There are rumors that at least some portion of Social Security's upper level management wants to move ahead with a plan to replace the "grid regulations" that provide a framework for disability adjudication or at least to amend them. We can't know whether the Commissioner wants this or whether the Office of Management and Budget (OMB) will be willing to approve it. It would be a big move if it happens.
In a sense, I'm happy to get some movement. The obsolescence of the Dictionary Of Occupational Titles (DOT) that formed the backbone of the grid regs has made some move inevitable. In a sense it's hard to understand how we've gotten this far without replacing the grid regs. On the other hand, everyone, and I do mean everyone, has been scared of what follows the grid regs.
The rumors about what would replace the grid regs -- something basically saying that if you can perform sedentary work you're not disabled regardless of your age, education or work experience or only if you're 55 or older -- fills me with great concern. However, there may be nuances in what's under consideration that we don't know.
Here are some thoughts that occur to me.
I -- This Won't Happen Overnight
Under the Administrative Procedure Act there is a process to go through before new regulations can be adopted. The first step is for the agency to write up the proposed regs and their justification in a document called a Notice of Proposed Rule-Making or NPRM. This will be a major proposal so the NPRM should be a fairly lengthy, well reasoned document. Of course, the Trump Administration is known for slipshod work so who knows?
The Commissioner must approve the NPRM. He's a Social Security novice so this complicated proposal will be difficult for him to review. If there's anyone with any sense surrounding him at Social Security he's going to be warned that the NPRM would be important and controversial. The problem is that an environment of intimidation has been created. Can the Commissioner receive good advice in such an environment?
Once the Commissioner approves the NPRM, it is sent to OMB, specifically to the Office of Information and Regulatory Affairs (OIRA) for approval. OIRA is the most important agency you’ve never heard of. I'd like to think that there are still enough professionals at OIRA to warn that the NPRM will be highly controversial and could have disastrous political results once it comes into effect but they may also be intimidated or ignored.
If OMB approves the NPRM, it is published in the Federal Register and the public is allowed to comment on the proposal. There will be literally thousands of comments on something as controversial as this. These comments are all supposed to be read and analyzed. Dozens of different issues will be raised. The agency must respond to each of these issues in the Federal Register if it is to finally adopt the proposed regs. The responses have to be thought out carefully since everything about these regs will be challenged in federal court. You can't publish one justification in the Federal Register and try another one in federal court. At least that would be a bad plan. Social Security's staff has been greatly thinned out, including its staff involved in rule-making. In the past I would have expected it to take over a year to deal with the comments made on such a major NPRM. I have no idea now. This thing could easily take longer than Trump has left in office. It would be amazing if this could be finished before the next Congress begins.
II -- It Isn't Over Once The NPRM Is Adopted
Major regulations are difficult to implement. Once you start training staff on the new regs, questions come up that you never considered. There may be questions that you just finessed in the Federal Register without ever giving a real answer but you can’t finesse them anymore. The answers to these questions can have a major impact on the effect of the regs. The questions are likely to be technical enough that they will have to be answered by experienced staff rather than political appointees. Experienced staff will probably be a lot less hostile to claimants than the people who thought up the plan.
III — The Courts Get Their Say
As I've said above, every facet of a replacement for the grid regs will be examined closely by the federal courts. You might think that the federal courts, or at least the Supreme Court, would be highly sympathetic to the Trump Administration but that's not something you can assume. Those who have taken Social Security cases to the federal courts can tell you that you can't predict how Social Security cases will be decided based upon which President nominated the judge or judges hearing the case.
One huge issue presented by a plan to effectively remove consideration of age, education and work experience is that the statute specifically requires consideration of age, education and work experience. How do you get around that? You could say that "in our adjudicative experience" none of those factors matter. Social Security has long used that phrase "adjudicative experience" as an all purpose explanation for anything they want to do but for which they lack an explanation. I don't see how that will cut it here. There's too much at stake. Is there a strong argument for what is proposed?
There's also the issue of the reliability of whatever occupational information system (OIS) Social Security puts forward as a basis for what they're doing. The OIS in question has been developed in secret under the command of the Social Security Administration. There have been serious questions about Social Security's OIS plan for, how long has it been, 20+ years? It sounds exactly like the sort of thing the federal courts would view with deep suspicions.
IV. The Administration Should Be Wary Of Political Consequences
Anything that dramatically reduces the percentage of disability claimants approved for benefits would be extremely controversial. I'm one of the few people still around who can tell you that the most controversial thing the Reagan Administration did was to make it much more difficult to get on disability benefits and to stay on them once they were approved. If this Administration wants to proceed with an anti-claimant plan, it is poking a hornets nest, especially if it is dealing with a House of Representatives or Senate controlled by Democrats.
There are reasons this didn't happen in the prior Trump Administration.
V -- The Administration Should Be Wary Of Unintended Consequences
I was working for Social Security in a position then called staff attorney, writing decisions for an ALJ, when the grid regs came into effect in 1979. There was concern leading up to the effective date that the grid regs would greatly reduce the number of disability claims approved. I wondered what the effect would be. As I recall, I pulled the last 100 decisions I had drafted and looked to see what effect the grid regulations would have had on them. I found that it would have changed five decisions from a denial to an allowance with none going in the opposite direction. I didn't put much effort into spreading what I had found but I think word did get about and allayed some fears. As it turned out, my unscientific study was right on the money. The allowance rate did go up by about 5%.
Trump Administration officials may want to be evil but do they know enough about Social Security to accomplish the evil they have in mind? Back in 1979 I'm pretty sure that higher Social Security officials expected lower allowance rates under the grid regs but that's not what they got. The devil is in the details and the details are the specialty of people like me, not the Commissioner and his inexperienced aides.
