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. ...

 

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.

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....

SSA Had No Time For This Reporter

     From a television station in Cleveland:

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?

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.

Criticism For Biestek Supreme Court Opinion

     From “Has the Supreme Court Endorsed the Use of Junk Science in the Administrative State?” by Richard J. Pierce, Jr. 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. ...

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.