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Oct 13, 2008

Draft Of Frequently Asked Questions

On the separate Social Security Perspectives blog I have posted a draft of an update to my Frequently Asked Questions. I am posting them to ask for comments. Do you think any of the answers are wrong or misleading or outdated? Are there other questions that I ought to include?

These FAQs have been used with my consent by the National Organization of Social Security Claimants Representatives (NOSSCR) and a few others and illegally by many more. You may freely link to this draft of the FAQs, but you ought to wait until I finalize them. You may not simply steal them however. Copying them, with or without attribution, and using them elsewhere, whether online or offline, without my permission is a copyright violation or to be more blunt, theft. That is illegal and can get you in trouble.
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  • Waiting In Minnesota

    The Minneapolis Star Tribune ran an article Sunday on the terrible backlog of Social Security disability claims awaiting adjudication.

    The article appears to have been generated by Allsup's public relations efforts. At least, the article reads almost like an infomercial for Allsup.

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  • Results Of Last Week's Unscientific Poll

    What effect will the Presidential election results have on Michael Astrue's future as Commissioner of Social Security?

    McCain will be elected and Astrue will continue as Commissioner (1) 1%
    McCain will be elected, but Astrue will decide to resign (1) 1%
    Obama will be elected and Astrue will continue
    as Commissioner (18)
    24%
    Obama will be elected and Astrue will decide to resign (21) 28%
    Obama will be elected, Astrue will try to stay as Commissioner,
    but Obama and other Democrats will force Astrue to leave (33)
    45%

    Total Votes: 74

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  • Oct 12, 2008

    Investigations Of Management Personnel

    The National Council of Social Security Management Associations (NCSSMA), an organization of Social Security management personnel, puts out a newsletter. I think they aim to publish it four times a year, but do not always succeed. They have just put out a special issue of their newsletter devoted to one topic, non-criminal investigations of Social Security management personnel. They are concerned that their members are not receiving fair and equitable treatment. This is not the first time that this matter has been covered in the NCSSMA newsletter, but they really seem upset now.

    It is interesting that NCSSMA emphasizes in the newsletter that they are not a union. Since NCSSMA members are supervisory personnel, I suppose that it would be impossible for NCSSMA to become a union. However, NCSSMA wants its members treated as well as union members when they are investigated.

    This is reminiscent of the way that the Administrative Law Judge Association (AALJ) became a union. The AALJ members were concerned that Social Security management was not treating ALJs as well as it treated union members. Now, Social Security management personnel are concerned that they are not being treated as well as union members. NCSSMA's concerns cannot be a good thing for the Social Security Administration.

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  • Oct 11, 2008

    Social Security Websites Down

    I thought that Social Security was only going to do some database work this weekend. However, just try accessing anything that Social Security normally has on the web. Virtually everything other than Social Security's home page is down. I doubt that many will be inconvenienced, but this does seem extreme.

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  • AFGE Criticizes iClaims And Ready Retirement -- And Social Security's Involvement With Voter Registration

    From a press release issued by the American Federation of Government Employees (AFGE), a union, which represents much of Social Security's workforce:
    The Social Security Administration recently has tried several new directives for dealing with benefit applicants, including a new system for filing Social Security benefits via the Internet. Some of the new directives already are causing problems for the SSA and applicants alike.

    The new iClaims and Ready Retirement initiatives were designed to streamline the Social Security Administration by moving the public to Internet services, but according the American Federation of Government Employees, it is doing the opposite. “Without an SSA employee adjudicating the claims, we run the risk of fraud and incorrect claims being filed,” said AFGE Council 220 President Witold Skwierczynski.

    “It’s not only people who are filling out fraudulent applications, but applicants who just don’t understand the confusing iClaims process and are unknowingly cheating themselves out of their deserved benefits,” said Skwierczynski. “Moving the public over to Internet services short-changes anyone who attempts to use these services and creates a situation where fraud easily can occur. Filing for Social Security benefits is not something easily handled over the Internet, particularly if the applicant is not computer savvy.”
    The press release ends with this swipe at Social Security's involvement with voter registration:
    AFGE also is concerned about how the SSA is dealing with the Help America Vote Act. States are required to authenticate new registration applicants using the last four digits of their Social Security number or driver’s license, and match that number to the Social Security database. However, databases are prone to errors such as data entry mistakes which result in spelling mistakes, and switched numbers. Because of this there is now a 28.5 percent error rate with the matches between voter registration records and the SSA database.

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  • Oct 10, 2008

    NPRM On Representation Of Claimants -- Part VII -- Entities As Representatives

    I think this will be the last installment of my comments on Social Security's Notice of Proposed Rule-Making (NPRM) on representation of claimants.

    My comments today have to do with the concept of an entity as a representative of claimants. The NPRM defines an entity as "any business, firm, or other association, including but not limited to partnerships, corporations, for-profit organizations, and not-for-profit organizations." An entity may be a principal representative and a professional representative. Direct payment of fees may be made to an entity that meets these conditions:
    (1) The entity must attest that it is in possession of a signed statement from each attorney or non-attorney who has performed any representational services for the claim in question that includes the following:
    (i) The attorney or non-attorney has performed all representational services on behalf of the entity, (ii) Any fees paid pursuant to the services the attorney or non-attorney have provided should be paid directly to the entity, and
    (iii) The attorney or non-attorney representative receives compensation for the services provided directly from the entity.
    (2) The entity must attest that all individuals who have provided representational services on the claim in question are individuals who qualify for direct payment under the Act or the direct payment demonstration project, as defined in § 404.1717.
    Beyond this, the NPRM provides almost no guidance on how entities are to be treated.

    I have already posted about the omission of a definition for the term, "representational services," and the contradiction between the apparent requirement that one attorney or non-attorney representative perform all "representational services" for an entity and the basic concept of allowing entities to represent claimants.

    Let me list other questions about how entities are to be treated that occur to me after reading this NPRM:
    1. What happens when we make the transition to allowing entities to represent claimants and firms begin changing the name of the representative on pending cases from an individual to an entity? Does this mean that the fee agreement process no longer applies, that the case is automatically a fee agreement case?
    2. What happens when an entity breaks up? Does the claimant no longer have any kind of representative? Does this mean that the fee agreement process can no longer apply, that the fee petition process automatically applies?
    3. How will Social Security deal with a situation in which an entity, which we will call Smith & Smith, breaks in half and each of the newly separated halves of Smith & Smith claims to be the true successor to Smith & Smith?
    4. What if the entity we are calling Smith & Smith is a partnership, but decides to become a professional corporation. Does the change in the formal nature of the business mean that it becomes a different entity, so that the fee agreement process no longer applies?
    5. What happens if an attorney practicing as a solo decides to join an established firm that already has multiple attorneys representing Social Security claimants? If the attorney substitutes the entity he or she has just joined as the representative of his or her clients, do these claimants now have a new representative, so that the fee agreement process no longer applies?
    6. What happens if two entities merge?
    7. To what extent can an entity allow employees who are not attorneys or otherwise eligible for withholding of fees to work on a case? Can the entity have someone not eligible for withholding of fees appear at the hearing? (I know this is another way of asking what is meant by "representational services", but this is a crucial issue.)
    8. What happens to an entity which breaks the rules? We know what happens to individuals who break the rules -- they can lose their right to practice before the Social Security Administration. Does an entire entity lose the right to practice before Social Security if one person acting on behalf of the entity breaks the rules? If not, how do we know whom to punish? Should the entity be able to walk away from breaking the rules merely by firing one person? What if an entity has a pattern of breaking the rules? At what point can the entire entity lose the right to represent claimants?
    You may comment on this proposal online and I encourage you to do so. This proposal has many implications. It appears to me that Social Security had difficulty drafting it and the end result is unsatisfactory. There should be many comments.

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  • The Social Security Plum List

    Social Security keeps a convenient list of the Presidential appointments concerning Social Security. It gives a convenient summary of what appointments will be available to the incoming President. I had not realized that Sylvester Schieber's term as head of the Social Security Advisory Board was about to end, for instance, or that Jeffrey Brown's term on the Board has already ended.

    The big appointments, assuming Michael Astrue does not resign after the election, are Deputy Commissioner of Social Security and Inspector General.
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  • I've Got Stats For You

    Social Security has released a report with the catchy title of "Earnings and Employment Data for Workers Covered Under Social Security and Medicare, by State and County, 2005." I will not pretend that it is all that interesting, but you can compare the county you live in to other counties in your state and elsewhere. Here are what Social Security considers to be the highlights:

    Social Security

    • In 2005, 159.1 million workers had earnings taxable under the Social Security program. About 141.9 million had only wages, 9.6 million had only self-employment income, and 6.8 million had both.
    • Social Security taxable earnings totaled $4.768 trillion, which includes earnings up to the taxable maximum of $90,000.
    • Social Security taxes totaled about $591 billion.

    Medicare

    • In 2005, 162.9 million workers had earnings taxable under the Medicare program. About 145.6 million had only wages, 9.5 million had only self-employment income, and 7.8 million had both.
    • Medicare taxable earnings totaled $5.886 trillion.
    • Medicare taxes totaled about $171 billion.

    Social Security has also issued the "SSI Annual Statistical Report, 2007." The highlights:

    Size and Scope of the Supplemental Security Income Program

    • About 7.4 million people received federally administered payments in December 2007.
    • The average monthly payment in December 2007 was $468.
    • Total payments for the year were more than $41 billion, including about $4 billion in federally administered state supplementation.

    Profile of Recipients

    • The majority were female (56 percent).
    • Fifteen percent were under age 18, 57 percent were aged 18 to 64, and 27 percent were aged 65 or older.
    • Most (83 percent) were eligible on the basis of a disability.
    • Almost 5 out of 10 recipients under the age of 65 were diagnosed with a mentaldisorder.
    • More than half (56 percent) had no income other than their SSI payment.
    • Thirty-five percent of SSI recipients also received Social Security benefits.
    • Of the people receiving SSI benefits, about 2 percent were residing in a Title XIX institution where Medicaid was paying more than half of the cost.
    • Despite their disabilities, about 357,000 recipients (5.7 percent) were working in December 2007.

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  • Bomb Scare In Wilkes-Barre

    Social Security's Data Operations Center in Wilkes-Barre, Pennsylvania was evacuated yesterday for hours due to a bomb scare. Fortunately, it was a false alarm.
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  • Oct 9, 2008

    Mental Impairment Listings Still Hanging

    The Office of Management and Budget (OMB) cleared new proposed mental impairment listings on July 9, three months ago. Normally, Notices of Proposed Rule-Making (NPRMs) appear in the Federal Register within a few days after being cleared by OMB, but not this one.

    I do not know what is going on, but I have to wonder if this NPRM is being held up due to the proximity to the election or the proximity to the change in administration. Everything about Social Security's handling of mental impairment cases was extremely controversial in the early '80s when Michael Astrue last worked at Social Security. Any significant tightening of these listings would be controversial today, perhaps controversial enough to catch the attention of the general public. Even if this is not the sort of thing that could have even a minor effect upon the election, an Obama administration might have very different feelings about this proposal than the Bush administration or a McCain administration. John McCain appears to have exhibited little sensitivity to mental health issues. A statement that McCain gave to the National Alliance on Mental Illness (NAMI) seems to me to display little enthuaism for helping the mentally ill and a strong tendency to emphasize substance abuse and personal responsibility when talking about mental illness. Contrast McCain's statement with the responses that Obama gave to a NAMI questionnaire.

    Will this NPRM be published shortly after the election? Will this version of the proposal never be published because a revised version of the proposal will be resubmitted to OMB after the new President takes office? Will the election result affect what happens with the mental impairment listings? My best guess, worth every penny you paid for it, is that the NPRM gets published immediately after the election if McCain wins, but never gets published if Obama wins because a different proposal more favorable to the mentally ill will be submitted to the OMB once Obama takes office.

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  • Barack Obama On Social Security Disability

    Barack Obama's website says that if elected he intends to create a National Commission on People with Disabilities, Employment and Social Security with the intention of:
    • Examining and proposing solutions to work disincentives in the SSDI, SSI, Medicare, and Medicaid programs.
    • Revisiting the Ticket to Work Act to assess how it can better provide SSDI and SSI beneficiaries with the supports they need to transition into work.
    • Considering opportunities to improve the results produced through the relationships between the SSDI and SSI programs and the workforce investment and vocational rehabilitation systems.
    • Examining the sufficiency of SSDI and SSI benefit levels in light of available work opportunities for working-age people with disabilities.
    • Determining the sufficiency of the “substantial gainful activity” level in the SSDI program and whether it should be indexed to average hourly wages or some other measure.
    • Studying programs that would help young people join the labor force rather than the SSI rolls.
    He would also:
    Streamline the Social Security Approval Process: The Social Security Administration (SSA) has been consistently under-funded, resulting in unconscionable delays in initial claims determinations and hearings for individuals applying for the Social Security Disability Insurance (SSDI) and Social Security Supplement Security Income (SSI) programs. The SSA's disability claims backlog has reached a record high of 755,000, up from 311,000 in 2000. The average wait time for an appeals hearing averages 505 days and, in some cases, can exceed three years. Barack Obama and Joe Biden believe that it is unacceptable to have a system in which individuals lose their homes or are forced to declare bankruptcy because the federal government cannot process their claims quickly enough. Barack Obama and Joe Biden are committed to streamlining the current application and appeals procedures to reduce the confusion that surrounds these important programs. As president, Obama will also ensure that the SSA has the funding it needs to hire judges and staff and to invest in technology to expedite final decisions. Obama supported the $150 million increase in the SSA's budget that was vetoed by President Bush this year. As president, he will continue to work to ensure that the SSA has the resources it needs for hiring and to more effectively process its caseloads.
    I will post on John McCain's positions on Social Security disability issues if anyone can find them for me. I have been unable to find them.

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  • Oct 8, 2008

    Social Security And Voter Registration Story Gets More Complicated

    I had earlier commented that Michael Astrue's letter to state election officials about possible excessive use of Social Security's databases to confirm new voter registrations seemed to be a possible sign of voter suppression. It appears that voter suppression is going on, probably unintentional, but those letters were not part of it, but an indirect result of it. A New York Times article shows that the letters from Social Security were brought about by inquiries to Social Security from the New York Times, concerning state efforts to purge voting rolls. The Times article is confusing, but it is clear that we should all hope that this election is not close because there have been some dramatic and probably illegal purges of voting rolls. There may be some would-be voters getting a nasty surprise on election day.

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  • NPRM Part VI -- Ethics -- And Those Loaded Words "Fiduciary" And "Profession"

    I am not through talking about Social Security's Notice of Proposed Rule-Making (NPRM) on the representation of claimants. My topic today is provisions in the proposal concerning ethics for those who represent claimants. Let me just copy here the parts that I am talking about today:
    All persons acting on behalf of a party seeking a statutory right or benefit must, in their dealings with us, faithfully execute their duties as agents and fiduciaries of a party. ...

    A representative must ... Conduct the representative’s dealings in a manner that furthers the efficient, fair, and orderly conduct of the administrative decision-making process, including duties to:
    • This includes knowing the significant issue(s) in a claim and having a working knowledge of the applicable provisions of the Social Security Act, as amended, the regulations and the Rulings;
    • This includes providing prompt and responsive answers to requests from the Agency for information pertinent to processing of the claim; ...
    A representative must not:
    • Through the representative’s own actions or omissions, unreasonably delay or cause to be delayed, without good cause (see § 404.911(b)), the processing of a claim at any stage of the administrative decision-making process;
    • Attempt to influence, directly or indirectly, the outcome of a decision, determination or other administrative action by offering or granting a loan, gift, entertainment or anything of value to a presiding official, Agency employee or witness who is or may reasonably be expected to be involved in the administrative decisionmaking process, except as reimbursement for legitimately incurred expenses or lawful compensation for the services of an expert witness retained on a noncontingency basis to provide evidence;
    • Threatening or intimidating language, gestures or actions directed at a presiding official, witness or Agency employee which results in a disruption of the orderly presentation and reception of evidence;
    • Violate any section of the Social Security Act for which a criminal or civil monetary penalty is prescribed;
    • Refuse to comply with any of our rules or regulations;
    • Suggest, assist, or direct another person to violate our rules or regulations;
    • Advise any claimant or beneficiary not to comply with any of our rules and regulations;
    • Assist another person whom we have suspended or disqualified; or
    • Fail to comply with our decision regarding sanctions.
    This talks about a representative acting as a fiduciary. It seems to me that this means that failing to failing to behave as a fiduciary on behalf of a claimant is a punishable offense. The term fiduciary implies many important duties. Those duties vary somewhat from jurisdiction to jurisdiction, but having a conflict of interest is always forbidden. In this context, one example of a conflict of interest would be trying to represent a Social Security disability claimant while also working as a contractor for the Social Security Administration. There are a few people who attempt to work as a vocational expert for the Social Security Administration,while also trying to represent claimants. That raises my eyebrows. Does this proposal mean to end that? I hope so. Maximus is a large Social Security contractor, but also represents Social Security claimants. That seems wrong to me. Another example would be trying to represent Social Security claimants at the behest of an insurance company which has an adversarial relationship with the claimant. Allsup is not only doing this big time, but is also serving as a debt collector for the insurance companies. I hope that Social Security meant to forbid these sorts of relationships. This is not the sort of thing that a fiduciary should be doing.

    If we are going to start down this path of regulating non-attorney representative conduct in a way that has some similarity to the regulation of attorneys, as the use of the word fiduciary implies -- and I think we should -- there are other duties that I think ought to be incorporated into the regulations, such as:
    • Communicate with the client
    • Maintain confidentiality of information received from the client
    • Avoid sexual relations with the client
    • Keep advertisements truthful
    • Maintain independence from the influence of individuals or entities who are not professional representatives
    We now have a large and growing group of individuals who have what amounts to an officially recognized license to represent Social Security claimants, which makes this group a profession. However, this nascent profession is not now subject to the sort of disciplinary rules that apply to attorneys and other professionals. If this group is a profession, it is time for them to accept, even welcome, the ethical responsibilities that go along with being a profession. If they are not a profession, they should not be getting this sort of government license.

    To move on, a lot of what is in the proposal is vague, almost to the point of being unconstitutionally vague. Prompt and responsive answers? Unreasonably delay? Threatening or intimidating language, gestures or actions? Fail to comply with ANY of our rules or regulations? And why does this talk of rules AND regulations unless it intends to draw a distinction between the two, but the distinction is somewhere between elusive and non-existent, unless you want to include something like POMS as rules but not regulations. I think it would be ridiculous to discipline someone for violating something hidden away in the vast recesses of POMS. I know it can be hard to define a lot of this. Much falls into the category of "I know it when I see it," but this proposal is still awfully vague. Without something more specific Social Security will never be able to make charges stick unless the representative's conduct is really, really bad.

    I am glad that this forbids representatives from assisting those who have been suspended or disqualified. I think it should also forbid assisting disbarred attorneys who have not been suspended or disqualified by Social Security.

    I also suggest that a provision be added to forbid professional representatives from serving as institutional representative payees. There have been a number of criminal cases arising from what this proposal would call professional representatives serving as institutional representative payees. These two roles do not seem to mix well. It would be best to forbid this combination.

    You may comment on this proposal online and I encourage you to do so. This proposal has many implications. There should be many comments.

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  • COLA Draws Attention

    I find it amusing that this blog is getting a large number of hits from people searching for "Cost of Living Adjustment" or "COLA." Social Security recipients are very interested in what the COLA will be for this year.

    If I knew, I would tell you. I can say that inflation has been relatively high this year, so the COLA should be relatively high as well, probably about 6%. Keep checking back.

    Once the COLA figure is released, it will be posted here promptly. Last year, the COLA numbers were released on October 25.

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  • Effects Of Continuing Resolution

    From the Federal Times, which is not afraid of using a lot of paragraphs:
    Agencies may have extra difficulty replacing departing employees and training existing ones during the next five months [while most of the government is operating under a continuing resolution that funds operations at the same rate as the last fiscal year]. ...

    Richard Warsinskey, at the Social Security Administration office in Cleveland, is one manager who’s frustrated by the extended delay of his agency’s 2009 appropriation. During a CR, hiring slows down considerably, he said.


    “We spend a lot of money recruiting, but we’re only able to hire in these short windows when we’re not under a CR. We should be able to hire when we have an opening and the right person,” he said.


    The CR will frustrate the agency’s ability to catch up on a 750,000-case backlog for benefits claims, Warsinskey said. Cases wait more than 18 months on average to be heard by administrative law judges because not enough staff members are on hand to prepare the cases for review.


    Congress appropriated $150 million more than the president requested in 2008 in order to reduce that backlog, said Jessica Klement, government affairs director for the Federal Managers Association.


    “Constituents were calling because they weren’t getting their benefits, and they were dying while they waited,” she said.


    The extra money in 2008 allowed SSA to hire nearly 200 administrative law judges and make a dent in the backlog, although that progress may be lost after five months under a CR.


    For now, SSA will cut back on spending for needs such as replacing aging computers and software. It will also order fewer office supplies, keeping a bare minimum on hand, said Warsinskey, who until recently served as president of National Council of Social Security Management Associations.


    There also will be more training by satellite and less travel, he said.

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  • Oct 7, 2008

    Proposed Representation Rules -- Part V -- Slow Down On Requiring Dealings Electronically

    Social Security's Notice of Proposed Rule-Making (NPRM) on the representation of claimants troubles me in many ways. My topic today is the requirement in the proposed regulations that those who represent claimants deal with the agency electronically.

    Let me start by saying that my firm is already scanning virtually everything that comes into our office. We regularly upload records using Electronic Records Express (ERE) and we file almost all of our appeals electronically. I am not afraid of technology. My firm is already doing what the proposed regulation would demand of other Social Security attorneys.

    My biggest concern with this proposal is that Social Security is not ready for it. The agency has consistently and badly underestimated how long it takes for it to roll out new technology. While there are those at Social Security who would claim that the agency has already rolled out the electronic file, my experience is that Social Security is a long way from finishing working out the bugs in the electronic file. Let me give an example of the problems that Social Security has that are already impacting those who cooperate with the agency. At the moment, there are many complaints in North Carolina from attorneys who are unable to fax records into electronic files because they constantly get a busy signal. My fear is that Social Security will adopt this regulation and then find that its systems are overwhelmed by volume for which it is unprepared. While ERE is working OK for now, my guess is that it is susceptible to being overwhelmed once more people start to use it, just like the fax lines. I have no confidence that the bandwidth is there now or that it will be there any time soon.

    Since the beginning of the Bush Administration, the Social Security Administration has been on a crash program to convert to digital. The reason has been simple. Social Security's management can see that its workloads are getting larger and larger every year, yet it has been made clear to agency management, if not to the public, that staffing increases are absolutely out of the question. It does not matter how bad things get at Social Security, the agency is not getting more personnel. Social Security's staff must ratchet downwards regardless. That has been the polar star for Social Security upper management. Agency management has been forced to seek other means for dealing with its workload. The only option was to believe, or at least hope, that a digital conversion would result in massive productivity gains. This has not worked so far. There is scant reason to hope that it will work.

    It may take quite some time for high level management to wrap their minds around it, but there is a lot of reason to believe that Social Security will be able to increase its staffing levels considerably in coming years. George W. Bush will be out of the White House in less than four months. Unless there is a political earthquake Democrats will have much more certain control of Congress come January. Even if John McCain is elected President, which now seems unlikely, the political equation for Social Security's operating budget is going to change radically in the very near future.

    Productivity gains from going digital are non-existent so far. You might ask how I know that there have been no productivity gains from going digital. There have been no studies released showing the effects of going digital on productivity at Social Security. The fact that Social Security has released no studies showing the effects of electronic files on productivity tells me all I need to know. Social Security would not be shy about telling the world if it had studies showing that the electronic file was helping productivity. No studies being released means that whatever studies have been done have shown results that would embarrass Social Security or that Social Security is afraid to even do studies because they do not want them leaking out.

    My message to Social Security is, slow down on this digital conversion. Being overhasty has caused the agency nothing but problems. There is scant evidence that going digital is ever going to solve the Social Security's workload problem. It is too late to stop making the conversion, but there is no more reason to rush it, especially since additional staff is likely to be coming,by the 2010 fiscal year, at the latest.

    Social Security ought to get its plan to allow attorneys and representatives to access their clients' files online and working well before it goes ahead with these proposed regulations. To my mind, it is basic fairness for this to be in place before Social Security starts making additional demands on those who represent claimants. If the Social Security Administration wants this degree of cooperation from those who represent claimants, it ought to be offering something in return. As a practical matter, by the time online access to claimants' files is working well, the bandwidth should be there to make ERE work efficiently and the fax machine and other issues with the electronic file should be worked out.

    Social Security should get back to implementing new technology in a slow steady way. Knock off the crash plans. They have not worked and they are no longer necessary.

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  • First Meeting Of Future Systems Technology Advisory Panel -- Who Is On It?

    Commissioner Astrue has set up a Future Systems Advisory Panel for Social Security. Today's Federal Register contains a notice that this body will hold its first meeting on October 23. I cannot seem to find a list of who was appointed to this body. Can anyone help me.

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  • Oct 6, 2008

    SSA Now Involved In Voter Suppression Effort?

    First, Social Security was unwilling to keep its database open over the Columbus Day weekend to help voter registration efforts. Now this press release from Social Security:

    Michael J. Astrue, Commissioner of Social Security, on Friday contacted the Secretaries of State for Alabama, Georgia, Indiana, Nevada, North Carolina and Ohio and asked them, based on extraordinarily high levels of requests to SSA, to review their procedures to ensure that they are fully complying with applicable federal laws relating to the registration of voters. Under the Help America Vote Act of 2002, most States are required to verify the last four digits of the Social Security number of only those new people seeking to register to vote who do not possess a valid State driver’s license.

    “It is absolutely essential that people entitled to register to vote are allowed to do so,” Commissioner Astrue stated. “While there may well be legitimate explanations for the high levels of requests, I am confident that the States we have contacted will review their procedures promptly to ensure that they are in full compliance with federal law.”

    There have been many complaints from Democrats that the Republican party has been attempting to use the levers of government to make it more difficult to register new voters and to suppress Democratic turnout at the polls. Whether fair or not, this press release will be perceived to be part of that campaign. I think that issuing the press release was an extremely unwise move, especially if Michael Astrue has any ambition to continue serving as Social Security Commissioner if Banack Obama is elected President.

    Update: A number of people are telling me that I am misreading this press release, that Social Security's only intent is to help voter registration personnel who may be unnecessarily verifying Social Security numbers. Yes, one can read this press release in that way and that is probably what was intended, but someone who really wanted to help voter registration officials might not have sent out a press release at all and certainly would not have sent out a press release which basically says "Why are you registering so many new voters? Are you doing something illegal?" Voter registration laws are not Social Security's area of expertise. Telling people whose area of expertise is voter registration that they do not know their jobs is arrogant. This is especially obnoxious when it is combined with a strong insinuation of illegal behavior. I think anyone reading the press release would have to think that whoever wrote it was dismayed by all the voter registration going on. This press release happened when Michael Astrue was confronted by criticism in a politically charged environment. Very few people were even aware of the criticism, but Astrue went ballistic in a press release. Now think what happens when Astrue is forced to work with a President, a Congress, a Deputy Commissioner and an Inspector General who are all members of the Democratic party. That is what happens if Barack Obama is elected and Astrue elects to serve out his term as Commissioner. Michael Astrue's personality is not suited to working with others who disagree with him and who distrust him. Throughtout his career he has been quick to acuse others of impropriety when they disagreed with him.

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  • NCSSMA Issues Newsletter With Astrue Interview

    The National Council of Social Security Management Associations (NCSSMA) has released the October 2008 issue of Frontline, its newsletter. This issue features an interview with Commissioner Astrue.

    The Commissioner said that his agency may be faced with operating under a year long continuing resolution (CR) for the 2009 fiscal year (FY), which would freeze the agency's budget at the . He promised a 1-1 replacement ratio for departing employees of the Office of Disability Adjudication and Review (ODAR), which is where the Administrative Law Judges (ALJs) work, but only a 1-3 replacement ratio for the rest of Social Security. It is not clear from the article, but Astrue must have been talking about the staffing replacement ratios under a year long CR. I suppose the Commissioner and his staff need to prepare for the worst, but I cannot imagine that the Commissioner expects a year long CR if Barack Obama is elected.

    The Commissioner talked of opening five new hearing offices in areas of highest backlogs, but did not say where those would go.

    Astrue told NCSSMA that he would like to see his agency go from its current 61,000 employees to 65,000 employees, but did not say when he would propose a budget that would accomplish this.

    The newsletter also says that Linda McMahon, Social Security's Deputy Commissioner for Operations, told the group that the agency had suffered "unexpected contract increases" of $450 million! No explanation was given. $450 million might even be enough to pay for those extra 4,000 employees that Commissioner Astrue talked about.

    An article in the newsletter talks of a serious shortage of computer workstations at Social Security field offices. A survey showed that 44% of NCSSMA members were reporting problems and 24% reported this to be having a somewhat to very significant impact on waiting times. The San Francisco region is having the most problems.

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  • Katz Comment On Proposed Representation Rules

    Few comments have been posted so far on the proposed new representation rules published by the Social Security Administration. Perhaps the first substantial comment posted is from Ivan Katz of New Haven, CT.

    Comments may be posted online. The deadline for comments is November 7, 2008.

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  • Oct 5, 2008

    Big Rep Payee Fraud

    I have largely stopped posting about Social Security criminal matters, but I could not ignore this one. From the Seattle Times:

    A former Renton man accused of embezzling Social Security payments from hundreds of disabled clients will be returned to Seattle from San Antonio, where he was arrested last week, according to the U.S. Attorney's Office.

    Maurice D. Brooks, 46, through his nonprofit company Professional Payee Services, is accused of stealing more than $300,000 from the accounts of more than 300 disabled Social Security beneficiaries while acting as their personal representative and being responsible for seeing that their daily needs are met, according to the U.S. Attorney's Office.

    Brooks worked as an "organizational representative payee," the designated gatekeeper for Social Security payments going to his clients who don't have family or anyone else to help them with their finances. The Social Security Administration allows ORPs to deduct a fee of up to $68 a month for each beneficiary the ORP represents, said Assistant U.S. Attorney Johanna Vanderlee. In return, the ORP ensures that the payee has adequate funds for food, lodging and clothing.

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  • Oct 4, 2008

    Pay Raise But Problems For SSA

    The continuing resolution recently passed by Congress contained a pay raise for federal employees, but no relief for the beleaguered Social Security Administration. Here is a little something on the situation from Brittany Ballenstedt at Federal Executive:

    "I applaud Congress for approving a fair and adequate pay raise for federal employees in 2009," said Darryl Perkinson, president of the Federal Managers Association. "The 3.9 percent raise sends the message that the work they do for our nation is to be valued and rewarded."

    Perkinson added, however, that the passage of the stopgap spending measure would force the Social Security Administration, which provides benefits to 60 million people, to operate on fiscal 2008 funding levels. With a backlog of more than 767,000 requests for disability hearings, he said, an increase in funding is necessary to hire additional staff and bring processing times to less than 500 days.

    "The ongoing lack of adequate staffing levels and resources have directly contributed to the backlog," Perkinson said. "For the next six months, and possibly the remainder of fiscal year 2009, SSA will be forced to take a step backwards, instead of moving forward. Simply put, the American people deserve better service."

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  • Oct 3, 2008

    Social Security Gets Its Wish On Galveston Office

    The Social Security Administration has wanted to move its office from Galveston to League City, Texas, but was restrained from doing so by political pressure. Even though the Galveston office suffered only minor damage from Hurricane Ike Social Security has decided to move the field office to League City, at least for now. One local is calling the move a "low blow" to a city battered by a hurricane.

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  • Proposed Representation Regulations -- Part IV Unanswered Questions About Changing Attorneys

    You may have thought that I was through posting about Social Security's recently proposed changes to the rules on representation of claimants before the agency. Not even close. I keep trying to find the time to wade through the Notice of Proposed Rule-Making (NPRM). The proposal seem problematic to me in so many respects.

    Today I am going to ask some questions about a subject that I think the proposal should address, but do not, claimants who change their attorney or representative:
    1. What happens with the fee when a claimant decides to fire his or her attorney or representative and hire a different one?
    2. What happens with the fee if an attorney or representative fires his or her Social Security client or is forced by circumstances to withdraw from a Social Security case?
    3. What happens with the fee if a Social Security claimant moves to a different area of the country and needs to change to a different attorney or representative?
    4. What happens with the fee if an attorney or representative dies and a Social Security claimant is forced to seek another attorney or representative?
    These are actually long-standing issues at Social Security. Social Security's answer over the years has been that in any of these circumstances, the fee agreement process may not be used. unless the first attorney or representative waives any fee If that is the case, I think the regulations should say so, but I really think the regulations should say the opposite

    I have clients who leave me and hire someone else and I pick up clients who have left other attorneys, so I see both sides of this. It is a pain to take a case almost to the end and have the client move far away, leaving me with the difficult task of obtaining a fee through the fee agreement process, when I will not even know when or if the claimant wins. I hate to give up on getting a fee in these cases when I have done most of the work, but I do most of the time. It is also a pain to take on a case near the end, do virtually all the work and have to do it quickly, and then have some other attorney who may or may not have done much work sticking his hand out demanding a good part of the fee. In either case, the fee agreement process is a pain for everyone including Social Security.

    I think the interests of justice would be better served if claimants could change their attorney or representative freely and the attorney or representative who ends up with the case could just get the full fee under the fee agreement process. The current situation just makes it too difficult for a claimant to change to a different attorney or representative, because other attorneys or representatives do not want to get involved with the case because of the attorney fee issue. The emphasis should be on letting the claimant select who they want to represent them without being restrained artificially by Social Security's rules. If the change is made as I suggest, there will be times when I will think it terribly unfair to me. There will be other times when some might think I would receive a windfall, but on the whole I am confident that everything will come out in the wash.

    Frequently, I talk with the clients of competent attorneys who are mad at them because of how long things take at Social Security and want to switch to me. I often tell them that my clients are probably calling their attorney because they are mad at me for the same reason. No one wants to encourage claimants to switch to a different attorney or representative because of something the attorney or representative cannot control, but there are some attorneys and representatives out there who do not do their jobs. Their clients are unhappy because they cannot get their calls returned and the attorney or representative does not know what they are doing and are not doing what needs to be done. At the moment, it is terribly difficult for claimants in this situation to change to a different attorney or representative because other attorneys and representatives do not want the fee hassles that come when a claimant switches to a different attorney or representative. This is wrong. I think it is more important to allow claimants to change their attorney or representative freely than to protect attorneys or representatives from clients who want to change to someone different.

    Even if Social Security sticks to its current position, it needs to clarify one thing. What happens if the claimant switches to a different attorney or representative and the first attorney or representative agrees to waive the fee because he or she makes an agreement with the new attorney or representative on splitting the fee. There have been suggestions from Social Security that there is something unethical about doing this, that each attorney or representative must file a fee petition and that Social Security must settle how much goes to each attorney or representative. I find this preposterous. If the claimant knows what is going on and approves of it and the fee stays the same, what difference does it make to Social Security how the money is divided? There is nothing in the Social Security Act or regulations that requires such a result. It would be a ridiculous way of further impeding claimants who want or need to change their attorney or representative. The uncertainty that some attorneys or representatives now feel exists on this issue makes it difficult for claimants who need to switch to a different attorney or representative. I have plenty of respect for the attorneys who work for Social Security. I once worked as an attorney for Social Security. However, there are some realities of law practice that one cannot experience working for Social Security. We should not be placing an unnecessary roadblock in the way of a claimant who needs to switch to a different attorney or representative because of some theoretical concern of an attorney who has never been in private practice.

    You may comment on this proposal online and I encourage you to do so.

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  • Backlogs Are A Little Worse Than Stats Show

    A recent report from Social Security's Office of Inspector General (OIG) shows that the statistics that Social Security is reporting on processing times at the Office of Disability Adjudication and Review (ODAR), which is where the Administrative Law Judges (ALJs) work, include cases remanded for a new hearing. Who cares? This inclusion partially masks just how bad the backlogs really are at ODAR. The remands are supposed to be given priority in scheduling. Including cases that are scheduled six months after a remand with cases that are routinely scheduled two years after a new request for hearing makes the backlogs look less bad than they really are. Since remands are 15% of dispositions in some offices, this is not insignificant. Nationally, the difference in 2007 was about 2.5%. OIG recommended that Social Security keep the remand stats separate from the stats for new requests for hearing.

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  • Oct 2, 2008

    Database Shutdown Remains Controversial

    From WFSB in Hartford, CT:
    The Social Security Administration’s plan to just down its online systems could hinder 40 states in verifying voter registrations, Secretary of State Susan Bysiewicz said Thursday."

    I urge Social Security Administration Commissioner Michael J. Astrue to reconsider the timing of the National Computer Center Annual Building Shutdown from Oct. 11 to 13, 2008," said Bysiewicz. "The shutdown will result in the inaccessibility of online system services just weeks before the Nov. 4 elections. More than 40 states across the country have voter registration deadlines in October, and where state law requires a match against the SSA database, thousands of citizens could be disenfranchised with the system down at such a critical time."

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  • SSNs Off Medicare Cards?

    Below is a legislative bulletin from Social Security, but please notice the footnote.

    On September 29, 2008, the House suspended the rules and passed H.R. 6600, the “Medicare Identity Theft Prevention Act of 2008,” by voice vote. The bill now goes to the Senate. 1

    Provisions of interest to the Social Security Administration are described below.

    • Would require the Secretary of Health and Human Services, in consultation with the Commissioner, to establish cost-effective procedures to ensure that Social Security numbers (SSNs) or derivatives thereof would not be displayed on or embedded in Medicare cards.

    • Would be effective with respect to Medicare cards issued on or after the effective date determined by the Secretary but in no case would such a date be later than 24 months after the date adequate funding is provided (see penultimate bullet below).

    • Would provide that all Medicare cards with SSNs be reissued under the new requirements no later that 3 years after effective date specified above.

    • Would allow individuals to apply for reissuance of Medicare cards before the general reissuance effective date under exceptional circumstances as the Secretary would specify.

    • Would require the Secretary, in consultation with the Commissioner, to develop an outreach program about the new Medicare cards.

    • Would require the Secretary, in consultation with the Commissioner, to submit a report to Congress with options for implementation of the requirements, including costs estimates and justifications of the costs associated with each option. The report would be required no later than 1 year after enactment.

    • Would provide that the requirements would not take effect until adequate funding is provided.

    • Would authorize, after the report is submitted, appropriations to the Secretary and Commissioner for administrative expenses for each of the 5 fiscal years related to implementation of the bill.

    1 It is unclear as of the date of this Bulletin whether the Senate will take action on the bill before the 110th Congress adjourns.

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  • Social Security Denies That Computer Shutdown Will Affect Voter Registration

    A press release from Social Security:

    For over fifteen years the Social Security Administration has scheduled a shutdown of its National Computer Center on Columbus Day weekend for repairs and maintenance; it has only been postponed once and that was due to special workloads created by Hurricane Katrina. The repair and maintenance is a major production for the agency's system and facility experts that involves scheduling of overtime for key staff, committing contractors to extremely tight turnaround times for the work, and other complexities. As the antiquated National Computer Center has frayed over the years, the importance of timely repairs and maintenance has increased significantly.

    Among the many new responsibilities that Congress has added to Social Security's workloads is verifying a small percentage of voter registrations. This year there has been unwarranted concern that the annual shutdown will somehow interfere with voter registration. The system will be up and running until midnight Friday night, so there is plenty of time for voters registering Friday, October 10 to be verified. Voters registered on Saturday, October 11 or Sunday, October 12 can be verified starting Monday, October 13 at 5 a.m. EDT, more than three weeks before the election. When state and local election registrars are working on Columbus Day, Social Security systems will be available to verify registrations, and the agency will be providing its usual same-day service. The expected increased volume of transactions on Monday does not present a problem for prompt response.

    Delaying the shutdown into 2009 would pose a small, but not insignificant, risk of a major interruption of service for the hundreds of millions of Americans who rely on our computer systems to provide retirement, disability and survivors benefits, Medicare benefits, employment verification and other services. We have recently indicated in our new strategic plan that Congress needs to support a new National Computer Center, which would help us provide services without interruption.

    "As many Americans are enjoying Columbus Day weekend, the hardworking men and women of the Social Security Administration will be working intensely to satisfy every reasonable expectation of service, including voter registration verifications," Commissioner Astrue stated. "I regret that people unfamiliar with the facts of this situation have sought to create a partisan issue where there is none."

    What I do not know is whether real time access is needed to verify voter registration. If real time access is not needed, I do not know why anyone ever made an issue of this. If real time access is needed, I do not know why Social Security sent out this press release. Update: I guess I can think of a reason why this would be worth making an issue over even if real time access is unnecessary. Elections offices may be receiving so many new voter registrations that they need to work a lot of overtime to get everyone on the books before election day. Being unable to work that weekend could be a real problem for them. By the way, notice the somewhat truculent tone of the press release. It sounds like Michael Astrue wrote it himself. Can someone with this attitude work with a Democrat in the White House, Democrats in stronger control of Congress, a Democrat as the #2 man at Social Security and a Democrat as his Inspector General? That is what Michael Astrue may face next year if the political trend we see now continues.

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  • Oct 1, 2008

    Voter Registration Questions Persist And Social Security Not Responding

    Roll Call is reporting on the voter registration problems that may be caused by Social Security's scheduled computer shutdown over the Columbus Day weekend. The states are required tunder the feheral Help America Vote Act to crosscheck new voter registrations with Social Security's database. The maintenance is routine, but can still cause problems for election officials. Democrats, in particular, are making a concerted effort to register new voters for the upcoming election. Social Security did not respond to Roll Call's request to discuss the matter.

    I hope that no one at Social Security has called the White House to ask what to do about this.

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  • New Administrative Waiver Limit

    Social Security typically waives Supplemental Security Income (SSI) overpayments when the claimant requests waiver and the amount of the overpayment is below a certain amount. These are called "administrative" waivers since Social Security believes that the cost of pursuing the overpayment is more than the amount of money involved. The limit had been $500. It was just raised to $1,000 on September 27, 2008.

    There are a couple of caveats. The claimant must request waiver. The Social Security field office can decide not to give an administrative waiver if they really think the claimant is a bad actor. What Social Security calls "double check negotiation" (DCN) overpayments are never supposed to be waived. A DCN happens when the claimant reports that his or her monthly check never arrived. Social Security tells the Treasury to issue a replacement check. The claimant then cashes the original check plus the replacement check. That can happen by accident because the claimant is confused, but there are plenty of cases where the same claimant does this repeatedly or where a rash of DCNs happen in one area.

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  • Proposed Procedural Regs

    The Social Security Administration just filed this set of proposed amendments to its regulations with the Office of Management and Budget:
    We propose to amend several regulations and provide new regulatory language to address inefficiencies in the hearings process. The amendments include provisions clarifying that claims denied by state Disability Determination Services and other adjudicators for “failure to cooperate” are technical denials rather than medical determinations, and providing flexibility in setting the time and place of hearings. We also intend to propose new regulatory provisions that will allow ALJs to dismiss a request for a hearing where a claimant has abandoned his or her claim and to specify regulatory standards that require ALJs to clearly articulate their rationale when issuing decisions on remanded claims.
    OMB must approve the proposed regulations before Social Security can publish them in the Federal Register. Probably, this proposal would allow an ALJ to dismiss a request for hearing if the attorney shows up but not the claimant. Would this proposal mean that "failure to cooperate" denials could not be appealed? What does "flexibility in setting the time and place of hearings" mean? Also, I thought Administrative Law Judges (ALJs) were already supposed to "clearly articulate" their rationales. How does adopting a regulation saying that change the situation?

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  • Sep 30, 2008

    A Snide Comment

    I started not to post anything about this, but I think it is worth mentioning. Here are some excerpts from the California Appellate Report blog by Shaun Martin, professor of law at the University of San Diego (USD), about the decision of the Ninth Circuit Court of Appeals in Crawford v. Astrue:
    I'm somewhat appalled that an attorney -- especially a potentially not-very-good one -- can take a hefty amount of attorney's fees from a client in a totally simple case. The opinion here involves three cases from the law firm run by Lawrence D. Rohlfing (in Santa Fe Springs), which does social security cases and that contracts with its clients for the statutory maximum of 25% of the past-due benefits award. In the first case, an attorney affiliated with Rohlfing's firm -- Brian C. Shapiro -- spent less than 20 hours (in addition to less than five hours of paralegal time) in simple proceedings and obtained an award of $123,891.20, twenty-five percent of which would be $30,972.80. In other words, over $1500 an hour. Not bad for someone who's a 1997 graduate of Whittier Law School. Similarly, in the second case, another 1997 graduate of Whittier, Young Cho, also spent less than twenty hours (and less than five hours of paralegal time) to obtain an award the 25% contingency of which would be around $20,000.00. And in the final case, Denise Haley, an older graduate of Loyola Law School, worked 25.5 hours (plus 1.1 hours of paralegal time) to get an award the 25% contingency of which would be over $43,000; in other words, around $1700/hour. And, remember, these are not tough cases -- they're social security matters, and ones that (tellingly) take around 20 hours total to resolve. ...

    Do I feel the same way about other lawsuits -- say, a difficult and hotly contested medical malpractice action? Honestly, no. There, for some reason, even if the attorney ends up making $1000+ an hour, I feel like they may well have earned it. But social security matters -- and ones that take less than a couple dozen hours at that? There's just some part of that that feels different to me.
    Notice the extreme degree of condescension here even when the author knows essentially nothing about the field of law or its economics or the people involved? I wonder if Professor Martin feels like he is slumming by teaching at the USD. I guess that USD must have a much more highly highly regarded law school than Whittier or Loyola, but California readers may be able to help on that one.

    I could write a good deal on the subject, but the bottom line is that attorneys are hardly eager to do federal court work in Social Security cases. Only a relatively small percentage of attorneys who represent Social Security claimants administratively even want to do the federal court work. I think a reasonable person might wonder if adequate economic incentives are in place to attract attorneys to this field of practice. Basically, if it is so easy and so lucrative, why do so few attorneys get involved? I would suggest that is is because of decisions such as Crawford.

    Apparently, this is not the first time that Martin has made comments that others found offensive. Professor Martin does not allow comments on his blog, but you can e-mail him.

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  • Results Of Last Week's Unscientific Poll

    Do you think that the proposed bailout of financial markets currently being negotiated between Congress and the White House is a good idea?
    Yes (24) 36%
    No (43) 64%

    Total Votes: 67

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  • Sep 29, 2008

    Drafter Of Social Security Legislation Dies

    From the Washington Post:
    Lawrence E. Filson, 85, former deputy legislative counsel for the U.S. House of Representatives and the principal draftsman of all the major Social Security laws between 1954 and 1989, died Sept. 21 of complications from Alzheimer's disease at the Collingswood Nursing and Rehabilitation Center in Rockville. ...

    He drafted the original Medicare, Medicaid and Supplemental Social Security laws. ...

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  • Sep 28, 2008

    Different Standards At VA And Social Security Raise Questions

    The Oregonian newspaper is running a story on the difficulties that many veterans declared 100% disabled by the Department of Veterans Affairs (VA) have in obtaining Social Security disability benefits. Like many newspapers, the Oregonian is going multi-media in its online edition. You can see the video piece they prepared for this article.







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    Sep 27, 2008

    Congress Passes Continuing Resolution

    Congress has passed and sent to the President a continuing funding resolution. The current fiscal year ends on September 30. Without this bill, most of the government, including Social Security would have shut down. The continuing resolution allows agencies to continue spending at the same rate as in fiscal year 2008 until March.

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    Sep 26, 2008

    Election Assistance Commission Writes About Database Shutdown Issue

    I had posted yesterday about Senator Feinstein's letter about the voter registration problems that will be caused if Social Security shuts down its Social Security number database for three days in October. The United States Election Assistance Commission has now written the Commissioner about the same issue.

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    My Comments On Representation NPRM -- Part III, Confusing Definitions

    Social Security's Notice of Proposed Rule-Making (NPRM) on the representation of claimants worries me, largely because it is so poorly drafted that I do not know what it means. I am laying out my concerns over several posts. Today's topic is the definitions included in the NPRM. Here are the ones that concern me:
    Entity means any business, firm, or other association, including but not limited to partnerships, corporations, for-profit organizations, and not-for-profit organizations. ...

    Principal representative means an attorney who meets all of the requirements of § 404.1705(a), an individual other than an attorney who meets all of the requirements of § 404.1705(b), or an entity that meets all of the requirements under § 404.1705(b), who has been appointed to represent you in dealings with us and who is responsible for disseminating information and requests from us to you and your other representatives, if any.

    Professional representative means any attorney, any individual other than an attorney, or any entity that holds itself out to the public as providing representational services (see § 404.1735) before us, regardless of whether the representative charges or collects a fee for providing the representational services.

    Representative means an attorney who meets all of the requirements of § 404.1705(a), an individual other than an attorney who meets all of the requirements of § 404.1705(b), or an entity that meets all of the requirements of § 404.1705(b), whom you appoint to represent you in dealings with us. For purposes of §§ 404.1740 through 404.1799, the term representative also includes an attorney or a non-attorney whom you have not appointed as your representative under the previous sentence but who works for or on behalf of an appointed representative and helps represent you in your claim before us.
    If I understand this correctly, I am simultaneously a principal representative, a professional representative and a representative, while my law firm is simultaneously an entity, a principal representative, a professional representative and a representative! Was someone trying to write this in as confusing a way as possible? How can a corporation be any kind of representative? That takes a flesh and blood human being. What is the point of all these definitions and what is the difference between them? I have read the entire NPRM in the Federal Register and I do not comprehend what was intended. How did something so poorly drafted get through Social Security's vetting process?

    And to repeat a concern that I have already written about, why is there no definition given for "representational services", a key term in the NPRM?

    You may comment on this proposal online and I encourage you to do so.

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    SSA Sends Regulatory Proposal To OMB -- Apparent Intent To Cut Back Benefits

    The Office of Management and Budget, which is part of the White House, must approve all proposed regulations before they go in the Federal Register. Social Security just sent over a package that would "... clarify the definition of 'good cause' and change the protective filing date for title II from 6 months to 60 days to mirror the policy in title XVI. " The change from six months to sixty days is obviously intended to cut benefits. Something tells me that the change in the definition of "good cause" is not designed to help claimants.

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    SSA Admits Scheduling Hearing Early Due To Pressure

    Take a look at this report from WSAV in Savannah about Larry Kirkland, a Social Security disability claimant. The reporter asks a spokesperson for Social Security why Mr. Kirkland's hearing was scheduled almost immediately after the reporter became involved in the case. The response from the Social Security spokesperson, was, "Uh, well, from my understanding there was also some Congressional interest in the case."

    I am happy for Mr. Kirkland, but what about all those other claimants who are not the subject of a television report? When Mr. Kirkland is allowed to jump ahead of them in line, they just get pushed back. That is just not fair.

    My crystal ball is cloudy, but this looks like the sort of thing that a Social Security Commissioner would allow only if he were not planning to stay around much longer.

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    My New TV Ads

    I may regret doing this but here are three new television ads that my firm has recently started running. They were produced by Gary Davis Media. Do not blame Gary for the spokesman's weaknesses!








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    Sep 25, 2008

    Major 9th Circuit Decision On Attorney Fees

    The Ninth Circuit Court of Appeals has issued an important opinion in Crawford v. Astrue, holding that:
    We read Gisbrecht not to prohibit a district court from making lodestar-type calculations, but only from relying exclusively on such calculations and refusing to consider the contingent-fee agreement. Here, the district court noted that Gisbrecht controls, and considered the contingent-fee agreements. The district court, however, concluded that substantial reductions in the fees under those agreements were necessary for the fees to meet the statutory standard of reasonableness. Those rulings complied with the requirements of Gisbrecht.

    Unlike the dissent, we do not read the Supreme Court’s Gisbrecht opinion as mandating any particular procedure or format that the district courts must follow in determining a reasonable attorney fee in social security cases. The Court did not, as the dissent apparently concludes, prescribe that in every case the district court mechanically must begin its analysis with the twenty-five percent contingent fee and then make any reduction in that amount that appears appropriate in the particular case.

    As we have noted above, what Gisbrecht held was that “§ 406(b) does not displace contingent-fee agreements within the statutory ceiling; instead, § 406(b) instructs courts to review for reasonableness fees yielded by those agreements.” 535 U.S. at 808. The methodology by which a district makes such reasonableness determinations is for that court to select in the exercise of its sound discretion. In making these determinations, it would be preferable for a district court to begin with the contingency-fee agreement and decrease from there, rather than increase from a lodestar calculation. It does not seem to be an abuse of discretion, however, to use the latter approach as long as the court takes the necessary factors into consideration.

    I am not going to the trouble of explaining this. If you do not understand it, you probably would not care anyway.

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    Employment Levels At Social Security

    The Office of Personnel Management has released figures showing the number of employees at federal agencies as of June 2008. Below is the June 2008 figure for Social Security with the numbers from earlier dates for comparison. Note that the number of employees at Social Security went up by 5.2% between March and June of this year and are back to the same level they were when Democrats became the majority party in Congress.
    • June 2008 63,622
    • March 2008 60,465
    • December 2007 61,822
    • September 2007 62,407
    • June 2007 62,530
    • March 2007 61,867
    • December 2006 63,410
    • September 2006 63,647
    • September 2005 66,147
    • September 2004 65,258
    • September 2003 64,903
    • September 2002 64,648
    • September 2001 65,377
    • September 2000 64,521
    • September 1999 63,957
    • September 1998 65,629

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    Continuing Funding Bill Passes House Of Representatives

    The House of Representatives has passed a Continuing Resolution (CR) to keep the government operating until appropriations bills can be passed. This will allow government agencies to spend money at the same rate as under the 2008 appropriations acts, which expire on September 30. until March 6, 2009. There had been hope that Social Security would be allowed to spend money at a higher rate than that, but, as best I can tell, Social Security did not receive such a dispensation from the House of Representatives.

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    My Thoughts About NPRM On Representation -- Part II, Mandatory Direct Deposit

    I am still wading through Social Security's Notice of Proposed Rule-Making (NPRM) on the representation of claimants. I see many problems. Here is my second installment on this subject.

    The proposal would make direct deposit of fees for representing claimants mandatory. Most attorneys I know would be delighted to receive their fees by direct deposit, except for one problem. How would they know which direct deposit goes with which client? The Department of the Treasury is not sending enough information with direct deposits to allow identification of the client involved. This is already a pain when we deal with payments under the Equal Access to Justice Act (EAJA), but we receive far fewer of those checks. The current maximum fee, after deduction of the user fee is $5,221. If I receive a direct deposit for $5,221 I have no idea what client the fee is for. Social Security's response to this question to this point seems to have been "Uh, uh, uh, why don't you ask Treasury?" I find that attitude unhelpful.

    Treasury is not the one proposing this regulation. I am not sure how much clout Social Security will have in getting Treasury to resolve this problem, but I am pretty sure that it is more clout than I and others who represent Social Security claimants will have with Treasury. Social Security needs to get this resolved before they make direct deposit of fees for representing claimants mandatory.

    You may comment on this proposal online and I encourage you to do so. This is a major proposal. Everyone who represents Social Security claimants needs to be studying it carefully and submitting comments.

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    Totalization Agreement With Denmark To Go Into Effect

    Social Security is publishing a notice in the Federal Register tomorrow that a totalization agreement with Denmark goes into effect on October 1, 2008.

    Update. It has not been published in the Federal Register.

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    Social Security And Voter Registration

    Social Security is planning to take its Social Security number database offline for routine maintenance from October 10 to 13. This is a matter of concern to the California Secretary of State because California is using the database to verify voter registration. Apparently, eleven other states would be similarly affected. Senator Feinstein has written to the Commissioner of Social Security to ask that the maintenance be delayed until after voter registration closes.

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    UNUM Trial To Begin

    From a press release:
    Trial begins today in federal district court in Boston against insurance giant Unum Group (NYSE: UNM - News) on whether Unum is dumping tens of thousands of disability claims onto the overburdened Social Security system, costing the government millions of dollars.

    The court is hearing a "qui tam" lawsuit brought by a whistleblower on behalf of the federal government involving Unum's alleged practice of requiring claimants to file first for Social Security Disability Insurance benefits even when they clearly didn't qualify. If they didn't apply to Social Security, Unum would cut their benefits.

    Social Security has much stricter criteria for disability benefits than private insurers. To qualify for disability payments from private insurers, people must be unable to perform their current job; to qualify for Social Security benefits, a claimant needs to be unable to work at all.

    "Our lawsuit exposes a practice that creates additional burden on an already overwhelmed Social Security program and also hurts taxpayers," said Colette G. Matzzie, a Washington, D.C., attorney with Phillips & Cohen LLP, which represents the whistleblower. "We're confident that the court will find merit in our case."

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