SCOTUS Rules On Biestek

     The Supreme Court has issued an opinion in Biestek v. Berryhill, a Social Security case. Here's an excerpt from the Supreme Court's syllabus of its opinion:

  ... Biestek proposes a categorical rule that the testimony of a vocational expert who refuses a request for supporting data about job availability can never clear that bar. To assess that proposal, the Court begins with the parties’ common ground: Assuming no demand, a vocational expert’s testimony may count as substantial evidence even when unaccompanied by supporting data.

If that is true, is it not obvious why one additional fact—a refusal to a request for that data—should make an expert’s testimony categorically inadequate. In some cases, the refusal to disclose data, considered along with other shortcomings, will undercut an expert’s credibility and prevent a court from finding that “a reasonable mind”could accept the expert’s testimony. But in other cases, the refusal will have no such consequence. Similarly, the refusal will sometimes interfere with effective cross-examination, which a reviewing court may consider in deciding how much to credit an expert’s opinion. But other times, even without supporting data, an applicant will be able to probe the strength of the expert’s testimony on cross-examination.Ultimately, Biestek’s error lies in his pressing for a categorical rule, applying to every case in which a vocational expert refuses a request for underlying data. The inquiry, as is usually true in determining the substantiality of evidence, is case-by-case. It takes into account all features of the vocational expert’s testimony, as well as the rest of the administrative record, and defers to the presiding ALJ, who has seen the hearing up close.

     By the way, here's an excerpt from the dissent of Justice Gorsuch, joined by Justice Ginsburg:

 ... Veteran Social Security practitioners must be feeling a sense of déjà vu. Half a century ago, Judge Henry Friendly encountered Kerner v. Flemming, 283 F. 2d 916 (CA2 1960). There, the agency’s hearing examiner offered “nothing save [his own] speculation” to support his holding that the claimant “could in fact obtain substantial gainful employment.” Id., at 921. The Second Circuit firmly explained that this kind of conclusory claim is insufficient to meet the substantial evidence standard. In response,the Social Security Administration began hiring vocational experts, like the one in this case, to document the number of jobs available to a given claimant. But if the government can do what it did in this case, it’s hard to see what all the trouble was for. The agency might still rest decisions on a hunch—just so long as the hunch comes from an agency contractor rather than an agency examiner. ...

     Justice Sotomayor also dissented separately but mostly agreed with Justice Gorsuch. It sound odd for Gorsuch, Ginsburg and Sotomayor to be on the same side but Social Security cases don't fall easily into some simple liberal-conservative dichotomy.

Job Opening

     Social Security has posted a job opening for the Deputy Associate Commissioner for Disability Policy position.  This is in the Senior Executive Service (SES) which means that while the position doesn’t require Senate confirmation, it can be filled on a political basis. Most SES positions, however,  are not political. Here’s the job description:

As full deputy and alter ego to the Associate Commissioner (AC) for Disability Policy, the Deputy Associate Commissioner (DAC) for Disability Policy oversees the development of broad medical concepts and disability program policies for medical issues governing the administration of the Title II and Title XVI programs. Included in this responsibility is the formulation of medical evaluation policies, interpretive guidance, and development of training programs for personnel involved in disability adjudication and decision-making.   

In consultation with the AC for Disability Policy, the DAC leads development, coordination and oversight of disability policies, procedures, and process requirements in support of the creation of an effective and efficient disability claims processing system consistent with policy. S/he oversees development and oversight of claimant representative policies and program integrity reporting requirements for the administration of Title II and Title XVI disability programs. The DAC leads the development and oversight of a vocational policy framework supporting accurate and consistent application of disability program policy through all levels of disability claims adjudication and the quality assurance process. The incumbent also ensures development of clear guidance for non-attorney representatives and requirements for sufficient training, as well of disability program fraud and similar fault policy. 

S/he oversees case analysis, studies, research and data analysis to provide an evidence base for proposed policy modernization, e.g., impairment severity and other medical disability issues, vocational and other non-medical disability issues, and studies on the disabled population relative to specific operational program issues. Accordingly, the incumbent develops automated data tools and maintains statistical databases.

     Which are the other current political SES positions at Social Security? What kind of people fill them?

Return Of No Match Letters

     From National Public Radio:

The Social Security Administration may be the latest front in the Trump administration's crackdown on illegal immigration.  

 The agency is reviving the controversial practice of sending "no match" letters to businesses across the country, notifying them when an employee's Social Security number doesn't match up with official records.  

That may sound innocuous. But these no-match letters are expected to set off alarm bells. That's what happened when they arrived in the mail back in the mid-2000s. ...

There are a lot of reasons someone's Social Security number might not match: name changes or clerical errors, for example. But it can also mean that a worker is using a fake Social Security number. And when an employer gets one of these letters, it has to ask the worker to fix the problem. 

Labor unions and immigrant advocates took the issue to court in the mid-2000s. The U.S. Chamber of Commerce complained that the government was trying to turn businesses into "immigration cops." Eventually, the Obama administration stopped sending these letters in 2012. ...

En Banc Denied In Hicks Case

     The United States Court of Appeals has denied the petition for rehearing en banc in Hicks v. Berryhill. Hicks held that the process that Social Security used to do new reviews of benefit entitlement for the former clients of Eric Conn was unconstitutional. Social Security may ask the Supreme Court to hear the case but the Court is unlikely to accept it. The normal criteria for Supreme Court review -- conflict between different Circuits or broad national importance -- do not apply here. Social Security must redo these cases or give up on terminating these benefits.

About What I Would Have Expected

     From a recent report by Social Security's Office of Inspector General (OIG):

In a deferred OASDI [Old Age, Survivors and Disability Insurance] case, SSA [Social Security Administration] withholds an individual’s monthly benefit to collect prior incorrect payments or past-due Medicare premiums. An erroneous benefit deferral can occur if a technician incorrectly updates a beneficiary’s record.

The Agency designed systems to alert staff of errors in updating individuals’ records. However, staff could still make an error without causing a system alert. As a second line of review, in 2008, SSA deployed a program to identify cases with a high risk of error that leads to deferred benefits on individuals’ records. Therefore, the technician must review and correct the record as quickly as possible because the beneficiary’s payments have stopped. 

We identified 19,661 cases that SSA’s program classified as having a high risk of error in deferring payment of OASDI benefits based on the information gathered from program service centers (PSC) 2 through 6 for Fiscal Year 2017. 

SSA did not always correctly process cases it identified as having a high risk of error in deferring payment of OASDI benefits. Of the 100 sampled beneficiary records we reviewed, SSA did not correctly process 66 it identified as having a high risk of error. Of the 66 errors, 54 resulted in improper payments. This included approximately $115,000 in overpayments and $87,000 in underpayments. We found four types of payment errors: (1) incorrect manual overpayment adjustments, (2) inaccurate manual adjustments to Medicare premiums owed, (3) failure to release underpayments, and (4) failure to take corrective action. We project SSA incorrectly processed the deferred cases for about 13,000 beneficiaries, which resulted in incorrect payments of approximately $40 million to about 11,000 beneficiaries.

Additionally, we identified two beneficiaries who had incorrect overpayment amounts, totaling approximately $6,000, posted to their records. Finally, SSA did not have consistent procedures among PSCs for identifying and correcting deferred benefit cases. Specifically, three of the eight PSCs did not use the program other PSCs used to identify deferred benefit cases. ...

     OIG didn't work out how a dollar figure for much these sorts of errors would work out to if they are happening at the same rate across all of the high risk cases but it would surely be a lot of money.
     Before anyone starts blaming incompetent bureaucrats, remember that the payment centers are overworked and understaffed. Errors are inevitable in any large organization but they are far more likely in an organization that lacks adequate staffing. If you want to improve payment center performance, it's going to cost money. On the other hand, if you want Social Security to fail in order to fulfill you own prophecies about government incompetence, we're on the right track.

Payment Center Processing Times Improved But Is Service Really Better?

     From Social Security's explanation of the Trump Administration fiscal year 2020 budget proposal:

Currently, the PCs [Payment Centers, where Social Security, but not SSI benefits, are authorized] are working through a backlog of pending actions. Our PCs reduced the number of pending actions to 3.2 million as of September 2018, a 37 percent decrease from an all-time high of more than 5 million in January 2016. We targeted hiring and overtime in the PCs, and we continue to focus on automation, workflow enhancements, and quality initiatives to improve PC performance. Through our IT [Information Technology] modernization initiative, we will continue to pursue opportunities to reduce the PC backlog by streamlining and automating manual PC workloads. These efforts will help us work towards reducing the number of pending actions to 2.5 million by the end of FY 2020. However, the outcome of the court case, Steigerwald v. Berryhill [a class action that will probably require recomputations of benefits for a large group of claimants who had been underpaid], could impede our progress in reducing the PC backlog.

     What I'm seeing is some small improvement in speed of payment -- but only for the simple, easy cases. The PCs seem to be fast tracking, that is doing the quick, easy stuff first but God help you if your case involves any level of complexity because it's going to take forever. Fast tracking leads to better looking numbers but is it a fair trade-off to improve service to a lot of people by a few days by imposing many months of delay on a smaller group of people?

Saul Nomination Moves Forward

     By a unanimous vote, the Senate Finance Committee has reported out favorably the nomination of Andrew Saul to become Commissioner of Social Security.

Trump Administration Wants To End Attorney Fee Withholding

     From a list of Trump Administration legislative proposals for Social Security:

Change the Representative Fee and Approval Process. This proposal would eliminate fee caps, and relieve SSA of responsibility for fee approval, withholding, and payment functions; however, it would not affect our ability to prescribe who may and may not represent claimants. This proposal would streamline and decrease SSA’s operations and hearings workloads, allowing employees to focus on adjudicating more cases and completing other high priority workloads, thereby better serving the public.

     No, this isn't happening with Democrats in control of the House of Representatives but it does give an insight into Trump Administration attitudes.