Andrew Saul's Docket

     We have heard little from Andrew Saul since he was sworn in as Commissioner of Social Security. Below are some of the decisions he'll have to make in coming months in addition to the obvious staffing decisions he must make. I'm sure there are other items on his plate, particularly in Informational Technology, but I'm not familiar enough with those to write about them.

What To Do About Hicks v. Commissioner of Social Security

• Social Security twisted its rules to cut off benefits for as many of Eric Conn's former clients as possible. The 6th Circuit Court of Appeals ruled against the agency on November 21, 2018. Ever since then the Solicitor General and Social Security have been "considering" whether to ask the Supreme Court to hear the case. I doubt that they are seriously considering that. I think they've just been stalling until a new Commissioner was confirmed because it's hard to decide how to implement the decision of the Court of Appeals.  They can't stall much longer.

What To Do About Cases Pending At The Appeals Council Which Were Decided Prior To Lucia v. SEC And An Objection Has Been Made To ALJ

• The Supreme Court decided last year that Administrative Law Judges (ALJs) as then appointed were unconstitutional. Social Security changed the way ALJs were appointed to adjust to this decision but there are thousands of cases still pending at the Appeals Council that were heard before the Lucia opinion. The agency has suggested that they want to avoid remanding all these cases for new hearings with different ALJs by having the Appeals Council issue new decisions on its own. This is arguably illegal and probably impractical. A decision on this can't be delayed much longer.

Proposed Regulation That Has Been Published For Comments And Can Now Be Made Final

• Removing inability to communicate in English as a factor in determining disability. Anti-immigrant proposals are very popular with Republicans these days but Saul will poison his relationship with Congressional Democrats if he goes ahead with this one and they have the power to make his life difficult.

Proposed Regulations That Have Not Yet Been Published For Comments

• Considering social media in determining disability. Unpopular with many in Congress, including Republicans.
• Revising evaluation of vocational factors in determining disability (probably increasing age categories in grid regulations). Go ahead with this one and you've made a declaration of war on Congressional Democrats.
• Hearings held by Administrative Appeals Judges. Nobody knows exactly what this one is but if it's what I think it is -- trying to get rid of independent ALJs -- it's going to be unpopular with all Democrats and many Republicans in Congress.

Stance On Employee Unions

• The Trump Administration has taken an extremely aggressive and antagonistic stance on federal employee unions. Social Security has followed suit. Democrats on the House Ways and Means Committee are already pressuring Saul to soften Social Security's approach. Will he be a loyal Republican and continue the harsh anti-union stance or does he modify it to avoid conflict with Congressional Democrats who can make his life difficult? His message to agency staff suggests that he'll soften the anti-union stance.

Process For Appointing New ALJs

• The old process for appointing ALJs was found unconstitutional. What will the new process be?

Fee Cap 

• This one may be wishful thinking on my part. The cap on fees that may be charged for representing Social Security claimants hasn't been raised since February 9, 2009. By any normal standard it's way past time to increase it. However, I'm not sure that the organizations that represent those who represent claimants have been able to generate any real pressure to increase the cap.

This Isn't Something To Crow About

     Congresswoman Susan Wild, a Democrat from Pennsylvania, is taking credit for a $300 million increase in Social Security's appropriation included in the House of Representatives bill. 

     While the Congresswoman's efforts are appreciated, the $300 million isn't enough to keep up with inflation much less to improve service and almost certainly the Congresswoman had nothing to do with it. She's in her first term in the House of Representatives and is not on the Appropriations Committee.

Evidence To Support The Discouragement Theory

     Back in April I posted a longer piece speculating on the reasons behind the declining number of Social Security disability claims being filed. I'm sure that we can't credit any reduction in unemployment for what is going on at the moment. The number of disability claims is continuing to decline even though there's been little or no decline in the unemployment rate in the last two years. What is causing the decline isn't clear.

     I ended the piece by speculating that at least some of the decline may be due to declining service at Social Security discouraging claimants from applying. I admitted that I had no evidence to support this theory. However, I had forgotten about a study that does support this theory. About two years ago I had posted about a study done by a couple of researchers about what happens to the number of disability claims filed when Social Security closes a field office. They found that the number of claims declined because people with lower education levels and lower earnings were discouraged from applying. The effect they found, 11%, was significant and the effect persisted.

     Social Security hasn't closed that many offices. What's happened is that service has declined at the offices which are still open. It's harder to get through to Social Security over the telephone. Your wait time if you visit in person is longer. People get discouraged and give up.

     This issue merits more study but I think the discouragement theory looks like a major factor in the decline in the number of disability claims.

Social Security Online System Vulnerable

     From ZDNet:

The 2017 Equifax security breach has thrown a wrench in the process used by US government agencies to verify the identity of US citizens applying for various benefits via its online portals.

This process, called online identity verification or remote identity proofing, relied on data provided by credit reporting agencies (CRAs) like Equifax, as a proof of the applicant's identity. ... 

In 2017, the National Institute of Standards and Technology (NIST) reacted to this hack by issuing guidance to government agencies, with recommendations on replacing the CRA-based online identity proofing with other solutions like sending an SMS to a user's phone, or having the user send/upload a scan of a physical ID to the government agency, as a proof of identity. ... 

But a report from the US Government Accountability Office (GAO), a bi-partisan government agency that provides auditing, evaluation, and investigative services for Congress, has found that only two of six of the government agencies they tested had followed the NIST guidance. 

GAO found that the Centers for Medicare and Medicaid Services (CMS), the Social Security Administration (SSA), the US Postal Service (USPS), and the Department of Veterans Affairs (VA) were still relying on the old CRA databases for online identity verification. ... 

The agencies who were part of the GAO inquiry said that one of the reasons they haven't migrated to a new system yet, as per the NIST guidance, is because of "high costs and implementation challenges for certain segments of the public," which the agencies fear might prevent certain US citizens from being able to use their online portals. ... 

The Social Security Administration (SSA) and the United States Postal Service (USPS) intend to reduce or eliminate their use of knowledge-based verification some time in the future but do not yet have specific plans for doing so. ..

Smaller COLA This Year?

     The Motley Fool says to expect a smaller cost of living adjustment this year.

SSAB Recommends That SSA Get Out Of The Death Master File Business

     The Social Security Advisory Board (SSAB) has issued a report recommending that the Social Security Administration ought to get out of the business of maintaining the Death Master File that is used to prevent improper payments of not just Social Security benefits but many other types of government benefits. It is also widely used by private financial institutions. The SSAB thinks the Department of the Treasury should get the job. There’s just one problem with this idea. I’m pretty sure that Treasury wants nothing to do with maintaining the Death Master File and would strongly resist any legislation foisting the job on them.

Trying To Hit The Reset Button

     The union that represents Social Security’s Administrative Law Judges (ALJs) has asked newly sworn in Commissioner Andrew Saul to suspend negotiations on a new contract with the union. I think they want to hit the reset button on the negotiations.

SSA Makes Top Ten List

     The Social Security Administration has made a top ten list — the top ten of agencies with critical federal agency legacy information technology systems in need of modernization, according to the Government Accountability Office (OMB).