Opposition To AAJ Hearings

      A press release:

Today, Ways and 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) released the following statement after the Trump Administration announced it would finalize a rule on December 16, 2020 to change the Social Security Administration’s appeals process by replacing independent and impartial Administrative Law Judges with internal agency lawyers: 

“For nearly two years, we’ve sounded the alarm that this change would erode due process for Social Security and Supplemental Security Income applicants and beneficiaries and threaten their access to their earned benefits. The rule puts unqualified agency staff in control of deciding appeals hearings and contradicts the congressional intent of the law governing such proceedings. We condemn this political decision that will go into effect just as the Trump Administration is on its way out the door. It is our hope that the Biden Administration rights this grievous wrong and ensures that all those who are eligible can access their disability, retirement, and survivors’ benefits.”

     No mention of the Congressional Review Act. 

Regs On AAJ Hearings To Go Into Effect On December 16

      Monday's Federal Register will contain new final regulations from Social Security on Hearings Held by Administrative Appeals Judges of the Appeals Council. You can read the regulations today. The effective date is December 16. I do not expect that these regulations will be implemented during the Biden Administration. It is possible that they will be disapproved under the Congressional Review Act. Neither a filibuster nor the Senate Majority Leader can prevent a Congressional Review Act vote.

     The explanatory material published contains this sentence (emphasis added): "Because AAJs and ALJs have similar levels of training, will follow the same set of policies, and have equivalent decisional independence, we anticipate that when AAJs are used at the hearing level, they will provide the same level of service and fairness as ALJs do." I can't say that I take that statement at face value. In fact, if true, I don't know what the point of these regulations is.

Final Musculoskeletal Listings Changes Approved

      The Office of Management and Budget (OMB) has approved final regulations to modify Social Security's Listing of Impairments on musculoskeletal disorders. This proposal had been pending at OMB since last December, an extraordinary length of time. We don't know what's in the approved final regulations, although it's unlikely to be much different from the proposal. Expect to see these published in the Federal Register in the near future.

     The proposal was extremely controversial. Musculoskeletal disorders produce a lot of disability. There's no doubt that the proposed regulations would have a significant effect upon who gets approved for disability benefits and that the intention was to sharply reduce the number approved. My opinion is that these regulations will prove to be the most enduring legacy of the Trump Administration as far as Social Security is concerned and that it will be a harsh legacy.

     In theory, these regulations could be reviewed under the Congressional Review Act. It would only take a majority vote in both Houses of Congress plus the incoming President's approval to ditch these. No filibuster is allowed. However, these may seem too technical to get voted down. Also, if regulations get voted down under the Congressional Review Act, it takes Congressional approval to ever revive them. That could make it difficult for Social Security to ever modify the musculoskeletal Listings.

     I would say that under normal circumstances Social Security would like to have considerable lead time in order to implement something of this magnitude and might make them effective further out in the future than the minimum 30 days notice. However, I don't think that those behind these regs expect to be around for the implementation or care much about proper implementation. For them, it's smash and grab time.

     Below is a side by side comparison of the proposed regulation and the current regulation. Click on each to view full size. There was also an extensive preamble to the proposed regulations.

Click on each image to view full size

Final Approval Requested For CDR Regs

      Almost a year ago, Social Security published proposed regulations on continuing disability reviews. They propose to add a new category fro reviews, Medical Improvement Likely (MIL), to be reviewed every two years. MIL was aimed at a group of impairments which they said fitted between the categories of Medical Improvement Expected (MIE) and Medical Improvement Possible (MIP). They said they would include anxiety related disorders in this category. They proposed to increase the frequency of reviews for the category of Medical Improvement Not Expected (MINE) from seven years to six years. Overall, they said they expected to increase Continuing Disability Review (CDRs) by more than 1.1 million a year. This proposal encountered considerable opposition. 

     Social Security has now asked the Office of Management and Budget (OMB) to give approval to these as final regulations.  OMB won't have long to act on the proposed final regulations. Traditionally, new Administrations put a freeze on any regulations still pending at OMB as well as new regulations that have been published but which have not yet gone into effect. Since agencies have to give at least 30 days notice, by my calculation Social Security needs to get these regulations in the Federal Register by December 21 to have them become effective before Joe Biden takes office. Even if they meet this timeline, the new Administration can refuse to implement them and the new Congress can review them under the Congressional Review Act. There are no filibusters of Congressional Review Act reviews.

Biden Transition Team For Social Security

  

    President Elect Joe Biden has released the names of the members of his transition team for the Social Security Administration:

Name	Most Recent Employment
Carolyn Colvin, Team Lead	Self-employed
Scott Frey	American Federation of State, County and Municipal Employees
David Holmes	Rebellion Defense
Jack Smalligan	Urban Institute

      Colvin is, of course the former Acting Commissioner of Social Security. I could have predicted her as the Team Lead a year ago. I could also have predicted a union official on the team a year ago. Holmes is an Engineering Manager who has worked on projects at Social Security. Smalligan has promoted a "Work Disability–Functional Assessment Battery (WD-FAB)"  which "uses item response theory and computer adaptive testing to quickly interview people and systematically map physical and mental health functioning." 

     It's not impossible for one of these people to end up with a job at Social Security but that's not the purpose of a transition team. I'd guess a job at Social Security for a member of this team is unlikely, but who knows, maybe Colvin would be interested.

Happy Veterans Day

Supreme Court Agrees To Hear Social Security Cases

      The Supreme Court has agreed to hear Carr v. Saul and Davis v. Saul, two cases presenting the issue of whether the federal courts can consider Lucia objections to Administrative Law Judges (ALJs) having heard cases before the Social Security Administration when those objections had been raised administratively. The Supreme Court held in Lucia v. SEC that ALJs were unconstitutional since they had not been appointed by the agency head. Since that time they have been. 

     My opinion is that it's nuts to expect claimants to have raised Lucia objections when the Social Security Administration's stated position was that it wouldn't consider Lucia objections. It's also nuts because the Supreme Court had previously held that it was not necessary to raise other sorts of objections in Social Security cases administratively before raising them in the federal courts.

     It's possible but I imagine unlikely that the new Solicitor General for the Biden Administration could decide to settle these cases before they're heard.

Do People Retire Later If They Receive Frequent Mailings Of Social Security Statements?

     From Can Informational Interventions Be Effective Policy Tools? An Initial Assessment of the Social Security Statement by Barbara A. Smith, published in the Social Security Bulletin:

The Social Security Administration employs an informational intervention—mailing Social Security Statements—to inform workers about their potential benefits. I use linear probability models and agency administrative data to analyze the effect of Statement receipt on the age at which workers claim their Social Security retirement benefits. I compare results for individuals who received one or multiple Statement mailings by age 62 with those who received none during the 1975–2007 study period. I find that workers who received multiple Statement mailings were significantly more likely to claim retirement benefits at later ages than were other workers, and that Statement receipt is positively associated with employment at ages 62–70. I also compare the relative effects of an educational outreach (Statement mailings) and a direct policy change (involving the full retirement age) on claiming behavior and find that the magnitudes of the two effects are similar.