Will President Nominate New Commissioner Now That Filibuster Is Off The Table?

     The Senate has voted to end filibusters on executive branch nominations.
     The Social Security Administration has had an Acting Commissioner since February of this year. So far there has been no nomination to the position.
     The Senate's action has to make it more likely that the President will nominate a new Commissioner and that the Senate will act promptly on that nomination. For that matter, it is also more likely that the President will nominate a new Deputy Commissioner for Social Security.
     The Senate confirmation process had degenerated to the point that all of the President's nominations were being delayed for months and large numbers of them were being filibustered. Often, the filibusters had nothing to do with the qualifications of the nominee. The President was forced to be obsessive about the qualifications of nominees.
     I cannot say whether a nominee can be expected in the near future but I hope so. It is certainly less difficult for the President to make a nomination now and to expect that nominee to be confirmed within a reasonable time.
     I have wondered whether the delay at Social Security had to do with same sex marriage. There is a very big question about whether Social Security will recognize same sex marriages for claimants who live in states that refuse to recognize same sex marriages. Today's action in the Senate would prevent Republicans from filibustering a nomination over this or any other issue. Majority rule will prevail. What a concept!

Privacy At Social Security Offices

     One person writing a letter to the editor of The Post Standard in Syracuse, NY thinks there's no privacy in the Hillside Commons Social Security field office.

     I'm aware of a not dissimilar situation at the Roanoke Rapids, NC remote hearing site. The walls are so thin there that anyone in the waiting room could hear anything said in the hearing room. The solution has been to play a radio in the waiting room.

Yesterday's Oversight Hearing

     I had a chance today to listen to the recording of yesterday's House Committee on Oversight and Government Reform Committee hearing on Social Security disability while I ate lunch and did some other things. I'd like to compliment the chairman of the Subcommittee, James Lankford, and the Subcommittee members for holding a hearing without partisan rancor, a hearing directed at informing the Subcommitte members. I'm tired of listening to Congressional hearings where the members are just trying to score meaningless political points or attacking career federal employees who have done nothing wrong. It's good to see that a Congressional hearing can still be done in an appropriate manner. 

     Marianna LaConfora testified that Social Security hoped to design a new occupational information system in such a way that no changes in the agency's regulations would be required. That's exactly what I expected and exactly the problem. I don't want the agency to massage the data so that it justifies what they're already doing. Follow the data where it goes. Amend the regulations if need be. If you're wondering why an attorney who represents Social Security disability claimants would be insistent on this, it's because I'm pretty sure that the data is going to show that the cognitive demands of employment have increased significantly over the years putting claimants with low cognitive abilities at a huge disadvantage. That's a lot of my clients. Add significant health problems on top of low cognitive abilities and you've got disability in my book. The United States is not Lake Woebegone. Not all the children or adults have even average cognitive abilities. That portion of the population in the lowest 20% of cognitive abilities account for a outsized portion of the disability claims filed. All those new computer jobs that have been created in the last thirty years are useless to those with low cognitive abilities. I don't think we're doing justice to people with lower cognitive abilities now. I don't like hearing a suggestion that Social Security will try to find a way to avoid following the data which should result in more of these claims being approved.

     I did hear references during the hearing to the "truly disabled." Let me repeat a point I've made many times before. There is no gold standard for determining who is disabled, truly disabled or truly, truly disabled. There is no way to say with certainty that an Administrative Law Judge (ALJ) who is approving 80% of the claims he or she hears is any more or less accurate in determining disability than an Administrative Law Judge who is approving 40% of the claims. You can call an ALJ who approves 80% of the cases he or she hears an outlier if you want but it's completely inappropriate to say that that ALJ is doing anything wrong and it would be wildly inappropriate to suggest that there is anything criminal or abusive going on when an ALJ is approving 80% of the cases he or she hears. A 99% reversal rate looks fishy but not an 80% reversal rate or even a 90% reversal rate. 

     By the way, I think that almost everyone agrees that ALJs who issue huge numbers of decisions are worrisome, regardless of their reversal rate. That sort of outlier worries everyone involved in the process, not because those ALJs have done anything criminal but because there's only so many hearings you can hold and so many hearing files you can review and do justice to the interests involved. Social Security could have reined in the handful of ALJs issuing well over 1,000 decisions a year but didn't do so until recently. They should have.

     Also, just in case any Subcommittee member or staffer reads this blog, they should be aware that the proposal pending at the Office of Management and Budget (OMB) to require attorneys representing Social Security claimants to obtain and submit all medical records on their clients is almost certainly unworkable. Scroll down and read my posts on this subject and the comments that others have posted. The proposal sounds great but I'd be very surprised to see it become a final rule.

The Growth In The Number Of People Receiving Disability Benefits Is Almost All Demographics

     The abstract of a study by Social Security's Office of Retirement and Disability Policy:

We find that three factors—(1) population growth, (2) the growth in the proportion of women insured for disability, and (3) the movement of the large baby boom generation into disability-prone ages—explain 90 percent of the growth in new disabled-worker entitlements over the 36-year subperiod (1972–2008). The remaining 10 percent is the part attributable to the disability “incidence rate.” Looking at the two subperiods (1972–1990 and 1990–2008), unadjusted measures appear to show faster growth in the incidence rate in the later period than in the earlier one. This apparent speedup disappears once we account for the changing demographic structure of the insured population. Although the adjusted growth in the incidence rate accounts for 17 percent of the growth in disability entitlements in the earlier subperiod, it accounts for only 6 percent of the growth in the more recent half. Demographic factors explain the remaining 94 percent of growth over the 1990–2008 period.

Today's Congressional Hearing

     I was unable to watch today's hearing before the House Committee on Oversight and Government Reform Committee because I'm a practicing attorney with clients to represent. Here are some excerpts from the written remarks of Patrick O'Carroll, Jr. Social Security's Inspector General, listing some ongoing reviews:

• Trends Associated with Cases Decided by High-Denial Outlier ALJs , in which we are analyzing subsequent actions on high-denial ALJ decisions, as well as subsequent actions on denials made by other ALJs in the high-denial ALJ’s hearing office.
• Quality Review of On-the-Record Decisions: OTR decisions — where no hearing was necessary because the documentary evidence alone supported a fully favorable decision —
• accounted for about 1 of every 5 allowances in FY2012. We will assess the reasons OTR cases were decided upon receipt at the hearing office but not approved earlier at the DDS level.
• Relationships Between Medical Providers and Represented Claimants: We will look at trends in medical source in formation provided by claimants and their representatives at the hearing level to identify any question able relationships that may merit additional Agency attention.

     Also, I have seen tweets from a reporter who watched the hearing indicating that there was testimony that the rate of people being approved for Social Security disability is at a 40 year low and that Social Security has a target date of 2016 for a new occupational information system. Of course, target dates aren't always met.

NPRM On Hematological Disorders

     The Social Security Administration has posted a Notice of Proposed Rule-Making (NPRM) in the Federal Register to revise the hematological Listings. This is only a proposal. The public is allowed to comment on the proposal and Social Security must consider those comments before adopting a final rule. 

     I have not had time to study the NPRM but I can quickly tell that it follows what has become the usual mode of dramatically increasing the preambles to the Listings. Usually, these long preambles add restrictions and qualifications to the Listings themselves. I am sure that Social Security will say that this is to make the Listings clearer but it seems to me that these long preambles are intended to make it harder for claimants to meet a Listing. It certainly makes the Listings more complex.

Preparing For Today's Congressional Hearing

     Apparently, Social Security is preparing for today's hearing before the Energy, Health Care and Entitlements Subcommittee of the House Committee on Oversight and Government Reform by publicly announcing via an "Emergency Message" goals for Supplemental Security Income (SSI) redeterminations.

     I wonder if the proposal sent over to the Office of Management and Budget (OMB) to require attorneys to obtain and submit all relevant evidence on claimants they represent before the agency is also related to this hearing. We'll have to see the actual language of that proposal but I have to think that Social Security knows that they can't go forward with this unless they water it down so much as to make it meaningless. There's a reason this sort of thing has never been proposed before. Social Security officials know that the basic concept is unworkable.

Wedge Issue?

     The idea of raising Social Security benefits is increasingly becoming a favorite among more liberal Democrats. Senator Warren just came out in favor of the idea. This is not going to happen while Republicans control the House of Representatives. Theoretically, control of the House could change next year but it would take a Democratic landslide. More realistically, raising Social Security benefits could be in the Democratic platform in 2016. It would make a nice wedge issue. Republicans skew older.  More than half of Republican voters are over 50. One major problem for Democrats has been that the public doesn't understand the Affordable Care Act. They will eventually and I'm convinced they'll like it a lot but a 10% rise in Social Security benefits is easy to understand and easy for many who now vote Republican to like.

     By the way, I'm not terribly interested in hearing Republicans argue that raising Social Security benefits is bad because that money should go to younger people. A party doing everything possible to hurt public education ought to be ashamed to make that argument.