Acting Commissioner Hopes To Avoid Furloughs

A Message To All SSA Employees

Subject: Budget Update

     I want to share with you the latest information we have regarding our operating budget. I know sequestration is on all of our minds.
     Clearly, this is a challenging time for us all. I want you to know that, here at SSA, we will work to minimize the risk of furloughs that would further harm services and program integrity efforts in the event of a sequester. This includes making some very difficult decisions and taking necessary steps to mitigate our budget risks this fiscal year—including steps such as restricting hiring, limiting overtime availability, delaying purchases, and limiting agency travel. We will also be restricting our spending to mission critical activities. By taking these actions, we are hopeful the funds available to us will allow us to operate without furloughs.
     On March 1, we will continue to serve the American public. I recognize and appreciate all you do to keep service to the American public our number one priority. Thank you for your continued commitment. I will keep you informed of developments.

Carolyn W. Colvin
Acting Commissioner

SSAB Forum

     The Social Security Advisory Board (SSAB) has scheduled a "Forum" for March 8 on "Social Security Disability: Time For Reform." There is some diversity of viewpoint among those scheduled to speak but there's a definite tilt to the program. Here are some of the points of view represented with the names of the speakers representing these points of view in parentheses:

• Something must be done because a lot more people are drawing Social Security disability benefits now. This is because it's less difficult to get on these disability benefits than when Ronald Reagan was President. (Duggan, Daly, Autor)
• Too many people draw Social Security disability benefits because the benefits are too generous.(Duggan, Autor)
• The Americans with Disabilities Act (ADA) makes it easier for disabled people to work and that should make it less difficult for people to get off Social Security disability benefits. (Claypool, Imparato, Blanck)
• Social Security is the reason why more disabled people aren't working. (Maestas, Smith, McDonald, Autor, Stapleton)
• If Social Security gave disabled people more encouragement and assistment, they'd go back to work. (Smith, Davey, McDonald, Mazerski, Autor, Stapleton, Smalligan)

     I'm sure that I'm oversimplifying the views of these people. I'm also sure that each of them in their own way wants to help disabled people. (I will say that David Autor is really full of it and has no business speaking publicly about these issues. He simply doesn't know what he's talking about.) 

     I think it's appropriate to give a shorthand response to each of these expressed views, the sort of responses that are unlikely to be expressed at the SSAB "Forum."

• It certainly is less difficult for people to get on Social Security disability benefits than when Ronald Reagan was President. However, you have to understand that Social Security disability during the Reagan Administration was an aberration. It was less difficult to get on those benefits before the Reagan Administration and it quickly became less difficult to obtain those benefits as the Reagan Administration wore on and the return to prior practices was even more pronounced after Reagan left office. This was because the changes made during the early part of the Reagan Administration evoked a vigorous political response. The Reagan changes were quickly rolled back. Even though there have been plenty of changes since Reagan left office, it has remained less difficult to get the benefits. Anyone who advocates a return to Reagan era policies is naive. Those policies would evoke the same reaction in 2013 as they did in 1983. The Reagan days were as far from a golden age for Social Security disability policy as you can get.
• Disability benefits too high? Really? Generally, Social Security disability benefits are less than half what recipients were earning. They're far less in most cases than disability benefits under employer based long term disability plans. 
• The ADA makes it easier for disabled people to work? The evidence is that the ADA had little effect on the number of disabled people who are employed. In fact, some scholars have argued that the ADA reduced the employment of the disabled!
• I don't see how one can argue that the availability of Social Security disability benefits discourages people from working when we have clear evidence that only 27% of those who apply for and are denied Social Security disability benefits are working four years later. Being denied benefits isn't enough to get these people back to work even though those who are denied are, on the whole, less disabled than those drawing disability benefits. The evidence is unambiguous that very few of those drawing Social Security disability benefits will return to work even if they are removed from benefits.
• The illusion that with a little more encouragement disabled people will fly off the disability rolls and back to work has been persistent for decades. This illusion has led to the following work incentives: Trial Work Period, Extended Period of Eligibility, Expedited Reinstatement, Ticket to Work and the Vocational Rehabilitation exception, just to mention the Title II provisions. There's another complicated mess of Title XVI work incentives. None of this is working to any significant extent. If none of this works, why would anyone expect a new work incentive to work? I can think of one good reason why some of the speakers would promote work incentives. Some of them work for Ticket to Work contractors. Not only do they want to keep the contracts their employers have, even though they're a waste of money; they want to get more contracts. Ticket to Work is an unjustifiable waste of money. Any attempt to go further down the rehabilitation road will just waste more money.

Why Did Astrue Agree To Have OMB Clear His Remarks?

     Sean Reilly at the Federal Times takes note of former Commissioner Astrue's remark that he wouldn'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]. Reilly asked OMB for comment. OMB didn't deny what Astrue said.

     Why did Astrue consent to this? The statute says that Social Security Commissioners are independent. There was no direct way of forcing Astrue to clear his remarks. If anything, this is inconsistent with Social Security being an independent agency. My guess is that during the transition after the 2008 election Astrue made the commitment to not speak without OMB clearance. Is OMB so powerful that the job of Commissioner would have been untenable in the face of OMB hostility? Was there a threat to reorganize Astrue out of a job if he didn't agree to be a team member? How much independence did Astrue have in other ways? He had to clear new regulations through OMB, of course, but what about Rulings? What about major contracts? Maybe we'll get answers to these questions some day.

     And one more question, does Social Security as an independent agency really make sense?

Have People Stopped Reading News Articles Containing The Word "Sequestration"?

     From the Baltimore Sun:

Checks will arrive on time, but nearly every other task the Social Security Administration performs — from answering phones to determining eligibility for claims — will be delayed if Congress fails to stop steep federal budget cuts from taking effect this week, officials warned Monday. 

The Woodlawn-based agency is bracing for a cut of roughly 8 percent to its $11.5 billion budget if Congress does not avert the government-wide reductions known as sequestration. Officials say the cuts would leave people who call the agency's hotline on hold for 10 minutes and delay some disability decisions by a month. 

"We're already getting a lot of reports of increasing anger from the public" since hours at the agency's call centers were shortened to save money, said Witold Skwierczynski, president of the Social Security Council of the American Federation of Government Employees. "People are upset."

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.