A New Ruling On Drug Abuse And Alcoholism As A Parting Gift From Michael Astrue

     From Social Security Ruling 13-2p, scheduled to be published in the Federal Register tomorrow:

Although the DSM [Diagnostic and Statistical Manual of Mental Disorders] includes a category for nicotine-related disorders, including nicotine dependence, we will not make a determination regarding materiality based on these disorders. ...

When we apply the steps of the sequential evaluation a second time to determine whether the claimant would be disabled if he or she were not using drugs or alcohol, it is our longstanding policy that the claimant continues to have the burden of proving disability throughout the DAA [Drug Abuse and Alcoholism] materiality analysis. There does not have to be evidence from a period of abstinence for the claimant to meet his or her burden of proving disability. ...

[From a footnote] The finding about materiality is an opinion on an issue reserved to the Commissioner under 20 CFR 404.1527(e) and 416.927(e). Therefore, we will not ask a treating source, a CE [Consultative Examination] provider, a medical expert, or any other source for an opinion about whether DAA is material. ...

At the State agency levels of the administrative review process, a State agency medical or psychological consultant (MC/PC) may use his or her knowledge and expertise to project improvement of a physical impairment(s). At the hearing and appeals levels, Administrative Law Judges (ALJs) and the Appeals Council (when the Appeals Council makes a decision) must consider such MC/PC findings as medical opinion evidence and may base their findings about materiality on these opinions. ALJs and the Appeals Council may also base their findings on testimony from medical experts. As we provide in our regulations on considering nonexamining source opinion evidence, ALJs and the Appeals Council will give weight to these opinions to the extent that they are supported and consistent with other relevant evidence in the case record. Medical source knowledge and expertise are factors that may support the finding. ...

Adjudicators should generally not rely on a medical opinion to find that DAA is material if the case record contains credible evidence from an acceptable medical source from a relevant period of abstinence indicating that the impairment(s) would still be disabling in the absence of DAA. ...

Adjudicators must not presume that all claimants with DAA are inherently less credible than other claimants.

      The big thing going on here is not what this Ruling says but what it doesn't say. Social Security's previous instructions on DAA said that "“When it is not possible to separate the mental restrictions and limitations imposed by DAA and the various other mental disorders shown by the evidence, a finding of ‘not material’ would be appropriate.” This statement is not in the Ruling. In fact, the Ruling says the exact opposite.
     This was signed not by Acting Commissioner Colvin but by Michael Astrue on February 12. It was filed with the Office of Federal Register on February 19, after Astrue left office. Was Colvin aware of this? If this were a regulation, I would say it would be invalid without Colvin's signature but a Ruling? Colvin could disavow this at any time but would she? Of course, she could "correct" it by adding the omitted language.

Mr. True On Cavuto

     Michael Astrue appeared on Neil Cavuto's show on Fox Business News yesterday. Here are some things I gleaned from this appearance:

• If you thought that the Fox News attitude wouldn't carry over to Fox Business News, you'd be wrong. Cavuto had all the Fox News talking points on Social Security down pat. He could not refer to any Democratic idea without sneering.
• Cavuto seemed incapable of pronouncing Astrue's surname. A couple of times he seemed to refer to Astrue as Mr. True. Eventually, he just referred to him as Michael.
• Astrue wanted to talk about the serious problems affecting the Social Security disability trust fund.
• Astrue was promoting a Simpson-Bowles Commission to deal with Social Security. He wanted a requirement that there must be a vote on the floor of each House of Congress on this Commission's recommendations.
• Astrue thought it was a "trendy but facile" idea to remove the cap on earnings covered by the FICA tax because this would put a "crippling burden on the younger generation" and it would make it very difficult to operate a small business.
• Astrue believes that raising the retirement age "has to be on the table."
• Astrue made a dig at President Obama by noting that George W. Bush had nominated him four months before his predecessor's term had ended while, in Astrue's words, Obama was only in the "early stages" of selecting a new Commissioner.
• Astrue criticized an unnamed candidate or candidates for the job of Social Security Commissioner whom he characterized as being from the "very far left" because they denied that Social Security had any serious funding problem and because they believed that only minor tweaks would be required. He thought that the Social Security Commissioner should stay out of the debate and be an operational manager.

     I don't understand why Astrue would want to promote a Simpson-Bowles Commission to deal with Social Security. Simpson-Bowles was a disaster. That Commission never agreed to any recommendation. Their work didn't move Congress or the American people any closer to a resolution of our budget problems. There's no reason to believe such a commission to deal with Social Security would be any less of a failure. The reason is simple. People like Astrue insist that raising the retirement age has to be on the table but also insist that tax increases have to be off the table. How does that position get one to an agreement? How would lifting the FICA cap put a crippling burden on younger people? The vast majority of younger people would be unaffected by such a change. How would raising the FICA cap make it difficult to operate a small business? Few small businesses have any employees who have earnings above the FICA cap. If Astrue really wants to move the U.S in the direction of some grand bargain on Social Security, he has to say that increasing taxes must be on the table along with benefit cuts but if he says this he won't be appearing on Fox Business News again and he'll be ostracized by his fellow Republicans so he can't say that.

     I agree with Astrue that the next Social Security Commissioner should stay out of the Social Security funding debate and should be an operational manager. Nancy Altman is undoubtedly a fine person with great qualifications but those qualifications don't match up with the job description for the position of Social Security Commissioner. However, I don't think it's accurate or helpful to characterize Altman as being from the "very far left." To my mind, Altman is a political realist. Her position is that any attempt at this time to deal with Social Security's financing difficulties is doomed. Anything that Republicans would agree to would rely almost exclusively on benefit cuts. There's no point in agreeing to this sort of deal or even agreeing to talk about it. Medium and long term demographics strongly favor the Democrats. Wait a bit and this problem can be resolved on Democratic terms. Is that a "very far left" position or just political realism?

Errors In Colvin Biography

     I'm going through what I can find about Carolyn Colvin's background so I can do a post about the new Acting Commissioner. I'll try to get something up soon but I've encountered problems with her biography on Social Security's website. It contains at least two inaccuracies. This has to be unintentional since there's nothing she would want to keep secret. The error may have happened at Social Security's press office. She's omitted her time as Director of Human Services for the District of Columbia from 2001-2003 and the bio on Social Security's website is way off on the dates of her service as Director of the Montgomery County Department of Health and Human Service. The biography shows that job as being from 2001-2003 but she was working for the District of Columbia then. I know she was fired from the Montgomery County job in 2006 after a new County Executive was elected.
     Maybe the new Acting Commissioner would be sympathetic to the argument that it's a bit much for Social Security to consider work going back 15 years to be past relevant work for purposes of disability determination.

Should She Be "Hopping Mad"?

     From the Salt Lake Tribune:

Nearly 19,000 elderly Utahns, and millions more across the country, are being pushed into the digital banking world by the federal government.

Starting March 1, the U.S. Department of the Treasury plans to stop mailing out most paper Social Security checks. Instead, it will require recipients to switch to an electronic form of payment: either direct deposit into their bank account or onto a Treasury-issued debit card. ...

The switch away from mailbox delivery has others just plain upset.

Michigan resident Mike Clement told the McClatchy Newspapers service that he and his elderly mother were "hopping mad" that she was being forced to switch to electronic payment.

"It really should be a matter of personal choice," Clement said. "Unfortunately, the feds seem not to care a whit about personal preference."

     There have been articles like this in papers all over the country. To the best of my knowledge, nothing is changing on March 1. This appears to be nothing more than the latest and most strident effort to convince recipients of Social Security checks to switch to direct deposit. Those who receive checks now will continue to receive them after March 1. Those who start receiving Social Security benefits in the future will face the now familiar pressure to receive the benefits in an electronic form but if they resist hard enough they can still receive a check.

The Absurdity Of One Aspect Of One Social Security Ruling

     I have been looking at some old Social Security Rulings in the last few days. There is much that I agree with, or at least don't disagree with, in these Rulings but then I come across this from Social Security Ruling 96-8p "It is incorrect to find that an individual has limitations or restrictions beyond those caused by his or her medical impairment(s) including any related symptoms, such as pain, due to factors such as age or height ..."

     Does that sound reasonable to you? Let me ask the question another way. Does it sound reasonable to you for Social Security to find that a woman who is 5'2" tall and who weighs 110 pounds can do lifting of up to 100 pounds? That is what the Ruling says. This is preposterous on its face yet it is Social Security's official position, applied every day at the initial and reconsideration levels. No one talks about it or even realizes it but this one absurd aspect of this one Ruling accounts for a not inconsiderable percentage of all reversals by Administrative Law Judge (ALJ).
     Anyone in the higher reaches of Social Security want to go all out to force ALJ compliance with this one?

Democrats In House Oppose Chained CPI

     From a press release issued yesterday:

107 House Democrats, a majority of Democrats in the House of Representatives, wrote President Obama today, urging him to reject any proposals to cut benefits millions of American families depend upon through Medicare, Medicaid and Social Security. The letter was led by Rep. Jan Schakowsky (D-IL),Congressional Progressive Caucus Co-Chairs Reps. Keith Ellison (D-MN) and Raúl M. Grijalva (D-AZ), Rep. John Conyers (D-MI), and Rep Donna Edwards (D-MD).

The Members specifically singled out “Chained CPI”—a proposal to reduce Social Security benefits by changing the way inflation is calculated—and raising the Medicare retirement age as policies they oppose. ...

Annual Statistical Supplement Issued

     Social Security has released its Annual Statistical Supplement for 2012, a compilation of every statistic you could want about Social Security other than statistics on agency operation. A few of those are published but not many. I've never understood why.

House Social Security Subcommittee Members Announced

      The lineup of members of the Social Security Subcommittee of the House Ways and Means Committee has FINALLY been announced:

Subcommittee on Social Security 

Rep. Sam Johnson, R-TX, Chairman

Republicans
Rep. Pat Tiberi, OH Rep.
Tim Griffin, AR Rep.
Jim Renacci, OH Rep.
Aaron Schock, IL Rep.
Mike Kelly, PA Rep.
Kevin Brady, TX

Democrats
Rep. Xavier Becerra, CA, Ranking Member
Rep. Lloyd Doggett, TX Rep. Mike Thompson, CA
Rep. Allyson Schwartz, PA