Yes, We Really Do Need All Those Levels Of Review

     From Ludwig v. Astrue, an opinion of the Ninth Circuit Court of Appeals issued today, quoting from a letter sent by a Social Security Administrative Law Judge (ALJ) to an attorney who was representing Mr. Ludwig:

Shortly after your client’s hearing . . . a special agent with the F.B.I.  informed me that, earlier, he had observed Mr. Ludwig in the parking lot walking with normal gait and station; and when he observed Mr. Ludwig walking inside of the Federal Courthouse (where our hearing was held) he was walking with an exaggerated limp (which I also observed as he left the hearing room).

Should you wish to inquire further, [the special agent] can be reached at the F.B.I. office at:
101 12th Ave
#329
Fairbanks, AK, 99701

     The attorney asked either that no weight be given to this ex parte statement or that a new hearing be held. The ALJ did not schedule a new hearing and issued a decision denying the claim, saying that he had not assigned "significant weight" to the ex parte statement of the FBI agent.

     The Court of Appeals remanded the case for a new hearing, saying that "The judge should have refused to hear the ex parte communication. Ordinarily, if someone says to a judge, 'Judge, you know that case you heard this morning?', a judge responds, 'Don’t tell me anything about it. I can’t listen to evidence out of court.'" I thought that was well understood even by non-lawyers.

     I've got three questions:

1. How did this case get to the Court of Appeals? The Appeals Council or the District Court should have remanded the case in a heartbeat.
2. Why was Social Security defending this at the District Court level much less at the Court of Appeals?
3. Does that FBI agent's supervisor know that he made an ex parte contact with an ALJ? I was under the impression that most FBI agents were attorneys. Don't they know better than to do something like this?

     People wonder about why we need so many levels of review of Social Security cases and then you see something like this.

     Update: I should have read to the end. The Court of Appeals affirmed this travesty as harmless error. I cannot believe it. This is wrong. There is no reason for anyone at Social Security to feel anything but shame over this win.

Interesting

     That Emergency Message announcing the end of the Work Incentives Planning and Assistance (WIPA) and Protection and Advocacy for Beneficiaries of Social Security (PABSS) programs that I posted about yesterday has now been taken down from Social Security's Emergency Message site. WIPA and PABSS are both directed at helping Social Security disability recipients navigate Social Security's incredibly complex work incentives.

     How did this happen? What does it mean?

DOMA Ruled Unconstitutional

     A panel of the U.S. First Circuit Court of Appeals has ruled that the Defense of Marriage Act (DOMA) is unconstitutional. DOMA prevents the Social Security Administration from recognizing same sex marriages allowed under state law. The ruling has no immediate effect since the Court stayed enforcement of its ruling until all appellate review is finished. The practical effect of this is to make it nearly certain that the Supreme Court will review the constitutionality of DOMA in its next term which will begin, as always, on the first Monday in October. Social Security will be the federal agency most affected if DOMA is struck down.

This Is Sure Going To Help Put Disabled People Back To Work

     From an Emergency Message issued by Social Security yesterday:

This emergency message informs you of the termination of the Work Incentives Planning and Assistance (WIPA) program effective June 30, 2012 and the Protection and Advocacy for Beneficiaries of Social Security (PABSS) program effective September 29, 2012. Established under Sections 1149 and 1150 of the Social Security Act of 1999, these programs are terminating because our authority to fund them has expired.

    But defunding these programs makes sense, since they're not working.

Alan Simpson -- The Gift That Keeps On Giving

     Just read Simpson's letter to Max Richtman, the head of the National Committee to Preserve Social Security and Medicare. How did someone as thin skinned and nasty as Simpson ever get elected to public office? How can he angrily insist that Social Security was never intended as a retirement program?

Disability Trust Fund Story In Post

     The Washington Post has a story on the troubles of the Social Security Disability Trust Fund. Predictably, there is no discussion of the fact that a simple temporary transfer of some of the FICA tax receipts to the Disability Trust Fund would take care of the problem.

Off Topic: Doc Watson 1923-2012

     As a North Carolinian, I have to note the passing of Doc Watson.

While Straining To Prove A Minor Point, David Autor Undermines His Entire Thesis

     David Autor is an MIT economist who has done research on the Social Security disability programs. His basic beliefs seem to be that the existence of Social Security disability benefits is a bad thing because if it did not exist some people who are now drawing these benefits would still be working. At the least, he thinks it is too easy to get Social Security disability benefits and that this takes people out of the workforce unnecessarily. I have recently been critical of Autor because it appears to me that he has not taken the time to study the statutes and regulations and policies defining disability and encouraging return to work. Instead, he has just made his own mistaken assumptions about what must these must say. Autor seems far more comfortable with mathematical equations than with the U.S. Code and the Code of Federal Regulations, much less with the flesh and blood people who apply for Social Security disability benefits.

     Autor is the lead researcher on a new study titled Does Delay Cause Decay? The Effect of Administrative Decision Time on the Labor Force Participation and Earnings of Disability Applicants. Autor and his colleagues go to a lot of trouble to try to prove that the existence of time-consuming appeals mechanisms at Social Security discourage return to work. In the end, by making a lot of possibly questionable assumptions and extrapolations, Autor and his colleagues come to the conclusion that there is some minor decrease in work as a result of the appears process, 3.6% for denied applicants and 5.2% for allowed applicants. And to that, I give a big yawn. I don't doubt that there is some small, fairly meaningless decrease in return to work but I have no idea how we avoid it without doing vast injustice to disabled people.

     However, Autor does not seem to note he has collected data that dramatically undermines his thesis that it is too easy to get on Social Security disability benefits. Below are his numbers from table 1 on page 25 of the report (page 29 of the PDF) concerning return to work by those who apply for Social Security disability benefits and who are then either denied or approved, either initially or after appeals:

      If it is so easy to get on Social Security disability benefits, why is it that such a low percentage of denied applicants go back to work? According to Autor's theory many of those approved should be working but it turns out that even the vast majority of those denied don't go back to work. Four years after being denied at the initial level, 85% are still out of work and Autor thinks it's too easy to get Social Security disability benefits! Yes, if you hold an economic gun to the heads of people who apply for Social Security disability benefits, a few will go back to work but the vast majority don't. Doesn't that mean something? Shouldn't that also be worthy of Autor's attention?

Memorial Day 2012

Looking For A Shortcut But Not Finding One

     From the minutes of the February 22, 2012 meeting of the Social Security Advisory Board (with emphasis added):

During the afternoon, the Board met with representatives from both SSA [Social Security Administration] and the National Institutes of Health (NIH) regarding their collaboration ...

The SSA-NIH presentation highlighted two projects: 1) CAL 1 – an analytic project where NIH researchers developed a systematic approach to select conditions for inclusion in SSA’s Compassionate Allowance (CAL) list; and 2) Computerized Adaptive Testing (CAT) tools – instruments that will help SSA to measure individual function comprehensively, consistently, and quickly. ... The goal of the CAT tool is the systematic collection of information regarding a claimant’s functioning which can then be scored as part of the determination process.

      CAT appears to be a type of test that might have some usefulness in evaluating potential employees or students but I have a hard time imagining that they would be of any use in disability determination.They tell you nothing about a person's physical abilities. In terms of mental ability, they wouldn't, for instance, tell you whether a claimant suffers from hallucinations or delusions or panic attacks. One might think of them as an alternative to IQ testing but unless you plan to dramatically increase the number of people found disabled, CAT would be useless because anyone close to being found disabled by Social Security due to mental retardation is functionally illiterate and incapable of using a computer for anything like this.
     The SSAB is looking for shortcuts. This is a dead end.