Blame The ALJs

Public Radio's Marketplace program ran a piece yesterday on Social Security's backlogs. Commissioner Astrue was interviewed. Listen to the piece online. Here are the parts of the transcript of the piece with Astrue's comments:

Judge Robert Habermann hears disability cases in Roanoke, Va., and is an officer in the judge's union. He says the Social Security Administration is pressuring judges to just ram through positive decisions.

ROBERT HABERMANN: It solves a lot of problems by just paying the case. The individual claimant is out of the system. In other words, there are no appeals.

Haberman says those positive decisions could stack up to billions of dollars in wasted taxpayer money.

MICHAEL ASTRUE: Well I've heard that as a union line, but that's just not true. ...

MICHAEL ASTRUE: We've had judges who decided no cases in a year. And we've had judges that have fairly chronically decided double digits -- 40 cases a year.

In fairness, the transcript makes it clear that Astrue also told the reporter that Social Security needed more money to hire more Administrative Law Judges (ALJs), but it appears that Astrue gave about equal weight to more money and ALJ productivity.

First Impressions

I have started looking at the proposed new regulations on representation of claimants. My first impression is generally unfavorable.

The most important thing I was looking for in the proposal is simplification of the process when an attorney leaves my firm and is replaced by another attorney. Currently, this process requires the filing of several forms which Social Security often fails to enter into its computer system. It is a mess. This proposal will not help. The same forms must be filed with the same potential for problems. If anything, the process could become more problematic. Here is Social Security's summary:

Any entity seeking direct payment of fees must maintain, and provide to us upon our request, a signed statement from each of the entity’s attorneys and eligible non-attorneys who represent claimants before us. The statement must state that the attorney or eligible non-attorney is performing representational services on behalf of the entity. The statement must also assert that any fees should be paid directly to the entity and that the representatives receive any compensation directly from the entity. Any request for direct payment of fees made by an entity must include an attestation that the entity is in possession of this signed statement from each attorney or eligible nonattorney who has performed any representational services for the claim in question.

This raises the specter of a disgruntled departing attorney withdrawing his or her "signed statement" while asserting that he or she worked on each of the firm's cases, whether that was true or not. If that happened, the firm would become ineligible for direct payment of fees for any of its cases. This would be a nightmare. There would be considerable potential for blackmail by a disgruntled departing attorney.

Without much more clarification, I would not register my firm as an "entity" with Social Security.

Here is an interesting nugget that I do support:

We propose to revise our list of prohibited actions to include three additional items: refusing to comply with any of our regulations, violating any section of the Act for which a criminal or civil monetary penalty is prescribed, and assisting another individual whom we have suspended or disqualified.

Update: Here is the link to the NPRM in the Federal Register.

Proposed Regulations On Representatives Coming Monday -- Read Them Today

The Social Security Administration has filed a 99 page Notice of Proposed Rule-Making (NPRM) to be published in the Federal Register on Monday, but you can read it today. Here is Social Security's brief summary:

We are proposing several revisions to our rules on representation of parties. These proposed rules would recognize entities as representatives, define the concept of a principal representative, and authorize principal representatives to sign and file a claim for benefits on behalf of a claimant. These proposed rules would also mandate the use of Form SSA-1696 to appoint, revoke, or withdraw an appointment of a representative, and to waive a fee or direct payment of the fee. We propose to define the concept of a professional representative and require professional representatives to use our electronic services as they become available, including requiring professional representatives to submit certain requests for reconsideration or a hearing before an administrative law judge (ALJ) electronically. Finally, we propose to require representatives to keep paper copies of certain documents that we may require. We are proposing these revisions to reflect changes in representatives’ business practices and to improve our efficiency by enhancing use of the Internet.

Note that this is a proposal. The public can comment on the proposal. Social Security is supposed to consider the public comments. As a practical matter, this proposal cannot become official regulations until there is a new President. The new President, through the Office of Management and Budget, can refuse to approve the proposed regulations or demand changes as a condition for approval, not that I expect this proposal to be that controversial. I have not had time to study the proposal.

Update: Here is the link to the NPRM in the Federal Register.

Statistical Report On Disability Program Released

The Social Security Administration has released the Annual Statistical Report on the Social Security Disability Insurance Program, 2007.

Below is a table showing the final outcome of claims for recent years. The first percentage is defined as "Rate determined by dividing awards by all applications minus pending claims for that year" and the second percentage is defined as "Rate determined by dividing medical allowances by all medical decisions for that year." However you do the numbers, it has become significantly more difficult to get Social Security disability benefits since George W. Bush became President, even if you ignore the enormous increase in delays during the Bush Administration.

1999								56.0	61.3
2000								56.0	62.5
2001								55.4	62.7
2002								52.2	60.6
2003								47.7	59.4
2004								41.9	58.3
2005								40.5	56.3
2006								33.7	50.9

Another table shows that Social Security is terminating disability benefits due to work activity for one-half of one per cent of disability recipients each year. Thank goodness for Ticket to Work!

A Deep Irony

Sylvester Schieber, the Chairman of the Social Security Advisory Board (SSAB), spoke to the conference of the Association of Administrative Law Judges (AALJ) last month. Schieber did not speak off the cuff. He prepared a nine page speech and then thought enough of it to post it on the SSAB website. I find what he wrote appalling.

Trotting out the tritest rhetorical trick in the book, Schieber told the AALJ that "those who choose to ignore history are condemned to repeat it." Schieber thought that either Winston Churchill or Harry Truman said this. They may have said it, but if they did they were quoting George Santayana. But this is a minor quibble.

My bigger problem with this speech is encapsulated in the contradiction between this excerpt from the speech:

We all know that over the years there have been numerous attempts to reform, redesign, and improve the disability hearing process. In fact, when the Board was doing research for our September 2006 report, Improving the Hearings Process, we counted over 40 “hearings process improvements” initiatives undertaken by the agency in the preceding 30 years. Unfortunately, none of them had much lasting success. Today, the Social Security Administration has implemented another initiative designed to eliminate the disability hearings backlog and prevent its recurrence.

And this excerpt:

... it is necessary to look beyond conventional solutions to address the needs of the future. If SSA [Social Security Administration] truly is going to reduce the hearings backlog and prevent its recurrence, then the effort must extend beyond ODAR [Office of Disability Adjudication and Review] and look at how work gets done across the agency. Policy and procedural conflicts and ambiguities need to be addressed; performance measures need to be standardized; and technology must be leveraged in a way that reflects a new approach to workflow rather than as a tool that merely automates current processes.

Schieber seems to recognize that grand plans for solving the problems of the Social Security Administration with reorganizations and technology have a dismal history. New managers at Social Security keep trying to reorganize or use technology to get their agency out of the hole it is in, but eventually find that all they have been doing is digging the hole deeper. But Schieber can only recommend that the agency dig smarter!

Here is Schieber's plan for smarter digging:

The Social Security Advisory Board believes that it is incumbent upon the Social Security Administration to once again envision a future where emerging technologies and other innovations can be used to deliver services that meet the needs of the American public. This will involve shedding traditional paradigms and undertaking a comprehensive review of current business processes, identifying gaps in service delivery and looking for efficiencies that will leverage human capital and resources. It is time for the agency to learn the right lessons from its history—that appropriate adaptation of technology can be the key to addressing its massive administrative challenges ...

This is a nothing but a mind-numbing barrage of corporate buzzwords. Do the other members of the SSAB know that he was speaking this nonsense on their behalf?

Schieber's speech is deeply ironic. Even though Schieber starts out by telling us that "those who choose to ignore history are condemned to repeat it," he proceeds to recommend that we repeat past mistakes. Schieber does not mention the obvious alternative of letting Social Security hire enough employees to get the work done, an approach that Commissioner Astrue once referred to as "brute force," which would be a genuinely new idea. Such a straightforward approach seems truly inconceivable to Schieber.

Schieber's speech is a good argument for dismantling the SSAB. The money would be better spent on more personnel to get the work done at Social Security. But I would say the same even if the chairman of the SSAB had something sensible to say.

By the way, if you are wondering how Schieber got his job, it was because he co-wrote a book calling for the partial privatization of Social Security.

Some Old Poll Results -- Great Prognostications!

Below are the results of a couple of polls that appeared here in September and October of 2007.

I will do a new poll after the Republican convention asking whom you think will win the general election, but the results of these polls suggest that no one should not put much faith in the prognosticating ability of the readers of this blog!

Who Will Win The Democratic Nomination?
Who do think will be win the Democratic nomination for President in 2008?

Joe Biden (0)	0%
Hillary Clinton (79)	65%
Chris Dodd (4)	3%
John Edwards (13)	11%
Mike Gravel (3)	2%
Dennis Kucinich (2)	2%
Barack Obama (11)	9%
Bill Richardson (2)	2%
None of the above (2)	2%
Don't know (6)	5%

Total Votes: 122

Who do you think will win the 2008 Republican Presidential nomination?

Sam Brownback (3)	4%
Rudolph Giuliani (34)	45%
Mike Huckabee (5)	7%
Duncan Hunter (2)	3%
Alan Keyes (3)	4%
John McCain (2)	3%
Ron Paul (5)	7%
Mitt Romney (11)	15%
Tom Tancredo (2)	3%
Fred Thompson (8)	11%

Total Votes: 75

Scurrying To Address Individual Cases, But Not Addressing The Real Problem

There have been a number of stories over the past year or two about the hardships faced by Social Security disability claimants. Recently, there have been media reports about action taken by the Social Security Administration in the cases of claimants featured in these news reports .

I have received enough reports privately from attorneys representing claimants who have been featured in media reports that I can say with some confidence that there has been a high level decision at Social Security to do everything possible to expedite the case of anyone featured in a news report. This is new. In the past, when I have had clients who were featured in media reports as best I could tell, there was no concerted effort to expedite things. If anything was done to speed up things, it was all a local decision. Now, orders are coming down from on high to make dramatic efforts to expedite review for individuals featured in media reports. Somewhat distressing is one report I received that an attorney whose clients were featured in a news article received an unsubtle threat of retaliation from the Social Security Administration.

While I am glad that these individuals are getting relief, this does not promote justice and equity. Most Social Security disability claimants do not want to talk with reporters. I have more compelling cases than any featured in media reports, and so does any other attorney with a full time Social Security practice, but those clients do not want to talk with the media. Even if all those with the most compelling cases were willing to talk with reporters, the media can only report on so many cases anyway.

It seems obvious to me that this response to media reports is happening now because of the political campaign. What we are seeing is politicization of Social Security -- or perhaps what we are seeing is evidence that Social Security is inherently political.

This is one of many things which suggests to me that Michael Astrue's horizon does not extend past the election. This does not mean that he will leave as Social Security Commissioner after the election, even if Obama is elected, but he is intensely focused upon the very short term and nothing else.

This is one more proof that the concept of Social Security as an independent agency is a failure.

A Democratic Theme

A major theme of this blog is the undeniable deterioration of service at the Social Security Administration. However, Social Security's problems are just one example of a larger issue which is being addressed by Democrats.

Thomas Frank wrote in The Wrecking Crew: How Conservatives Rule that conservatives actually want poor government service because to them "effective government [is] somewhere between impossible and undesirable." For them poor government service just "leads to "another sour truckload of the mother's milk of conservatism, cynicism toward government."

Barack Obama, in his acceptance speech at the Democratic National Convention, echoed this theme telling us that:

... if you don't have any fresh ideas, then you use stale tactics to scare the voters. If you don't have a record to run on, then you paint your opponent as someone people should run from.

You make a big election about small things.

And you know what — it's worked before. Because it feeds into the cynicism we all have about government. When Washington doesn't work, all its promises seem empty. If your hopes have been dashed again and again, then it's best to stop hoping, and settle for what you already know.