A Law School Professor Looks At Social Security Disability Determination

     If you are an Administrative Law Judge (ALJs) or an attorney who represents Social Security claimants and your blood pressure has been a little low lately, take a look at What Should We Do About Administrative Law Judge Disability Decisionmaking by Richard J. Pierce, a professor at George Washington Law School and a member of the Administrative Conference of the United States. Here are a few highlights:

• He argues that disability determinations made by ALJs are inherently inferior to those made at the initial and reconsideration levels
• He recommends that we should make a claimant's former employer pay a portion of disability benefits granted and give that employer the ability to contest a Social Security disability claim.
• He believes that Social Security should implement quality assurance reviews of ALJ decisions.
• He recommends eliminating the consideration of non-exertional impairments although he concedes that there are some people who suffer disabling pain or mental illness.
• He recommends the elimination of all ALJs and, apparently, any right to a hearing at Social Security. He thinks it highly unlikely that the Supreme Court would have a problem with that, especially since he regards ALJs as unconstitutional.

Hearing Office Average Processing Time Report

From the National Organization of Social Security Claimants Representatives (NOSSCR) newsletter.

For comparison purposes:

• January 25, 2007 -- 508 days
• February 29, 2008 -- 511 days
• March 8, 2009 -- 499 days
• July 5, 2010 -- 415 days
• February 1, 2011 -- 371 days
• April 29, 2011 -- 357 days 
• June 24, 2011 -- 353 days

Australian Disability Determination For Adults May Look A Lot Like SSI Disability Determination For Children

     An advisory committee in Australia has recommended new rules for the determination of disability under that country's Social Security system. It bears more than a little resemblance to the way in which disability is determined for children under the U.S. Supplemental Security Income (SSI) program, complete with the impossibility of determining whether an individual is mildly, moderately, severely or extremely impaired. To make the Australian plan even better, it looks like they have no equivalent of the Listings!

     Reading the Australian plan may be a sobering experience for anyone who thinks that disability determination in the U.S. is a mess and that there must be a better way. What is being recommended in Australia looks far more unworkable than what we have in the U.S.

Lowered Appropriations For Social Security? Shutdown Looming On October 1?

     The Labor-HHS appropriations bill, which includes the Social Security Administration, was set for House Appropriations subcommittee markup on July 26 and for full committee markup on August 2 but that was postponed due to the debt ceiling crisis. No doubt it will be rescheduled for the near future.

     Some time ago, the House Appropriations Committee announced subcommittee allocations, that is the total amount of each subcommittee appropriation. The Labor-HHS Subcommittee has been told to cut appropriations by 12% from FY 2011 and by 26% from the President's budget. If I understand correctly, one aspect of the debt ceiling bill that will finally pass later today is that it essentially enacts the budget limits for FY 2012 that had been reported out of the House Budget Committee, the limits that the House Appropriations Committee used in preparing its subcommittee allocations. What is unclear to me is the extent to which the appropriations process is bound by the budget. The top line number for the entire budget will soon be established but how far down does that go? Does that debt ceiling bill enact the allocation to the Labor-HHS appropriation or is it still possible to trade off between the Labor-HHS appropriation and the Defense Department appropriation, for instance? In any case, I am pretty sure that nothing has yet been settled about the allocations within the Labor-HHS budget, so there can be tradeoffs between Social Security and HHS, for instance. If this sounds like an amateurish attempt to explain a complicated situation, it is. Still, it's far more than you're likely to find anywhere else.

     Social Security's operating budget is not going to be cut by 12%. If that happened, Social Security might have to do something like shut down one day every week for an entire year. The agency's business just wouldn't get done. However, some cut may be inevitable. Furloughs are a distinct possibility. Increased backlogs are inevitable.

     Is there a risk of a government shutdown on October 1? You would think not since we will shortly have a budget cap established for the year. Even if there is still jockeying for position among agencies surely Congress can adopt a continuing resolution to keep everything going until things can be sorted out. Unfortunately, appropriations are also about policy. There are no policy issues of substance affecting Social Security's appropriation but there are major issues affecting appropriations for the Department of Health and Human Services (HHS). Social Security has the misfortune of being linked to HHS in the appropriations process. Republicans want to use appropriations to make it impossible to implement what they love to refer to as "Obamacare." This has the possibility of causing a shutdown at least in the parts of the government covered by the Labor-HHS appropriation and again I remind you that this includes Social Security. Will Republicans press things that far? In the wake of the debt ceiling mess, who knows? The Federal Aviation Administration is currently shut down over lesser issues.

Can You Trust The Answers You Get When You Call Social Security's 800 Number?

From Steve Vernon's CBS Money Watch blog:

Since I’ve been writing my posts on Social Security benefits, I’ve received emails and comments from several readers who complain that they can’t get a consistent or correct answer when they call the Social Security Administration. So is it true? Can you trust the answers you get when you call Social Security?

I’d be very careful relying on answers you hear when you’re on the phone with Social Security, particularly when it comes to complex situations. ...

The laws and regulations that surround Social Security and Medicare benefits can be extremely complex. Now mix this complexity with situations like these:

• Citizens might not ask questions accurately, or they may use certain terms incorrectly, at a time when you need absolute precision with the terms you use.

• Social Security representatives are expected to instantly respond to questions on a very complex subject, and occasionally they might not get it right. Or they might be tired at the end of the day — after all, they’re human, too.

• Social Security is not immune from cost-cutting initiatives, which can impact the skills and training of Social Security service representatives. ...

So here’s the bottom line for me: If the answer to a question about Social Security is really important to your planning, I’d call two or three times, just to compare the answers you get. Ask for citations on Social Security’s website or the internal administration manual that supports the answers. You might even ask to speak to a claims representative, just to be sure.

Vernon gives the example of asking an unusual question about "file and suspend." He got two different answers from Social Security. I am not at all sure that the answer that Vernon thinks is correct is actually right, although I would have to research it a bit more. Unlike Vernon -- and many Social Security employees -- I do not regard Social Security's POMS manual as infallible. Anyway, there are people reading this who would be able to give a definitive answer to Vernon's question, so help him out.

The bigger point is that no matter how good Social Security's online systems ever get to be, there will always be a need for a well-trained human element.

More Funds For Continuing Disability Reviews And SSI Redeterminations

 From the Congressional Budget Office (CBO) analysis of the debt ceiling bill to be voted upon tonight in Congress:

The bill would allow adjustments to the discretionary caps that would permit additional appropriations to:

• The Social Security Administration (SSA) to conduct continuing disability reviews of beneficiaries of the Disability Insurance (DI) and Supplemental Security Income (SSI) programs and redeterminations (of the eligibility criteria other than disability) of SSI beneficiaries ...

Social Security Administration [SSA]. The annual discretionary funding caps would be adjusted by the amount by which funds appropriated for the SSA program integrity activities for a year exceed $273 million; the maximum such adjustment would rise from $623 million for fiscal year 2012 to $1.309 billion a year for fiscal years 2017 through 2021. If the Congress were to appropriate the maximum amounts eligible for the cap adjustment related to SSA funding, spending for such activities would be about $4 billion above CBO’s baseline. Based on the $4 billion increase, CBO estimates that benefit outlays for DI, SSI, Medicare, and Medicaid would fall by nearly $12 billion over the 2012-2021 period (see Table 2). Additional savings would accrue after 2021. ...

Can Anyone Explain This To Me?

     From Jay Newton-Small writing at The Swampland blog at Time, writing about the debt ceiling agreement :

... [J]ust to ensure we don’t have another bruising government shutdown fight over cuts in September, the deal deems and passes the 2012 budget. Yes, that’s right, the old Gephardt Rule or Slaughter Solution, is back. What’s deem and pass? It’s a legislative trick that essentially means that Congress will consider the budget passed without ever actually having to vote on it.

     Neither the House nor the Senate Appropriations Committee has even started formally considering the Labor-HHS appropriations bill that includes Social Security, so how can we now rule out a government shutdown after September 30, 2011?

Debt Ceiling Deal Causes No Cuts For Social Security Until At Least 2013

     Nate Silver at the New York Times makes it clear. The debt ceiling deal will cause no cuts in the operating budget of Social Security or any other domestic agency until at least fiscal year 2013. The expiration of the  Bush tax cuts at the end of 2012 may prevent any cut in Social Security's operating budget.

     There is less to this debt ceiling agreement than meets the eye. There is little chance that the "super committee" that has been set up will recommend anything. Even if it does, there is even less chance the recommendation will be adopted. The failure to adopt something will have little immediate effect. Even down the road, the effect should be limited if President Obama is re-elected. If he is not re-elected, there will be problems but there would be problems for Social Security anyway.

     By the way, I really like the idea of using the super committee as a means of forcing Republicans in Congress to vote for enormous cuts in Social Security and Medicare.