A Busy Saturday For Social Security

      It was a busy Saturday for Social Security. Yes, a busy Saturday!

     First, Social Security has added significantly more data to the online reports available to attorneys representing claimants at the initial and reconsideration levels. I have not tried it yet but early reports I have heard indicate that it’s a work in progress. Still, this holds out the prospect of two advantages. It gives attorneys easier access to information on the status of their clients’ cases. It cuts down on the number of calls to Social Security asking about case status.

     Second, Social Security issued two Emergency Messages on which jobs can be considered as alternative work a claimant can perform if he or she is unable to perform their past relevant work. In the more important of the Emergency Messages there is a list of jobs that cannot be considered absent “additional evidence” from a Vocational Expert:

DOT Code	DOT Occupational Title	DOT Industry Designation
209.587-010	Addresser	clerical
249.587-018	Document Preparer, Microfilming	business services
249.587-014	Cutter-and-Paster, Press Clippings	business services
239.687-014	Tube Operator	clerical
318.687-018	Silver Wrapper	hotel and restaurant
349.667-010	Host/Hostess, Dance Hall	amusement and recreation
349.667-014	Host/Hostess, Head	amusement and recreation
379.367-010	Surveillance-System Monitor	government services
521.687-010	Almond Blancher, Hand	canning and preserving
521-687-086	Nut Sorter	canning and preserving
726.685-010	Magnetic-Tape Winder	recording
782.687-030	Puller-Through	glove and mitten
976.385-010	Microfilm Processor	business services

     In another Emergency Messages there’s this list of jobs that can no longer be considered at all:

DOT Code	DOT Occupational Title	DOT Industry Designation(s)
013.061-010	AGRICULTURAL ENGINEER	professional and kindred occupations
013.061-014	AGRICULTURAL-RESEARCH ENGINEER	professional and kindred occupations
013.061-018	DESIGN-ENGINEER, AGRICULTURAL EQUIPMENT	professional and kindred occupations
013.061-022	TEST ENGINEER, AGRICULTURAL EQUIPMENT	professional and kindred occupations
021.067-010	ASTRONOMER	professional and kindred occupations
029.067-010	GEOGRAPHER	professional and kindred occupations
029.067-014	GEOGRAPHER, PHYSICAL	professional and kindred occupations
045.061-014	PSYCHOLOGIST, ENGINEERING	professional and kindred occupations
045.107-030	PSYCHOLOGIST, INDUSTRIAL-ORGANIZATIONAL	professional and kindred occupations
052.067-014	DIRECTOR, STATE-HISTORICAL SOCIETY	professional and kindred occupations
052.067-018	GENEALOGIST	professional and kindred occupations
052.067-022	HISTORIAN	professional and kindred occupations
052.067-026	HISTORIAN, DRAMATIC ARTS	professional and kindred occupations
052.167-010	DIRECTOR, RESEARCH	motion picture; radio and television broadcasting
072.101-018	ORAL AND MAXILLOFACIAL SURGEON	medical services
072.101-034	PROSTHODONTIST	medical services
193.162-022	AIRLINE-RADIO OPERATOR, CHIEF	air transportation; business services
193.262-010	AIRLINE-RADIO OPERATOR	air transportation; business services
193.262-014	DISPATCHER	government services
193.262-022	RADIO OFFICER	water transportation
193.262-026	RADIO STATION OPERATOR	aircraft manufacturing
193.262-030	RADIOTELEGRAPH OPERATOR	telephone and telegraph
193.262-034	RADIOTELEPHONE OPERATOR	any industry
193.362-010	PHOTORADIO OPERATOR	printing and publishing; telephone and telegraph
193.362-014	RADIO-INTELLIGENCE OPERATOR	government services
193.382-010	ELECTRONIC INTELLIGENCE OPERATIONS SPECIALIST	military services
203.562-010	WIRE-TRANSFER CLERK	financial institutions
235.462-010	CENTRAL-OFFICE OPERATOR	telephone and telegraph
235.562-010	CLERK, ROUTE	telephone and telegraph
235.662-018	DIRECTORY-ASSISTANCE OPERATOR	telephone and telegraph
236.562-010	TELEGRAPHER	railroad transportation
236.562-014	TELEGRAPHER AGENT	railroad transportation
237.367-034	PAY-STATION ATTENDANT	telephone and telegraph
239.382-010	WIRE-PHOTO OPERATOR, NEWS	printing and publishing
297.667-014	MODEL	garment; retail trade; wholesale trade
299.647-010	IMPERSONATOR, CHARACTER	any industry
305.281-010	COOK	domestic service
338.371-010	EMBALMER APPRENTICE	personal service
338.371-014	EMBALMER	personal service
379.384-010	SCUBA DIVER	any industry
410.161-010	ANIMAL BREEDER	agriculture and agricultural service
410.161-014	FUR FARMER	agriculture and agricultural service
410.161-018	LIVESTOCK RANCHER	agriculture and agricultural service
410.161-022	HOG-CONFINEMENT-SYSTEM MANAGER	agriculture and agricultural service
411.161-010	CANARY BREEDER	agriculture and agricultural service
411.161-014	POULTRY BREEDER	agriculture and agricultural service
413.161-014	REPTILE FARMER	agriculture and agricultural service
452.167-010	FIRE WARDEN	forestry
452.367-010	FIRE LOOKOUT	forestry
452.367-014	FIRE RANGER	forestry
455.367-010	LOG GRADER	logging; sawmill and planing mill
455.487-010	LOG SCALER	logging; millwork, veneer, plywood, and structural wood members; paper and pulp; sawmill and planing mill
519.684-010	LADLE LINER	foundry; smelting and refining
519.684-022	STOPPER MAKER	blast furnace, steel work, and rolling and finishing mill
579.664-010	CLAY-STRUCTURE BUILDER AND SERVICER	glass manufacturing
661.281-010	LOFT WORKER	ship and boat manufacturing and repairing
661.281-018	PATTERNMAKER APPRENTICE, WOOD	foundry
661.281-022	PATTERNMAKER, WOOD	foundry
661.380-010	MODEL MAKER, WOOD	any industry
690.682-078	STITCHER, SPECIAL MACHINE	boot and shoe
690.682-082	STITCHER, STANDARD MACHINE	boot and shoe
690.685-494	STITCHER, TAPE-CONTROLLED MACHINE	boot and shoe
693.261-018	MODEL MAKER	aircraft-aerospace manufacturing
714.281-010	AIRCRAFT-PHOTOGRAPHIC-EQUIPMENT MECHANIC	photographic apparatus and materials
714.281-014	CAMERA REPAIRER	photographic apparatus and materials
714.281-018	MACHINIST, MOTION-PICTURE EQUIPMENT	motion picture; photographic apparatus and materials
714.281-022	PHOTOGRAPHIC EQUIPMENT TECHNICIAN	photographic apparatus and materials
714.281-026	PHOTOGRAPHIC-EQUIPMENT-MAINTENANCE TECHNICIAN	photographic apparatus and materials
714.281-030	SERVICE TECHNICIAN, COMPUTERIZED-PHOTOFINISHING EQUIPMENT	photofinishing
715.281-010	WATCH REPAIRER	clocks watches, and allied products
715.281-014	WATCH REPAIRER APPRENTICE	clocks, watches, and allied products
715.381-010	ASSEMBLER	clocks, watches, and allied products
715.381-014	ASSEMBLER, WATCH TRAIN	clocks, watches, and allied products
715.381-018	BANKING PIN ADJUSTER	clocks watches, and allied products
715.381-022	BARREL ASSEMBLER	clocks, watches, and allied products
715.381-026	BARREL-BRIDGE ASSEMBLER	clocks, watches, and allied products
715.381-030	BARREL-ENDSHAKE ADJUSTER	clocks, watches, and allied products
715.381-038	CHRONOMETER ASSEMBLER AND ADJUSTER	clocks, watches, and allied products
715.381-042	CHRONOMETER-BALANCE-AND-HAIRSPRING ASSEMBLER	clocks, watches, and allied products
715.381-054	HAIRSPRING ASSEMBLER	clocks, watches, and allied products
715.381-062	HAIRSPRING VIBRATOR	clocks, watches, and allied products
715.381-082	PALLET-STONE INSERTER	clocks, watches, and allied products
715.381-086	PALLET-STONE POSITIONER	clocks, watches, and allied products
715.381-094	WATCH ASSEMBLER	clocks, watches, and allied products
715.584-014	REPAIRER, AUTO CLOCKS	clocks, watches, and allied products
715.681-010	TIMING ADJUSTER	clocks, watches, and allied products
761.381-014	JIG BUILDER	wooden container
788.684-114	THREAD LASTER	boot and shoe
826.261-010	FIELD-SERVICE ENGINEER	photographic apparatus and materials
841.381-010	PAPERHANGER	construction
841.684-010	BILLPOSTER	business services
849.484-010	BOILER RELINER, PLASTIC BLOCK	foundry
850.663-010	DREDGE OPERATOR	construction; coal, metal, and nonmetal mining and quarrying
861.381-046	TERRAZZO WORKER	construction
861.381-050	TERRAZZO-WORKER APPRENTICE	construction
861.664-014	TERRAZZO FINISHER	construction
899.261-010	DIVER	any industry
899.684-010	BONDACTOR-MACHINE OPERATOR	foundry
910.362-010	TOWER OPERATOR	railroad transportation
910.363-018	YARD ENGINEER	railroad transportation
910.382-010	CAR-RETARDER OPERATOR	railroad transportation
910.583-010	LABORER, CAR BARN	railroad transportation
910.683-010	HOSTLER	railroad transportation
910.683-022	TRANSFER-TABLE OPERATOR	railroad equipment building and repairing; railroad transportation
911.663-010	MOTORBOAT OPERATOR	any industry
919.663-014	DINKEY OPERATOR	any industry
919.683-010	DOCK HAND	air transportation
919.683-026	TRACKMOBILE OPERATOR	any industry
930.683-026	ROOF BOLTER	coal, metal, and nonmetal mining and quarrying
952.362-022	POWER-REACTOR OPERATOR	utilities
960.362-010	MOTION-PICTURE PROJECTIONIST	amusement and recreation; motion picture
960.382-010	AUDIOVISUAL TECHNICIAN	any industry
961.367-010	MODEL, PHOTOGRAPHERS'	any industry
961.667-010	MODEL, ARTISTS'	any industry

     I’m not completely sure about this second list. There aren’t terrazzo finishers or artist’s models anymore? I don’t see being an artist model as a career, however. Aren’t there still embalmers these days?  None of this matters except in rare cases, however.

New Instructions On Transferability Of Skills

     The Social Security Administration has issued new instructions in its POMS manual on transferability of skills for purposes of determining disability. The sections affected are:

• DI 25015.015
• DI 25015.017 
• DI 25015.019

    At first glance I don't see anything that makes a difference but this is a sensitive enough subject that it bears a closer reading than I have given it to this point. 

    My longstanding opinion is that transferability of skills should only be found quite rarely. Those who really did have transferable skills almost certainly transferred them and didn't file disability claims.

PRW Time Period To Be Reduced From 15 Years To 5 Years

     From a notice that Social Security has scheduled for publication in the Federal Register:

We propose to revise the time period that we consider when determining whether an individual’s past work is relevant for purposes of making disability determinations and decisions. Specifically, we would revise the definition of past relevant work (PRW) by reducing the relevant work period from 15 to 5 years. This change would allow individuals to focus on the most current and relevant information about their past work, better reflect the current evidence base on changes over time in worker skill decay and job responsibilities, reduce processing time and improve customer service, and reduce burden on individuals.

    This is overdue by about 40 years but better late than never. It never made sense to tell disability claimants that they are not disabled because they can return to jobs they last held 12 years ago. Work skills just don't stick with people that long.

New Proposed Regs In Pipeline

     The Social Security Administration has sent a set of proposed regulations to the Office of Management and Budget (OMB) for approval. Here's the description, limited as it may be:

We propose to develop intermediate improvements to reduce the burden in our current disability adjudication process as a step towards longer-term reforms to ensure our disability program remains current and supports equitable outcomes. Actions could include decreasing the years of past work we consider when making a disability determination, as well as other potential regulatory changes.

Every Bad Idea For Social Security That The GOP Has Ever Had, In One Document

    Republicans in the House of Representatives have put forth their plan for what that they hope to extort from the President by threatening to put the U.S. government into default on its debts. Here's what their plan would do to Social Security retirement benefits (begins at page 80):

• Implement a new minimum benefit of 15% of the average wage index;
• "Modernize" the Social Security benefit formula, which is a euphemism for reducing future benefits for those now 54 and younger;
• Increase Full Retirement Age to 70 between now and 2040;
• Eliminate the retirement earnings test for those who are under Full Retirement Age;
• Eliminate auxiliary benefits for high wage earners.
  

    The plan also includes changes in disability benefits (begins at page 74):

• Enact a benefits offset experiment that would reduce disability benefits by $1 for every $2 earned (they must not know that this experiment is underway already);
• Allow FICA reductions for employers with high rates of employee retention, which is supposed to help handicapped people stay employed (which would disadvantage manufacturers);
• Require employment in six of the last ten years, instead of five;
• Time limited disability benefits for some recipients; 
• "Update" the grid regulations;
• Make disability benefits contingent on medical improvement (I don't think they meant to say that but that's what they said);
• Prevent those drawing unemployment benefits from drawing disability benefits;
• Eliminate withholding of attorney fees for representing claimants (at least I think that's what they're saying but they only thing clear about it is that they bear a lot of ill will towards attorneys);
• Close the record "after a reasonable period of time";
• Require Social Security to conduct periodic reviews of ALJ decisions, particularly those of "outlier" judges;
• Prohibit reapplications within 12 months of a denial;
• Increase the waiting period for Medicare from 24 months to 60 months;
• Eliminate the ability to apply for both early retirement and disability benefits at the same time;
• Allow employers and employees a reduced FICA rate if the employer provides long term disability benefits.

Elections Have Consequences

      In accordance with a White House directive, all proposed Social Security regulations that were awaiting approval at the Office of Management and Budget have been withdrawn. These include proposed regulations on the timing and frequency of continuing disability reviews and proposed regulations that would have modified the age categories used in determining disability.

Could Musculoskeletal Listing Changes Be Reconsidered?

      The harsh new musculoskeletal Listings are scheduled to go into effect on April 2. However, the change of Administration could delay implementation or even kill these changes altogether. Soon after taking office, Biden's Chief of Staff sent a memorandum to agency heads giving them this directive:

... With respect to rules that have been published in the Federal Register, or rules that have been issued in any manner, but have not taken effect, consider postponing the rules’ effective dates for 60 days from the date of this memorandum ... for the purpose of reviewing any questions of fact, law, and policy the rules may raise.  For rules postponed in this manner, during the 60-day period, where appropriate and consistent with applicable law, consider opening a 30-day comment period to allow interested parties to provide comments about issues of fact, law, and policy raised by those rules, and consider pending petitions for reconsideration involving such rules.  As appropriate and consistent with applicable law, and where necessary to continue to review these questions of fact, law, and policy, consider further delaying, or publishing for notice and comment proposed rules further delaying, such rules beyond the 60-day period.  Following the 60-day delay in effective date:

a. for those rules that raise no substantial questions of fact, law, or policy, no further action needs to be taken; and 

b. for those rules that raise substantial questions of fact, law, or policy, agencies should notify the OMB Director and take further appropriate action in consultation with the OMB Director. ...

     The musculoskeletal Listings certainly raise substantial questions of policy, if not fact. Even though their effective date is more than 60 days after this memo, it would certainly seem that they should be subject to additional review and that there should be a new comment period. I would expect that there will be "requests for reconsideration" of the Listings. These new musculoskeletal Listings are not mere housekeeping. They were and remain a highly controversial attack on disability claimants.

     By the way, those proposed regulations that would have increased the number of continuing disability review and that would have modified the grid regulations may not have been officially withdrawn yet but they're dead.

Subcommittee Chairs Attack Proposed Grid Rule Changes

     A press release:

Today, House Ways and 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) released the following statement regarding news that a draft proposed rule that would narrow the eligibility criteria for Social Security and Supplemental Security Income (SSI) disability benefits has been sent by the Social Security Administration to the Office of Management and Budget for review: 

“Yet again, the Trump Administration is going out of its way to make it harder for people to qualify for the Social Security disability benefits they have earned. Already, fewer than four in 10 applicants are found eligible for Social Security disability benefits, even after all levels of appeal. This rule would reportedly further restrict eligibility for approximately 500,000 Americans, making it even harder for older, severely disabled people to access the essential income they’re qualified to receive. It is outrageous and cruel that at the eleventh hour and in the middle of a pandemic the Trump Administration is trying to advance yet another harmful cut to Social Security benefits for the most vulnerable Americans.”

Clearing Out The Regulations Cupboard

     The Social Security Administration has asked the approval of the Office of Management and Budget (OMB) for proposed regulations on "Adjudicating Disability Claims in Which We Must Consider Vocational Factors." 

    Don't get excited. It's way too late for these proposed regulations to be finalized during the Trump Administration. It's not even theoretically possible given the notice periods involved. In fact, they'll probably not even be approved for publication as a proposal. 

     I don't want to read too much into this but sending this to OMB isn't something you'd do if you were interested in cooperating with the incoming Biden Administration.

Work Is Changing -- More Cognitive Demands For Low-Skill Jobs Which Remain Just As Physically Demanding

     From The Changing Nature of Work by Italo Lopez-Garcia (RAND Corporation),Nicole Maestas (Harvard Medical School and NBER), and Kathleen Mullen (RAND Corporation):

... [F]rom 2003-2018, cognitive job demands increased from an average level of 2.63 to 2.90 (+9.3 percent), psychomotor demands decreased from 1.75 to 1.59 (-9.1 percent), physical demands decreased from 1.37 to 1.18 (-13.8 percent) and sensory demands increased from 1.72 to 1.88 (+8.5 percent). .

The increase in cognitive job demands ... is mostly concentrated among low-skill jobs, or those prevalent among individuals with less than a college degree. In contrast, the decrease in physical job demands is concentrated among high-skill jobs, or those prevalent among individuals with at least a college degree. These results suggest low-education workers have been penalized as their jobs have become more cognitively demanding without any alleviation of the physical burden of performing these jobs. ...

     Like I've been saying, it's nuts to talk about increasing the age categories in the grid regulations. It's become harder for individuals with low educational levels who have exertional limitations to find jobs they can do. What had been low skill jobs have remained just as strenuous while becoming more skilled. It's the high skill jobs that have become physically easier, not low skill jobs.

     In all likelihood, this is why Social Security keeps delaying introduction of a new occupational information system. They can't find a way to massage the data to come up with unskilled sedentary jobs. Their should be an Inspector General investigation of why Social Security's occupational information system keeps getting delayed.

Claimants Denied Disability Benefits Don't Go Back To Work; They Just Keep Trying To Get On Disabiltiy Benefits

     From the Social Security Bulletin, the agency's scholarly publication:

This article examines the experiences of Social Security Disability Insurance (DI) applicants aged 51 or older who were initially denied benefits because the disability examiner determined that they could perform either their past work or other work. ... We find that few older DI applicants who were denied benefits on this basis resumed work at a substantial level following denial. More commonly, applicants denied at this stage continued to pursue benefits, often successfully. Nearly two-thirds of initial work capacity-related denials were ultimately allowed DI benefits after appealing the initial decision or reapplying, and our estimates suggest that many of the rest claimed Old-Age and Survivors Insurance benefits before they reached full retirement age.

     Is it just me or does this suggest that it would be fairer to allow more of the disability claims filed by older people? Denying so many of the disability claims filed by older people creates misery and doesn't end up saving much money anyway. It makes work for me and other attorneys but that's certainly not a valid policy objective.
     Also, do you see evidence in this study to support increasing the age categories in the grid regulations? Should 55 or 57 be the new 50? Where is the proof that making this change would be a reasonable thing to do?

Final Regs On Removing Inability To Communicate In English As An Education Category To Appear In Federal Register Tomorrow

     Final regulations on Removing Inability to Communicate in English as an Education Category will be published in the Federal Register tomorrow. You can read them today. They will be effective on April 27. Social Security has also announced in the Federal Register that it is rescinding Social Security Acquiescence Ruling 86-3(5) which has to do with the consideration of inability to communicate in English.

     What a proud moment for Social Security -- being enlisted in Donald Trump's war on immigrants.

     Update: In an Orwellian touch, Andrew Saul is touting this as "updating" Social Security.

Trump Administration Completes Action On Inability To Communicate In English Rule

     The Office of Management and Budget (OMB) has completed its review of Social Security's proposed final rule which will remove inability to communicate in English as a criteria in disability determination. The rule was approved and should be published in the Federal Register in the near future.

Ways And Means Committee Chairs Slam Proposal To Alter Grid Regs

    A press release:

Today, Ways and Means Committee Chairman Richard E. Neal (D-MA), Social Security Subcommittee Chairman John B. Larson (D-CT), and Worker & Family Support Subcommittee Chairman Danny K. Davis (D-IL) released the following statement regarding reports of a draft Social Security Administration (SSA) rule that would narrow the eligibility criteria for Social Security and Supplemental Security Income (SSI) disability benefits: 

“Yet again, the Trump Administration is going out of its way to make life more challenging for the most vulnerable people in our country. The United States government already has extremely stringent disability standards. In fact, fewer than four in 10 applicants are found eligible for Social Security disability benefits, even after all levels of appeal. This rule would further restrict eligibility, making it even harder for disabled people to access the essential income they’re qualified to receive. We are particularly alarmed that news of this latest proposal comes on top of the Administration’s recent efforts to cut off benefits for severely disabled people whom the agency already found eligible. 

“Instead of working to strip disability benefits from people who qualify, the SSA should focus on its truly pressing problems. Resources should go toward cutting lengthy wait times on the phone and at field offices, eliminating benefit backlogs, and hiring personnel to improve the agency’s lacking services.

“We strongly urge the Trump Administration to reject this cruel proposed rule and reassess SSA’s priorities.”

Proposal Under Consideration Would Increase Grid Rules By Five Years

     The Wall Street Journal article on the plan to alter Social Security’s grid regulations used in determining disability is now available outside the paywall. Here are some excerpts:

... “Evidence shows that in the modern economy the vocational impacts of age, education and work experience are markedly different from what they were when we published the current vocational regulations,” according to the text dated Oct. 18. ... 

The proposed rule ... would no longer assume age seriously affects a person’s ability to adapt to simple, entry-level work. It would raise the age at which education and work experience are considered in determining eligibility to 55, from 50. The new rule would also update data on occupational skills that the agency uses to determine eligibility, based on new information from the Bureau of Labor Statistics. ... 

A person familiar with the proposal said it has been a top priority for some Social Security Administration officials, who have met at least twice a month with White House and OMB officials. While some of those officials have embraced potential changes to vocational factors, others were concerned the agency hasn’t yet provided enough data or analysis to support the rule change, the person said. ...

     When we heard of this idea before during the George W. Bush administration the rumor was of a three year increase in the age categories, not a five year increase. This new proposal seems in line with the maximalist instincts of the Trump Administration. 

Trump Plan To Make It Harder To Get Social Security Disability

     The Wall Street Journal is reporting that the Trump Administration is working on a plan to make it harder to qualify for Social Security disability benefits, apparently by revising the grid regulations. The paper says it has seen a copy of the draft.

     You have to wonder who leaked this. Was it someone in the Trump Administration proud of the plan? The fact that this appeared in the Wall Street Journal suggests that. That's crazy since this is bound to be unpopular with far more people than it's popular with. It's also possible that this was leaked by an opponent who wants to make it clear what the stakes will be in this November's election although that seems unlikely. You have to wonder if this, like the assassination in Iraq, is an attempt to curry favor with an impeachment juror.

     In any case, there's virtually zero chance this will happen before the election. The provisions of the Administrative Procedure Act make that essentially impossible. Also, Social Security would have to allow publication of the new Occupational Information System it's been keeping under wraps. The agency's website suggests that's not imminent.