Last Call For Single Decisionmaker

     From a notice that Social Security is publishing in the Federal Register tomorrow:

We are announcing the extension of tests involving modifications to disability determination procedures authorized by 20 CFR 404.906 and 416.1406. These rules authorize us to test several modifications to the disability determination procedures for adjudicating claims for disability insurance benefits under title II of the Social Security Act (Act ) and for supplemental security income payments based on disability under title XVI of the Act. This notice is our last extension of the “single decisionmaker” test, as we will phase out the test until elimination in 2018 . This notice also extends the separate “prototype” test.

She Was Right

     The Washington Post is reporting on an 80 year old woman who has been living on the D.C. streets for 16 years complaining that she couldn't get Social Security to straighten out her benefits. It turns out she was right. Social Security did owe her money. They've just paid her $99,999 and probably owe her more. Yes, if you know much about Social Security, it's obvious that she should have done things differently but people make dumb Social Security mistakes all the time and this woman has a better excuse than most. Despite the lady's protestations to the contrary, it's obvious that she has serious psychiatric problems. The bigger issue is that Social Security field offices often fail people like this who need extra help. That would happen some even with good staffing but it becomes more frequent when staffing is as tight as it is now. The consequences of failing to adequately serve people who have special needs can be terrible.

EAJA Payments Doubled In Five Years

     After a Social Security disability claimant gets denied, appeals, gets denied again, appeals again, has a hearing and gets denied again, appeals again and is denied one last time by the Social Security Administration he or she can file a civil action in United States District Court saying that Social Security's final decision was in error. There are several thousand of these civil actions each year. If the claimant wins outright in District Court, which doesn't happen much, or if he or she succeeds in getting the case remanded for a new hearing, which happens a lot, Social Security will probably be liable for the claimant's federal court attorney fees under the Equal Access to Justice Act (EAJA). Social Security has to release a report on EAJA payments. Here's the numbers for recent years.

 

Year	Amount
2010	$19,743,189.12
2011	$21,668,646.47
2012	$24,666,171.13
2013	$27,720,951.87
2014	$31,637,462.36
2015	$38,132,381.48

Taking Claims Over The Phone Is Tough

     A view from someone who takes social security disability claims over the telephone:

This morning I spoke to a cancer patient, a woman with kidney failure, and a young man who had just lost the mother of his children. Each of them thought I was trying to help them. I wasn’t really though, because helping them would take longer than 23 minutes. ...

These are people who need my help to navigate the complex claims system so that they can get a meagre payout. They’re often vulnerable and desperate by the time they reach me. My job is to fill in a new claim form for [benefits] based on the information people give me and then send that form off to the benefit centre where the claim is processed. ...

[F]or me, the only thing that’s really important is how long each call takes. We are measured on our average handling time (known as AHT) and if this slips beyond 23 minutes per call we face performance management, which is code for “you’ll get in trouble”. This involves anything from stern words and increased micro-management from your line manager right up to written warnings and dismissal. ...

[W]e staff are singularly ill-equipped to actually offer any help or support. I have had absolutely no training in how [disability] benefits work. I don’t know what happens when I send a claim to be processed, so I can’t answer any questions about what will happen next or when somebody will get a payment....

  [T]here is no break between calls, the headset beeps again immediately and this time it’s a woman with kidney failure. I’m failing her too, and afterwards I will fail the bereaved young father, and this afternoon there will be more and more people I fail to help. And this will continue presumably until the government finally finds a way to do away with benefits entirely, at which point our sick and disabled people will be left with nothing, not even my hurried 23 minutes of script.

     If something didn't seem quite right when you read this (notice the use of "centre"?), it's because the woman who wrote this works for the British equivalent of the Social Security Administration.

To No One's Surprise Trump Lies About Social Security

     From the Washington Post:

The Donald Trump campaign released its first political ad of the general election, focused on immigration. It begins with a hypothetical situation of what immigration would look like under Democrat Hillary Clinton’s America. 

The narrator says: “In Hillary Clinton’s America, the system stays rigged against Americans. Syrian refugees flood in. Illegal immigrants convicted of committing crimes get to stay. Collecting Social Security benefits, skipping the line. Our border open. It’s more of the same, but worse.”  

Is the claim about undocumented immigrants collecting Social Security benefits accurate? ...

Unauthorized immigrants, who are not granted any deferred-action status, are not eligible to receive Social Security benefits or any other federal means-tested benefits. But they pay taxes and pay into the Social Security system. 

Even though the majority of unauthorized immigrants can’t collect the benefits, they paid about $12 billion into the cash flow of the Social Security program in 2010, according to the Social Security actuary. (Some undocumented immigrants could theoretically collect benefits — illegally — if they’ve overstayed their visas or falsely obtained a Social Security number.) That means the U.S. government gets far more than it pays out when it comes to unauthorized immigrants. ...

Privatized Chilean Social Security System Not Working So Well These Days

     From Michael Hiltzik at the Los Angeles Times (emphasis added):

Promoters of privatizing the U.S. Social Security system have never tired of holding up Chile’s privatized program as an example of how this can make workers rich. The trick is that they never ask ordinary Chilean workers and retirees how they feel about it.

That may be because they know what the answer would be. It was visible last month in the streets of the capital, Santiago, where crowds estimated at 100,000 to 200,000 marched to demand reform. ...

The Chilean program was promoted relentlessly by its creator, Jose Pinera, who got himself a sinecure at the Cato Institute [a right wing think tank in the United States, not Chile] out of the deal. From there he fed American conservatives’ fantasies of “an obvious free market solution that works,” he wrote for a Cato audience in 1997. (In that same article he declared that “America’s Social Security system will go bust in 2010.” Umm, no.) He boasted of how he single-handedly “decided to undertake a structural reform [of Chile’s bankrupt retirement system] that would solve the problem once and for all.” ...

Pinera and his fans talked up the Chilean workers’ apparent gains during the system’s early years, when it seemed to be delivering double-digit returns and lavish pensions to its lucky beneficiaries. What the promoters never much emphasized was how the program actually had been made to work. As I explained in a 2005 book, everyone entering formal employment after 1981 was required to deposit 10% of earned wages into individual accounts managed by a handful of investment companies appointed by the Pinochet regime. Workers enrolled in the old system were goaded into abandoning it by cuts in existing benefits. Chile financed the transition by draining its large government surplus. An unprecedented bull market in Chilean stocks did the rest. 

But the seams soon showed. The World Bank determined that fees charged by those favored investment firms consumed fully half the pension contributions of the average worker retiring in 2000. The government surplus disappeared, and those outsized stock market gains faded away.

Interesting Study On Federal Court Litigation

     The Administrative Conference of the United States (ACUS), a federal agency that does legal research and makes recommendations for federal agencies, has released A Study of Social Security Litigation in the Federal Courts. Here are a few excerpts (footnotes omitted): 

• This investigation revealed one obvious fact: federal judges know little about the path social security claims follow from initial filing to their chambers.
• District and magistrate judges tend to march in lockstep within districts. Districts with one judge who remands a lot of cases to the agency tend to have other judges who do so as well. Very few individual judges have decision patterns that depart significantly from what their district colleagues produce.
• Circuit boundaries are associated with a good deal of district-level variation. For example, the fact that the Eastern District of New York remands more cases than the Southern District of Florida seems to be significantly related to the fact that, over all, districts in the Second Circuit remand a greater share of cases than do districts in the Eleventh Circuit.
• A number of factors – judicial ideology, the degree of a district’s urbanization, the assignment of cases to district versus magistrate judges, ALJ [Administrative Law Judge] case loads, and others – have little association with case outcomes. 
• Most of the twenty-four ALJs we interviewed subscribe to what one labeled a “just in time” approach to case review.  An ALJ using this method first looks at a case anywhere from one day to a week before the hearing. 
• The agency can always appeal the district court’s decision, but it almost never does so. The courts of appeals might receive somewhere in the neighborhood of 650 social security appeals each year, no more than twenty of which are affirmative appeals by the Commissioner. In FY [Fiscal Year] 2014, the agency filed exactly one appeal. Several reasons might explain this low incidence of appeal, but one institutional fact is surely important: the Solicitor General of the United States must sign off on any appeal the SSA [Social Security Administration] might want to take.
• The hearing office that we studied in the low remand district came off as a model of institutional health. “I can’t begin to think of a better place to work,” one decision writer told us. The office has stable management, with a long serving Hearing Office Chief Administrative Law Judge (“HOCALJ”), and ALJs tend to stay once they are assigned there.
• Most of the hearing office personnel from the high remand district described a very different and more problematic work environment. Several ALJs complained of poor quality decision writing, and several expressed a preference for decisions written off-site in national case assistance centers. An ALJ described unstable, volatile management at a hearing office for much of the past decade, and ALJs and a claimant representative complained of the office’s capacity to perform basic administrative tasks. Some personnel described communication difficulties between ALJs and decision writers.
• Recommendation 1. Congress should give the Social Security Administration independent litigating authority. 
• Recommendation 2. Congress should enact enabling legislation to clarify the U.S. Supreme Court’s authority to promulgate procedural rules for social security litigation. The Judicial Conference should authorize the appointment of a social security rules advisory committee, and the U.S. Supreme Court should approve a set of social security rules drafted by this committee.
• Recommendation 3. A uniform set of procedural rules for social security litigation should contain (a) a rule requiring the claimant to file a notice of appeal instead of a complaint; (b) a rule requiring the agency to file the certified administrative record instead of an answer; (c) a rule requiring the parties to exchange merits briefs instead of motions; (d) a rule setting appropriate deadlines and page limits; and (e) a rule creating a presumption against oral argument. 
• Recommendation 4. The Administrative Office of the United States Courts, the Federal Judicial Center, the Administrative Conference of the United States, and the Social Security Administration should cooperate on several initiatives to improve communication among the agency, claimant representatives, and the judiciary, and to educate the judiciary in important aspects of the claims adjudication process. These initiatives should include the creation of social security standing committees for each district and the drafting of an introductory manual on social security law and processes.
• Recommendation 5. Congress should not replace the existing system of judicial review with a specialized court for social security appeals. The Appeals Council should issue opinions in a set of appeals each year that will benefit from Chevron deference and thereby reduce circuit-level variation. 
• Suggestion 1. The agency should investigate further the relationship between hearing office performance and work environment, on one hand, and remand rates in district courts, on the other. 
• Suggestion 2. The agency should add bottom-up, localized experiments to their quality assurance initiatives. This experimentation could include a pilot project in several hearing offices that uses district court decisions for guidance and critique.
• Suggestion 3. The Social Security Administration and the Administrative Office of the U.S. Courts should provide the federal judiciary with a database listing district and magistrate judge decision rates. 
• Suggestion 4. The Social Security Administration should attempt to quantify the “false positive phenomenon,” or the number of court remands that, once adjudicated again, do not result in the payment of benefits. 
• Suggestion 5. To the extent possible, the Social Security Administration should require that hearing offices assign court remands to the same decision writers who worked on the cases the first time.
• Suggestion 6. The Social Security Administration should study the issue of an OGC [Office of General Counsel] attorney’s ethical obligations and, where appropriate, provide clearer guidance.
• We nonetheless believe that only a dramatic reduction in ALJ caseloads could permit significant, across-the-board improvements in decision-making quality sufficient to cause the federal court remand rate to plummet sharply. To avoid a spike in the backlog of claims, the size of the ALJ corps would have to increase. Ultimately, this may be the most important reform of all.

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No More CDs

     Social Security has sent out a directive that Social Security employees will no longer provide CDs of hearing files for attorneys and others representing claimants at the hearing level. The only exception of consequence is for cases that are not electronic.

     I wish the directive had said explicitly that this does not apply to prior case files. Many, perhaps most, hearing office employees are unaware that Social Security's systems do not allow electronic access to prior files. They can easily see prior files on their system but attorneys and others representing claimants cannot see prior files unless someone at the agency provides them on a CD. This is one of many annoying problems with the current system.