Why Is It Harder To Win With Newer ALJs?

     It's a matter of common knowledge among attorneys who represent Social Security disability claimants that it's harder to win with Administrative Law Judges (ALJs) hired in the last five years or so. 

     Theories on why this is so range from they've found some way to hire more conservative ALJs to they've found some way to train them to be more conservative to they're somehow encouraging them to deny more claims or they're  hiring agency employees who they know will deny claims. I've had doubts about each of these theories.

     Let me propose the theory that it has to do with the veterans preference and the end of the military draft. The federal government gives a heavy preference to hiring veterans. This preference has led to far higher percentage of ALJs who are military veterans than in the population of lawyers in general. This didn't matter much when the veterans being hired were mostly of the Viet Nam era as was the case until not that long ago. The draft assured that those who served during that era were not that far from being a microcosm of the male population. The draft ended as the Viet Nam war ended. Military veterans being hired now chose to serve in the military, usually as a career. This cohort is different from their Viet Nam era predecessors. On average -- and, of course, there's plenty of individual variation -- they're considerably more conservative politically and socially, making them more likely to turn a jaundiced eye to disability claims.

     That's my theory. What do you think?

I Can't Get Away From Work

     I attended an opera last week and was surprised to find it exploring themes that are quite familiar to me.
     I'm not an opera buff. However, my wife and I went to Charleston, SC for a few days last week for the Spoleto Festival, as we have for more than thirty years. I generally stick to the non-opera performances but this year the main opera is George Gershwin's Porgy and Bess. How could I miss an opera sung in English featuring songs such as Summertime, Bess You Is My Woman Now, I Got Plenty O' Nuttin' and It Ain't Necessarily So? My wife and I went and enjoyed it greatly.

     While Porgy and Bess is set in the African American community of Charleston in the 1920s, it may be more about the subject of disability than anything else. The opera's most important character, Porgy, is disabled, apparently by paraplegia. Gershwin based his opera on the novel Porgy written by Charleston native Dubose Heyward. The title character of that novel was loosely based upon a well known personality in Charleston, "Goat Sammy," a crippled beggar who got around in a goat cart. Heyward had been fascinated to find out that "Goat Sammy" had been arrested on a charge of aggravated assault for a crime of passion. As Heyward put it “the object of public charity by day, had a private life of his own by night." Note that this disabled man in the 1920s had to resort to begging to support himself. Yes, we still have beggars but that's generally not the fate of disabled people today and that's largely due to Social Security and Supplemental Security Income disability benefits. My bigger point is that Heyward thought it important to tell the world that disabled people actually have lives apart from their disability. Disabled people are quite capable of passionate romance, among many other things. It remains a point worth making. I have seen cases where Social Security Administrative Law Judges were surprised, even affronted, by evidence that a disabled person had a life apart from their disability. How dare a disabled person father a child or become pregnant! How can a person be truly disabled if they attend church or get arrested for a crime or enjoy the company of friends and family? To think like that denies the possibility that disabled people are truly human, that they have the same hopes, dreams, pleasures, pastimes, urges, shortcomings and frailties as the rest of us.

     I don't think it's an accident that the novel Porgy dealt so much with the theme of disability. Dubose Heyward's own health was poor. He suffered from the effects of polio, as well as other illnesses. As a result of his own experiences, I expect Heyward had reason to contemplate the ways in which society thinks about the disabled. I wish those attitudes had changed more since Heyward's day.

    

Proposed Regs On Program Uniformity At Hearing And Appeals Council Levels

    The Social Security Administration has just asked the Office of Management and Budget (OMB), which is part of the White House, to approve a set of proposed regulations on Ensuring Program Uniformity at the Hearing and Appeals Council Levels of the Administrative Review Process. I don't know what this is about. If OMB approves the proposal, it will be published in the Federal Register and the public will be able to comment on it. Social Security will have to consider the comments, possibly make changes in the proposal and then submit it again to OMB for final approval.

DPCS Project Not Going Well

     In 2010 Social Security awarded a contract to develop a Disability Case Processing System (DPCS). This is a database system that would be used in processing disability claims at the initial and reconsideration levels. So far the agency has spend over $300 million on the project but has received no benefit. A recent report by the agency's Office of Inspector General (OIG) shows that things have been going so badly with the DPCS project that OIG is recommending that the agency strongly consider terminating the project and either sticking with its legacy system or using off the shelf software. The off the shelf software may not have all the functions the agency wants but it works and is relatively inexpensive. Of course, it appears that DPCS itself, if it ever works, isn't going to have all the functions the agency wants anyway, at least not in the beginning.

What's Wrong With This Picture?

This Corpse Isn't Worth Fighting Over

     The Binder and Binder bankruptcy drags on. At the moment the hedge fund that has already sunk a lot of money in Binder and Binder wants to take it over but is being rebuffed.

     Take a clue from someone who knows a thing or two about these things, Binder and Binder's business model never made sense in anything other than a very favorable environment and we've got an extremely harsh environment at the moment. Even in the unlikely event of the return of a favorable environment, Binder and Binder's "good will" is so far into the red that recovery is out of the question. The idea that the hedge fund that took Binder and Binder into bankruptcy is going to turn this thing around is preposterous. 

Big GOP Donors Expect No Less

     House Republicans are already lining up in opposition to increasing Social Security benefits.

Time To Give Paul Ryan Heartburn

     President Obama says it's time in increase Social Security. Hillary Clinton has said the same. What will Donald Trump say? What will other Republicans running for office say?

This Is No Video Game

     I'm hearing there was a recent suicide attempt in Pike County, KY after a former client of Eric Conn was cut off benefits and told of a $76,000 overpayment. Everyone involved in this needs to understand this isn't a video game. There are dramatic real world consequences at stake here. If you have discretionary responsibility over any aspect of these cases, you must take what you are doing  very seriously.

Memorial Day 2016

Have A Good Long Weekend

This Will Certainly Encourage Greater Use Of Social Security's Online Systems

     From a report on this week's Congressional hearing on Social Security's information systems:

... During the hearing, [Acting Social Security Commissioner] Colvin announced the agency will, starting this summer, improve security with additional personal information protection: Social Security website users will need to enter a username, password and one-time texted passcode to a Social Security-registered cellphone to access their accounts. ...

Social Security At Cannes Film Festival

     You'd think that the Cannes Film Festival is about the last thing I'd be writing about but there really is a social security connection this year, if a little obliquely. The Cannes grand prize, the Palme d'Or, was awarded to "I, Daniel Blake", a drama about a disabled man in Britain trying to cope with a social security disability process that seems stacked against him. If it were set in the United States, it would be an even more infuriating tale. On this side of the Atlantic, we don't just deny dignity to the disabled; we provide a "system" that leaves a huge proportion of the disabled to fend for themselves without government assistance.

Hearing On Social Security Information Systems

     The House Oversight and Government Reform Committee is holding a hearing today on Information Systems at Social Security. You can watch the hearing below or read the written statements of the witnesses.

Being Prepared

     Here's a short excerpt from a hospital record on one of my clients: "Pt has drill bit set beside bed. When asked why he brought it with him, pt states 'In case I need to cut off my leg.' Dr. ______ notified."

Final Mental Regs Coming

     The Social Security Administration has submitted Revised Medical Criteria for Evaluating Mental Disorders final regulations to the Office of Management and Budget (OMB). These had appeared in the Federal Register as proposed regulations on August 19, 2010.
     Below are some excerpts from the proposed regulations.  I've added comments in brackets:

• The proposed paragraph B3 criterion is the same as the current paragraph B3 criterion, “maintaining concentration, persistence, or pace,” except that we propose to change “or” to “and.” This would not be a substantive change in the paragraph B3 criterion, but only a clarification of the overall requirement. [Going from a requirement of meeting one criteria to a requirement of meeting three criteria is not a substantive change?]
• One of the provisions from §416.926a(e) that we are including in this definition explains that “marked” is the equivalent of functioning we would expect to find on standardized testing with scores that are at least two, but less than three, standard deviations below the mean. ... A person whose functioning is two standard deviations below the mean is in approximately the second percentile of the population; that is, about 98 percent of the population functions at a higher level. [Social Security is trying to put a 2% cap on the percentage of the population that can be found disabled by mental illness? About 1.1% of the population suffers from schizophrenia. About 1-3% of the population suffers from mental retardation. If we are limiting the listings to the bottom 2% of the population in terms of mental functioning, we are talking about a group that is either in long term care or is not far from needing it.]
• Currently, we have an interagency agreement with the Clinical Research Center to explore the possibility of using International Classification of Functioning domains in predicting disability. [Sounds like Social Security is looking for some simple testing instrument to determine disability.]
• ID/MR [Intellectual Disability/Mental Retardation] is often demonstrated by evidence from the period before age 22. However, when we do not have evidence from that period, we will still find that you have ID/MR if we have evidence about your current functioning and the history of your impairment that is consistent with the diagnosis, and there is no evidence to indicate an onset after age 22.
• In 12.05C, the term “severe” has the same meaning as in §§404.1520(c) and 416.920(c). Your additional impairment(s) must cause more than a slight or minimal physical or mental functional limitation(s); it must significantly limit your physical or mental ability to do basic work activities, as we explain in those sections of our regulations and §§404.1521 and 416.921. The limitation(s) must be separate from the limitations caused by your ID/MR; for example, limitation in your ability to respond appropriately to supervision and coworkers that result from another mental disorder or in your physical ability to walk, stand, or sit. If your additional impairment(s) is not "severe" as defined in our regulations, your ID/MR will not meet 12.05C even if your additional impairment(s) prevents you from doing your past work because of the unique features of that work. [Wait a minute! Are we trying to redefine what is meant by the term "severe impairment" so that something can prevent past work but not be severe -- using the mental impairment listings to redefine an important concept that appears elsewhere in the regulations? Please tell me that Social Security does not really want to reopen the non-severe impairment can of worms.]

     There's no way of knowing what modifications Social Security has made before submitting final regulations to OMB. Normally, Social Security makes no more than minor changes in wording. It's always been my impression that absent overwhelming outside pressure Social Security only tries to please its internal audience when it writes regulations.

A Little Update On A DOT Replacement -- Don't Expect It Soon

     The National Association of Disability Examiners (NADE), an organization of the personnel who are involved in making initial and reconsideration determinations on Social Security disability claims, has issued its Spring 2016 newsletter.
     The newsletter includes a summary of a meeting that NADE officials had with Gina Clemons, Social Security's Associate Commissioner for the Office of Disability Policy. Here's an excerpt from NADE's writeup of the meeting:

The new OIS [Occupational Information System] will include many occupational descriptors similar to those adjudicators currently use in the DOT [Dictionary of Occupational Titles]. The DOT contains discrete and well-established descriptions of the physical demands of occupations, but it does not provide information on the mental and cognitive requirements of occupations. The agency hopes to include mental and cognitive data elements in the OIS. However, this would be part of a separate BLS 9Bureau of Labor Statistics] collection, so they are working hard to determine the most useful mental and cognitive elements before BLS performs further testing in this area. The agency’s goal is to have this new tool (without the mental and cognitive data elements) ready for use by 2019.

Appeals Council Seldom Grants An Exception

     The most recent issue of the newsletter of the National Organization of Social Security Claimants Representatives (NOSSCR), which is not available online, has an article prepared by Social Security's Office of Appellate Operations Staff on the exception process at the Appeals Council. Generally, a claimant may not file a new claim for disability benefits while an old claim is pending at the Appeals Council. However, there is an exception process where there is evidence of a new critical or disabling condition. Here's a table from the article showing just how infrequently the agency finds grounds for an exception:

     Does it seem outrageous to you that any claimant could file a new claim while an old one is pending at the Appeals Council? What do you think about the fact that the Appeals Council sits on most cases for well over a year and often over a year and a half yet denies review something like 80% of the time? It almost seems like the delay is intentional, just to make taking a case to the United States District Court less appealing. Whether it's intentional or not, that's the effect. I don't think that's appropriate.

And Yet We Have A Five Month Waiting Period For Social Security Disability Benefits And A 29 Month Waiting Period For Medicare For The Disabled

     From the Associated Press:

Two-thirds of Americans would have difficulty coming up with the money to cover a $1,000 emergency, according to an exclusive poll released Thursday ... 

Seventy-five percent of people in households making less than $50,000 a year would have difficulty coming up with $1,000 to cover an unexpected bill. But when income rose to between $50,000 and $100,000, the difficulty decreased only modestly to 67 percent.

Even for the country's wealthiest 20 percent — households making more than $100,000 a year — 38 percent say they would have at least some difficulty coming up with $1,000.

Social Security To Track Disability Claims Related To Flint Water Contamination

     The Social Security Administration has decided to start tracking disability claims related to the lead contamination in the Flint, MI water supply. They're not going to treat the claims differently; just track them.