NY Times Editorial

Some excerpts from a New York Times editorial (registration required):

In 2005, President Bush put his political capital where his mouth was, and lost. He went all-out to convince Congress and the American people that privatizing Social Security would be good and necessary. It’s neither — and his plan was justifiably and soundly rejected. ...

Mr. Bush is proving similarly tone-deaf when it comes to choosing members for the Social Security board of trustees.

There are six trustees, four of them administration officials and two outsiders. The job of the two outsiders — nominated by the president and confirmed by the Senate — is to represent the public’s interest in decisions about the program. Last year Mr. Bush nominated the same two men who had served in his first term. That violated the rationale for having public trustees, which is to bring fresh perspectives. So Congress refused to consider the nominees, but Mr. Bush appointed them for another year while Congress was in recess. He has now renominated them for new four-year terms.

Mr. Bush won’t get his way. But he is alienating Congress and creating delays that will make it harder for the next two public trustees — whoever they are — to participate fully. ...

There Are Things That Can Be Done About Backlogs Now

The only longterm solution for Social Security's humongous backlog in holding hearings on disability claims is to give the agency a bigger staff. However, as practical matter Social Security is going to have fewer personnel during this fiscal year and it is unlikely that the agency's budget for the next fiscal year will include the vast infusion of money and personnel that is needed to get the job done quickly. The vast infusion will have to come, but it will take years.

This does not mean that there is no hope for the current fiscal year. Social Security does not have to wait years to start doing something about this backlog. There are things that can be done and done quickly that will prevent things from getting worse between now and the end of the fiscal year. They may even improve the situation a bit in the next few months. These quick fix solutions help only a little in the long run. Few of them would be good ideas if this was not such an unacceptable situation. These ideas can easily be criticized as "paying down the backlog" and that is why none of these ideas was utilized during the last six years, but if the current situation is unacceptable, there is no need to worry about this sort of criticism.

Here is my list of quick fix solutions to help Social Security's hearing backlog, listed by how quickly they can be implemented -- and the time frames I am giving are my estimates based upon the assumption that the Commissioner pushes hard for rapid implementation, since otherwise implementation might take decades:

1. Hold hearings on cases without "pulling" exhibits. When case files come into ODAR they are a mess. There are duplicate copies of medical records. Medical records may have been requested from a single provider on several occasions, meaning that the records from that provider are spread out at several places in the file. Even when all of the records from a single provider are in one place, they may not be in chronological order. Even if they are in chronological order, the order will go forward in one set of records and backwards in another. The files are jumbles. A staff member "pulls" out the relevant medical evidence and places it in some order. This is extremely helpful for all involved and should never be abandoned permanently. However, staff shortages have made pulling exhibits a bottleneck. Many ALJs would like to hold more hearings but cannot because files have not been "pulled." Some hearing offices have abandoned "pulling" exhibits as a general matter. The exhibits are "pulled" only if a claim is to be denied. This is inconvenient for all concerned and can lead to confusion and misunderstandings, but there is no doubt that it improves productivity. Social Security seems to have no fixed policy on this. My opinion is that instructing ALJs to hold hearings routinely on unpulled files would improve productivity by at least 10%. This is a temporary expedient that should be abandoned quickly after the crisis is over. This could probably be implemented in less than three months, although the complaints about it would continue for years after it was over.
2. Re-start re-recon and senior attorney decisions. Re-recon was never Social Security's term, but no one remembers what term Social Security was using. Re-recon was the term most people were using. When re-recon was last used, during the Clinton Administration, once a Social Security disability claimant was denied at the reconsideration (often called "recon") level and asked for a hearing, the case was quickly examined to see if it fit into one of several categories of cases that were frequently allowed by Administrative law Judges (ALJs). If the case fit into one of these categories, such as claimants over 55 or claimants suffering from chronic mental illness, the case was diverted to one of several special units where it was reviewed to see if the claim should be approved. The review was something like a new reconsideration review, hence the term re-recon. The re-recon review was done quickly. If the claim was approved, the case was over and done with in a month or two without any ALJ ever having to look at the file. If the case could not be approved at re-recon, the file was sent on for a hearing, with no delay for the claimant. I would give a guess that re-starting re-recon could reduce the number of cases requiring ALJ review by around 5% and the vast majority of the cases would have been approved by ALJs anyway. Social Security should have statistics showing what effect this had the last time it was done. This could be implemented in about six months to a year, without the need for new regulations, but Senior attorney decisions could be implemented more quickly since those personnel are already in place. Once case files reach ODAR, which is the office where ALJs work, they are routinely reviewed to see if the case can be approved without the need for a hearing. These are called on the record reversals, or ORRs or OTRs. Usually, it is a staff person rather than an ALJ who does the ORR initial review at ODAR. Once a staff person identifies a case that he or she thinks is a good candidate for ORR, he or she must get an ALJ to sign off on the ORR. Most of the time the ALJ does agree with the ORR, but there are some ALJs who seem to believe that virtually no case is appropriate for ORR and some other ALJs seem unwilling to take the time to review these case files, which may not be as unreasonable as it might sound when you consider ALJ workloads. In the senior attorney program, which was also employed during the Clinton Administration, Social Security's senior attorneys review case files for potential ORRs, much the same as now, but instead of taking potential ORRs to an ALJ for action, the senior attorney would be able to take action on his or her own to approve the claim. Like re-recon this can be criticized as paying down the backlog, but the vast majority of the time these claims would be approved by ALJs later anyway. ALJs do not like senior attorney decisions because they feel it reduces their status. Under the circumstances neither objection seems important. My estimate is that re-starting the senior attorney program would reduce the number of cases requiring ALJ hearings by 5-10%. Again, Social Security should have numbers showing what the results were the last time this was done. The problem with restarting the senior attorney program is that the regulations which allowed senior attorney decisions have lapsed, meaning that an official re-start of the program would require the approval of the Office of Management and Budget, which could take months, but the re-recon regulations are still on the books. There is nothing in those regulations that prevents the re-recon regulations from being used as authority for senior attorney decisions. Using this authority the senior attorney program could be restarted in less than three months, although again the complaints about it would continue for years.
   
3. Raise the length of time a claimant has to request reconsideration or a hearing from 60 days to six months. This is my idea. It was not tried during the Clinton Administration or at any other time, as far as I know. However, the time limit for appeals was six months until the mid-1970s. I do not know why it was changed then. Because of the common tendency towards procrastination, going back to a six month time limit would temporarily reduce the number of reconsideration requests and requests for hearings, since it would increase the average length of time between a denial and an appeal. A good guess is that this would increase this average length of time by one to two months at each level, which would produce a temporary but dramatic reduction in the number of reconsideration requests and requests for hearings. This would be a nice breather for Social Security. This might also result in less churning. Many claimants are denied at the initial level, become discouraged or make an unsuccessful attempt to return to work, miss the 60 day cutoff to file an appeal and have to start all over again. It would be better for them and would mean fewer new claims for Social Security if they could just file an appeal. However, this regulatory change does encourage procrastination and that is not a good thing. This change could be done in three to six months, assuming there is no unusual holdup at the Office of Management and Budget, which has to approve changes in regulations -- and this one takes a change in regulations.
   
4. Make a statistical review of cases in which ALJs reverse prior administrative denials to look for patterns showing which types of cases are most reversal prone and carefully consider adjusting policies and practices at the initial and reconsideration levels to allow more of these cases. This was done during the Clinton Administration and it worked. This was a part of something called Process Unification. I have my own candidates for types of cases that Social Security should look at. The most important type would be bipolar disorder. Social Security is turning down almost everyone who is bipolar at the initial and reconsideration level, but 80-90% of these claims are approved by ALJs. I have more clients suffering from bipolar disorder than anything else. It may be 10% of my caseload. The next biggest category is chronic pain syndrome. If the claimant is going to a pain clinic and being told to take methadone or some other powerful narcotic several times a day, they might just be in severe pain. However virtually all such claims are being denied at the initial and reconsideration levels, while the vast majority are approved by ALJs. Social Security probably ought to look at its policies on mental retardation, congestive heart failure, obesity and peripheral neuropathy as well. You could probably eliminate 10-20% of appeals to ALJs in this manner and the vast majority of these claims would have been approved by ALJs anyway. This would probably take at least a year to implement.
   

SSAB Meeting Agenda

The Social Security Advisory Board (SSAB) has announced the following agenda for its meeting on February 13, demonstrating that with a Congress controlled by Democrats everyone's attention seems to be shifting to budgetary concerns:

Social Security Advisory Board
Meeting Agenda
Tuesday, February 13, 2007

1:45 p.m. - 3:15 p.m. Dale Sopper, Deputy Commissioner for Budget, Finance, and Management

The meeting will be held in the Board's conference room, Suite 625

400 Virginia Avenue, SW

Washington, DC

FEDRO Jobs Advertised

The Social Security Administration has posted an announcement of "many" job openings for Federal Reviewing Officers in Falls Church, VA. This is an essential part of the Disability Service Improvement (DSI) plan that former Commissioner of Social Security Jo Anne Barnhart thought was essential to Social Security's future, but which current Commissioner Michael Astrue believes to be of marginal importance. Given the uncertainty about the future of DSI, it will not be easy for Social Security to hire people for this job.

Threatened Immolation At Tampa Social Security Office

From MyFoxTampaBay:

TAMPA - Hillsborough deputies say they've arrested a man who threatened to burn himself at a Social Security office.

Witnesses say Jason Elliot walked into the building at 4010 Gunn Highway and poured gasoline on the floor.

Elliot then told Social Security workers that he was going to set himself on fire, but that he didn't want to hurt anyone.

A Little Help, Please

There are some issues I would like to post on, but I do not have access to Social Security records on these points. None of this should be secret. Much of it would be available on Social Security's intranet, but, of course, I have no access to that, since I do not work for Social Security. I would appreciate it if some kind soul or souls could send me information on the topics listed below -- and please do not send me intranet links. Send e-mail to charles[at]charleshallfirm.com

1. Statistics on backlogs of EDCS data entry. I get the impression from my own law practice that a serious backlog is developing in data entry at the District Offices. Claims and appeals are piling up because no one has the time to do the data entry in EDCS. Are any numbers available? Is this making the ODAR backlogs look better (or less bad) than they are?
   
2. Statistics on productivity before and after EDIB. EDIB has been in place in some areas long enough that statistics should be available on productivity before and after EDIB. Something tells me that good numbers would have been trumpeted loudly, but I have seen nothing. What do the numbers say?
   
3. 800 number error rates. There was a study years ago showing that Social Security's teleservice centers gave bad advice something like half the time when claimants asked even moderately complex questions. I have clients telling me about all kinds of nonsense that they were told when they called Social Security's 800 number. Has Social Security done any recent studies on how accurately teleservice centers respond to inquiries?
   
4. Memos about "private" numbers at Field Offices. Anyone who deals much with Social Security Field Offices knows that it is almost impossible to get through if you call the telephone numbers shown in the white pages of the telephone book for Social Security's local Field Office. Every Field Office has one or more"private" telephone numbers that employees and their families can use to get through to the office. Otherwise, a Social Security employee would face a daunting task to even call in sick. I am NOT looking for a list of these "private" numbers. I would be interested in any memos discussing policy on these "private" numbers. Those who work at Social Security or deal with the agency on a regular basis take this situation for granted, but it must seem strange. I would say that it is an indication of something terribly wrong that an employee has to use an unlisted number just to get through to his or her own office.
   

What Committments Did Michael Astrue Make To Become Commissioner?

Back in October I wrote about how outside groups might ask senators to extract commitments during the confirmation process for Michael Astrue, the nominee to become Social Security Commissioner. The confirmation process is over and Astrue has been confirmed. Let us look back at the issues I thought would be raised (and one which should have occurred to me but did not) and the results that we have seen so far:

1. Keep the Social Security Administration out of politics, including any renewed effort at privatization or other "reform" of Social Security. This was a no-brainer. It was the first subject covered in the confirmation hearing and Astrue gave a clear committment to keep the Social Security Administration out of politics.
   
2. Officially withdraw the Notice of Proposed Rulemaking that would increase the age requirements of the grid regulations. This did not come up during the confirmation hearing, but that does not mean that it did not come up during the private interviews before the hearing. We can hope this one will be quietly withdrawn. It would certainly be impolitic of Astrue to officially adopt the regulations. I do not expect any announcement that the proposal has been withdrawn, however. If it is going to be withdrawn, the winddrawal will just be hidden away in the next regulatory agenda that Social Security has to publish in the Federal Register.
   
3. Do something now about the backlog of pending requests for hearings at Social Security, such as restarting "re-recon" and senior attorney decisions. Again, this subject was not covered during the public hearing, but that does not mean that Astrue was not asked to make a commitment privately. Since this would be fairly quick and easy to do, we can hope to find out before long. Astrue did publicly commit to talking with the employee unions. The National Treasury Employees Union (NTEU) has been pushing for the senior attorney program. The House Social Security Subcommittee may be pressing Astrue on this one as well.
   
4. Speak publicly about Social Security's budget problems. It was clear from Astrue's comments during the hearing that Social Security's budget is already very much on his mind. It also seems clear that he wishes to avoid the trap of promising that some grand plan will improve service at Social Security without regard to Social Security's budget. He seems prepared to tell Congress that the level of service that the Social Security Administration provides the American people is determined by the budget they provide his agency. This is an enormous step forward. It remains unclear whether he is willing to speak outside Congressional committee rooms about the problem.
   
5. Raise the fee cap. Under the fee agreement process, attorneys and others representing Social Security claimants are currently limited to a maximum fee of $5,300, as a practical matter. This cap has not been raised in more than five years. Adjusting this cap for inflation is at the discretion of the Social Security Commissioner. The National Organization of Social Security Claimants Representatives (NOSSCR) was seeking a commitment from Astrue to not only raise the cap to account for inflation, but also to make cost of living adjustments an annual event. We should find out on this soon, since almost no effort is required to raise the fee cap.
   
6. Talk with the employee unions. This is one that I should have foreseen, but did not. Jo Anne Barnhart talked with everyone who was interested in talking with her, with one huge exception -- the employee unions. The National Treasury Employees Union (NTEU) and American Federation of Government Employees (AFGE) were extremely unhappy with this and demanded that the new Commissioner meet with them. Astrue promised during the confirmation hearing to meet with the employee unions.
   

Budget Hearing Ends In Acrimony Over Social Security

I thought that the Treasury Secretary was the last person in America to believe that Social Security "reform" was possible in this Congress. I stand corrected. Senate Budget Committee Chairman Kent Conrad must have been the last. From the Associated Press:

WASHINGTON (AP) — Back-channel efforts by the White House and Capitol Hill Democrats to begin trying to negotiate a solution to the fiscal problems of Social Security and other federal benefit programs appeared to collapse Wednesday.

At issue is a little-publicized attempt by the White House and members of Congress to set up a working group of lawmakers and top administration officials to fortify benefit programs like Social Security and Medicare for the severe future fiscal challenges due to the looming retirement of the Baby Boom generation. Three-fourths of the group, evenly split between Democrats and Republicans, would have had to agree on any solution.

But Senate Budget Committee Chairman Kent Conrad, D-N.D., accused the White House of acting in bad faith at a panel hearing that turned acrimonious over White House Budget Director Rob Portman's unwillingness to acknowledge that tax increases should be part of any fix for the long-term problems of the huge federal benefit programs.

"We have an opportunity here to work together, but the only way I know in human relations for there to be resolution between parties who have different views is for both sides to compromise," Conrad said. "Unfortunately I see virtually none on your side. And I regret that more than I can say."

Conrad then gaveled the hearing to an end and immediately left.