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May 31, 2012

DOMA Ruled Unconstitutional

     A panel of the U.S. First Circuit Court of Appeals has ruled that the Defense of Marriage Act (DOMA) is unconstitutional. DOMA prevents the Social Security Administration from recognizing same sex marriages allowed under state law. The ruling has no immediate effect since the Court stayed enforcement of its ruling until all appellate review is finished. The practical effect of this is to make it nearly certain that the Supreme Court will review the constitutionality of DOMA in its next term which will begin, as always, on the first Monday in October. Social Security will be the federal agency most affected if DOMA is struck down.

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  • This Is Sure Going To Help Put Disabled People Back To Work

         From an Emergency Message issued by Social Security yesterday:
    This emergency message informs you of the termination of the Work Incentives Planning and Assistance (WIPA) program effective June 30, 2012 and the Protection and Advocacy for Beneficiaries of Social Security (PABSS) program effective September 29, 2012. Established under Sections 1149 and 1150 of the Social Security Act of 1999, these programs are terminating because our authority to fund them has expired.
        But defunding these programs makes sense, since they're not working.

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  • Alan Simpson -- The Gift That Keeps On Giving

         Just read Simpson's letter to Max Richtman, the head of the National Committee to Preserve Social Security and Medicare. How did someone as thin skinned and nasty as Simpson ever get elected to public office? How can he angrily insist that Social Security was never intended as a retirement program?
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  • May 30, 2012

    Disability Trust Fund Story In Post

         The Washington Post has a story on the troubles of the Social Security Disability Trust Fund. Predictably, there is no discussion of the fact that a simple temporary transfer of some of the FICA tax receipts to the Disability Trust Fund would take care of the problem.

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  • Off Topic: Doc Watson 1923-2012

         As a North Carolinian, I have to note the passing of Doc Watson.

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  • May 29, 2012

    While Straining To Prove A Minor Point, David Autor Undermines His Entire Thesis

         David Autor is an MIT economist who has done research on the Social Security disability programs. His basic beliefs seem to be that the existence of Social Security disability benefits is a bad thing because if it did not exist some people who are now drawing these benefits would still be working. At the least, he thinks it is too easy to get Social Security disability benefits and that this takes people out of the workforce unnecessarily. I have recently been critical of Autor because it appears to me that he has not taken the time to study the statutes and regulations and policies defining disability and encouraging return to work. Instead, he has just made his own mistaken assumptions about what must these must say. Autor seems far more comfortable with mathematical equations than with the U.S. Code and the Code of Federal Regulations, much less with the flesh and blood people who apply for Social Security disability benefits.
         Autor is the lead researcher on a new study titled Does Delay Cause Decay? The Effect of Administrative Decision Time on the Labor Force Participation and Earnings of Disability Applicants. Autor and his colleagues go to a lot of trouble to try to prove that the existence of time-consuming appeals mechanisms at Social Security discourage return to work. In the end, by making a lot of possibly questionable assumptions and extrapolations, Autor and his colleagues come to the conclusion that there is some minor decrease in work as a result of the appears process, 3.6% for denied applicants and 5.2% for allowed applicants. And to that, I give a big yawn. I don't doubt that there is some small, fairly meaningless decrease in return to work but I have no idea how we avoid it without doing vast injustice to disabled people.
         However, Autor does not seem to note he has collected data that dramatically undermines his thesis that it is too easy to get on Social Security disability benefits. Below are his numbers from table 1 on page 25 of the report (page 29 of the PDF) concerning return to work by those who apply for Social Security disability benefits and who are then either denied or approved, either initially or after appeals:


          If it is so easy to get on Social Security disability benefits, why is it that such a low percentage of denied applicants go back to work? According to Autor's theory many of those approved should be working but it turns out that even the vast majority of those denied don't go back to work. Four years after being denied at the initial level, 85% are still out of work and Autor thinks it's too easy to get Social Security disability benefits! Yes, if you hold an economic gun to the heads of people who apply for Social Security disability benefits, a few will go back to work but the vast majority don't. Doesn't that mean something? Shouldn't that also be worthy of Autor's attention?

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  • May 28, 2012

    Memorial Day 2012

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  • May 27, 2012

    Looking For A Shortcut But Not Finding One

    During the afternoon, the Board met with representatives from both SSA [Social Security Administration] and the National Institutes of Health (NIH) regarding their collaboration ...

    The SSA-NIH presentation highlighted two projects: 1) CAL 1 – an analytic project where NIH researchers developed a systematic approach to select conditions for inclusion in SSA’s Compassionate Allowance (CAL) list; and 2) Computerized Adaptive Testing (CAT) tools – instruments that will help SSA to measure individual function comprehensively, consistently, and quickly. ... The goal of the CAT tool is the systematic collection of information regarding a claimant’s functioning which can then be scored as part of the determination process.
          CAT appears to be a type of test that might have some usefulness in evaluating potential employees or students but I have a hard time imagining that they would be of any use in disability determination.They tell you nothing about a person's physical abilities. In terms of mental ability, they wouldn't, for instance, tell you whether a claimant suffers from hallucinations or delusions or panic attacks. One might think of them as an alternative to IQ testing but unless you plan to dramatically increase the number of people found disabled, CAT would be useless because anyone close to being found disabled by Social Security due to mental retardation is functionally illiterate and incapable of using a computer for anything like this.
         The SSAB is looking for shortcuts. This is a dead end.

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  • May 26, 2012

    Social Security Faulted For Lack Of Action On Transgender Issues

         From the American Civil Liberties Union (ACLU):
    Late last week, the ACLU joined a letter to the Social Security Administration (SSA) drafted by our coalition partners at the National Center for Transgender Equality. The letter expresses a shared concern over a lack of action from SSA on several policy matters of critical importance to transgender people and their families. 
    The three areas addressed in the letter include the need for an updated policy for changing gender information in SSA records; revising guidance regarding marriages involving a transgender spouse to accurately reflect state and federal law; and phasing out the use of gender data in SSA computer matching programs.
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  • May 25, 2012

    Please Keep It Coming Senator Simpson!

         Former Senator Allan Simpson, who was the co-head of the National Commission on Fiscal Responsibility, often known as "Bowles-Simpson", is a crotchety old man who has great difficulty taking criticism, especially criticism of the "report" of his panel. I say "report" since it was never officially adopted. Here are some excerpts from a recent screed from Simpson reacting to a flyer, yes, a mere flyer:
    Your little flyer entitled “Bowles! Simpson! Stop using the deficit as a phony excuse to gut our Social Security!” is one of the phoniest excuses for a “flyer” I have ever seen. You use the faces of young people, who are the ones who are going to get gutted while you continue to push out your blather and drivel. My suggestion to you — an honest one — read the damn report. The Moment of Truth — 67 pages, and then tell me if we’re not doing the right thing with Social Security. What a wretched group of seniors you must be to use the faces of the very people that we are trying to save, while the “greedy geezers” like you use them as a tool and a front for your nefarious bunch of crap. You must feel some sense of shame for shoveling out this bulls**t.
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  • May 24, 2012

    Veterans Get Big Break On Becoming ALJs

         From a Social Security press release:
    The Office of Personnel Management (OPM) recently announced that 10-point preference eligible veterans [those with service connected disabilities] interested in becoming an Administrative Law Judge (ALJ) and working for Social Security can take the examination now even though the test is closed to all other applicants. More information about this opportunity is available at www.fedshirevets.gov. ...

    So far this fiscal year, the agency has hired 210 veterans, including 91 disabled veterans, representing 34% of total new agency hires. Most of these veterans handle benefit claims and help reduce Social Security’s backlog of disability cases. Overall, veterans represent almost 10% of Social Security’s current workforce.

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  • COLA May Be Much Lower

         There's a warning out that the Cost of Living Adjustment (COLA) for Social Security is going to be way down this year, to around 1.7% instead of last year's 3.6%

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  • Penny Wise, Pound Foolish

        From the Boston Globe:
    Federal officials overseeing a fast-growing $10 billion children’s disability program have failed to follow up on the progress of 400,000 beneficiaries with behavioral, learning, and mental disorders, allowing families to receive monthly cash benefits for years even if their children’s condition has improved, according to a draft report from the Government Accountability Office obtained by the Globe.
    The report by the investigative branch of Congress estimated that the Social Security Administration, which runs the Supplemental Security Income program, might save $9 for every $1 it spends on disability reviews by determining that some children no longer qualify. Reviews are typically required once every three years for the 1.3 million children now receiving benefits, a record high.
          And why is Social Security not doing these reviews? Because they don't have enough operating funds, that's why.

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  • May 23, 2012

    Commissioner Says Attorneys Have No Obligation To Submit Adverse Medical Evidence In Social Security Disability Cases

         I posted last week about Social Security Commissioner Michael Astrue's testimony before the Senate Finance Committee. I wrote that Astrue said emphatically that attorneys who represent Social Security claimants are under no legal obligation to submit adverse medical evidence. (While I agree that there is no legal obligation, it is my practice to submit adverse medical evidence and I encourage other attorneys to do so but I won't detail my reasons now.)
         I wish I could get a video clip of Astrue's testimony just on this subject but so far I haven't. If anyone has the video editing software and experience to do it, this testimony is about one hour into the hearing. I think a lot of people would find it interesting if it were posted on Youtube. 
         At least, now we have this transcript:
    In response to a question from Senator Thune (R-SD) regarding the December 2011 Wall Street Journal article re withholding evidence, the Commissioner responded:
    Commissioner Astrue: Senator, I'm afraid I am going to have to disagree with a number of the assumptions of your question. First of all, I am familiar with the Wall Street Journal article. We did not take no action - we did refer that to the Office of the Inspector General. If you have questions about the progress of that, I would encourage you to talk to the Inspector General.
    But that article was relatively thin in terms of the content of allegations. There really was not, in my opinion, very much there. It's also based in part on the misassumption that there's a requirement for all relevant evidence to be provided to the judge. Right now, that is not the law. The previous two Commissioners tried to make that the law and my understanding is that they received a lot of opposition and not much support here in the Congress for that.
    First of all, the Wall Street Journal had it dead wrong on what the law is. And second, there wasn't much in the way of allegations. Third, it would be unprecedented to go back and review all cases by a law firm on evidence anywhere near this thin. If you had proof of real fraud, and I have no information from the Inspector General that suggests that we have that, then it would be totally unprecedented to do that. Any court that would look at that would throw it out. It would be an enormous waste of the taxpayers' dollars for me to do that.
    Sen. Thune asked the Commissioner whether he could summarize the Inspector General's findings. He responded that there is no report yet and he testified:
    Commissioner Astrue: I don't have much more than that. But certainly, my expectation ... Again, Senator, read that Wall Street Journal article very carefully. When you realize, first ofall, that there is not a legal obligation to present every bit of evidence to the Agency because our rules are not written that way, there is a factual error underlying that whole article. Past that, there is not very much very specific in terms of evidence: there is unsupported hearsay, that type ... It may be true. But in order for us to take action, we've got to have some proof and evidence. The Wall Street Joumal article did not provide very much for the Inspector General to go on.

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  • Romney And Marx Agree That The State Will Wither Away

         From the Center for Budget and Policy Priorities:
    Governor Mitt Romney’s proposals to cap total federal spending, boost defense spending, cut taxes, and balance the budget would require extraordinarily large cuts in other programs, both entitlements and discretionary programs, according to our revised analysis based on new information and updated projections.

    For the most part, Governor Romney has not outlined cuts in specific programs. But if policymakers exempted Social Security from the cuts, as Romney has suggested, and cut Medicare, Medicaid, and all other entitlement and discretionary programs by the same percentage — to meet Romney’s spending cap, defense spending target, and balanced budget requirement — then non-defense programs other than Social Security would have to be cut 29 percent in 2016 and 59 percent in 2022...

    The cuts that would be required under the Romney budget proposals in programs such as veterans’ disability compensation, Supplemental Security Income (SSI) for poor elderly and disabled individuals, SNAP (formerly food stamps), and child nutrition programs would move millions of households below the poverty line or drive them deeper into poverty. ...
          In practical terms for the Social Security Administration, there would not be enough money to pay SSI benefits by 2016 but, then, the agency wouldn't have enough money to administer SSI anyway. By 2022 there would not be enough operating funds to administer just Title II of the Social Security Act.

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  • May 22, 2012

    Saipan Wants In

         The Northern Marianas Islands (NMI) is (are?) a U.S. commonwealth, like Puerto Rico, with a population of around 50,000. Unlike Puerto Rico, employment in the NMI has not been covered by Title II of the Social Security Act. Now, the NMI government is trying to get its citizens covered by Title II of the Social Security Act and to do so retroactively for ten years. Social Security only wants to go back five years. Apparently, discussions have been taking place on this subject since 2006. The NMI's own Social Security system is going bankrupt. Anyway, read the article for yourself and try to figure it out. It confuses me. It's probably a headache for Social Security management as well. It sounds like things are coming to a head. I don't understand how the Social Security Administration could approve this without legislation but I do not pretend to understand the legal relationship between the NMI and the U.S.
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  • A New Idea That's Going Nowhere

         This idea is going nowhere but Ezekiel Emanuel authored an op ed piece in the New York Times yesterday advocating that full retirement age for Social Security be raised on some sort of sliding scale based upon "lifetime wealth" which he defines basically as lifetime earnings covered by the F.I.C.A. tax. Full retirement age stays where it is for lower income people but raises for higher income people.
         I see few Democrats interested in this since it is a back-handed way of means testing Social Security and means-testing Social Security would undermine its support. I see few Republicans interested in this since it discriminates against high income individuals. Republicans already have problems with the graduated income tax.
         By the way Ezekiel Emanuel does not seem to know that full retirement age is already set to rise to 67 under current law. And also by the way, yes, Rahm Emanuel is his older brother and the two frequently disagree.

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  • May 21, 2012

    In A Rare Moment Of Unanimity, Supreme Court Rules Against In Vitro Posthumous Kids

         From the New York Times: "Children conceived with a dead father’s frozen sperm are not entitled to Social Security benefits if they were not eligible to inherit property from him under state law, the Supreme Court ruled unanimously on Monday."
         Note that the children might have qualified had another state's law applied.

         Update: This case may not be over. From a footnote in the opinion:
    Because the Third Circuit held that posthumously conceived children qualify for survivors benefits as a matter of federal law, it did not definitively determine “where [Robert] Capato was domiciled at his death or . . . delve into the law of intestacy of that state.” 631 F. 3d, at 632, n. 6. These issues, if preserved, may be considered on remand.

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  • The National Council On Disability Needs To Meet More Disabled People

         I have written recently about the attitudes towards the Social Security disability programs that exist within what I'll call the ADA community, a group of people, many of them in wheelchairs, who are committed to the notion that literally anyone can and should work, regardless of the severity of their disability. They believe that the Americans with Disabilities Act (ADA) changed everything, despite the abundant evidence that it changed almost nothing. The ADA community seems to regard the existence of Social Security disability benefits recipients as a sign of a great failing, by society  They believe that all those recipients should be working and would be working if only something -- they don't know what -- were changed. The ADA community seems to think that every disability is much the same as being in a wheelchair, something that a well-motivated person who has a bit of help should overcome. If you think I'm exaggerating, take a look at these excerpts from an announcement by the National Council on Disability (NCD), an independent federal agency: 
    Notice of Funding Opportunity 
    NCD-02-12
    NCD seeks an individual or entity to undertake a project to analyze the various options for SSDI [Social Security Disability Insurance] and SSI [Supplemental Security Income] reform, including what measures could facilitate people currently receiving SSDI and SSI benefits in being able to work, what measures could decrease the likelihood of needing such benefits, and what financing options exist to extend the life of both programs. ...
    Suggested Framework for Research
    The National Council on Disability is interested in answering the following questions:
    1. What would a fundamental restructuring of the SSI and SSDI system require to align it with the goals of the Americans with Disabilities Act, i.e. eliminate the requirement that an SSDI applicant declare themselves unable to work in order to be eligible for benefits; provide job retention supports to working people with disabilities who are at risk of job loss as a result of their disability; assist people with disabilities who are at risk of job loss because they are not receiving reasonable accommodations.
    2. Given the extremely diverse populations served by the SSI and SSDI programs, how might different reform strategies disproportionately impact – either positively or negatively – particular segments of the disability community?
    3. Based on the most current evidence-based research, does the Medicaid buy-in opportunity impact work activity?  How should it be modified to promote work opportunities for people with disabilities?
    4. To what extent has the Ticket-to-Work initiative been evaluated?  What lessons can be drawn from the challenges the Ticket to Work program has faced in realizing its intended goals?  If sufficient information is available to make a determination, what reforms to the Ticket to Work program are recommended?
    5. Did the research reveal any changes to other federal programs that would have a positive impact on the health and effectiveness of the Social Security Programs and work opportunities for SSDI and SSI beneficiaries?
    6. Could an incentive mechanism be used to encourage employers to make more efforts to accommodate employees with disabilities and to avoid employees with disabilities going on to SSDI rolls, e.g. an experience rating system whereby employers, whose employees have a lower rate of SSDI retirements, pay lower SSDI payroll taxes?
    7. Could an incentive mechanism be developed to encourage states to supplement the SSI program with state funds?
    8. Could an incentive mechanism be used to encourage more employers to offer private disability insurance policies that would supplement the SSDI program?
    9. Are there other changes to the SSDI or SSI programs that would promote work activity, preserve benefits for those who need them, and secure the fiscal integrity of these programs?
         These proposals come despite the fact that the Congress has again and again fallen for the siren call of the ADA community and stuffed the Social Security disability programs with every imaginable incentive for recipients to return to work, so many incentives that keeping them all straight is a huge challenge. The only thing left is to stop with the incentives and try compulsion -- time limited benefits. That would be an enormous mistake but there is literally nothing left to try if you really believe that all those disability recipients should be put back to work. By this point, the ADA community is a positive menace not only to Social Security disability recipients but to the Social Security Administration and Congress. They are pulling policy making in a potentially calamitous direction.

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  • May 20, 2012

    CDI Unit Active In Utah

         This is from an piece, which mostly concerns allegations of workers compensation fraud, posted by a Utah television station:
    People who feign disabilities in Utah can get away with millions of dollars – money you pay into social security and money employers pay to cover accidents on the job. ...
     
    Workers compensation is a private insurer that began as a state agency. On the federal level, the Social Security Administration provides disability benefits. 

    It has a "Cooperative Disability Investigation Unit" - operating in Salt Lake for roughly a year – which tries to stop fraud before it starts.

    In a recent 3 month period, the local CDI unit, as it's called, says it confirmed 42 cases of fraud or "similar fault."

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  • May 19, 2012

    Lack Of Health Care Access A Big Problem For Disability Claimants

    Currently, the process for obtaining SSI [Supplemental Security Income] and SSDI [Social Security Disability Insurance] can be cumbersome and, too often, there are unnecessary delays. Allowing nurse practitioners, physician assistants, and licensed clinical social workers to provide diagnostic evidence of certain medical conditions would streamline the process for obtaining benefits, ensuring that eligible individuals gain access to these critical benefits in a timely manner.
    For individuals who are homeless, such expansion would have an especially meaningful impact. Currently, many people who are homeless and who are generally uninsured have great difficulty accessing assessment, treatment, and care from physicians and, for mental health problems, psychologists and psychiatrists. Programs and services dedicated to serving homeless people are increasingly overwhelmed by the tremendous need for treatment and services, and many programs cannot meet this rising demand.
         This will only get poor people so far. There's no way you can get around it. Decision-makers aren't going to give as much weight to CNAs, PAs and LCSWs as to MDs.
         I represent a fair number of homeless people. Lack of access to medical care is a huge problem for this population. So many of these people would get on disability benefits quickly if they just had medical insurance. I expect that a lot of people who work at Social Security would agree. Obamacare should do that before long if the Supreme Court doesn't get in the way.

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  • May 18, 2012

    More On Yesterday's Hearing

         I had some time today, while I did other things, to listen to yesterday's Senate Finance Committee hearing. Here are some things I heard that seemed noteworthy to me:
    • Commissioner Astrue said that the technology used for Social Security video hearings before Administrative Law Judges had gotten so good that one could see the watermark on a drivers license.[That is not close to my experience. Often I can hardly recognize the people on the other end.]
    • A quote from Commissioner Astrue responding to a question about the number of Social Security employees who are eligible or near eligible to retire: "I'm close to panic about holding onto our people."
    • Social Security has a system which reports episodes of violence or threatened violence affecting Social Security offices. There used to be about 500 reports a year. It's now around 2,500.
    • Ticket to Work is a "disappointment." The actuaries say it is not cost effective.
    • Astrue said emphatically at about one hour into the hearing that it is not the law that attorneys and others who represent Social Security disability claimants are required to submit all medical evidence.
    • The Commissioner is uncertain whether current law which gives Social Security Commissioners fixed terms which can overlap Presidential Administrations is a good idea. He seemed to indicate that he thinks it is a bad idea.
    • Astrue said that his continuing as Commissioner after the change in the White House was not what the incoming Obama Administration wanted.
    • He does not want another term as Commissioner. He wants to return to Massachusetts.
         Please listen to it yourself. It has its dull moments but also some interesting ones. It's certainly more interesting than most of these.

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  • Hearing Site Reopened

         Social Security is closing remote hearing sites all over the country but one is reopening. This one happens to be in Great Falls, Montana. Why would it be reopening? Max Baucus is the senior Senator from Montana. He's also chairman of the Senate Finance Committee which has jurisdiction over the Social Security Administration. The Committee just happened to have had an oversight hearing on Social Security yesterday. There might be some connection there.
         A spokesman for a Republican candidate running for the other Senate seat in Montana responded to this development by saying  "Let's not forget this was a government-created problem" and that the closing of the remote hearing site "reflects a bias against rural states" under the Obama administration.

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  • May 17, 2012

    Astrue's Statement To Senate Finance Committee -- The Future Doesn't Look Too Good For Service Delivery

         From Michael Astrue's written statement to the Senate Finance Committee today with some added bolding:
    ... [I]n FY [Fiscal Year] 2011 [which ended September 30, 2010], while we received unprecedented new workloads, Congress cut our budget more deeply than in any year of the previous two decades. Congress also rescinded a sizable portion of our IT [Information Technology] carryover funding, which is our best mechanism for improving productivity. With staff reductions caused by hiring freezes and attrition, our work force is contracting rapidly, field offices are consolidating, and we are struggling to maintain recent levels of service. When I leave office in 2013, the agency will have about the same number of employees that we had when I arrived in 2007, even though our workloads have increased dramatically. Since FY 2007, retirement and survivor claims have increased by 26 percent and disability claims have increased by over 31 percent. ...

    Let me be clear that our ALJs’ [Administrative Law Judges'] improved productivity has not resulted in more allowances. Our ALJs are not meeting our productivity goals by “paying down the backlog,” as has sometimes been alleged. In fact, our hearing level allowance rate dropped over 4 percentage points this past year. ...

    The sheer volume of work our employees handle is incredible. For instance, in FY 2011, more than 45 million people visited our field offices across the Nation. Despite the high volume of visitors, we reduced wait times in our field offices by more than 9 percent from FY 2010. [Notice that he's talking about last fiscal year. The numbers this fiscal year probably aren't as good]...

    Last year, callers to our 800 Number had the shortest wait time and lowest busy signal rates ever. We reduced the time spent waiting for an agent by 45 percent, from 326 seconds in FY 2008 to 180 seconds in FY 2011. [But again he's talking about last year. Things aren't going so well this year as we'll see below.] We cut our busy rate by over 70 percent since FY 2008. We attribute much of our improved performance to hiring additional teleservice representatives in FY 2009 and FY 2010, along with several technological advancements to make our 800-number more efficient. ...

    Regardless of our technology improvements, under current funding we project that our 800-number service will deteriorate significantly because we will not have a sufficient number of people to answer calls. We expect that busy signals will rise from 3 percent in FY 2011 to 6 percent in FY 2012. Our average speed of answer will increase from 180 seconds in FY 2011 to 285 seconds in FY 2012. 

    Overall service also will deteriorate in our field offices and processing centers because staffing losses do not happen evenly across the country. This year alone, nearly one-third of our field offices have experience more than 10 percent attrition, and 15 offices have lost over 30 percent of their staff.

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  • An Outlier

         Social Security Administrative Law Judge Drew Swank was mentioned here recently because of a law review article he wrote. He's now drawing attention for the decisions he issues on disability claims. From the Virginia Lawyers Weekly:
    [Swank] has one of the highest denial rates in the country. Swank rejects nearly eight of every 10 claims for disability benefits, according to a computer analysis of his rulings.
    Attorneys and claimants who’ve had cases before Swank say he is unfair....
    “All I’ve ever wanted is for him to do this right,” said Bruce Billman, a Richmond-area attorney who represents people seeking assistance under the Social Security Disability Insurance program.
    “If he wants to turn people down, at least do it on the proper evidence, using the proper witnesses, and give us a chance.”
    Billman is a former president of the National Organization of Social Security Claimants’ Representatives. He has filed several complaints with the Social Security Administration, accusing Swank of failing to provide due process. ...

    It’s not just statistics that have raised concerns among parties who’ve gone before Swank.
    Attorneys and claimants accuse Swank of disregarding or excluding the findings of their physicians and vocational experts. ...
    Billman, who has practiced disability law for more than 30 years, has filed more than 400 pages of complaints against Swank with the Social Security Administration’s chief administrative law judge in Falls Church. The documents describe what Billman sees as numerous instances of unfairness toward his clients.
    However, no action has been taken against Swank.
    “He is untouchable,” Billman said. “And every time you file a complaint and nothing gets done, it just reinforces that with him. There’s no system in place to protect you from somebody like this.”
    Billman said he complained about Swank in 2008. Until that point, the judge had denied about half of his cases, Billman said. Since the complaint, he said, Swank has denied about 90 percent of his cases. ...
    Over several weeks while researching this article, the reporters asked to interview Swank and emailed him questions. Swank said that he wants to defend his record but that he has not received permission from the Social Security Administration to talk to the media.
    “The policy originates with the chief judge’s office in Fairfax, VA,” Swank wrote in an email.
          Interestingly, Swank has an article forthcoming in another law journal whose title strongly suggests that he believes that Social Security has a lax approach to misconduct by those who represent Social Security claimants. People who live in glass houses ...

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  • May 16, 2012

    American Exceptionalism Must Prevail -- Don't Follow Foreign Practices, Especially Those Likely To Cause Chaos

         According to a report from The Telegraph, the British government has decided that it is paying disability benefits to too many people. The government's plan is to cut a half million Britons off disability benefits. This would be a quarter of those drawing the most important type of British disability benefits, the Disability Living Allowance. Reviews are already underway in the other type of British disability benefit, the Incapacity Benefit, and 60% of those recipients are being cut off benefits. 
         The government minister responsible for the changes in disability benefits says it is "scaremongering" to allege that the British government is "slashing" disability benefits.

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  • Let's Watch To See If Michael Astrue Goes On Peterson's Payroll Next Year

         From Huffington Post:
    Peter Peterson, a Wall Street billionaire who has been calling for cuts to Social Security and other government programs for years, is hosting a "fiscal summit" Tuesday that brings together Treasury Secretary Timothy Geithner, former President Bill Clinton, Rep. Paul Ryan, House Speaker John Boehner, Tom Brokaw and Politico's John Harris, among a host of other elites ...
    The bipartisan luminaries will be carrying on a discussion to a large extent framed by Peterson, who has spent lavishly to shape a national conversation focusing on the deficit rather than on jobs and economic growth. ...
    According to a review of tax documents from 2007 through 2011, Peterson has personally contributed at least $458 million to the Peter G. Peterson Foundation to cast Social Security, Medicare, Medicaid and government spending as in a state of crisis, in desperate need of dramatic cuts. Peterson's millions have done next to nothing to change public opinion: In survey after survey, Americans reject the idea of cutting Social Security and Medicare. ...
    But Peterson has been able to drive a major shift in elite consensus about government spending, with talk of "grand bargains" that would slash entitlements, cut corporate tax rates and end personal tax breaks, such as the mortgage deduction, that benefit the middle class.
    To put Peterson's spending in context, all corporations and unions combined spent less than $4 billion on lobbying in 2011. ...
    Peterson has been pushing his fiscal arguments by spreading that half-billion dollars widely across the Washington spectrum, putting both Democrats and Republicans on his payroll. ...
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  • May 15, 2012

    You've Got To Be Kidding Me!

          I have heard from an attorney who submitted a Freedom of Information Act request for the identity of the Administrative Law Judge scheduled to hold a hearing. This is the response that came back:
    I am responding to your request on behalf of your client, _____, for the name of the assigned Administrative Law Judge (ALJ) currently scheduled to conduct his hearing.  

     I am withholding the name of the ALJ assigned to hear this case under FOIA Exemption 2 (5 U.S.C. § 552(b)(2)). This exemption protects from disclosure records "related solely to the internal personnel rules and practices of an agency." The information you seek is the internal personnel assignment of an agency employee to a particular case. Therefore, you are not entitled to it under FOIA.

    I am also withholding the ALJ's name under FOIA Exemption 7(E) (5 U.S.C. § 552(b)(7)(E)). Exemption 7(E) exempts from mandatory disclosure records or information compiled for law enforcement purposes when production of such records "would disclose techniques and procedures for law enforcement investigations or prosecutions, or would disclose guidelines for law enforcement investigations or prosecutions if such disclosure could reasonably be expected to risk circumvention of the law." Information may fall within this exemption even if it was originally compiled for non-law enforcement purposes, if it is later related to crime prevention or security measures. Milner v. Department ofNavy, 131 S. Ct. 1259, 1272-73 (2011) (Alito, J., concurring).
          I salute Social Security for not just stalling on these requests but I have to say that this response falls into the "You've got to be kidding me" category. The Attorney General has warned agencies not to expect the Department of Justice to automatically defend Freedom of Information Act denials. I have a hard time believing that the Department of Justice will choose to defend this. And quoting an Alito concurrence that has nothing to do with the issue at hand! That's waving a red flag at Eric Holder's Department of Justice!
         I guess we will find out soon if the Department of Justice will choose to defend Social Security on its "secret judge" policy. I hear that there is at least one civil action pending on this issue and the government's answer is due this month.

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  • Remember That Picture Of Nixon And Elvis?

         From the Associated Press:

    Elvis returned to the list [of most popular baby names] at No. 904, after dropping off for a year. When Elvis dropped off the in 2010, it ended a run that had started in 1955.

    [Social Security Commissioner Michael] Astrue, a big Elvis fan, said he was all shook up when Elvis left the list.

    "Congress may not listen to me," Astrue said. "But God bless the American people for listening to me last year when I raised concerns about Elvis dropping off."

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  • ALJ Krafsur Resigns After DUI Arrest

         Gerald Krafsur was an Administrative Law Judge (ALJs) at Social Security's office in Kingsport, TN. He was arrested on May 2, 2012 for driving under the influence and speeding.  My understanding is that he has now resigned. I don't know what happened after the arrest but Krafsur had a history of approving almost all claims that he heard.
         What has happened when other ALJs got into this sort of trouble? Don't try to tell me this hasn't happened before. With almost 1,500 ALJs, it's no insult to say that drunk driving charges are going to happen from time to time.

    Update: The Wall Street Journal says that Krafsur is on paid administrative leave.

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  • May 14, 2012

    Most Popular Baby Names

         Social Security has released its annual list of the most popular names given babies. Here it is:

    Boys:
    1. Jacob
    2. Mason
    3. William
    4. Jayden
    5. Noah
    6. Michael
    7. Ethan
    8. Alexander
    9. Aiden
    10. Daniel
    Girls:
    1. Sophia
    2. Isabella
    3. Emma
    4. Olivia
    5. Ava
    6. Emily
    7. Abigail
    8. Madison
    9. Mia
    10. Chloe
          It's interesting how many of the names come from the Old Testament: Jacob, Noah, Michael, Ethan, Daniel, Abigail, and Chloe by my quick review. I don't think any of the names come from the New Testament. Is there some meaning in the relative unpopularity of Mary, Matthew, Mark, Luke, John, Peter, Paul, etc.?

         Update: Actually, Chloe is a New Testament name. 1 Corinthians 1:11.

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  • Does Michael Astrue Realize That Dick Cheney No Longer Controls Federal Information Policy?

         I have heard a report that since Social Security adopted a policy of keeping the identity of the Administrative Law Judge (ALJ) holding a hearing a secret until the day of the hearing that Social Security has received a large number of Freedom of Information Act (FOIA) requests for the identity of the ALJ holding a specific hearing. I have some familiarity with the FOIA and I have trouble imagining any basis that Social Security would have for withholding that information. However, Social Security will inevitably stall on these requests until after the hearings have been held, rendering the FOIA requests pointless. This appears to me to contradict Obama Administration policy.
         On his first full day in office, Barack Obama issued a memorandum to the heads of all federal departments and agencies, including Social Security, stating that "The Freedom of Information Act should be administered with a clear presumption: In the face of doubt, openness prevails. ...All agencies should adopt a presumption in favor of disclosure ... Disclosure should be timely...." This was a response to extraordinarily secretive Bush Administration policies, reportedly initiated by Dick Cheney. Under Obama's directive, the Attorney General was to issue further FOIA instructions. Those instructions state that "...[A]gencies should make it a priority to respond in a timely manner. Timely disclosure of information is an essential component of transparency. Long delays should not be viewed as an inevitable and insurmountable consequence of high demand."
          Is the "secret ALJ" policy in accordance with Obama Administration policy? Is intentional delay in responding to simple FOIA requests for the identity of the ALJ holding a hearing in accordance with Obama Administration policy?

         Update: By the way, you can make an FOIA request online. How would Social Security deal with thousands of such requests?

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  • It's Shocking

         Mark Miller at Reuters thinks it's a terrible thing that Social Security is no longer mailing out annual statements to working people. Miller is also shocked to hear that the agency has frozen hiring, reduced its workforce and is cutting field offices. He cannot believe that people are increasingly required to do business with Social Security over the internet.
         He's right. This shouldn't be happening. 
         The problem with Miller's piece is that its thrust seems to be that the service reductions are the result of choices by Social Security management. I don't get the feeling when reading his piece that he has any idea just how tight the budget squeeze is at Social Security, that Social Security management had a gun held to its head when it made these decisions. There's no way to fairly write about service at Social Security without talking about the insistence of Congressional Republicans on slashing federal non-defense discretionary spending. Miller doesn't talk about that subject even though he's been critical of Republican budget plans for Medicare. I know that "federal non-defense discretionary spending" sounds like an awfully boring topic but the consequences of decisions on "federal non-defense discretionary spending" for Social Security, for other government agencies and for the American public are important.

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  • May 13, 2012

    GAO Criticizes Social Security

         From a Government Accountability Office (GAO) report:
    The Social Security Administration (SSA) has undertaken numerous modernization efforts, but it lacks effective measurement tools to determine progress. Since 2001, SSA has reported spending about $5 billion on the modernization of its systems. Specifically, the agency has undertaken hundreds of modernization projects each year from 2001 to 2011, and officials identified 120 such initiatives that they considered to be key investments in modernization. ... While the Office of Management and Budget requires agencies to establish performance measures to gauge modernization progress, SSA has not fully established quantifiable performance measures for all its modernization projects or performed post-implementation reviews, which GAO has previously recommended and which would enable the agency to effectively measure its progress....
    SSA lacks updated and comprehensive plans to guide its modernization efforts. Strategic planning is essential for an organization to define what it seeks to accomplish, identify strategies to achieve the desired results, and measure progress. ...
          Let someone who is fairly removed from this issue give a few guesses as to why Social Security's systems modernization efforts may not meet GAO's criteria:
    • Much of it was funded by the economic stimulus adopted in the early days of the Obama Administration. A lot of money came to Social Security unexpectedly. There was a heavy emphasis on getting things going quickly. Social Security didn't have the luxury of spending a few years attending to the niceties that GAO likes. Besides, the niceties that GAO likes can lead to "paralysis by analysis."
    • Social Security has no idea from one year to the next how much money it will get for information technology or anything else. This makes effective long term planning impossible.
    • The whole world of information technology keeps changing at such a rapid pace that no one knows what to expect in the future. How do you plan for the future or even properly evaluate what you are current doing in this environment? There appears to be  a legitimate argument that much of the money being spent on Social Security's national computer center is a waste, that this sort of center is yesterday's technology, but  Social Security can't wait for a few years for its proper course to become crystal clear. It must go forward with what its best judgment is now. It has to do something even if that something turns out later not to have been the wisest thing it could have done.
    • The GAO always whines about something. That's their job. Sometimes their whining makes a worthwhile contribution to public administration. Sometimes it's just pointless whining.

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  • May 12, 2012

    Fee Payment Numbers

         Social Security has posted new numbers on payments of fees to attorneys and others who represent Social Security claimants. These fees are processed by Social Security but come out of the back benefits paid to the claimants.
         Since the claimants are paid at the same time as the attorneys, these numbers shows how quickly or slowly Social Security is able to make benefit payments after approving claims. Note the dramatic decline in April. My working theory is that there was a fair amount of overtime available in the first quarter of the year but no more. January is always badly affected despite the availability of overtime because of heavy seasonal demands.

    Fee Payments

    Month/Year Volume Amount
    Jan-12
    29,926
    89,749,312.99
    Feb-12
    43,946
    134,207,416.10
    Mar-12
    47,376
    139,571,577.57
    Apr-12
    38,239
    113,225,483.07

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  • May 11, 2012

    Senate Finance Committee Schedules Hearing

         The Senate Finance Committee has scheduled a hearing for May 17 on the topic "The Social Security Administration: Is it Meeting its Responsibilities to Save Taxpayer Dollars and Serve the Public?" The only scheduled witness is Social Security Commissioner Michael Astrue. This is before the full committee.

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  • A Quarter Of A Million Times A Year

         Social Security has sent over to the Office of Management and Budget a routine Paperwork Reduction Act request for approval of a new version of a form. The agency predicts that the form will be used 250,000 a year. The form in question is the SSA-1724. You know that one, right, the "Claim for Amounts Due in the Case of a Deceased Beneficiary", used when someone entitled to back Social Security benefits, almost always disability benefits, dies before they get paid. 
         And, of course, if you believe the "disability community", each and every one of those folks  who dies before getting paid could and should have been working until the very day they died if only they had had the right level of support and encouragement.
         Yes, I know that estimate of 250,000 is almost certainly over the top but the reality is that the form gets used plenty, probably tens of thousands of times a year.
         Several times a year someone who has recently gotten into the Social Security disability field asks me how to deal with the situation of a  Social Security disability claimant who dies before getting paid. They usually seem surprised that I can easily answer their question. Of course, I can easily answer the question. It's because it's a situation that comes up on a regular basis in my practice. If you have trouble believing that, you just don't know the reality of Social Security disability.

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  • May 10, 2012

    Fairies And Unicorns Are Real And Every Disabled Person Can Work

         The Social Security Advisory Board (SSAB) has met with  Christy Dunaway, an official of the Southeast Americans with Disabilities Act Center to talk about Social Security's disability programs, particularly work incentives. Here's a key quote from Dunaway:
    One fundamental core value and belief underlies our comments today: All people of working age with disabilities can work if they have access to appropriate education, training, and vital supports such as technology assistance, transportation, and personal assistance services.
         This is absolute rubbish. It comes from a woman who tells us that she is disabled. In Social Security terms, she is not a bit disabled since she has regular employment. Impaired yes, but disabled no. She has no business trying to speak for a group of people whom she does not represent and whom she does not begin to understand. All the things that Dunaway say make it possible for anyone to work regardless of their disabilities are irrelevant to the vast majority of Social Security disability recipients. None of that matters if you are suffering from severe pain or devastating mental illness or are older and have a severe, chronic degenerative diseases. Would she really repeat the statement she made to a real, live person dying of cancer?
         People like Dunaway are a positive menace to truly disabled people. They are the reason we have politicians who are confused and dismayed that Social Security disability recipients fail to return to work. Dunaway and her ilk are mostly interested in federal grants to allow them to serve a tiny sliver of the handicapped community, most of whom are in wheelchairs. We have to make policy based upon the reality of who is drawing Social Security disability benefits and that's someone other than Dunaway and those few people whom she thinks are representative of the disabled population of this country.

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  • May 9, 2012

    NHC ALJs To Travel

         I am hearing reports that National Hearing Center (NHC) Administrative Law Judges (ALJs) will now be forced to travel to remote locations when the claimant declines a video hearing. The obvious reason for this is that claimants are frequently declining to do a video hearing with an NHC ALJ because the identity of the ALJ is being kept a secret until the day of the hearing. The whole reason for the "secret ALJ" policy has been the NHCs. 
         There are several problems with having the NHC ALJs travel like this:
    • Social Security doesn't have the money for the travel expenses.
    • The traveling will make the NHC ALJs much less efficient.
    • None of the NHC ALJs signed on to any travel, much less extensive travel.
    • It has been my impression that at least a few of the NHC ALJs wanted to be at a NHC because they wanted to avoid being in the same room as the claimant and the claimant's attorney. For them, the lack of face to face contact wasn't a bug. It was a feature.
         Defeat the NHCs and you probably defeat the "secret ALJ" policy. I think the NHCs are in trouble.

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  • Washington State Congressman Fights Office Closure

         Congressman Jim McDermott is fighting an office closure in Seattle, Washington. 
         What sort of office closures do we get if Republicans control the White House, Senate and House of Representatives? Can field offices survive a Romney Presidency? Doing away with field offices could easily be the assignment of a Romney appointee as Commissioner of Social Security. Is it imaginable? Of course, getting rid of Supplemental Security Income would have to be the first step but where would you go from there? 
         If this seems inconceivable, you have not considered the consequences of the Ryan budget, to which Romney has pledged his support. It cuts domestic discretionary spending -- and that includes Social Security's administrative budget -- virtually in half.

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  • May 8, 2012

    DSM Coming In May 2013 -- What About Proposed New Psychiatric Listings?

         The 5th edition of the Diagnostic and Statistical Manual (DSM-5) is due out in May 2013. Many of my readers are now going "Huh? What's that?" The DSM is the Bible of psychiatry. It is an essential tool for the diagnosis of mental illness. Indeed, psychiatry was revolutionized by the advent of the DSM. Psychiatric illness is a major basis for awarding Social Security disability benefits. The DSM has had a huge impact upon disability determination at Social Security. While it is impossible to now predict what effect it will have, the DSM-5 is almost certain to be of considerable importance to Social Security. If you have an interest in disability determination at Social Security but are not involved in it on a day to day basis, just take it from someone who is, a new edition of the DSM is a big deal for Social Security.
         Social Security has been working on new Listings of impairments, that is regulations defining which disability claims based upon psychiatric conditions require quick approval, for more than four years. Social Security got a proposal approved by the Office of Management and Budget (OMB) in the waning days of the George W. Bush administration but never published it.  (No doubt, it would have been published if McCain had won.) After Barack Obama took office, the agency went back to the drawing board and got a new proposal approved by OMB to be published for notice and comment. This proposal was highly controversial. The comments are all in. At least in theory, Social Security could send final regulations over to OMB for approval at any time. Will Michael Astrue try to finalize proposed psychiatric listings while he is still Commissioner of Social Security -- before DSM-5 comes out? Astrue's term ends in January 2013. I was surprised that OMB approved publication of the proposal. Would OMB approve final regulations that contained the controversial elements of the proposal? Would Astrue want the proposed Listings without the controversial elements? Is it already getting too close to the election for controversial regulations? Would OMB approve anything important proposed by a lame duck Republican Commissioner of Social Security?

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  • May 7, 2012

    Union Agreement Signed

         The Social Security Administration and the American Federation of Government Employees (AFGE), the union that represents most of its employees, have finally signed a new agreement. This is now subject to ratification by union members.

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  • The Attack Pieces Continue

         Here's a Reuters piece attacking the Social Security disability programs as being in part disguised unemployment.  Here are a few excerpts, with some comments by me in brackets and bolded:
    • ... Chris Low, chief economist at FTN Financial, said over time, disability will rob roughly $250 billion - or 1.6 percent - from total output each year once the economy returns to full employment, probably within the next five to seven years. This will also widen the budget deficit.
    • Duggan and other economists say the major change in the growth rate stems from a series of reforms in the mid-1980s, which changed the focus of screening from medical criteria to working ability. [The golden age that Duggan longs for was actually a brief, bizarre period of extreme harshness that was extraordinarily unpopular and quickly abandoned.]
    • "They are not encouraged to go back to work. [Actually, there are encouragement galore to return to work. You just don't know what you're talking about] I have gone to multiple meetings on a program called 'Ticket to Work' and there were only five people who showed up," she said. [The article is so poorly written that I cannot figure out who "she" is. The bigger problem, though, is "she" doesn't consider the possibility that the reason why so few people show up for Ticket to Work is that there are so few people drawing Social Security disability with a potential to return to work.]
    • If people do return to work, they could lose benefits such as health insurance, which further discourages some from looking, said Richard Johnson, Director of the Program on Retirement Policy at The Urban Institute in Washington.[No, actually, they are allowed to continue to receive Medicare for a very long time after going back to work. Why is Johnson giving interviews about something he doesn't understand?]
    • "If you provide incentives to people to go back to work, they do that," Barry Lundquist, President of The Council for Disability Awareness, a non-profit organization which advises disabled workers.[Lundquist advises disabled workers but doesn't know about the abundant work incentives that already exist? Maybe, they don't go back to work despite the incentives because the definition of disability used by Social Security assures that they're just too sick.]
         The drumbeat of articles along this long don't happen by accident. They are promoted by some entity or entities. The same ill-informed people keep getting quoted again and again. At least, they seem very concerned that work incentives be added to the Social Security disability programs. Adding another work incentive to the long list of work incentives that already exist would mostly be harmless.

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  • May 6, 2012

    Another Disability Benefits Attack Piece

         Bloomberg News is out with a piece attacking Social Security disability. It's a rehash of very argument you've ever heard that it's easy to get Social Security disability benefits, that it's a disguised unemployment program and that almost no one receiving disability benefits ever returns to work. The suggested solution is to make it more attractive for those receiving disability benefits to return to work. 
         How do you write something like this without it occurring to you that the baby boom generation might have something to do with the surge in disability claims and without finding out that there are already endless work incentives in the Social Security disability programs? Neither point is mentioned.

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  • Disability Claim Estimated To Be Worth $260,000

         I noticed in a footnote to what was otherwise a boring report by Social Security's Office of Inspector General that Social Security's "actuary estimated the present discounted value of expected benefits for an average disabled worker award in 2011 was about $130,000 from the Disability Insurance Trust Fund and $130,000 from the Medicare Trust Fund."  In 2008, the National Academy of Social Insurance had estimated the value of an approved disability claim at $414,000 and they were only looking at the value of the cash benefits.

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  • May 5, 2012

    Social Security Bulletin

         Social Security has released the May 2012 issue of the Social Security Bulletin, the agency's scholarly publication.

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  • May 4, 2012

    ALJs Forbidden To Search Online For Info About Claimants

         From the Washington Times:
    The Social Security Administration last month told its disability-claims judges they are no longer to seek out information from websites when deciding cases — taking away a tool some of those judges say would help in uncovering fraud. ...
    Social Security’s ban covers all Internet sites, including social media such as Facebook.


    But Sen. Tom Coburn, Oklahoma Republican and a top taxpayer watchdog, said avoiding the Internet means giving up a valuable anti-fraud weapon — one that he said even federal courts have relied upon in some disability cases.


    “If an individual claims to be disabled, and then publicly posts a picture participating in a sport or physical activity on a social media website, such information should be used by [adjudicators] to determine if the claimant was truly disabled,” Mr. Coburn wrote in a letter last week to Social Security Commissioner Michael J. Astrue.
          The problem with Administrative Law Judges (ALJs) searching social media sites for information on a claimant is what lawyers call ex parte evidence, that is evidence that the ALJ receives without the claimant's knowledge. Deciding a case on ex parte evidence is a serious matter. It goes beyond simply making a mistake. It's a denial of due process. Of course, it would be possible to see something online, send the claimant and his or her attorney a copy of what you saw and allow them to respond, which makes it acceptable but it's way to easy to forget to give the claimant a chance to respond.  The problem with banning this is that it may just drive it underground.

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  • May 3, 2012

    From The NOSSCR Conference -- III

         And finally, Eric Schnaufer advises me that the National Organization of Social Security Claimants Representatives gave its Eileen P. Sweeney Distinguished Service Award to James Williams and Stella L. Smetanka. Congratulations to both.

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  • From The NOSSCR Conference -- II

         Here are some more of Eric Schnaufer's notes, lightly edited by me, on the general session at the National Organization of Social Security Claimants Representatives (NOSSCR) conference:
    NOSSCR Executive Director Nancy Shor discussed the increase in disability applications. They were to due to (1) increased coverage by, e.g., school teachers, (2) more women with insured status, (3) increased retirement age, (4) Baby Boomers, (5) weak economy, (6) decline in health insurance coverage, and (7) LTD [Long Term Disability] and state plans that require applying for disability benefits.
    She presented the data SSA Chief Actuary Steve Goss presented to the National Academy of Social Insurance on "Why Are More People Claiming Disability Insurance and What Should Be Done About It?"
    She and others from NOSSCR met with Commissioner Astrue recently regarding the new policy of withholding the identity of an ALJ [Administrative Law Judge]  until the day of a hearing. Ms. Shor reported that the Commissioner would not change the policy. He considered the policy important. Ms. Shor communicated to the Commissioner objections to the policy nonetheless. Among other things, the Commissioner stated that if representatives forum shopped to avoid low-allowance-rate ALJs, then unrepresented claimants might disproportionately have their claims adjudicated by such ALJs. Ms. Shor communicated that the Agency should punish a representative who did something improper instead of relying on the name-removal policy. Ms. Shor stated that NOSSCR was addressing name-removal policy on Capital Hill. Ms. Shor mentioned that attorney David Camp was seeking to obtain the name of an ALJ revealed via the Freedom of Information Act.

    Apart from the meeting with the Commissioner, Ms. Shor stated that NOSSCR is implementing a campaign to inform the public about the disability programs. The membership will receive an opt-in/opt-out choice with respect to receiving information about the campaign.

    Ms. Shor explained that the media had turned “180 degrees” in three years, from seeking evidence about individual claimants adversely affected by the hearing backlog to investigating purported waste and fraud.

    Ms. Shor stated that, by report, new ALJs were being trained that their role is “policy compliance” and that might account for the allowance rates of some new ALJs.

    Ms. Shor explained that the worst case scenario for the disability trust fund is payment of eighty-six percent of benefits.

    NOSSCR Staff Attorney Barbara Silverstone addressed new electronic filing requirements. She stated that even if a representative did not file electronically a reconsideration or rehearing request, that a fee would still be withheld. She explained that if the screen shows “System Limitations” upon attempted filing of a reconsideration or hearing request, that means that a paper request must be filed. The representative did nothing wrong. For example, if the prior determination on was partially favorable, a paper reconsideration or hearing request must be filed. For example, for determinations made prior to 2010 for which SSR [Social Security Ruling] 91-5p issues are relevant, a paper reconsideration or hearing request must be filed.

    Ms. Silverstone noted that a representative may not click the button to submit an application online. The claimant must click the button. It is a violation of the standards of conduct to click the button for the claimant.

    SSA OGC [Office of General Counsel] will investigate “egregious trends” by a representative not to file electronically. If a representative does not file electronically once or twice, that is not a problem. It is a violation of the standards of conduct not to file electronically when required to do so.

    Ms. Silverstone noted several best practices suggested by SSA.
    • When faxing documents, include a cover page with the claimant’s name and SSN [Social Security Number] and the number of pages of the document. Each page of the document should have the claimant’s SSN and the page number and page range, e.g., “page 2 of 4 
    • Do not submit both electronic and duplicate paper documents
    • The SSA-3441 [an appeal form] should be filed with the appeal document. SSA [Social Security Administration] wants a representative to explain the appeal in the SSA-3441. The 250-character limit in the appeal document itself is thus not a problem.
    NOSSCR Government Affairs Director Ethel Zelenske summarized information that will appear in the April 2012 NOSSCR Forum.
    • Appeals Council Ombudsperson T. Jensen’s “new” fax number is (703) 605-8691. 
    • Status inquires at the Appeals Council should not be made to the Branch handling the request for review, but to the Congressional and Public Affairs. (877) 670-2722. That entity will hire more staff. The Branch personnel are being reassigned to other duties. 
    • Do not use hearing-level bar codes at the Appeals Council.  Bar codes will automatically be sent with any request for an extension of time that is made with the request for review itself. The Appeals Council will automatically grant an extension of time made with the request for review. 
    • The recording of the hearing will be available via ERE [Electronic Records Express] at the close of 2012. 
    • There is an e-mail contact for court remands more than six months old. (See April 2012 Forum.)
    • Status reports are not available at the Appeals Council, but they might be in the future.

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  • From The NOSSCR Conference -- I

         The National Organization of Social Security Claimant's Representatives (NOSSCR) is having a conference in Philadelphia this week. Unfortunately, I am unable to attend. Eric Schnaufer was kind enough to take notes on the general session this morning. We'll start out with his notes, which I have edited slightly, on the presentation of Professor Harold Krent, the Dean of the Law School at the Illinois Institute of Technology Chicago-Kent School of Law:
    Prof. Harold Krent spoke about his investigation for the ACUS [Administrative Conference of the United States], but not on behalf of the ACUS. The ACUS has not deliberated. The goal was for ACUS deliberations before the end of the calendar year. But that may not be possible. Krent stated that would have a draft in the late summer. His report will be sent to the ACUS and SSA. Then the ACUS will deliberate.

    His investigation focuses on understanding inconsistencies in ALJ [Administrative Law Judge] adjudication, the character of ALJ hearings, and judicial review. He will not address State-agency adjudication or the Medical-Vocational Guidelines.

    Prof. Krent will investigate whether various factors impact ALJ allowance rates: the pool of claims from the State agencies, the underlying health and poverty of the region, a “small town” bias, the elimination of reconsideration, etc. The statistical analysis is “very difficult.” The differential allowance rates on their face do not tell the “whole story.”

    Prof. Krent stated that the Agency has not studied the differential allowance rates for VTC [Video Tele-Conference] and in-person hearings, if any. The significance of VTC hearings for the correctness of adjudication is unknown. Prof. Krent stated that there was no procedural due process right to in-person hearing. Prof. Krent believed that VTC was the “wave of the future.” (Prof. Krent was sympathetic to the Agency’s name removal policy. The Agency was “adamant” about this policy. It prevents “forum shopping.”)

    Prof. Krent stated that the Agency has no data on whether allowance rates are associated with particular MEs [Medical Experts] and VEs [Vocational Experts]. The Agency does not track outcomes by the name of the ME or VE.

    The Agency does not know how long hearings last or the correlation between the length of the hearing and the result. The CALJ [Chief Administrative Law Judge] should investigate the consistency of the length of hearings.

    Prof. Krent stated that the recent public discussions had reduced the allowance rates.  Thus the publication of allowance rates were “not such a bad thing.”  The CALJ should address low and high allowance rate ALJs.

    Prof. Krent does not know whether the newer ALJs with Agency experience adjudicate claims differently than longstanding ALJs with more “trial” experience.

    Prof. Krent suggested that the Agency provide ALJs with generalizations about adjudicative outcomes given claimant characteristics.

    In federal court, the fifty-percent relief rate was consistent over many years. Federal courts grant relief for new evidence in only five percent of cases. The top two reasons for granting relief in court are the treating-source rule and inadequate consideration of mental limitations in terms of functional capacity. There is significant variation from district court to district court in terms of relief.

    The Appeals Council is looking at 2,000 cases per year post-effectuation. There were more errors in favorable than unfavorable decisions.

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