More On Yesterday's Hearing

     I had some time today, while I did other things, to listen to yesterday's Senate Finance Committee hearing. Here are some things I heard that seemed noteworthy to me:

• Commissioner Astrue said that the technology used for Social Security video hearings before Administrative Law Judges had gotten so good that one could see the watermark on a drivers license.[That is not close to my experience. Often I can hardly recognize the people on the other end.]
• A quote from Commissioner Astrue responding to a question about the number of Social Security employees who are eligible or near eligible to retire: "I'm close to panic about holding onto our people."
• Social Security has a system which reports episodes of violence or threatened violence affecting Social Security offices. There used to be about 500 reports a year. It's now around 2,500.
• Ticket to Work is a "disappointment." The actuaries say it is not cost effective.
• Astrue said emphatically at about one hour into the hearing that it is not the law that attorneys and others who represent Social Security disability claimants are required to submit all medical evidence.
• The Commissioner is uncertain whether current law which gives Social Security Commissioners fixed terms which can overlap Presidential Administrations is a good idea. He seemed to indicate that he thinks it is a bad idea.
• Astrue said that his continuing as Commissioner after the change in the White House was not what the incoming Obama Administration wanted.
• He does not want another term as Commissioner. He wants to return to Massachusetts.

     Please listen to it yourself. It has its dull moments but also some interesting ones. It's certainly more interesting than most of these.

Hearing Site Reopened

     Social Security is closing remote hearing sites all over the country but one is reopening. This one happens to be in Great Falls, Montana. Why would it be reopening? Max Baucus is the senior Senator from Montana. He's also chairman of the Senate Finance Committee which has jurisdiction over the Social Security Administration. The Committee just happened to have had an oversight hearing on Social Security yesterday. There might be some connection there.
     A spokesman for a Republican candidate running for the other Senate seat in Montana responded to this development by saying  "Let's not forget this was a government-created problem" and that the closing of the remote hearing site "reflects a bias against rural states" under the Obama administration.

Astrue's Statement To Senate Finance Committee -- The Future Doesn't Look Too Good For Service Delivery

     From Michael Astrue's written statement to the Senate Finance Committee today with some added bolding:

... [I]n FY [Fiscal Year] 2011 [which ended September 30, 2010], while we received unprecedented new workloads, Congress cut our budget more deeply than in any year of the previous two decades. Congress also rescinded a sizable portion of our IT [Information Technology] carryover funding, which is our best mechanism for improving productivity. With staff reductions caused by hiring freezes and attrition, our work force is contracting rapidly, field offices are consolidating, and we are struggling to maintain recent levels of service. When I leave office in 2013, the agency will have about the same number of employees that we had when I arrived in 2007, even though our workloads have increased dramatically. Since FY 2007, retirement and survivor claims have increased by 26 percent and disability claims have increased by over 31 percent. ...

Let me be clear that our ALJs’ [Administrative Law Judges'] improved productivity has not resulted in more allowances. Our ALJs are not meeting our productivity goals by “paying down the backlog,” as has sometimes been alleged. In fact, our hearing level allowance rate dropped over 4 percentage points this past year. ...

The sheer volume of work our employees handle is incredible. For instance, in FY 2011, more than 45 million people visited our field offices across the Nation. Despite the high volume of visitors, we reduced wait times in our field offices by more than 9 percent from FY 2010. [Notice that he's talking about last fiscal year. The numbers this fiscal year probably aren't as good]...

Last year, callers to our 800 Number had the shortest wait time and lowest busy signal rates ever. We reduced the time spent waiting for an agent by 45 percent, from 326 seconds in FY 2008 to 180 seconds in FY 2011. [But again he's talking about last year. Things aren't going so well this year as we'll see below.] We cut our busy rate by over 70 percent since FY 2008. We attribute much of our improved performance to hiring additional teleservice representatives in FY 2009 and FY 2010, along with several technological advancements to make our 800-number more efficient. ...

Regardless of our technology improvements, under current funding we project that our 800-number service will deteriorate significantly because we will not have a sufficient number of people to answer calls. We expect that busy signals will rise from 3 percent in FY 2011 to 6 percent in FY 2012. Our average speed of answer will increase from 180 seconds in FY 2011 to 285 seconds in FY 2012. 

Overall service also will deteriorate in our field offices and processing centers because staffing losses do not happen evenly across the country. This year alone, nearly one-third of our field offices have experience more than 10 percent attrition, and 15 offices have lost over 30 percent of their staff.

An Outlier

     Social Security Administrative Law Judge Drew Swank was mentioned here recently because of a law review article he wrote. He's now drawing attention for the decisions he issues on disability claims. From the Virginia Lawyers Weekly:

[Swank] has one of the highest denial rates in the country. Swank rejects nearly eight of every 10 claims for disability benefits, according to a computer analysis of his rulings.
Attorneys and claimants who’ve had cases before Swank say he is unfair....

“All I’ve ever wanted is for him to do this right,” said Bruce Billman, a Richmond-area attorney who represents people seeking assistance under the Social Security Disability Insurance program.

“If he wants to turn people down, at least do it on the proper evidence, using the proper witnesses, and give us a chance.”

Billman is a former president of the National Organization of Social Security Claimants’ Representatives. He has filed several complaints with the Social Security Administration, accusing Swank of failing to provide due process. ...

It’s not just statistics that have raised concerns among parties who’ve gone before Swank.
Attorneys and claimants accuse Swank of disregarding or excluding the findings of their physicians and vocational experts. ...

Billman, who has practiced disability law for more than 30 years, has filed more than 400 pages of complaints against Swank with the Social Security Administration’s chief administrative law judge in Falls Church. The documents describe what Billman sees as numerous instances of unfairness toward his clients.

However, no action has been taken against Swank.

“He is untouchable,” Billman said. “And every time you file a complaint and nothing gets done, it just reinforces that with him. There’s no system in place to protect you from somebody like this.”

Billman said he complained about Swank in 2008. Until that point, the judge had denied about half of his cases, Billman said. Since the complaint, he said, Swank has denied about 90 percent of his cases. ...

Over several weeks while researching this article, the reporters asked to interview Swank and emailed him questions. Swank said that he wants to defend his record but that he has not received permission from the Social Security Administration to talk to the media.

“The policy originates with the chief judge’s office in Fairfax, VA,” Swank wrote in an email.

      Interestingly, Swank has an article forthcoming in another law journal whose title strongly suggests that he believes that Social Security has a lax approach to misconduct by those who represent Social Security claimants. People who live in glass houses ...

American Exceptionalism Must Prevail -- Don't Follow Foreign Practices, Especially Those Likely To Cause Chaos

     According to a report from The Telegraph, the British government has decided that it is paying disability benefits to too many people. The government's plan is to cut a half million Britons off disability benefits. This would be a quarter of those drawing the most important type of British disability benefits, the Disability Living Allowance. Reviews are already underway in the other type of British disability benefit, the Incapacity Benefit, and 60% of those recipients are being cut off benefits. 

     The government minister responsible for the changes in disability benefits says it is "scaremongering" to allege that the British government is "slashing" disability benefits.

Let's Watch To See If Michael Astrue Goes On Peterson's Payroll Next Year

     From Huffington Post:

Peter Peterson, a Wall Street billionaire who has been calling for cuts to Social Security and other government programs for years, is hosting a "fiscal summit" Tuesday that brings together Treasury Secretary Timothy Geithner, former President Bill Clinton, Rep. Paul Ryan, House Speaker John Boehner, Tom Brokaw and Politico's John Harris, among a host of other elites ...

The bipartisan luminaries will be carrying on a discussion to a large extent framed by Peterson, who has spent lavishly to shape a national conversation focusing on the deficit rather than on jobs and economic growth. ...

According to a review of tax documents from 2007 through 2011, Peterson has personally contributed at least $458 million to the Peter G. Peterson Foundation to cast Social Security, Medicare, Medicaid and government spending as in a state of crisis, in desperate need of dramatic cuts. Peterson's millions have done next to nothing to change public opinion: In survey after survey, Americans reject the idea of cutting Social Security and Medicare. ...

But Peterson has been able to drive a major shift in elite consensus about government spending, with talk of "grand bargains" that would slash entitlements, cut corporate tax rates and end personal tax breaks, such as the mortgage deduction, that benefit the middle class.

To put Peterson's spending in context, all corporations and unions combined spent less than $4 billion on lobbying in 2011. ...

Peterson has been pushing his fiscal arguments by spreading that half-billion dollars widely across the Washington spectrum, putting both Democrats and Republicans on his payroll. ...

You've Got To Be Kidding Me!

      I have heard from an attorney who submitted a Freedom of Information Act request for the identity of the Administrative Law Judge scheduled to hold a hearing. This is the response that came back:

I am responding to your request on behalf of your client, _____, for the name of the assigned Administrative Law Judge (ALJ) currently scheduled to conduct his hearing.  

 I am withholding the name of the ALJ assigned to hear this case under FOIA Exemption 2 (5 U.S.C. § 552(b)(2)). This exemption protects from disclosure records "related solely to the internal personnel rules and practices of an agency." The information you seek is the internal personnel assignment of an agency employee to a particular case. Therefore, you are not entitled to it under FOIA.

I am also withholding the ALJ's name under FOIA Exemption 7(E) (5 U.S.C. § 552(b)(7)(E)). Exemption 7(E) exempts from mandatory disclosure records or information compiled for law enforcement purposes when production of such records "would disclose techniques and procedures for law enforcement investigations or prosecutions, or would disclose guidelines for law enforcement investigations or prosecutions if such disclosure could reasonably be expected to risk circumvention of the law." Information may fall within this exemption even if it was originally compiled for non-law enforcement purposes, if it is later related to crime prevention or security measures. Milner v. Department ofNavy, 131 S. Ct. 1259, 1272-73 (2011) (Alito, J., concurring).

      I salute Social Security for not just stalling on these requests but I have to say that this response falls into the "You've got to be kidding me" category. The Attorney General has warned agencies not to expect the Department of Justice to automatically defend Freedom of Information Act denials. I have a hard time believing that the Department of Justice will choose to defend this. And quoting an Alito concurrence that has nothing to do with the issue at hand! That's waving a red flag at Eric Holder's Department of Justice!
     I guess we will find out soon if the Department of Justice will choose to defend Social Security on its "secret judge" policy. I hear that there is at least one civil action pending on this issue and the government's answer is due this month.

Remember That Picture Of Nixon And Elvis?

     From the Associated Press:

Elvis returned to the list [of most popular baby names] at No. 904, after dropping off for a year. When Elvis dropped off the in 2010, it ended a run that had started in 1955.

[Social Security Commissioner Michael] Astrue, a big Elvis fan, said he was all shook up when Elvis left the list.

"Congress may not listen to me," Astrue said. "But God bless the American people for listening to me last year when I raised concerns about Elvis dropping off."