Proposed Regs On Hearings Held By Appeals Council Judges Move Forward

     The Office of Management and Budget (OMB) has cleared a package of proposed regulations on Hearings Held by Administrative Appeals Judges of the Appeals Council. Social Security may now publish this proposal in the Federal Register. The public will be allowed to file comments. Social Security must then consider the comments. While comments from the public never seem to matter, the opinions of Andrew Saul, if he is ever confirmed as Commissioner of Social Security, and Congressional leaders do matter.

     We cannot know what is in this proposal. The fear would be that it would mark the beginning of the end for the use of Administrative Law Judges at the agency. No one would get an in person hearing. They would just be some big building holding hundreds of Appeals Council judges all holding video hearings without any pretense of independence.

Criticism For Biestek Supreme Court Opinion

     From “Has the Supreme Court Endorsed the Use of Junk Science in the Administrative State?” by Richard J. Pierce, Jr. published in The Regulatory Review:

In its famous opinion in Daubert v. Merrell Dow Pharmaceuticals, the U.S. Supreme Court took a major step toward assuring that our legal system functions on the basis of sound scientific principles. The Court held that judges must apply criteria based on such principles when they decide whether to admit expert testimony. ...

Daubert requires an expert witness to disclose the data and methodology they relied on as the basis for any opinion they propose to offer in court. The judge then decides whether the data and methodology are sufficiently reliable to support admitting the expert’s testimony. If the opposing counsel challenges the reliability of the data or methodology, the judge conducts a hearing during which opposing counsel has the opportunity to test the reliability of the data and methodology by cross-examining the witness.

Earlier this month, the Court issued a potentially infamous opinion that encourages agencies to rely on junk science. The facts of Biestek v. Commissioner of Social Security are simple. Biestek applied for Social Security disability benefits. At a hearing before an Administrative Law Judge (ALJ), Biestek claimed that he was so disabled that he could not perform the functions required by any job that is available in significant numbers in the U.S. economy. ...

In such a hearing, the government has the burden of proving the availability of a significant number of jobs that can be performed by someone with the age, education, experience, and health state of the applicant. The Social Security Administration (SSA) used a vocational expert as a witness, who testified that there were 120,000 jobs available for “sorters” and 240,000 jobs available for “bench assemblers” that Biestek could perform.

When asked to describe the basis for these numbers, the witness referred to two sources—the Bureau of Labor Statistics (BLS) and private surveys the witness had conducted for other clients. Since BLS does not report job availability statistics with the specificity required to support the number of jobs of a particular type the witness claimed to be available, the only possible basis for those numbers were the private surveys.

Biestek’s lawyer asked the witness to provide the private surveys. The witness refused on the basis that they were part of her confidential client files. ...

The majority [of the Supreme Court] reasoned that the ALJ could rely on the unsupported opinion of the witness for two reasons: the evidence satisfied the substantial evidence test and the Federal Rules of Evidence (FRE) do not apply to SSA disability hearings. The first reason is based on a misunderstanding of the substantial evidence test, while the second is based on a misunderstanding of the reasons why Congress decided that the FRE do not apply to agency hearings. ...

The Court’s opinion in Biestek has the potential to produce an administrative state in which many important decisions are based on junk science. As Jason Johnston has explained, many agencies have relied on junk science as the sole basis for decisions that have serious financial consequences. For instance, some decisions in which the U.S. Environmental Protection Agency (EPA) has required firms to incur billions of dollars in costs are based on findings from researchers who have refused to provide anyone, including EPA, with the data and analysis on which the findings are based. It is impossible to know whether those findings are supported by reliable data and analysis. ...

The Daubert Court did not indulge the naïve assumption that an expert should be believed simply because she has impressive credentials and an impeccable reputation. ...

Social Security Wants To Learn Lessons

     A Request for Information posted by Social Security seeking to hear from potential contractors:

Request for Information Requisition to seek a partner to assist in a synthesis of the lessons learned from the tests of new policies (i.e., demonstrations) that SSA has conducted. The contractor will convene a research conference, edit the resulting papers, and publish a volume targeting policymakers and others interested in Social Security Disability Insurance (SSDI), Supplemental Security Income (SSI), and related policies.

House Ways And Means Democrats Urge Social Security To Negotiate In Good Faith With Employee Union

     A press release from the House Ways and Means Committee:

Today, Ways & Means Committee Chairman Richard E. Neal (D-MA), Social Security Subcommittee Chairman John B. Larson (D-CT), and Worker and Family Support Subcommittee Chairman Danny K. Davis (D-IL) sent a letter to Social Security Administration (SSA) Acting Commissioner Nancy A. Berryhill, highlighting their concerns with SSA’s failure to negotiate in good faith with the American Federation of Government Employees (AFGE), which represents 45,000 of the agency’s employees. In its contract negotiations, SSA is deliberately pursuing several anti-union policies that a U.S. District Court previously blocked. 

“SSA’s employees touch the lives of millions of Americans, ensuring that they are able to receive the benefits they have earned,” wrote Neal, Larson, and Davis. “Every day, they make sure that workers can afford to retire, that people with disabilities can live with dignity, and that widows and dependents are protected from destitution after losing a breadwinner’s income. Undermining SSA employees’ fundamental workplace rights and collective bargaining rights will immediately weaken the agency’s ability to fulfill its mission – delivering quality Social Security services to the public. We will not stand by while that happens.”

The members urged SSA to return to the bargaining table with AFGE and negotiate in good faith.

Full text of the letter is available HERE.

We Need More Immigration, Not Less

This appears to be expressed as a percentage of GDP

Youth Transition Pilot Shows Promise

     From the Arkansas Democrat Gazette:

A program aimed at moving Arkansas youths from the disability rolls to employment is showing early signs of success, according to Brent Thomas Williams, an associate professor of counselor education at the University of Arkansas. ...

Williams is principal investigator for Arkansas Promise, a five-year, $36 million program focused on finding jobs and opportunities for Arkansas teenagers who receive Supplemental Security Income. ...

Richard Luecking of the Center for Transition and Career Innovation at the University of Maryland said early reports from all six projects are highly encouraging. ...

After 18 months, participants in all six pilot projects were more successful at finding work than members of a control group. In four cases, they also saw their earnings increase by a statistically significant amount, according to Mathematica Policy Research, a Princeton, N.J.-based organization that analyzed the data.

The Arkansas experiment, which wraps up this year, surpassed the others, however, in terms of youth employment and youth earnings. 

Roughly 2,000 Arkansas youths participated in the research project. Half received Arkansas Promise services; the others did not.

Participants received training, "intensive case management" and assistance finding jobs. An earned income exclusion allowed them to make money without jeopardizing their SSI payments.

Fifty-six percent of the participants in Arkansas Promise said they had held paying jobs, compared with 20 percent in the control group, officials said. Arkansas Promise participants reported earnings in the previous year of $1,960. The control group had earnings of $747. ...

     In general, I'm very pessimistic about programs to encourage disability benefits recipients returning to work. There's a long history of failure. However, I don't feel that way about youth transition programs. Young people have a far greater capacity to make adaptations that allow them to overcome obstacles than do older people. I've seen too many cases where young people with developmental disabilities leave high school without receiving any help in making the transition to employment. Predictably, they fail to hold down jobs. Give them a counselor to help point them in the right direction and help them find employment and then give them a job coach and many can make it.

My First Social Security Scammer Robocall

     I got my first Social Security scammer robocall yesterday. The message told me that my Social Security account had been "frozen" because of illegal activity on the account in Texas. Of course, I just hung up. Don't fall for this.

Congressional Hearings On Trustees Report?

     In past years there were Congressional hearings on the annual report of Social Security's Board of Trustees on the state of the Trust Funds on the same day the reports were issued or shortly thereafter. So far this year no hearings have been announced. Maybe it's because the report was issued the day after Easter while Congress in in recess. Maybe there just isn't the interest this year.