Disability Law Blog

A New Approach Starter Kit

With the end of the comment period for the Commissioner's proposed regulations less than a month away, it's important that the Commissioner hear from as many claimants, reps, SSA personnel, academics, etc. as possible.  The changes she has proposed should only be considered a starting point for a better disability process because, if implemented in its current form, the process will not be a "truth-seeking process" nor even an "efficiency-seeking process" (there are many inefficiencies in the proposed rules).  Rather, it will lead to inequitable decisions that can have lasting, even lifelong, consequences for many claimants for disability benefits. 

The Commissioner said at the subcommittee hearing on Tuesday that she really welcomes criticism and suggestions from the public.  If she is truly committed to making the right decision as early in the process as possible, constructive criticism should lead to significant changes in the NPRM.  Here's a list of resources that may help you to formulate a better critique of the NPRM:

The New Approach Proposed Rules (published July 27, 2005 in the Federal Register)

The Position Papers of participants at the September 27, 2005 hearing:

• Jo Anne B. Barnhart, Commissioner
• Administrative Office of the Courts, Judicial Conference Committee (Judge Howard D. McKibben)
• Consortium for Citizens with Disabilities, Social Security Task Force (Marty Ford)
• Social Security Section Federal Bar Association (Judge Dana E. McDonald)
• National Council of Disability Determination Directors (Andrew Marioni)
• NOSSCR (Thomas D. Sutton)
• Frank S. Bloch, Ph.D., Professor of Law, Vanderbilt University School of Law

Eric Schnaufer's critique of the Commissioner's proposal to eliminate the Appeals Council

Prior postings on this blog:

• July 28, 2005
• July 29, 2005
• August 1, 2005
• August 2, 2005

Charles Hall's Letter to the Commissioner (posted on Dave Traver's Connect board)

The Comment Page for this NPRM on SSA's website.

Bookmark these resources.  Read the NPRM and these materials and anything else you can get your hands on that you find useful, then comment away.  The Commissioner needs your expertise and insight.  I intend to post an extended critique before the end of the comment period.  If we sit on our hands and the Commissioner issues a final rule without significant changes, we will have no one to blame but ourselves. 

Update (10/6/05):  The ABA chimes in.  (Via the Connect board)

The Case Against Elimination of the Appeals Council

Eric Schnaufer argues that the Commissioner shouldn't scuttle the Appeals Council as she considers changes to the disability determination process.  Here's why.

Impressions of the Commissioner's Testimony About the New Approach NPRM

Impressions about Commissioner Barnhart's testimony yesterday:

The C is no Michael Brown. She is bright, articulate and engaged. It remains to be seen if she is also willing to drop or modify some of her proposals for the good of disabled claimants.

If making "the right decision as early in the process as possible" is really her goal, the NPRM doesn’t deliver. It sacrifices correct decisions for more timely ones. And it virtually assures that unrepresented claimants who do not have the practical ability to develop their own records will suffer disproportionately: Their files will not contain critical evidence. Their claims will be denied. And their opportunity to reopen prior claims will be eliminated. Under the C’s proposals, the least among us will lose the most.

The Committee members clearly have problems with the NPRM regarding submission of evidence and elimination of new and material evidence as a basis for reopening. During the Q & A, the C did not have, or was unwilling to share, any evidence to support her statement that a big reason hearings are delayed or rescheduled is that evidence is not timely submitted. (SSA has also been unwilling to share the results of the AC elimination pilot.) As Congressman Becerra pointed out, the new evidentiary rules are not consistent with the "truth-seeking process" that disability adjudication has been and should continue to be. It places an unreasonable burden on unrepresented claimants, and more than 25% of claimants are not represented. (Congressman McDermott said that the people who will do well in the new system will be people with lawyers. Those without lawyers will fall by the wayside.) The upshot is that tens of thousands of people will receive incorrect decisions "as early in the process as possible."

Aside from the C’s dodge on evidentiary questions, I was struck by a story she told in discussing the Federal Expert Unit. Since she is a public servant, she said, her name and telephone number are in the phone book. (If anybody has the C’s telephone number, please let me know.) Occasionally, claimants will call her, usually late at night, desperate for help. They tell her that if only SSA were using specialists who understood their particular condition, they would feel better about the process since no one really understands what’s going on with them. The C says the moral of the story is that we need a centralized FEU.

I have to say, I’m skeptical. In fact, I’d really like to call her to talk about it. I’ve been representing claimants for 20 years. Almost none of them have any idea that a doctor reviews their evidence at DDS, and they certainly have no information about the nature of the doctor’s specialty. Sometimes they even think that because the denial letter lists a "report" from their own doctor, that doctor must have said that they aren’t disabled. (Many claimants do know something about the consultative examiners, but that’s another kettle of fish.) What my clients tend to complain about is not that SSA doesn’t have a specialist who understands their problems but that SSA ignores what their treating physicians are saying about their problems and how those problems affect their ability to work. Even if there is a resourceful claimant who tracked down the C and let her know that SSA desperately needs specialists in a centralized location, that late-night claimant doesn’t represent the experience of the vast majority of people who are much more frustrated by SSA’s deaf ear.

There’s obviously a lot more to say about the NPRM. It was good to see that the Subcommittee seemed to appreciate some of the problems in the NPRM. And if the C is really committed to the "right decision," I’m confident she will modify her proposals for the sake of the disabled in America. She will not sacrifice "right decisions" for the sake of efficiency, consistency or timeliness. A decision cannot be right when it is based on an incomplete record. Rules that foster incomplete records are bad, naughty rules. The C should change them.

More later.

New Approach Nugget: Hearings Less Than Sixty Days After Request!

Proposed § 405.310 (b) says: “An administrative law judge will conduct a hearing if you request one in writing no later than 60 days after the date you receive notice of the reviewing official’s decision . . .”

Do you see what I see?

Preferred reading: “An administrative law judge will conduct a hearing, if you request one in writing, no later than 60 days after the date you receive notice of the reviewing official’s decision . . .”

I'm beginning to like the new approach!

Commenting on the New Approach Regulations

If you’re concerned about the new approach regulations (PDF) and want to submit comments, SSA has provided a convenient way to do it. Unfortunately, the preamble to the new regs doesn’t include the URL for this specific NPRM. But it’s not difficult to find. Click here to submit comments.  You can also read what others have to say about the proposed regs.

Thanks to Charles Hall who posted about this on the Connect board for the reminder.

The New Approach to Articulation

Social Security rulings and regulations have long required decisionmakers to evaluate all the evidence and explain the reasons for accepting some evidence and discounting other evidence. In evaluating medical opinion evidence, for example, SSA’s regulations state that "[w]e will always give good reasons in our notice of determination or decision for the weight we give your treating source's opinion. . . . " An ALJ “must explain in the decision the weight given to the opinions of a State agency medical or psychological consultant or other program physician or psychologist,” as he must do “for any opinions from treating sources, nontreating sources, and other nonexamining sources who do not work for us.” 20 C.F.R. § 404.1527

And in assessing credibility, Social Security Ruling 96-7p says that the “decision must contain specific reasons for the finding on credibility, supported by the evidence in the case record, and must be sufficiently specific to make clear to the individual and to any subsequent reviewers the weight the adjudicator gave to the individual's statements and the reasons for that weight.”

In interpreting this duty to articulate, the courts have also made clear that the duty requires a discussion of probative evidence that the ALJ rejects. Here's one example from the Tenth Circuit:

“'. . . [W]hile [the ALJ] is not required to discuss every piece of evidence in the record, he "must discuss the uncontroverted evidence he chooses not to rely on, as well as significantly probative evidence he rejects.'  Clifton v. Chater, 79 F.3d 1007, 1010 (10th Cir. 1996). Without the benefit of the ALJ's findings supported by the weighing of this relevant evidence, we cannot determine whether his conclusion that Ms. Threet's disability began on March 11, 1997, is itself supported by substantial evidence. We therefore remand for the ALJ to articulate specific findings and his reasons for ignoring this evidence."

Threet v. Barnhart, 353 F.3d 1185 (10th Cir. 2003)

The new regs (PDF) state that “articulate” means to “explain in clear and understandable language the specific basis for the determination or decision, including an analysis of the relevant evidence in the record supporting the determination or decision.” (§ 405.5) I may be splitting hairs her, but it concerns me that this language requires an “analysis” only of relevant evidence that supports the decision. There is no requirement that the ALJ discuss the uncontroverted evidence he chooses not to rely on or significantly probative evidence he rejects. While the “specific basis” for the decision may include a discussion of these matters, the definition does not require it. To insure that the new proposed regs are consistent with existing regulations, rulings and case law, and that there are no misunderstandings about the import of the definition, this language should be revised.

SSA's New Approach to Evidence: Same as the Old Approach, Only Different

Today we look at the Commissioner’s new approach to evidence. The old approach was "we’ll consider any information you give us in support of your claim." The new approach begins with the old approach, then qualifies the principle of the old approach to the point that the principle seems meaningless. Here’s a sampling of statements from the NPRM  (PDF) that illustrates what I mean:

• "Subject to the provisions of §§ 405.331 and 405.430, at each step of the administrative review process, you may present, and we will consider, any information in support of your claim." (§ 405.1(b))

This I take to be the guiding principle.

• "Material means that there would be a high likelihood that the outcome in your claim would change." (§ 405.5)

A very significant definition for the sections that follow.

• At hearings, "experts whom you call, and that the administrative law judge approves, for hearing are not required to be" affiliated with the Federal Expert Unit. (§ 405.15)

If SSA will consider any information in support of your claim, why does a claimant’s expert require the ALJ’s approval? Presumably, if not approved, a claimant’s expert cannot testify. If the ALJ refuses to approve the expert, will the claimant be allowed to make an offer of proof at the hearing? Not that I frequently use experts at a hearing, but this seems inconsistent with the guiding principle.

• "After you request review, the reviewing official will consider the evidence used in making the initial determination, any additional evidence that you submit along with your request for review, and any other evidence that the reviewing official obtains." (§ 405.215)

Does this mean that only evidence submitted contemporaneously with the request for review will be considered? If so, what happens to evidence submitted after the request to review but before the FRO makes a decision? Does it become part of the record? Must it be resubmitted after an unfavorable FRO decision for the ALJ to review?

Note also that the FRO considers evidence the FRO "obtains." Will any evidence submitted after the request to review but not obtained by the FRO be considered?

(Compare this section to § 404.913 of the old reconsideration procedures: " . . . we will give you and the other parties to the reconsideration an opportunity to present additional evidence to us. The official who reviews your case will then make a reconsidered determination based on all of this evidence.")

• "If you submit new and material medical evidence for consideration by the reviewing official, the reviewing official will make a decision in consultation with a medical or psychological expert affiliated with the national network." (§ 405.220)

Must the evidence be "material" as defined in § 405.5 (i.e. have a "high likelihood" of changing the outcome)? Even if the evidence didn’t satisfy the definition of material but nevertheless convinced the FRO that the initial determination was incorrect, the proposed regs still require an FEU expert to "determine the medical severity" of the claimant’s impairments before the FRO can issue a decision. So why require that the evidence be material before consulting with the FEU panelist?

• At the hearing, the ALJ will "will accept any evidence that is material to the issues and that is submitted in accordance with § 405.331." (§ 405.320)

If SSA will consider any information in support of your claim, why not say so here? Does "material" mean "material" as defined in § 405.5? If so, is the evidence the ALJ considers immaterial still included in the record? What about evidence submitted to the FRO after the request to review was filed but before the FRO made a decision? Is that evidence part of the evidence the ALJ will accept into the record or is that evidence subject to the limitation that it be material to the issues?

• "You must submit with your request for hearing any evidence that you have available to you. You must submit all evidence that you wish to have considered at the hearing no later than 20 days before the date of the scheduled hearing, unless you show that you have good cause under § 405.20(a) for submitting the evidence after this 20-day period, or you show that the late submitted evidence relates to a material change in your condition between the date set for submitting all evidence and the date of the hearing. Your failure to comply with this requirement may result in the evidence not being considered by the administrative law judge." (§ 405.331)

What does "available to you" mean and what happens if you fail to submit such evidence with your request for hearing but submit it within the 20-day limit? Does the ALJ have discretion to accept evidence after the 20-day limit even if the claimant fails to satisfy the requirements of § 405.331? When is evidence actually deemed submitted under e-DIB? When faxed? When mailed? When received at OHA? What if the evidence "available to you" is not material as defined in § 405.5? If the ALJ determines that good cause does not exist to accept evidence submitted after the 20-day limit, is that determination appealable?

• "Subject to § 405.331, the administrative law judge may receive any evidence at the hearing that he or she believes is relevant to your claim." (§ 405.350)

I’m not sure what this means. A good cause determination is unrelated to the probative value of the evidence. If good cause for late submission is shown to exist, does the ALJ still have discretion to refuse the evidence? And how is this section related to § 405.320 which states that the ALJ "will accept any evidence that is material to the issues and that is submitted in accordance with § 405.331." If the evidence is material, isn’t it by definition relevant? Therefore, doesn’t § 405.320 require its acceptance?

For a bit of contrast, compare this section to § 404.950(c): "What evidence is admissible at a hearing. The administrative law judge may receive evidence at the hearing even though the evidence would not be admissible in court under the rules of evidence used by the court."

To summarize:   SSA says that in determining your disability it will consider any information you submit in support of your claim.  But this non-exhaustive sampling of the new regs shows that the guiding principle is now qualified in many ways. The new regs say that the FRO only considers (1) evidence you submit contemporaneously with your request to review and (2) evidence the FRO obtains. The ALJ apparently may refuse to hear testimony from an expert you call if the ALJ does not "approve" the expert. The ALJ will only accept evidence into the record that is deemed material, and it is unclear if material means that the evidence must be highly likely to change the outcome of the prior decision. The ALJ may also refuse to receive evidence at a hearing that otherwise satisfies § 405.331 if the ALJ believes it isn’t relevant.

So the new guiding principle appears to be something like this: "We’ll consider any information you give us in support of your claim, so long as it is highly likely to change the outcome of the previous claim, is submitted only on certain days during the administrative process, and is considered relevant by an ALJ."    This makes much more sense than the old approach.  Now we not only get to deal with the weight to give new evidence, we also get to address admissiblity issues.  That will make things much more efficient.

There’s also another troubling aspect to the proposed regs, and that is SSA’s definition of "articulate" which I hope to address in a subsequent post.

Material Evidence under the New Approach to Disablity Adjudication

Yesterday, I mentioned that underlying many of the proposed regs is an unstated goal to make claims more difficult to win. Today, we discuss another example of a proposed reg sacrificing the "right decision" on the altar of efficiency to promote the unstated, stealth goal.

So far as I am aware, the Commissioner has never defined "material" evidence in the regs. However, HALLEX I-2-9-40 says that evidence is material "when the new evidence, either by itself or when considered with the other evidence then before the adjudicator, would warrant a change in any finding pertinent to any matter at issue or in the ultimate decision (either favorable or unfavorable)."  Courts have defined this in a similar, common-sense way. A recent Second Circuit decision is typical:

New evidence is “material” if it is both (1) “relevant to the claimant’s condition during the time period for which benefits were denied” and (2) “probative.” Tirado v. Bowen, 842 F.2d 595, 597 (2d Cir. 1988) (internal quotation marks omitted). “The concept of materiality requires, in addition, a reasonable possibility that the new evidence would have influenced the [Commissioner] to decide claimant’s application differently.” Id.

Pollard v. Halter, 377 F.3d 183 (2d Cir. 2004).

Setting aside for the moment the fact that the new regs gut the reopening provisions and thus make "new and material evidence" in the context of reopenings irrelevant, the proposed regs at § 405.5 now contain a definition of  the term "material."  Here it is: "As used in this part . . . Material . . . means that there would be a high likelihood that the outcome in your claim would change." Several things to notice. First, the term "material" is not defined in relation to evidence and thus is not limited simply to modifying that term. The term "material" is used more than two dozen times in the proposed regs in various contexts. Does this definition apply to every usage of the term in every context? 

For example, new § 405.320 says the ALJ " will accept any evidence that is material to the issues AND that is submitted in accordance with § 405.331 [that is no later than 20 days before the hearing]."  There's more to say about how evidence is handled at the hearing level but for purposes of this discussion, does the evidence need to be material, as defined in § 405.5 before it is accepted into the record, even if submitted well before the 20 day limit?  The regulation seems to say that and the ALJ will make that call.

Second, and more obvious, if evidence is to be material, there must be a "high likelihood" that the outcome of the claim would change if it were considered. Compare that to the HALLEX definition and to the Second Circuit's requirement that there be "a reasonable possibility that the new evidence would have influenced" SSA to decide the claim differently--the difference is striking.

What goals does this new definition further? Certainly not that the "right decision" be made because probative evidence that has a reasonable possibility of changing the outcome is excluded under this definition. New evidence must not only be probative but highly likely to result in a favorable decison; anything less won't pass the test (J. Cochran).

And the goal of a "quality" decision is not in mind since evidence that fails to meet SSA's proposed standard but meets the HALLEX definition could result in the "right decision," and a "right decision" by definition is a "quality" decision.

So that leaves us with "efficiency" and the stealth goal, and those goals apparently are far more important to SSA than the right decision. More later.

Proposed rules:  text and PDF     70 FR 43589-43624 (July 27, 2005)

More Thoughts on the New Regs

I finished reading the new regs last night. There's a lot to be concerned about. Here are some initial impressions. More to follow.

It's helpful when reviewing each new proposed regulation to try this exercise: Ask yourself how the new reg promotes the stated aims of the NPRM. In other words, how does the new reg promote quality, efficiency, consistency and making the right decision as early in the process as possible? If you do that, you'll come to realize that another, unstated goal underlies many of the proposed changes. The COSS has used egregiously long processing times to justify subtle and not-so-subtle substantive changes that will make it more difficult for claimants to win their cases, either at the administrative level or in federal court. Let's look at one example:

Proposed § 405.630 says that "favorable findings of fact in a prior determination or decision may be revised, even though the time limit for revising the findings made in the first claim has passed." Why? Because the unrevised findings might lead to quick payment of benefits when a subsequent claim is filed. For example, if you were 49 years old when an ALJ denied your claim--finding you unable to perform past relevant work but capable of performing sedentary work--and you file a new claim six months later after you turn 50, the prior RFC finding would generally justify a conclusion that you are disabled. Your claim would seem to be a good candidate for the new QDD process in light of the ALJ's RFC finding and the short period of time that had elapsed since that finding was made.

Never mind that such a decision would promote efficiency and consistency, the Commissioner apparently doesn't like the result. So the proposed reg codifies the Commissioner's position as expressed in Acquiescence Ruling 00-1(4) dealing with the Fourth Circuit's Albright decision. (Albright held that the SSA must consider RFC or other findings required under the sequential evaluation process and made in a final decision by an ALJ or the Appeals Council in a prior disability claim.)

Now, compare § 405.630 to the proposed § 405.605 which eliminates new and material evidence as a basis for reopening prior determinations or decisions. There are any number of reasons why claimants fail to present evidence to the SSA: Many times the SSA fails to obtain evidence that the claimant identifies when the application is filed. Many claimants find the administrative process confusing and SSA notices incomprehensible. Many claimants receive erroneous information from SSA about their rights and responsibilities. Many claimants have mental impairments that have a direct effect on their ability to obtain evidence or seek assistance in presenting their claims to the SSA.  Nevertheless, when a subsequent claim is filed and new and material evidence is obtained, SSA intends to ignore this evidence, despite the fact that this policy will produce a manifestly unjust result in many cases because good reasons existed for failing to present the evidence the first time around. "Right decisions" seem less important, in this context, than "efficient" decisions.

The question is: If SSA can revise findings favorable to a claimant in a prior claim (presumably so that SSA can make the "right decision" in the subsequent claim), why is a claimant prohibited from presenting new and material evidence in a subsequent claim that would produce the "right decision," especially if the claimant is willing to add a few days or weeks to the processing time for the sake of getting a just result? What data does the COSS have to support the proposal of regs that produces such harsh results?

They're Here: Proposed Regs for a "New Approach" to Disability Adjudication Discussed by Commissioner Barnhart

Via the Washington Post:

Social Security Commissioner Jo Anne Barnhart said people who are clearly disabled could be approved for benefits in as little as 20 days under the new procedures, which the agency expects to start putting into action next spring.

The rest of the roughly 2 million people who seek disability benefits each year can expect to spend less time working through the process for appealing decisions when benefits are denied.

"Everybody recognizes that there's a need for change and we need to improve the process," Barnhart said in an interview.

SSA's website has a press release noting some of the proposed changes.

SSA has also prepared a flowchart summarizing the proposed changes.

Full text will published in the Federal Register tomorrow morning. We'll post more then.

SSA Issues Final Rule Allowing ALJs to Issue Wholly Favorable Decisions that Incorporate Findings of Fact and Reasons for Decision Stated During Hearing

The Social Security Administration is revising its ALJ oral decision regulations to make it easier for ALJs to issue wholly favorable decisions expeditiously:

To facilitate greater use of the oral decision procedure when its use is warranted, we are amending our regulations to authorize ALJs to issue wholly favorable, written decisions that incorporate by reference the findings of fact and reasons for the decisions that were orally stated by the ALJ at the hearing. Such written decisions will satisfy the existing regulatory requirement that an ALJ issue a written decision that ``gives the findings of fact and the reasons for the decision.''

The new rules are effective today, October 20, 2004.

The comment period ends December 20, 2004.

Available in text and PDF

69 FR 61594-61597 (October 20, 2004)

Update: JOA over on the Connect board cites Oral Bench Decision procedures in HALLEX. His link didn't work for me. Try this link.

GAO Report Says SSA Should Strengthen Efforts to Detect and Prevent Disabilty Overpayments

The Government Accountability Office (GAO), at the request of the Senate Committee on Finance, looked at the Social Security disability program to determine the amount of overpayments attributable to earnings or work acitvity and to identify "vulnerabilities" in SSA's policies and practices that contribute to overpayments. In light of their study, the GAO has recommended that SSA

explore new tools and data sources that can be used to more effectively detect and prevent earnings-related overpayments. SSA agreed with GAO’s recommendations and provided information on several initiatives that are planned or underway to address them, such as a new computer match using information from the Office of Child Support Enforcement’s National Directory of New Hires to verify beneficiaries’ earnings in a more timely manner.

The full report and a summary are available in PDF format.

Chicago Tribune Article on Disability Process Reforms

This article highlights the plight of disability claimants waiting months, sometimes years, for a final decision in their claims and discusses the reforms Commissioner Barnhart is implementing to reduce the time it takes to make correct decisions.

The article focuses on the new eDib reforms:

Each application requires documentation--including work histories and medical records--that can stretch to hundreds of pages. Currently, when a new agency reviews a file, all the paperwork has to be sent over.

Using electronic files would allow instantaneous document transmission and make it far easier to track documents, Barnhart said.

But it is an enormous task to overhaul the record-keeping of an agency with more than 2 million disability applicants a year. Social Security Administration officials say the new electronic system will cost about $890 million to install over the next decade, although they also contend it will save $1.3 billion during that time.

Advocates for people with disabilities applaud Barnhart for attempting reform, though few are willing to heartily endorse the plan, particularly because the SSA still is trying to hammer out the details.

Ticket to Work Advisory Panel Teleconference Scheduled for January 22, 2004--And You're Invited!

In 1999, Congress passed the Ticket to Work and Work Incentives Improvement Act (TWWIIA). That legislation mandated the creation of an advisory panel within the Social Security Administration. The Panel advises the Commissioner of Social Security, the President, and the Congress on issues related to work incentives programs, planning and assistance for individuals with disabilities as provided under section 101(f)(2)(A) of that Act.

Notice of a conference call is published in today's Federal Register. The public is invited to phone in and participate.

Before you call, read the bios of Advisory Panel members and check out the Advisory Panel's website.

68 FR 74690-74691 (Dec. 24, 2003)

SSA Publishes Its Semi-Annual Regulatory Agenda

SSA has published its semi-annual regulatory agenda, described as:

a brief description of all regulatory actions under development or review, expected to be under development or review for the next 12 months, or completed since the previous publication of the agenda. Our last agenda of regulations was published May 27, 2003.

Available in text or PDF formats.

68 FR 73820-73836 (Dec. 22, 2003)

PDF Flowchart of Proposed Disability Determination Process

Several months ago, SSA published an excerpt from Commissioner Barnhart's testimony before Congress about her proposed changes to the disability determination process (previously reported here). While looking for something else on SSA's website, I ran across this flowchart which illustrates the new disability determination process as proposed by the Commissioner. For visual learners, this may be of some help.

More on Social Security Disability Process Changes from Commissioner Barnhart

Charles Hall posted a link on the Connect board to this newsletter from the National Council of Social Security Management Associations, Inc. (NCSSMA). According to its website, the NCSSMA represents "over 3200 members of SSA's management team in 1346 field offices and 37 teleservice centers across the nation."

Commissioner Barnhart spoke at the 34th annual meeting in Albuquerque in early November and the newsletter reports her comments. It's an interesting read. An excerpt from the newsletter:

The Commissioner stated that there has been a positive reaction to her recent proposals to change the Disability process. The process of change will not be rushed, as this is a major undertaking. Optimistically we are talking about October 2005 to begin implementation. She has asked Mary Chatel, manager of the Warwick, Rhode Island field office, to coordinate this undertaking for her. (Note: Mary is a former NCSSMA National President.)

The Commissioner's proposals are based on three questions the President personally asked her in April 2002: Why does it take so long to make a disability decision? Why can’t people who are obviously disabled get a decision immediately? Why would anyone want to go back to work after going through such a long process to receive benefits?

The Commissioner stated no one will lose their job, there will be no demotions, and no one will be forced to move because of these proposals. With e-Dib we can move cases around electronically so the work can be done where people are.

The Commissioner estimated that, based on the quick decision provisions of her proposal, 10-20% of the disability claims will be decided within 20 days. Between quick decision and elimination of the reconsideration, more resources will be available to DDS. DDS will use the extra resources to better document the record of more complicated cases. The goal is to make the right decision as early in the process as possible.

Addendum (December 13, 2003):   For background on the proposed changes to the disability process, try these links:

• Commissioner Barnhart's Testimony Before the Subcommittee on Social Security of the House Committee on Ways and Means (July 24, 2003)
• GAO Report on Electronic Disability Claims Processing (Accelerated Strategy Faces Significant Risks)(July 24, 2003)
• GAO Letter to Honorable E. Clay Shaw, Jr. (Subcommittee Chair) re Subcommittee Questions Concerning Efforts to Automate the Disability Claims Process (September 5, 2003)
• Commissioner Barnhart's Testimony Before the Subcommittee on Social Security of the House Committee on Ways and Means (September 25, 2003)

Correct Toll-free Number for Ticket to Work Program Manager

JOA writes here that the correct toll-free number for the Ticket to Work Program Manager, Maximus, Inc., is: 1-866-968-7842. (An incorrect number had been given out periodically by SSA staff.)

Who Does What at Step 1

I learn something new everyday. Here's another interesting post from JOA on the Connect board about the division of labor regarding SGA determinations and medical-vocational determinations:  The DO does the first, the DDS does the second. JOA cites POMS DI 10501.025. Very straightforward.

And JOA ends his post with this little factoid: "[O]f SSA’s approximately 65,000 employees, about 15,000 are CRs. It’s my guess that every year each of these 15,000 CRs is the final adjudicator for awards of benefits worth a total of many millions of dollars."

The Erosion Theory: A Pre-Mortem

As much for my own benefit as for anyone else's, I'm posting an edited version of Judge Ralph Wilborn's exposition of the Erosion Theory. This theory, also known as the "Holy Grail," the "Framework Argument" and the "I'm Beating My Head Against This Wall and I Can't Give Up" Gambit, is a curious artifact of late 20th Century Social Security advocacy. It has resonated in the hearts of precisely no one–at least no one who can make any difference in the lives of people who stand to benefit from the theory. And yet it continues to charm and fascinate those of us who advocate for the disabled. Unfortunately, the Supreme Court's application of Chevron deference in Barnhart v. Thomas virtually insures that the theory will never see the broad, sunlit uplands of a majority opinion.

Still, the theory is a thing of beauty and so, for the sake of posterity and my own understanding, I lay it out here, beginning with its Chief Advocate, Judge Ralph Wilborn. Links to primary source material are added to Judge Wilborn's comments for the reader's ready reference. Links to other explications of the theory are also provided at the end of this first installment. A second posting will give equal time to the theory's critics. So, gentle reader, read it, digest it, then go tilt at windmills. There's plenty of them.

Please remember this is an edited version, edited for my own purposes, edited in ways that others may not understand. That means I have changed nouns, verbs, adverbs, and done other damage to the text. What follows does not purport to represent the unalloyed views of Judge Wilborn. Those can be found in his post. My edited version of this post begins here:

First, let me be clear. “Occupational Erosion” is not my theory. My name often is associated with it because I have been advancing it under the “Holy Grail” pseudonym since about 1997, and I have written a detailed chapter on it in Wilborn’s Social Security Disability Advocate’s Handbook. The theory, however, is explicit policy of the Social Security Administration promulgated in binding Social Security Rulings, most notably, SSRs 83-10, 83-11, 83-12, 83-14, 85-15, 86-8, and 96-9p. See also POMS DI 25025.001. (Under 20 C.F.R. §§ 402.35(b), Social Security Rulings and Social Security Acquiescence Rulings are binding on all components of the Social Security Administration, except with respect to claims subject to the relitigation procedures established in 20 CFR §§ 404.984, 410.610 and 416.1484.)

The “erosion theory” is not underpinned by an equal protection argument. I have observed that for at least the past 2 to 3 years. I readily have conceded that, but for the agency’s explicit rulings and regulations to the contrary, the equal protection argument is defensible.

Before I begin my explication, let me address one other misunderstanding. Under the agency’s policy statements, the “numbers of jobs in the national economy" are not irrelevant. Please be careful not to confuse the parenthetical “(each representing numerous jobs)” as being the equivalent of “significant numbers in the national economy.”

In broad terms, application of the “erosion” theory requires employing a two-step process (which, to avoid confusion with the steps of the sequential evaluation analysis, I will refer to as Step A and Step B). SSR 86-8 describes that process as follows:

Capacity to Do Other Work -- If an individual cannot perform any past relevant work because of a severe impairment(s), but the remaining physical and mental capacities are consistent with meeting the physical and mental demands of a significant number of jobs (in one or more occupations) in the national economy, and the individual has the vocational capabilities (considering age, education, and past work experience) to make an adjustment to work different from that performed in the past, it shall be determined that the individual is not disabled. However, if an individual's physical and mental capacities in conjunction with his or her vocational capabilities (considering age, education and past work experience) do not permit the individual to adjust to work different from that performed in the past, it shall be determined that the individual is disabled.

(SSR 86-8.)

Using the agency’s own language from SSR 86-8, let me parse this out in terms of Step-5 issues:

Step A: If an individual['s] remaining physical and mental capacities are consistent with meeting the physical and mental demands of a significant number of jobs (in one or more occupations) in the national economy AND

Step B: the individual has the vocational capabilities (considering age, education, and past work experience) to make an adjustment to work different from that performed in the past, it shall be determined that the individual IS NOT DISABLED.

Conversely:

Step A: [I]f an individual's physical and mental capacities [are consistent with meeting the physical and mental demands of a significant number of jobs (in one or more occupations) in the national economy AND

Step B: in conjunction with his or her vocational capabilities (considering age, education and past work experience) do not permit the individual to adjust to work different from that performed in the past, it shall be determined that the individual IS DISABLED.

Let's analyze these two steps:

Step A contains two embedded concepts: (1) Residual Functional Capacity (RFC), and (2) Jobs which exist in significant numbers in the national economy. Further, it is a claimant’s remaining RFC which determines whether a claimant has the physical and mental ability to perform the physical and mental demands of a significant number of jobs (in one or more occupations) in the national economy.

Anti-erosionists always stop at Step A. We erosionists, however, believe the agency, by requiring adjudicators to address Step B, correctly construes the statute to require consideration of a claimant’s vocational capabilities to make the “work adjustment” to the jobs which exist in significant numbers in the national economy which the claimant’s RFC says the claimant can perform (physically and mentally). In the agency's view, the statutory phrase which defines a claimant’s vocational capabilities (i.e., “considering his age, education, and work experience”) to requires a determination as to whether a claimant can make a “work adjustment” to the jobs which exist in significant numbers in the national economy which the claimant’s RFC says the claimant can perform (physically and mentally).

Thus the erosion theory requires adjudicators to employ the following two-step process in determining whether a claimant is “disabled” or “not disabled” at Step Five of the sequential analysis:

Step A: The adjudicator must determine whether the claimant’s mental and physical (exertional and nonexertional) RFC is sufficient to permit the claimant to perform the mental and physical demands of jobs which exist in significant numbers in the national economy.

• If the adjudicator determines that the RFC is NOT sufficient, then the claimant must be found “disabled.” (Step-5 examples include claimants whose RFC is for 4-hour-a-day part-time work or claimants whose RFC precludes the performance of all jobs (thus jobs do not exist in significant numbers.))

• If the adjudicator determines that the claimant’s RFC is sufficient to permit the claimant to perform the mental and physical demands of jobs which exist in significant numbers in the national economy, then the adjudicator must address Step B.

Step B: Having identified at Step A the occupational base (i.e., the number of occupations and numbers of jobs in those occupations which the claimant has the mental and physical capability (RFC) to perform), the adjudicator must next determine whether the claimant has the vocational capability (i.e., age, education, and work experience) to make the “work adjustment” to the jobs identified in Step A which exist in significant numbers in the national economy which the claimant’s RFC says the claimant can perform (physically and mentally).

Two Illustrative Examples:

Example 1: Assume the claimant’s RFC permits the full range of sedentary work, i.e., the claimant has the ability to perform the mental and physical demands of all sedentary, unskilled occupations/jobs. Assume for purposes of this example that the sedentary unskilled occupational base contains 700,000 individual jobs. Assume the claimant’s vocational profile is: age: 50; education: 12th grade; previous work experience: skilled with no transferable skills.

Applying the two-step erosion theory to Example 1, we see the following:

Step A: The claimant has the RFC to perform 137 occupations and all the jobs in those occupations. (We know this because Table No. One of Appendix 2 tells us so, as modified by footnote 5 of SSR 96-9p). The adjudicator determines that the claimant’s mental and physical RFC is sufficient to permit the claimant to perform the mental and physical demands of jobs which exist in significant numbers in the national economy. Accordingly, the adjudicator must proceed to Step B.

Step B: Having determined, at Step A, that the claimant’s RFC permits the claimant to perform the mental and physical demands of jobs which exist in significant numbers in the national economy, i.e., 700,000 jobs, the adjudicator must next determine whether the claimant DOES NOT have the vocational capabilities to make the “work adjustment” to those jobs/ How do we know this? Medical-Vocational Rule 201.14. Under Medical-Vocational Rule 201.14, the claimant's occupational base has been eroded from the full range of Very Heavy unskilled work (and whatever light through very heavy occupations could have been performed via transferable skills) to merely the sedentary unskilled occupations. However, the claimant’s age reflects such an unfavorable, or adverse, vocational capability, that in combination with a 12th grade education and no transferable skills from previous work, this claimant is deemed INCAPABLE of making the “work adjustment” to the 700,000 jobs which exist in significant numbers in the national economy which this claimant has the physical and mental capabilities to perform. (NB: Under SSR 83-5a, an agency adjudicator may not rebut the conclusions directed by the agency’s regulations, i.e., the Medical-Vocational Rules.)

Example 2: Assume the claimant’s RFC, education, and previous work experience are the same as those of the claimant in Example 1. The only thing difference is the claimant’s age. In Example 2, claimant is 25 years old.

Applying the two-step erosion theory to the Example 2 claimant, we see the following:

Step A: The claimant has the RFC to perform 137 occupations and all the jobs in those occupations. Accordingly, as in Example 1, the adjudicator determines that the claimant’s mental and physical RFC is sufficient to permit the claimant to perform the mental and physical demands of jobs which exist in significant numbers in the national economy. Accordingly, the adjudicator proceeds to Step B.

Step B: Having determined, in Step A, that the claimant’’s RFC permits the claimant to perform the mental and physical demands of jobs which exist in significant numbers in the national economy, i.e., 700,000 jobs, the adjudicator must next determine whether the claimant has the vocational capabilities (age, education, and work experience) to make the “work adjustment” to those jobs. At this point, the adjudicator must determine that the Example 2 claimant DOES have the vocational capabilities (age, education, and work experience) to make the “work adjustment” to those jobs. How do we know this? Again, the Medical-Vocational tables tell us so. Under Medical-Vocational Rule 201.28, the Example 2 claimant has an occupational base that has been eroded from the full range of Very Heavy unskilled work (and whatever light through very heavy occupations could have been performed via transferable skills) to merely sedentary, unskilled occupations. However, the Example 2 claimant’s age reflects such a favorable vocational capability, that in combination with a 12th grade education and no transferable skills from previous work, this claimant is deemed CAPABLE of making the “work adjustment” to the 700,000 jobs which exist in significant numbers in the national economy which this claimant has the physical and mental capabilities to perform.

Thus, the Example 1 claimant wins his disability claim under the “erosion” theory, and the Example 2 claimant loses his.

Here ends Judge Wilborn's post.

Eric Schnaufer has advanced the Framework Argument in an article authored 3 years ago and available on his website. Mr. Schnaufer focuses on SSR 83-12, a ruling mentioned in passing in Judge Wilborn's essay. An excerpt:

Social Security Ruling 83-12 is central guidance for application of the Grid as a framework. SSR 83-12. This ruling focuses attention on the relevant “occupational base.” SSR 83-12. To use the Grid as a framework for Ms. Limited-Light, the ALJ must compare the vocational expert’s occupation and job incidence data to the relevant Grid rules.

It's an interesting read.

That's all for today.

Update:   A framework argument in less than 5 sentences found in the POMS DI 25025.001 B.4, Application of Medical-Vocational Rules. And the framework argument found in the POMS merits a great deal of deference since the Grids had there origin in the POMS. See 43 Fed. Reg. 55351 (Nov. 28, 1978).

December 7, 2003

AALJ President's Report of San Francisco Training Conference

Posted today on the Connect board is the AALJ President's Report 11/17/03. An excerpt:

[Commissioner Barnhart] stated that she was committed to the changes and projected that implementation would commence about 10 months after the full implementation of the E-DIB system. She stated that the plan is based on the principle of providing a more developed hearing file for the administrative law judge for hearing. The enhanced development of the record will start early in the process by obtaining more medical evidence with the use of medical expert panels.

The Commissioner is committed to having attorneys serve as the reviewing officials. These reviewing officials will be in the Office of Hearings and Appeals, but their location has not yet been determined. She is committed to the administrative law judge hearing for Social Security claims and to improving the quality of the decision writing.

GAO: SSA Disability Decision Making Report Issued

The General Accounting Office has issued a 79-page report titled "SSA Disability Decision Making:   Additional Steps Needed to Ensure Accuracy and Fairness of Decisions at the Hearings Level."