My Assessment Of Astrue's Term As Commissioner

     Readers have given their assessments of Michael Astrue's term as Social Security Commissioner. I'll give mine.

     I don't think that Astrue should be given credit or blame for anything that was going to happen regardless of who was Commissioner. For instance, there was going to be a significant improvement in online services and an increase in their use over the last six years regardless of who was Commissioner. Service was bound to improve at Social Security between 2006 and 2010 because Democrats controlled Congress and gave the agency more adequate funding. Service was bound to deteriorate between 2011 and the present because Tea-Party influenced Republicans control the House of Representatives and the agency's funding has once again become seriously inadequate. Astrue had some influence over exactly how online services have been implemented, over how the agency lobbied for appropriations and over exactly how Social Security coped first with an improved budget situation and then with a constricted budget situation but he did not create these dynamics.

     The thing that initially struck me and which still strikes me about Astrue is the contrast with his predecessor, Jo Anne Barnhart. She seemed indifferent to service delivery problems at Social Security except to the extent that they were a public relations problem. She managed the service delivery problem as a public relations problem. She loudly decried the service delivery problems and promised that she had a plan that would solve the problems. Her "plan" was even emptier than Richard Nixon's plan to end the war in Viet Nam but she managed to use her "plan" to evade responsibility for terrible service throughout her term as Commissioner. Her "plan" had the effect of convincing Congress that Social Security's service delivery problems could be solved through management initiatives, an illusion which badly undercut agency lobbying for an adequate administrative budget. Astrue inherited this mess. To his credit, he made a major effort to do something about the service delivery problems. He told Congress from the beginning that there was a direct relationship between Social Security's appropriations and the service it could deliver. He lobbied hard for the money needed to run the agency. He avoided vanity projects like Barnhart's "plan" apart from the harmless "compassionate allowances." It was not a given that a Republican Commissioner would set to work on Social Security's service delivery problems with a purpose. Jo Anne Barnhart never did. At his confirmation hearing, Astrue said that he believed that "brute force" in the form of additional manpower would be required to deal with the backlogs he had inherited. Jo Anne Barnhart would not have said anything like that. I also don't think that Barnhart would have used the term "callous Kumbaya attitude" or anything like it, to describe the completely unjustified state furloughs of disability determination employees. Astrue was genuinely frustrated with this fecklessness and it showed. I believe that Astrue worked diligently throughout his term to improve service at Social Security or in the last two years to slow down erosion in service. I commend him for this.

     On the other hand, I have been struck by how much Astrue conformed to Republican norms in ways that I cannot laud. Fortunately, he was blocked in most cases. Here are some examples:

• Astrue attempted to develop a new occupational information system to replace the Dictionary of Occupational Titles (DOT) in a way that would be thoroughly controlled by Social Security management. An occupational information system should be, to the extent possible, a neutral document based upon the facts on the ground, not something controlled by the agency. Realistically, that's the only way a new occupational information system could survive judicial review. Astrue's effort ultimately failed but it caused an unnecessary delay of several years in the creation of a new occupational information system. We're adjudicating disability claims based upon an occupational information system that everyone concedes is ridiculously out of date. This sad state of affairs will continue for some time to come because of decisions made by Michael Astrue. In my opinion, this is Astrue's biggest failure.
• Social Security's practices in evaluating disability claims based upon mental illness became harsher during the time that Astrue was Commissioner. I've been around long enough to say that Social Security's treatment of disability claims filed by those who suffer from mental illness is the harshest it's been since the early 1980s. What was going on then was a disgrace. When a significant number of schizophrenics are being denied at the initial and reconsideration levels, something is seriously wrong. That happened in the early 1980s. It's happening now.  I do not buy the argument that this is the result of decisions made below Astrue's level. Astrue tried twice to adopt new mental impairment Listings. We don't know what his first attempt looked like but judging by what he tried later,  it's only reasonable to guess that his first effort would have been terrible. He withdrew the first proposal after Obama was elected President. His second attempt at new mental impairment Listings included language that would have significantly reduced the number of disability claims approved based upon mental illness.
• Astrue was hostile to the employee unions for the most part. (Apparently, he had good relations with the National Treasury Employees Union but it has only a small presence at Social Security.) I carry no brief for the unions. I have not forgotten that the AFGE bears much responsibility for the Hearing Process Improvement (HPI) debacle at the end of the Clinton Administration and the beginning of the Bush Administration. HPI led to the horrible hearing backlog that persists at Social Security. I am also aware that AFGE management uses harsh, unjustified rhetoric in talking about Social Security management. If you read AFGE publications you would think that the Haymarket Riot had just happened and that Joe Hill was still alive. AFGE has been provocative but the blame for this doesn't all fall on the union.
• After the 2010 election, Astrue implemented new policies preventing claimants from filing a new claim while an old claim is pending at the Appeals Council and keeping the identity of an Administrative Law Judge secret until the day of the hearing. One can give justifications for both but I think that both decisions were unjustified. I don't think a Democratic Commissioner would have done either. For that matter, I don't think Astrue would have done either before the Republican victory in 2010. The secret ALJ policy is ending because it cannot withstand judicial review.
• Astrue proposed regulations that would have limited remands of disability cases to closed periods only. This would have been terribly harsh, unworkable and almost certainly would have been found to be illegal. Because of external pressure, Astrue was forced to back off this idea.

     Astrue made important information technology decisions but I cannot evaluate them. Some of these decisions sparked mild controversy, although nothing that the wider public was aware of. The vastly expensive new National Computer Center was a major decision that sparked little or no controversy but I have to wonder about it. Businesses and other government agencies are closing large computer centers but Social Security is spending huge sums of money to build one? Wasn't there a less expensive option? I am sure Astrue's information technology decisions will have a lasting influence on the agency but I don't know how these decisions will be viewed in a few years.

     On the whole we could have done far worse than Astrue. His predecessor is proof of that. However, I'm looking forward to his successor.

Large Wrench In His Backpack And Cuts On His Hands

     From KGW:

Officers arrested a man who they said was smashing out the windows of the Social Security Administration office in Downtown Portland [OR] Friday evening.

At 7:30 p.m., police arrested 49-year-old Andrew Sauter after reports that he was breaking windows with a crowbar near Southwest 16th Avenue and Southwest Yamhill Street, said Sgt. Pete Simpson with Portland police.

In all, five windows of the Social Security office were broken. Sauter had a large wrench in his backpack and cuts on his hand, Simpson said.

Practicing Law Would By A Lot Easier If It Weren't For The Clients

     I thought I would share a note I made recently in the file of one of my clients "Client no longer seeing psychologist because she's so upset about her [close relative's] recent death!"

Only Eight Days To Obtain ALJ Name With FOIA Request

     I have a report that an attorney who made a Freedom of Information Act (FOIA) request on February 13 for the name of the Administrative Law Judge (ALJ) scheduled to hold a hearing received a response on February 21 that named the ALJ. Can we just stop this farce now? It's ridiculously easy to make these FOIA requests. An attorney doesn't have to request this information on just one client at a time. One request can cover all of an attorney's scheduled cases. 

     If Social Security had given any serious consideration to the FOIA it never would have gone forward with this really dumb idea. And, by the way, the idea that Social Security apparently has for another way to protect the National Hearing Centers is even dumber. Requiring the claimant, just after requesting a hearing, to decide whether to demand an in person hearing won't work because virtually every represented claimant will decline a video hearing. There is only one reason that claimants accept video hearings now -- to avoid delay. If a claimant declines a video hearing after one is scheduled, he or she is looking at a several month delay before a new hearing is scheduled. If the decision to decline a video hearing is made up front, there's no delay! Does Social Security believe its own hype? Does it really think that those involved believe that video hearings are just as good as in-person hearings?
     Update: One person posting here is saying that hearing offices are now authorized to release the name of an ALJ scheduled to hold a hearing. I have heard the same thing from another source today but have not personally verified it. It would be easier for everyone if Social Security would announce what they are doing. If some written directive has been issued to hearing offices, I'd love to see a copy.

NPR Interview With Astrue

     Forner Social Security Commissioner Michael Astrue gave an interview to Michel Martin, an NPR reporter, that was aired yesterday. Here are a couple of excerpts (emphasis added):

MARTIN: You've only recently stepped down from the Social Security Administration. Is there anything that you miss? Or is there anything you particularly don't miss now that you've left?
ASTRUE: Well, I think what I miss the most are the people of the agency. Unlike other government agencies, almost everybody at Social Security is a lifer. And they're very talented, they're very dedicated. And so when you leave you know that you're not going to have, you know, that experience again. And that's sad.
MARTIN: Anything you particularly don't miss?
ASTRUE: Sure. I mean, I don't miss having everything I say being cleared by a 28-year-old at OMB [Office of Management and Budget, part of the White House]. And I'm not critical of OMB for that. Don't get me wrong. I mean, I think the president needs to have some consistency of message. But it does get very frustrating. And particularly when you're trying to say something important and it's neutered down to a platitude. I always found it difficult to go out and just voice the platitudes.
So, you know, getting my First Amendment rights back and being able to say what I think, you know, you don't miss that until you've given it up. And I guess, you know, when you've given it up you appreciate it more when you get it back. So. ...
MARTIN: Secret is not quite right, right? I mean, because you're a published poet, but you kept your worlds very separate.
ASTRUE: I kept my worlds very separate and I think when I first started thinking about trying to publish poetry I realized that the business and government worlds that I was functioning in, in a fairly high level, didn't really respect people that engaged in the arts. And likewise, in artistic communities, people that have substantial jobs outside those artistic communities tend to be looked at with suspicion.
And so I explained it to one of my friends, the great local poet XJ Kennedy, is I didn't want to be a novelty act. You know, I wanted to sort of stand, particularly in the literary world, on my own merits. And I was pretty comfortable keeping it separate and was rather annoyed in 2010 when I was first outed in the trade press for Social Security.
And then later there was a very flattering article in First Things that went into a lot more detail, which made me feel a little better about it because the article was so nice. But I think down deep I still wish that I'd been able to keep my life separate ...

     There was no way the White House could force Astrue to submit to OMB editing of his remarks. The White House couldn't fire him. I wonder what carrot and/or stick persuaded Astrue to consent to this.

What Happens With Sequestration?

     Sequestration, the odd term for automatic budget cuts, seems almost certain to take effect on March 1 unless there is a last minute "Come to Jesus" moment. Thank goodness the furloughs don't start instantly. From Government Executive:

Federal employees will not feel the immediate impact of sequestration, should automatic budget cuts set to go into effect March 1 take place, an Obama administration official said Thursday.

Office of Management and Budget Controller Danny Werfel told the Senate Appropriations Committee that union negotiations would start on March 1, if sequestration hasn’t been averted, and most federal employees would not receive furlough notices until mid-March.

“Will the furloughs take place on March 1st?” Werfel asked himself rhetorically. “No, because of legal requirements,” referring to the need to bargain with unions and provide 30 days notice to employees.

OMB clarified on Friday that Werfel was referring specifically to Defense Department civilians when setting April as the earliest possible start date for sequestration furloughs. The Obama administration is leaving open the possibility furlough notices could be sent out to non-Defense feds before March 1.

     Below is a letter that then Commissioner Michael Astrue sent to Senator Mikulski concerning the sequester. You can click twice on each page to view at full size. It appears to me that Astrue was understating the effects of sequestration on Social Security. I don't see how the agency avoids widespread furloughs. We won't have to wait long to find out. If furloughs are coming, Social Security will have to notify the employee unions and begin negotiating with them pretty much immediately after sequestration begins on March 1.

     Update: Let me respond to a persistent misunderstanding. Social Security benefits are exempt from sequestration. Social Security's administrative budget, the budget that pays employee salaries and that pays for rent and electricity and paper clips and all the other goods and services needed to keep the Social Security Administration operating, is very much subject to sequestration

ALJ Augustus Martin 1944-2013

     Social Security Administrative Law Judge Augustus Martin of the Charleston, SC hearing office has passed away after suffering a stroke.

Going All Qui Tam In Kentucky

     From the Lexington, KY Herald-Leader:

An Eastern Kentucky lawyer who has represented hundreds of people in Social Security disability cases schemed with a federal judge to commit wholesale fraud, two whistle blowers charge in a civil complaint.

Eric C. Conn received millions of dollars from the government for handling disability claims that the administrative law judge improperly approved, the complaint alleges.

Many people were approved for lifetime disability payments they didn't deserve, which could eventually cost the federal government tens of millions of dollars, said Benjamin J. Vernia, one of the attorneys who filed the claim. ...

The judge named in the complaint, David B. Daugherty, improperly manipulated a docketing system to get control of Conn's cases, the lawsuit alleges.

In 2010, Daugherty approved 99.7 percent of the claims before him, when the national average was 62 percent, the complaint said. ...

A court motion in the case indicates federal authorities are conducting a criminal investigation in the case.

Conn issued a statement Tuesday saying he had not seen the complaint and could not comment on it until he had.

"I can certainly say that I have always tried to represent my clients in the best and most appropriate way possible, within all the laws and rules," Conn said in the prepared statement. ...

The complaint against Conn was filed under the federal False Claims Act, under which whistle blowers can get a portion of the money recovered in cases in which the federal government is defrauded. ...

Vernia and Lexington attorneys Mark A. Wohlander, a former assistant federal prosecutor; Brian A. Ritchie; and William Nicholas Wallingford filed the lawsuit for two whistleblowers in October 2011.

The case was sealed until Tuesday, however. That was because the federal government had asked for several stays throughout 2012 as it considered whether to join the case.

The government ultimately said it could not decide whether to intervene by a deadline Thapar had set. Conn said in his statement that it is noteworthy the government decided not to take over the case.

The whistle blowers in the case are Jennifer Griffith and Sarah Carver. Both worked in the Huntington, W.Va., office of the Social Security Administration, which handled appeals in disability cases from Eastern Kentucky, according to the complaint.

     This type of lawsuit is known as a qui tam action. Qui tam actions have at times been spectacularly successful. In this case, I doubt that's going to happen. Daugherty was approving almost all disability claims that came before him. Conn wasn't representing all those claimants. Other lawyers were representing many of these claimants. Some claimants were unrepresented. Regardless, almost all of these claims were approved. Were all those other attorneys and all those unrepresented claimnats bribing Daugherty? That makes no sense. If it didn't take a bribe to get Daugherty to approve a disability claim, why would Conn bribe him? Would Conn bribe Daugherty to get him to manipulate the docketing system? That's way too visible. This whole case seems awfully improbable to me. Mere suspicions aren't enough to win a qui tam case. You have to have facts. Social Security didn't find enough merit in the case to get involved. Qui tam actions are much less likely to succeed if the government decides to not get involved.