New Respiratory Listings

     The Social Security Administration has posted new Listings for respiratory system disorders. These are final rules, effective October 7, 2016.

Why Is It Harder To Win With Newer ALJs?

     It's a matter of common knowledge among attorneys who represent Social Security disability claimants that it's harder to win with Administrative Law Judges (ALJs) hired in the last five years or so. 

     Theories on why this is so range from they've found some way to hire more conservative ALJs to they've found some way to train them to be more conservative to they're somehow encouraging them to deny more claims or they're  hiring agency employees who they know will deny claims. I've had doubts about each of these theories.

     Let me propose the theory that it has to do with the veterans preference and the end of the military draft. The federal government gives a heavy preference to hiring veterans. This preference has led to far higher percentage of ALJs who are military veterans than in the population of lawyers in general. This didn't matter much when the veterans being hired were mostly of the Viet Nam era as was the case until not that long ago. The draft assured that those who served during that era were not that far from being a microcosm of the male population. The draft ended as the Viet Nam war ended. Military veterans being hired now chose to serve in the military, usually as a career. This cohort is different from their Viet Nam era predecessors. On average -- and, of course, there's plenty of individual variation -- they're considerably more conservative politically and socially, making them more likely to turn a jaundiced eye to disability claims.

     That's my theory. What do you think?

I Can't Get Away From Work

     I attended an opera last week and was surprised to find it exploring themes that are quite familiar to me.
     I'm not an opera buff. However, my wife and I went to Charleston, SC for a few days last week for the Spoleto Festival, as we have for more than thirty years. I generally stick to the non-opera performances but this year the main opera is George Gershwin's Porgy and Bess. How could I miss an opera sung in English featuring songs such as Summertime, Bess You Is My Woman Now, I Got Plenty O' Nuttin' and It Ain't Necessarily So? My wife and I went and enjoyed it greatly.

     While Porgy and Bess is set in the African American community of Charleston in the 1920s, it may be more about the subject of disability than anything else. The opera's most important character, Porgy, is disabled, apparently by paraplegia. Gershwin based his opera on the novel Porgy written by Charleston native Dubose Heyward. The title character of that novel was loosely based upon a well known personality in Charleston, "Goat Sammy," a crippled beggar who got around in a goat cart. Heyward had been fascinated to find out that "Goat Sammy" had been arrested on a charge of aggravated assault for a crime of passion. As Heyward put it “the object of public charity by day, had a private life of his own by night." Note that this disabled man in the 1920s had to resort to begging to support himself. Yes, we still have beggars but that's generally not the fate of disabled people today and that's largely due to Social Security and Supplemental Security Income disability benefits. My bigger point is that Heyward thought it important to tell the world that disabled people actually have lives apart from their disability. Disabled people are quite capable of passionate romance, among many other things. It remains a point worth making. I have seen cases where Social Security Administrative Law Judges were surprised, even affronted, by evidence that a disabled person had a life apart from their disability. How dare a disabled person father a child or become pregnant! How can a person be truly disabled if they attend church or get arrested for a crime or enjoy the company of friends and family? To think like that denies the possibility that disabled people are truly human, that they have the same hopes, dreams, pleasures, pastimes, urges, shortcomings and frailties as the rest of us.

     I don't think it's an accident that the novel Porgy dealt so much with the theme of disability. Dubose Heyward's own health was poor. He suffered from the effects of polio, as well as other illnesses. As a result of his own experiences, I expect Heyward had reason to contemplate the ways in which society thinks about the disabled. I wish those attitudes had changed more since Heyward's day.

    

Proposed Regs On Program Uniformity At Hearing And Appeals Council Levels

    The Social Security Administration has just asked the Office of Management and Budget (OMB), which is part of the White House, to approve a set of proposed regulations on Ensuring Program Uniformity at the Hearing and Appeals Council Levels of the Administrative Review Process. I don't know what this is about. If OMB approves the proposal, it will be published in the Federal Register and the public will be able to comment on it. Social Security will have to consider the comments, possibly make changes in the proposal and then submit it again to OMB for final approval.

DPCS Project Not Going Well

     In 2010 Social Security awarded a contract to develop a Disability Case Processing System (DPCS). This is a database system that would be used in processing disability claims at the initial and reconsideration levels. So far the agency has spend over $300 million on the project but has received no benefit. A recent report by the agency's Office of Inspector General (OIG) shows that things have been going so badly with the DPCS project that OIG is recommending that the agency strongly consider terminating the project and either sticking with its legacy system or using off the shelf software. The off the shelf software may not have all the functions the agency wants but it works and is relatively inexpensive. Of course, it appears that DPCS itself, if it ever works, isn't going to have all the functions the agency wants anyway, at least not in the beginning.

What's Wrong With This Picture?

This Corpse Isn't Worth Fighting Over

     The Binder and Binder bankruptcy drags on. At the moment the hedge fund that has already sunk a lot of money in Binder and Binder wants to take it over but is being rebuffed.

     Take a clue from someone who knows a thing or two about these things, Binder and Binder's business model never made sense in anything other than a very favorable environment and we've got an extremely harsh environment at the moment. Even in the unlikely event of the return of a favorable environment, Binder and Binder's "good will" is so far into the red that recovery is out of the question. The idea that the hedge fund that took Binder and Binder into bankruptcy is going to turn this thing around is preposterous. 

Big GOP Donors Expect No Less

     House Republicans are already lining up in opposition to increasing Social Security benefits.