schools, the facts are almost always given. Professors and students concern themselves with how the law should be applied to the stated facts. In the real world, regardless of the type of case, the facts are almost always in dispute. Social Security adds the additional dynamic that the facts keep changing. The real world cannot be changed to suit Professor Verkuil's tastes. Any effort to do so wiould create far more problems than it solves. The evolution of medical evidence in these cases is not something that can or should be eliminated from consideration. Trying to freeze these cases in time would be artificial and unjust. If anything, we should recognize that full consideration of changing medical evidence is one of the good things about Social Security disability determination.

To damn Verkuil a bit more, he applauded former Commisioner Barnhart's Disability Service Improvement (DSI) plan in 2007. I think there were few people at Social Security, even then, who thought that DSI was a good idea. I doubt they would admit it today.

In any case, I urge readers to take a look at the recommendations that ACUS has made in the past on Social Security and ask themselves whether having some person or persons on ACUS with significant hands-on Social Security experience would be a good idea.

• 305.78-2 Procedures for Determining Social Security Disability Claims (Recommendation No. 78-2)
• 305.78-3 Time Limits on Agency Actions (Recommendation No. 78-3)
• 305.86-1 Nonlawyer Assistance and Representation (Recommendation No. 86-1)
• 305.87-6 State-Level Determinations in Social Security disability cases
• 305.87-7 A New Role for the Social Security Appeals Council
  
• 305.89-8 Agency Practices and Procedures for the Indexing and Public Availability of Adjudicatory Decisions (Recommendation No. 89-8)
• 305.89-10 Improved Use of Medical Personnel in Social Security Disability determinations (Recommendation No. 89-10)
• 305.90-4 Social Security Disability Program Appeals Process: Supplementary recommendation (Recommendation No. 90-4)
• 305.91-3 The Social Security Representative Payee Program (Recommendation No. 91-3)
• 305.91-9 Specialized Review of Administrative Action (Recommendation No. 91-9)

ACUS Re-Established

The Administrative Conference of the United States (ACUS) was established by statute in 1964 as a federal advisory committee to promote better administration of federal agencies. After Republicans took control of Congress in 1995, ACUS was defunded. Although the authority for ACUS remained on the books, ACUS received no appropriation and ceased to operate. ACUS finally received renewed funding in this fiscal year and resumed operations in March. Michael Astrue, as Commissioner of Social Security, is a member of ACUS.

I do not recall any ACUS report on Social Security that had any useful effect. It was and is now composed primarily of law school professors and attorneys at large Washington, D.C. law firm, none of whom have any particular knowledge or experience with Social Security. This is unfortunate since the Social Security Administration simply does more administrative law than all other federal agencies combined. Nevertheless, it is good to see ACUS back in operation. I hope that any studies they do of Social Security are done after consultation with people who do have Social Security experience.

I never understood what the Republicans had against ACUS other than their desire to make government so small that it can be drowned in a bathtub.