Strange Stuff

There have been accusations, or perhaps intimations, of some poorly defined impropriety concerning attorney Eric Conn. Maybe there is something there, but I have seen nothing that seemed substantive to me. Conn is fighting back with an ad that must be seen to be believed. By the way, that woman at the end of the ad, what is she supposed to represent?

     Update: A reader in West Virginia wants to make it clear that while Conn may practice before a West Virginia hearing office that he is based in Kentucky.
     I have an idea about that woman at the end of the ad. If my guess is correct, this adds an incredibly lurid aspect to this ad.
     If bad taste were a crime, Mr. Conn would deserve drawing and quartering.

Preaching It However You Want

     Social Security's effort to create an Occupational Information System (OIS) to replace the Dictionary of Occupational Titles (DOT) is the most important policy development at the agency in more than thirty years. Recent activities at the agency's Occupational Information Development Advisory Panel (OIDAP), which is tasked with creating the OIS, remind me of the story of a young preacher, badly in need of a job, who is sitting before a church board. A member of the board asks, "How do you feel about same sex marriage?" The young preacher immediately replies, "Just tell me how you feel. I can preach it either way." OIDAP wants to make sure they are creating the OIS in such a way that it will say whatever Social Security management at any given time wants it to say -- and remember that the term of Social Security Commissioner Michael Astrue expires in January 2013. OIDAP wants to please not just the current Commissioner but his successor as well. No one knows how that person will want it preached so OIDAP is building in the capacity to preach it any way the new Commissioner wants it preached.
     Recently I asked what I think are the key questions about Social Security's OIS plans:

• Let us suppose that you collect data on a job, such as office assistant, and this data shows it to have been performed at the sedentary level at 20% of employers, at the light level at 70% of employers and at the medium level at 10% of employers. How would this job be categorized in the occupational information system you are developing -- as sedentary, as light or as medium -- or would it be categorized as all three -- or would it be broken down into three new job titles of Office Assistant I, II and III? A similar question could also be asked about the length of time it takes to learn the job of office assistant or many other criteria.
• When will the decision be made on how to categorize jobs? Before or after the data is collected?

     OIDAP has released its Occupational Information System Fiscal Year 2011 Research And Development Plan which gives us a good idea of how these questions will be answered. I have uploaded this using Scribd, a helpful service that allows anyone to get documents on the public record for free. This is a roadmap for Social Security's OIS development. It definitely answers the last question I asked above and sets forth the process for how the rest of the questions will be answered, although everything is expressed in OIDAP's typically opaque prose.
     One early stage in the development of the OIS to is create a prototype data analysis plan. The plan identifies the following as a "key question": "What are SSA's analytic objectives (e.g., aggregation of position-level data to job-and occupation-level categories and calculation of occupational prevalence) How do they align with SSA OIS requirements." page 36. Exactly. They are not asking the abstract question of how this data should be classified but how does Social Security want the data classified so that it meets the agency's "requirements." They are going to be making the decision about whether the hypothetical job I was asking about will be aggregated simply as Office Assistant or broken down as three separate jobs of Office Assistant I, II and III or how the information about this job or jobs is presented based upon what the Social Security Administration wants. But you may object that the language I quoted above only shows that OIDAP is legitimately concerned with Social Security's needs and isn't really going to tailor the OIS to what Social Security management wants at any given time. Read on.

     The next stage is to conduct a pilot using the prototype. Here the report identifies a key question as being "What can SSA learn for OIS design from the occupational information collected as part of the data collection analysis pilot? (For example, does the information help SSA determine what level of within-title heterogeneity is acceptable given the agency's program needs.)" page 37. That term "within-title heterogeneity" tends to throw one, doesn't it? The titles they are talking about are job titles and by heterogeneity they mean how wide or narrow to make the job titles. Again, do we just have the job title of Office Assistant or do we divide it into Office Assistant I, II and III. They say explicitly that this decision will be made based upon "the agency's program needs" after data collection has started Again, the decision is not being made on the basis of any science or the basis of any independent judgment but on the basis of what Social Security wants. Are you starting to get the picture?

     Next we go to a national pilot and again there is the same key question about "within-title heterogeneity." pages 39 and 41.

   Beyond that, OIDAP must formalize an "occupational title taxonomy" and again the same key question of "heterogeneity" pops up. page 43.

    At the next step, OIDAP intends to evaluate what will happen when the OIS is implemented in the real world by comparing results using the OIS with results using the DOT "to assess relative utility of new OIS data and potential operational and programmatic gaps." page 44. They want to make sure that Social Security is achieving whatever goal it has in approving and denying claimants. Of course, as part of that they will again address that pesky issue of "within-title heterogeneity." page 48.

     If you read the whole thing, it is clear that this plan explicitly allows Social Security management to control the process each step of the way to achieve whatever goals that agency management has at any given point. OIDAP is ready to "preach" it however Social Security management wants it preached.

     Science is being employed here, to be sure, but science will not determine the results. The results will be determined by the agency's policy desires. That is the whole point. Social Security management doesn't want to spend hundreds of millions of dollars to produce an OIS that it cannot stand and the Social Security employees working on the OIS don't want to worry that they will be fired by a new Commissioner because they were unable to predict what that future Commissioner would want. What we have here, to quote Dilbert, is "the way of the weasel."

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. ...