A group of more than one hundred members of Congress have sent the President a letter asking that he stop closing Social Security field offices.
Jun 27, 2018
They Say You Should Write About What You Know
From Let's Close More Social Security Field Offices by Elizabeth Bauer published by Forbes:
Social Security advocates have been sounding the alarm: Republicans, stymied in their efforts to cut benefits in the overall Social Security program, have set their sights on the program's administrative budget, leaving frail elderly ladies travelling endlessly and waiting for hours on end for their turn in the line at the Social Security field office. ...
[V]irtually all tasks associated with Social Security Old Age benefits can be done online. You can view your benefit statement, apply for Social Security retirement or disability benefits and Medicare, update your address or direct deposit information, and more. Many of the Social Security applicants or recipients ... do not actually need to come to the office at all, but we're told that we can't expect the elderly to use computers so they need to have the in-person option preserved for them. However, most retirees have family members who are able to help and of those who don't, all of the same sort of institutions (public libraries, townships, even the local VFW) that came to the aid of Obamacare "exchange" users or provide other services to the elderly, should certainly be able to help these individuals, which in turn would have the further benefit of providing a means to further connect up older Americans to the internet, whether it's e-mail or online bill-pay or other benefits. ...
After all, certain of these tasks [applying for survivor or SSI benefits] must be done in-person at field offices (or by mail with the attendant risk of lost documents) solely due to the need to verify the authenticity of certain documents. Perhaps this is more complex than I imagine, but it hardly seems like something that requires a Social Security specialist's skills to do; surely it would be a win-win situation for individuals to be able to have a local governmental unit verify the authenticity of the document prior to forwarding photocopies or document scans onward. ...
SSI benefits are so complex to administer that their cost is 9% of the overall benefits paid out (compared to 0.3% for old age/survivors and 1.8% for disability), but SSI recipients, who are overwhelmingly under-65s who qualify by reason of disability, generally qualify for other state or federal benefits as well, and other agencies are already involved in providing them services, which means that closer coordination, with a focus on return to (or entry into) the workforce, could only benefit them. ...If I looked at her other writings I might find that Ms. Bauer has also said "Let them eat cake!"
Jun 26, 2018
A Flea On The Back Of A Buffalo
The Supreme Court has agreed to hear Biestek v. Berryhill, a Sixth Circuit Social Security case presenting the issue:
Whether a vocational expert’s testimony can constitute substantial evidence of “other work,” 20 C.F.R. § 404.1520(a)(4)(v), available to an applicant for social security benefits on the basis of a disability, when the expert fails upon the applicant’s request to provide the underlying data on which that testimony is premised.
What is it exactly that the Vocational Expert (VE) is supposed to reveal to me? As a general matter, VEs aren't researchers. They don't have research, either published or unpublished, that they have done that they can reveal to me. They're basing their testimony on the Dictionary of Occupational Titles (DOT) and generalized experience. One can ask questions like "Which factories did you visit to observe this job?" but I'm not sure where any answer to that question gets you.
More important, concentrating on the issue presented in Biestek is like focusing one's attention on a flea on the back of a buffalo -- while one is being trampled by the buffalo. The enormous issue is the use of the DOT itself. The data in it is more than 40 years old! Everyone knows it's way out of date and quite unreliable yet the Social Security Administration keeps using it as a foundation for disability determination. The DOT isn't the issue presented in Biestek but it's hard to see how the Supreme Court can fail to notice it.
How Soon Might We Get A Supreme Court Decison On Whether Social Security's ALJs Are Constitutional?
I've been trying to think through the question of how soon the Supreme Court might act on a case presenting the issue of whether Administrative Law Judges (ALJs) at the Social Security Administration, as currently hired, are constitutional. The normal process would be for cases to be filed in District Courts presenting the issue. The District Courts would issue decisions. The parties who lost in District Court would appeal the decisions to the Courts of Appeals. Once a few Courts of Appeals have acted on these cases, there would be a split, that is different Courts coming to different conclusions. The Supreme Court would then grant a writ of certiorari (cert) in one of the cases to resolve the issue. If this process is followed, there probably won't be a Supreme Court opinion on the issue until sometime in 2020.
There are some ways this process could be speeded up. While it usually does, the Supreme Court doesn't have to wait until there's a split between different Courts of Appeals. It could take the first case on this issue decided by one of the Courts of Appeals. However, I don't think that would speed up things very much. If these cases proceed in the traditional manner there will be enough of them that this issue will probably come up in several Courts of Appeals around the same time and my guess is that there will quickly be a split.
The Supreme Court doesn't have to wait for a decision from a Court of Appeals. It can grant cert directly on a case that has just been decided by a District Court. However, it is exceptionally rare for that to happen. If the Solicitor General, who represents the federal government before the Supreme Court, asks for it, maybe, but this may not be the sort of thing that the current Solicitor General would regard as that urgent.
What I really wonder is whether one or more of the Courts of Appeals will raise the issue of Social Security ALJ constitutionality sua sponte, this is, of the Court's own volition, in cases already pending in the Courts of Appeals on other issues, asking the parties to brief the Lucia issue and then deciding it even though the argument had not been presented to the District Court. If that happens, we could see action from the Supreme Court by this time next year. It's certainly unusual for one of the Courts of Appeals to raise an issue sua sponte but this is an exceptional situation. The judges of the Courts of Appeals are well aware of the urgency to get the issue resolved, far more so than Supreme Court justices. At any given time there are probably several hundred Social Security cases pending in the Courts of Appeals. Even if most judges of the Courts of Appeals wouldn't want to take up this issue sua sponte, wouldn't there be enough who would to get this argued and decided in some of the Courts of Appeals by late this year? That's what it would take for the Supreme Court to decide upon the issue next year. Would Social Security's attorneys even object to a Court of Appeals panel wanting to take this issue up sua sponte? They also have an interest in getting this decided soon. This might make for some interesting oral arguments in Social Security cases. One thing to note is that there are few oral arguments in the U.S. Courts of Appeals during the summer. The judges are still working but they hold few oral arguments during the summer. We may not see the sua sponte issue coming up until September. If you've got an oral argument coming up in the next three months in a Court of Appeals in a Social Security case, you'd better be ready in case the question is asked. However, I would note that even if some of the Courts of Appeals take this issue up sua sponte, there may still not be enough time to get this before the Supreme Court in time to get a decision by this time next year. Some of the Courts of Appeals would have to act pretty quickly to get this issue on the Supreme Court's docket in time. Maybe it's just wishful thinking on my part to believe it's possible.
Jun 25, 2018
Social Security's First Public Response To Lucia
While most of us didn't think the Supreme Court would really do it, we all knew it was possible. Wouldn't you expect that there would have been some contingency planning? Of course, the White House should have been coordinating such contingency planning across all federal agencies but the current White House seems uninterested in such sort of nuts and bolts governing and is highly preoccupied with other matters.
Final Regs On Representation Of Claimants Approved
The Office of Management and Budget has concluded its review of regulatory changes proposed by the Social Security Administration titled Revisions to Rules of Conduct and Standards of Responsibility for Appointed Representatives. This is the final review. The agency may now publish this as final regulations.
We won't know what is in the final regulations until they're published, which will probably happen in the near future. Here's what I wrote at the time these regulations were first proposed:
The summary provided by Social Security includes a sentence that seems to encapsulate their approach:
The changes to our rules are not meant to suggest that any specific conduct is permissible under our existing rules; instead, we seek to ensure that our rules of conduct and standards of responsibility are clearer as a whole and directly address a broader range of inappropriate conductSocial Security thinks it's important to point out that there's no representative conduct that they find permissible but plenty they want to forbid because they believe it's inappropriate? That certainly suggests as attitude.
Here's a couple of excerpts from the proposal:A representative should not withdraw after a hearing is scheduled unless the representative can show that a withdrawal is necessary due to extraordinary circumstances, as we determine on a case-by-case basis. ...Disclose in writing, at the time a medical or vocational opinion is submitted to us or as soon as the representative is aware of the submission to us, if: ...Why would these be a problem?
As to the withdrawal provision, the agency insists on recognizing only individual lawyers as representing claimants, not law firms. Prohibiting the substitution of one attorney for another after a hearing is scheduled makes it difficult for a law firm to properly allocate its resources and makes it easy for individual attorneys employed by a firm to pick up and leave their firm with the files of their clients after the firm has spent large sums of money on the cases over the many months or years that the firm has represented the claimants. I don't know what the point of this is other than to harass law firms. Let me anticipate the response from a government employee. "Law firms don't spend much money on Social Security cases -- only a few dollars obtaining medical records -- so that's no big deal." Anyone who thinks this has never run a law firm. Law firms spend almost all of their money on salaries and other overhead. The problem is that a law firm may spend thousands of dollars on the office overhead associated with a case only to see an attorney waltz away at the last minute pocketing the entire fee. Is it unreasonable for a law firm to try to make this difficult? What exactly is the problem with a law firm substituting one attorney for another after a hearing is scheduled? It doesn't delay anything.
As to the requirement that attorneys notify Social Security if they suggest medical treatment, if I tell my client that he or she ought to get in psychiatric treatment, I'm supposed to disclose this to Social Security if the psychiatrist later offers an opinion? What if I tell my client to get back to the doctor he or she used to see? Am I supposed to carefully track the advice I give clients about medical treatment?
Jun 24, 2018
An Unexpected Result
From Correlation Patterns between Primary and Secondary Diagnosis Codes in the Social Security Disability Programs, Social Security Administration, Office of Retirement and Disability Policy, ORES Working paper 113:
... [D]isorders of the back and affective/mood disorders are by far the two most common impairments overall, together accounting for a disproportionately high share of the diagnoses (32.4% combined ... [T]he estimated correlation between the two diagnoses is small, but it is both negative and statistically significant (a −0.062 posterior mean with a t-statistic of −10.5). This finding appears to conflict with a popular perception: that affective/mood impairments and disorders of the back are two relatively “subjective” medical diagnoses with a “suspiciously” high degree of association. ...
Jun 23, 2018
Fresno's Hearing Backlog
Fresno has the longest backlog of claimants awaiting a hearing on their Social Security disability claim in California. The local paper is noticing.
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