And They'll Change Back Again In A Heartbeat If It Makes Business Sense

     From the Washington Post:

AARP, the lobbying powerhouse for older Americans, last year made a dramatic concession. Amid a national debate over whether to overhaul Social Security, the group said for the first time it was open to cuts in benefits.

The backlash from AARP members and liberal groups that oppose changes in the program was enormous — and this time around, as Washington debates how to tame the ballooning federal debt, AARP is flatly opposed to any benefit reductions for the nation's retirees.

Man Bites Dog; 4th Circuit Rules For Claimant!

     The 4th U.S. Circuit Court of Appeals has issued a decision in Bird v. Commissioner of Social Security remanding a case to Social Security. In and of itself, this decision isn't that important. What is important is that this is the first opinion of this sort from the Court since 1999! There have been published opinions on attorney fee issues from the Court since 1999 and on appeals filed by the government but no published opinions on appeals filed by claimants in 13 years despite the fact that there have been hundreds of appeals filed by claimants over that long time period. For 13 years, no matter how meritorious the case, all that the claimant ever received from the Court was a one or two paragraph per curiam opinion which said, in effect, "Go away and quit bothering us with your trivial little Social Security cases. We don't care!"

     I don't think the published opinion in Bird happened because the case is that incredibly compelling. I'm sure there have been many other Social Security appeals more compelling over the last 13 years. What has happened is that the composition of the 4th Circuit Court of Appeals has changed. A solid majority of the Court's judges are now Democratic appointees. That majority will probably grow over the next four years. This change will have an effect on the District Courts and ultimately on Social Security.

     Media attention to judicial appointments focuses almost entirely on the Supreme Court. However, the appointments to the Courts of Appeals and the District Courts are also vastly important. The number of civil actions in Social Security cases has not risen at the same rate as the number of Social Security disability claims filed. This may start changing and not just in the 4th Circuit area of Maryland, Virginia, West Virginia, North Carolina and South Carolina.

I Run As Hard As I Can And I Just Keep Getting Further Behind

     From the newsletter of the National Organization of Social Security Claimants Representatives (NOSSCR) here is the workload and performance summary for Social Security's Office of Disability Adjudication and Review (ODAR) for Fiscal Year (FY) 2012 (which began on October 1, 2011 and ended on September 30, 2012). Click on it to see it full size. See below for some highlights and lowlights that I've pulled out.

     Here are some things to notice:

• Administrative Law Judges (ALJs) available went up by  about 71 or about 6% over the prior FY.
• Receipts of new requests for hearing went down slightly in FY 2012.
• Case dispositions went up by about 27,000 in FY 2012 compared to FY 2011.
• Attorney adjudicator (or senior attorney) dispositions plummeted by almost 16,000 in FY 2012 compared to FY 2011. What happened to the attorney adjudicator program? These dispositions are sorely needed to help out with the backlog.
• Overtime hours went up dramatically at ODAR from 309,000 hours to 431,159. I think the overtime went down in the rest of Social Security. I expect overtime has been going down since the beginning of the new fiscal year on October 1, 2012. If sequestration (part of the "fiscal cliff) starts on January 1, 2013, the overtime will be almost completely eliminated and the agency will lay off employees. This would be disastrous throughout the Social Security Administration.
• Despite having more ALJs, more case dispositions and fewer new cases coming in, the number of pending cases per ALJ went up over the course of FY 2012 from 523 to 533. The decrease in attorney adjudicator decisions accounts for only a part of this. I think the reason this doesn't seem to add up is something omitted from this summary -- informal remands, also known as re-recons. These seem to have stopped some months ago. The efforts to reduce the backlogs by paying cases earlier have been cut back dramatically.

"Those Who Truly Need Help"

     From a Washington Post editorial:

Social Security’s retirement age is already headed to 67, which is one reason that program is no longer a major cause of government insolvency. Still, it can and should be rendered more sustainable. The disability component’s explosive recent growth, at a time when the nation’s general health is stable, suggests that reform would not harm those who truly need help.

     Who exactly is it on Social Security disability benefits who doesn't "truly need help"?  

Why Are ALJs Denying More Cases?

     The November 2012 issue of the Social Security Bulletin, the agency's really wonky scholarly publication, has an interesting article (really, it is interesting!)  Factors Affecting Initial Disability Allowance Rates for the Disability Insurance and Supplemental Security Income Programs: The Role of the Demographic and Diagnostic Composition of Applicants and Local Labor Market Condition by Kalman Rupp.  Rupp finds that the rate of approval of disability claims at the initial level goes down during recessions and that this decline cannot be explained simply by an increase in the number of disability claims. The evidence suggests that in recessions Social Security makes it harder for people to qualify for Social Security disability benefits at the initial level.
     Rupp did not look at decisions at the Administrative Law Judge (ALJ) level. I hope that either he or someone else takes a look at what happens during recessions at the ALJ level. The rate at which Social Security ALJs allow disability claims has plummeted over the last four years or so. Attorneys who represent Social Security disability claimants have been perplexed by this since the common perception has been that, if anything, the cases have gotten stronger as the baby boomers have aged and as it has become harder for claimants to win at the initial level. Attorneys have theorized that the change had something to do with the ALJ selection process, ALJ training or a set of data that Social Security now provides to ALJs showing each one how he or she compares to other ALJs in their office, their region and the nation on productivity and allowance rate. Press reports about an ALJ in West Virginia who was approving almost all of the cases he heard have also been blamed but those reports didn't start until well after the decline in ALJ allowance rate started. Those on the inside have denied that anything has been done that was intended to affect ALJ allowance rates or that should have had such an effect.  Could it be that the explanation for what has happened at the ALJ level lies in the fields of psychology or sociology, that ALJs have collectively and unconsciously reacted to the recession by being harder on disability claimants?

Budget Shortfall Creates Challenges

     Some excerpts from Fiscal Year 2012 Inspector General Statement on the Social Security Administration's Major Management and Performance Challenges:

While timeliness and ALJ [Administrative Law Judge] productivity have improved, an increased number of applicants has led to an increase in the hearings backlog. By the end of September 2012, the backlog stood at about 817,000 cases, an increase of almost 30,000 cases since the start of the FY [Fiscal Year]. ...

With the loss of DDS [Disability Determination Services] employees and a high level of initial disability claims receipts anticipated in FY 2013, SSA [Social Security Administration] does not expect to achieve its initial claims pending level goal of 525,000 by FY 2014. In fact, in FY 2013, SSA expects that pending initial disability claims will rise to over 1.1 million. ...

SSA stated that the current level of funding would lead to a loss of employees. In FY 2012, it lost over 1,600 employees. Consequently, the Agency projected its national 800-number service will deteriorate significantly because it will not have a sufficient number of employees to answer calls. Busy signals rose from 3 percent in FY 2011 to 4.6 percent in FY 2012. The average speed to answer also increased from 180 seconds in FY 2011 to 294 seconds in FY 2012 [that's about five minutes]. Additionally, SSA estimates it will be unable to complete all its post-entitlement work [that is putting people on benefits after they have been approved -- computing their back benefits and authorizing payment]. The Agency believes its inability to handle this work timely could result in improper payments and delays in collecting overpayments.

     This is all going to get worse if SSA's appropriation stays where it is now under the continuing resolution, which is slightly below last year's amount. SSA needs a larger appropriation merely to prevent further deterioration. If Congress wants even marginal improvement, SSA needs a significantly larger appropriation. And the result if Social Security's operating budget is cut dramatically by sequestration is almost unthinkable.

Romer Says Disability Benefits Need Reform

     I missed this in a piece by Christina Romer in Sunday's New York Times Business section:

Another entitlement program needing attention is Social Security Disability Insurance. It provides essential support for people unable to work, and will be even more important if we raise the Medicare eligibility age. But the current system is expensive and inefficient. The rolls have surged in recent decades, and the system discourages part-time work and moves to less-demanding jobs. Economists have proposed innovations that could allow more workers to stay in the labor force — thus slowing spending growth and improving the security and well-being of disabled workers.

     Romer was at one time chairwoman of President Obama’s Council of Economic Advisers. The "innovations" touted by Romer are completely unworkable. Any "reform" of Social Security disability will almost certainly take the form of making it harder to qualify for benefits with some meaningless fig leaf of rehabilitation added on top to distract people about what is being done.

Did Michael Astrue Expect Obama To Lose?

     I can't be sure but I'm guessing that Michael Astrue expected a Republican to win this year's Presidential election. I ask myself whether Astrue would have gone ahead with his plan for Social Security to create its own occupational information system to replace the Dictionary of Occupational Titles (DOT) if he thought that the Commissioner replacing him would be appointed by President Obama. My answer to that question is "no."
     Figuring out how to replace the DOT has been the most consequential issue that Michael Astrue has had on his plate as Commissioner. Sure, his efforts to deal with backlogs and inadequate budgets have gotten more public attention but the DOT replacement issue will affect Social Security disability determination for decades into the future. Millions of disability claims will be approved or denied because of what is done on this issue.
     I can't be sure but I think the occupational information system project is going back to the drawing board once we have a new Commissioner. The "We'll go it alone and make the DOT replacement say exactly what we want it to say" approach isn't likely to be acceptable to a Democratic Commissioner.  In the end, I expect that the Department of Labor will be asked to take the leading role. I think this result could have been foreseen.
     My best guess is that the only way Astrue's plan could have gone forward was if Astrue's successor was a Republican appointee. Even then, its future would have been uncertain because of the costs and because of concerns about whether the courts would accept it. The "go it alone" approach was a bad decision that has wasted time and money.