ALJ Union Sues Agency On Workload Issues

     From the Associated Press:

Judges struggling to handle a surge of disability cases sometimes award benefits they might otherwise deny in order to clear cases faster so they can meet quotas imposed by the Social Security Administration, according to a lawsuit filed by the union representing the agency's administrative law judges.

The Social Security Administration says judges should decide 500 to 700 disability cases a year. The agency calls the standard a productivity goal, but the lawsuit claims it is an illegal quota that requires judges to decide an average of more than two cases a workday.

The lawsuit says the requirement violates judges' independence, denies due process rights to applicants and further strains the finances of a disability program that is projected to run out of money in 2016. ...

The lawsuit was filed by the union Thursday in federal court in Chicago. ...

In an interview, [former Commissioner Michael] Astrue disputed the union's claims.
"What's really happening here is that the judges' union doesn't want accountability of its members and it's been trying to sell this story to the media and to the Congress and to the agency for a very long time," Astrue said. "And no one's buying it because it's not true, and no federal judge is going to buy this story, either."

"There are a very small number of malcontents who want to litigate or put political pressure on the agency rather than do their work," Astrue said.

     Am I sympathetic to this lawsuit? Yes and no.
     It's important to note that the workload pressures on Social Security's Administrative Law Judges (ALJs) are ridiculous. Expecting 500 to 700 decisions a year is way too much. My experience is that these workload norms have caused significant degradation in the quality of the hearing process at Social Security. More and more productivity has been expected of ALJs at a time when the cases themselves have become more and more time-consuming. Claimants with insurance are seeing more and more specialists and having more and more tests and medical procedures. All of these records have to be reviewed by the ALJ. Electronic medical record-keeping produces more medical records. Many of the electronic record systems essentially repeat a patient's entire medical history each time he or she visits a doctor. Anyone reviewing these records has to wade through this repetitious mess looking for what's new on each doctor visit. Social Security case files keep getting longer each year. That fact hasn't filtered through to Social Security management but it's a huge problem at ground level.
     As much as I sympathize with ALJs on their workload pressures , I've seen no evidence that ALJs have been subjected to anything more than workload norms. They can ignore these norms without fear of formal punishment unless they get to the point of extraordinarily low productivity. The norms have certainly had a dramatic effect but I've seen no evidence that there is any real enforcement mechanism behind the norms. I don't see how you're going to make the argument that there is a quota and I'm not sure that a quota will be illegal anyway. Unwise yes but illegal?
     Filing suit at this time makes no sense to me. Yes, Michael Astrue is gone. He was quite unsympathetic to ALJs, as you can tell from the quote given above -- although I thought he became less unsympathetic the longer he was Commissioner. You might think that Social Security management would now be more sympathetic to ALJs and more willing to settle this lawsuit but has the ALJ union heard of sequestration? It's a huge problem for the agency. I don't think it's realistic at this time to expect the agency to settle this on terms favorable to the ALJs.
     By the way, it's worth noting that ALJs are not all union members. Those who are union members don't always agree with what the union does. I'm sure that there is a vigorous debate going on among Social Security's ALJs right now. Whether you agree or disagree with this lawsuit, don't give blame or credit for it to all ALJs. They are a diverse group.

NPR Gets Some Responses

     National Public Radio isn't admitting they made mistakes in their series of radio pieces on the Social Security disability programs but they are showing on their website some of the responses that they have received. It's quite an impressive list. They seem to be proud of having generated a response.

You Ought To Read That Radical Disability Benefits Reform Act Of 1984

     In right wing explanations for the increase in the number of people drawing Social Security disability benefits you read again and again that the Disability Benefits Reform Act (DBRA) of 1984 is the problem. Supposedly, DBRA was a dramatic loosening of standards that allowed untold numbers of healthy people to get on benefits due to alleged musculoskeletal and mental disorders.

     The problem with this theory is that it's possible to actually read what DBRA says. But first, you might want to read then President Ronald Reagan's signing statement on DBRA. You won't find a single reference to musculoskeletal disorders or mental disorders. That's because DBRA primarily concerned the establishment of a medical improvement standard for termination of disability benefits. All Reagan said about the other provisions of DBRA was that "Several other changes are written into this new law that will clarify and expedite the administration of the disability program." Those tricky Democrats put one over on the Gipper.
     Here's the actual language from DBRA that might have some applicability to musculoskeletal disorders:

An individual’s statement as to pain or other symptoms shall not alone be conclusive evidence of disability as defined in this section; there must be medical signs and findings, established by medically acceptable clinical or laboratory diagnostic techniques, which show the existence of a medical impairment that results from anatomical, physiological, or psychological abnormalities which could reasonably be expected to produce the pain or other symptoms alleged and which, when considered with all evidence required to be furnished under this paragraph (including statements of the individual or his physician as to the intensity and persistence of such pain or other symptoms which may reasonably be accepted as consistent with the medical signs and findings), would lead to a conclusion that the individual is under a disability. Objective medical evidence of pain or other symptoms established by medically acceptable clinical or laboratory techniques (for example, deteriorating nerve or muscle tissue) must be considered in reaching a conclusion as to whether the individual is under a disability.

     If you haven't already fallen asleep from reading this language, you probably noticed that, again, the term "musculoskeletal" doesn't appear anywhere. Back pain doesn't come up either. You'll also notice that the language hardly looks like it would throw open the floodgates for the approval of any disability claim. If anything it looks a bit tough. To be complete, I'll note that DBRA also created a Commission to study the evaluation of pain but I'll save you the trouble of looking that one up. At considerable expense, the Commission produced a report that almost no one read, a report that had exactly zero effect upon policy or practice at Social Security.
     Here's the language from DBRA concerning mental illness:

The Secretary of Health and Human Services ... shall revise the criteria embodied under the category "Mental Disorders" in the "Listing of Impairments" ... The revised criteria and listings, alone and in combination with assessments of the residual functional capacity of the individuals involved, shall be designed to realistically evaluate the ability of a mentally impaired individual to engage in substantial gainful activity in a competitive workplace environment.

     Why was DBRA ordering Social Security (which was then part of the Department of Health and Human Services) to write new mental impairment listings? Because of the decision in Mental Health Ass'n of Minnesota v. Schweiker, 554 F.Supp.157 (D. Minn. 1982), which was a searing indictment of Social Security's standards for assessing disability claims based upon mental illness. This lawsuit came about because of a revolt by some physicians involved in implementing those mental illness standards. I was around at that time. I can tell you that if an agency is capable of having remorse, Social Security had remorse after that lawsuit. Does ordering Social Security to rewrite its regulations so that they "realistically evaluate the ability of a mentally impaired individual to engage in substantial gainful activity in a competitive workplace environment" sound like it would inject something radical into Social Security's evaluations of disability claims based upon mental illness? Please read the decision in Mental Health Ass'n of Minnesota before you advocate going back to the standards applied by Social Security in evaluating mental illness before DBRA. If you really want to go back to those days, I can tell you that the standard actually required for approval based upon mental illness was something like "requires long-term institutionalization."
    By the way, if you read a little further in DBRA you'll notice that it included a provision to make it easier for state vocational rehabilitation agencies to get rewards for their success in putting Social Security disability recipients back to work. Even back then the idea of reducing rehabilitation to lower the costs of the Social Security disability programs was being tried but even then that was hardly new. Notice that I said that DBRA was designed to make it easier to get these rewards. The rewards had been established much earlier. Efforts to get disability benefits recipients back to work go back about as far as Social Security disability itself. Of course, DBRA's changes did not lead to an improvement in the rehabilitation rate. None of these legislative efforts have worked nor will any future efforts along this line work. But I needn't bother saying this. Congress doesn't want to hear that the vast majority of Social Security disability recipients are just too sick to be helped by rehabilitation.

I Had It Backwards

     I had posted earlier that Social Security's databases would allow one to identify many of those in this country most impaired by mental illness. I thought that this information might be used to prevent those mentally impaired individuals from obtaining guns. My post was somewhat confirmed by the fact that Social Security has a representative on an eight member White House working group on reducing gun violence. Looks like I was sort of right. I just had it backwards. Social Security's Office of Inspector General (OIG) had the bright idea of obtaining concealed-carry records and using them to cut people off Social Security disability benefits. I understand why the presence of serious mental illness would be evidence that might disqualify someone from owning a gun. I just don't see how the obverse would be true. Why would owning a gun be proof that a person is not disabled? A seriously mentally ill person who owned a gun would be displaying poor judgment but poor judgment caused by mental illness is a major reason that people are put on Social Security disability benefits to begin with!

Second Mistrial In Social Security Guard Stabbing Case

     From the Chatham, VA Star-Tribune:

A Gretna man accused of stabbing a Social Security office guard remains in custody after a second jury trial ended in a mistrial Thursday.

Byron Clements, 50, was charged with one count of aggravated malicious wounding for allegedly stabbing Jason Alsbaugh several times at the Social Security Administration office in Danville in February 2011. ... 

Twelve jurors remained deadlocked after nearly six hours of deliberation following a two-day trial in Pittsylvania County Circuit Court. ...

Defense attorney Glenn Berger said psychiatric specialists say Clements, who has a history of schizophrenia, should be found not guilty by reason of insanity.

Why Did Social Security Want Missouri Conceal-Carry Records?

     From KBLA in Missouri:

The Missouri Department of Revenue is looking for a new Director.

Brian Long resigned Monday after weeks of controversy surrounding the scanning of documents for driver’s license and conceal-carry weapons applicants. The pressure increased last week when it was discovered that the agency compiled the entire list of the state’s 163-thousand CCW holders for the Missouri Highway Patrol.

The Patrol then provided it to the Social Security Administration for an investigation it was conducting. ..

Long had only been on the job for about three months. He earlier defended the DOR’s policy, saying the scanning of documents was necessary to combat fraud, and that no one’s information was being given to the federal government.

     Update: KY3 (what does this TV station have against giving its actual call letters?) reports that Social Security's Inspector General, Patrick O'Carroll, has apologized to a Missouri Congressman for "errors [his office] made in reporting aspects of what happened regarding the handling of Missourians' private information." I still don't have any idea why Social Security wanted the Missouri conceal-carry records. I don't think you have to be an NRA member to find this request a head-scatcher.

I Agree With Andrew Biggs

     Andrew Biggs, former Deputy Commissioner of Social Security and long time warrior in the (losing) battle to privatize Social Security, has a surprising blog post. He opposes chained CPI, describing it as "bad policy that both liberals and conservatives may come to regret." His post is brief and directs readers to a longer piece he wrote for the National Review but the link he gives is bad. Probably, it's just a technical glitch but an argument against chained CPI probably isn't the sort of thing that the editors at National Review would enjoy publishing.
     Biggs views may be evolving. About a year ago, he wrote an article suggesting that privatizing Social Security might be unconstitutional.

The Overwhelming Majority Of Disability Claims Get Denied At The Initial And Reconsideration Levels

     From the newsletter (not available online) of the National Organization of Social Security Claimants Representatives (NOSSCR) -- click twice on image to view full size: