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Feb 28, 2013

More Info On Sequestration From AFGE

     A message to members of the American Federation of Government Employees (AFGE) working for Social Security:
AFGE NATIONAL COUNCIL OF SSA FIELD OPERATIONS LOCALS, AFL–CIO 

SSA Budget Cuts Furlough Update 

Yesterday, Acting SSA Commissioner, Carolyn Colvin met with SSA’s [Social Security Administration's] AFGE General Committee Officers to brief the Union on sequestration.  [After one initial meeting, former Commissioner Astrue had refused to meet with AFGE leaders. This meeting is one sign that things have changed at least a little since Astrue left.]
AC [Acting Commissioner] Colvin informed AFGE that under the current budget continuing resolution (CR), she believes SSA will not have to furlough employees if sequestration is implemented. However, she is clear that if the budget changes, furlough may have to be revisited. 
There are two current situations that may change SSA’s current budget: 
  1. The CR expires at the end of March. Congress is working on a new CR for the remainder of the year. Some Members of Congress want to see cuts to the CR in place of sequestration, as stated in the Budget Control Act of 2012. 
  2. Legislation to override sequestration. Current discussions in the House and Senate may lead to fewer cuts in the Department of Defense cuts and shift to additional discretionary spending cuts. SSA’s budget is included in the discretionary spending. 
AC Colvin also informed AFGE that to avoid furloughs, there will be cuts to SSA’s budget in other areas. Some of those areas are expected to include a freeze on all overtime, hiring and travel; and release of all temporary hires and reemployed annuitants. As employees leave the agency for retirement or other reasons, their positions will not be replaced. 
All of this will lead to fewer employees to do the work. Backlogs will grow; waiting times will rise; reception areas will become and/or remain full; calendars will back up; more calls will be in cue; and busy rates will increase. AFGE is very concerned that the adverse impact on public service will result in more complaints and hostility from the public. 
AFGE will be providing you with information during this difficult, confusing period of budget discussions. 
If SSA dodges the bullet of furloughs, many of our fellow Federal employees who work in our communities and cities, may not. AFGE will be planning a number of events in the next month to address the impact of budget cuts for all federal agencies, including SSA.

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  • Acting Commissioner Hopes To Avoid Furloughs

    A Message To All SSA Employees

    Subject: Budget Update

         I want to share with you the latest information we have regarding our operating budget. I know sequestration is on all of our minds.
         Clearly, this is a challenging time for us all. I want you to know that, here at SSA, we will work to minimize the risk of furloughs that would further harm services and program integrity efforts in the event of a sequester. This includes making some very difficult decisions and taking necessary steps to mitigate our budget risks this fiscal year—including steps such as restricting hiring, limiting overtime availability, delaying purchases, and limiting agency travel. We will also be restricting our spending to mission critical activities. By taking these actions, we are hopeful the funds available to us will allow us to operate without furloughs.
         On March 1, we will continue to serve the American public. I recognize and appreciate all you do to keep service to the American public our number one priority. Thank you for your continued commitment. I will keep you informed of developments.

    Carolyn W. Colvin
    Acting Commissioner

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  • SSAB Forum

         The Social Security Advisory Board (SSAB) has scheduled a "Forum" for March 8 on "Social Security Disability: Time For Reform." There is some diversity of viewpoint among those scheduled to speak but there's a definite tilt to the program. Here are some of the points of view represented with the names of the speakers representing these points of view in parentheses:
    • Something must be done because a lot more people are drawing Social Security disability benefits now. This is because it's less difficult to get on these disability benefits than when Ronald Reagan was President. (Duggan, Daly, Autor)
    • Too many people draw Social Security disability benefits because the benefits are too generous.(Duggan, Autor)
    • The Americans with Disabilities Act (ADA) makes it easier for disabled people to work and that should make it less difficult for people to get off Social Security disability benefits. (Claypool, Imparato, Blanck)
    • Social Security is the reason why more disabled people aren't working. (Maestas, Smith, McDonald, Autor, Stapleton)
    • If Social Security gave disabled people more encouragement and assistment, they'd go back to work. (Smith, Davey, McDonald, Mazerski, Autor, Stapleton, Smalligan)
         I'm sure that I'm oversimplifying the views of these people. I'm also sure that each of them in their own way wants to help disabled people. (I will say that David Autor is really full of it and has no business speaking publicly about these issues. He simply doesn't know what he's talking about.) 
         I think it's appropriate to give a shorthand response to each of these expressed views, the sort of responses that are unlikely to be expressed at the SSAB "Forum."
    • It certainly is less difficult for people to get on Social Security disability benefits than when Ronald Reagan was President. However, you have to understand that Social Security disability during the Reagan Administration was an aberration. It was less difficult to get on those benefits before the Reagan Administration and it quickly became less difficult to obtain those benefits as the Reagan Administration wore on and the return to prior practices was even more pronounced after Reagan left office. This was because the changes made during the early part of the Reagan Administration evoked a vigorous political response. The Reagan changes were quickly rolled back. Even though there have been plenty of changes since Reagan left office, it has remained less difficult to get the benefits. Anyone who advocates a return to Reagan era policies is naive. Those policies would evoke the same reaction in 2013 as they did in 1983. The Reagan days were as far from a golden age for Social Security disability policy as you can get.
    • Disability benefits too high? Really? Generally, Social Security disability benefits are less than half what recipients were earning. They're far less in most cases than disability benefits under employer based long term disability plans. 
    • The ADA makes it easier for disabled people to work? The evidence is that the ADA had little effect on the number of disabled people who are employed. In fact, some scholars have argued that the ADA reduced the employment of the disabled!
    • I don't see how one can argue that the availability of Social Security disability benefits discourages people from working when we have clear evidence that only 27% of those who apply for and are denied Social Security disability benefits are working four years later. Being denied benefits isn't enough to get these people back to work even though those who are denied are, on the whole, less disabled than those drawing disability benefits. The evidence is unambiguous that very few of those drawing Social Security disability benefits will return to work even if they are removed from benefits.
    • The illusion that with a little more encouragement disabled people will fly off the disability rolls and back to work has been persistent for decades. This illusion has led to the following work incentives: Trial Work Period, Extended Period of Eligibility, Expedited Reinstatement, Ticket to Work and the Vocational Rehabilitation exception, just to mention the Title II provisions. There's another complicated mess of Title XVI work incentives. None of this is working to any significant extent. If none of this works, why would anyone expect a new work incentive to work? I can think of one good reason why some of the speakers would promote work incentives. Some of them work for Ticket to Work contractors. Not only do they want to keep the contracts their employers have, even though they're a waste of money; they want to get more contracts. Ticket to Work is an unjustifiable waste of money. Any attempt to go further down the rehabilitation road will just waste more money.

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  • Feb 27, 2013

    Why Did Astrue Agree To Have OMB Clear His Remarks?

         Sean Reilly at the Federal Times takes note of former Commissioner Astrue's remark that he wouldn't "miss having everything I say being cleared by a 28-year-old at OMB" [Office of Management and Budget, part of the White House]. Reilly asked OMB for comment. OMB didn't deny what Astrue said.
         Why did Astrue consent to this? The statute says that Social Security Commissioners are independent. There was no direct way of forcing Astrue to clear his remarks. If anything, this is inconsistent with Social Security being an independent agency. My guess is that during the transition after the 2008 election Astrue made the commitment to not speak without OMB clearance. Is OMB so powerful that the job of Commissioner would have been untenable in the face of OMB hostility? Was there a threat to reorganize Astrue out of a job if he didn't agree to be a team member? How much independence did Astrue have in other ways? He had to clear new regulations through OMB, of course, but what about Rulings? What about major contracts? Maybe we'll get answers to these questions some day.
         And one more question, does Social Security as an independent agency really make sense?

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  • Feb 26, 2013

    Have People Stopped Reading News Articles Containing The Word "Sequestration"?

         From the Baltimore Sun:
    Checks will arrive on time, but nearly every other task the Social Security Administration performs — from answering phones to determining eligibility for claims — will be delayed if Congress fails to stop steep federal budget cuts from taking effect this week, officials warned Monday. 
    The Woodlawn-based agency is bracing for a cut of roughly 8 percent to its $11.5 billion budget if Congress does not avert the government-wide reductions known as sequestration. Officials say the cuts would leave people who call the agency's hotline on hold for 10 minutes and delay some disability decisions by a month. 
    "We're already getting a lot of reports of increasing anger from the public" since hours at the agency's call centers were shortened to save money, said Witold Skwierczynski, president of the Social Security Council of the American Federation of Government Employees. "People are upset."

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  • Feb 25, 2013

    My Assessment Of Astrue's Term As Commissioner

         Readers have given their assessments of Michael Astrue's term as Social Security Commissioner. I'll give mine.
         I don't think that Astrue should be given credit or blame for anything that was going to happen regardless of who was Commissioner. For instance, there was going to be a significant improvement in online services and an increase in their use over the last six years regardless of who was Commissioner. Service was bound to improve at Social Security between 2006 and 2010 because Democrats controlled Congress and gave the agency more adequate funding. Service was bound to deteriorate between 2011 and the present because Tea-Party influenced Republicans control the House of Representatives and the agency's funding has once again become seriously inadequate. Astrue had some influence over exactly how online services have been implemented, over how the agency lobbied for appropriations and over exactly how Social Security coped first with an improved budget situation and then with a constricted budget situation but he did not create these dynamics.
         The thing that initially struck me and which still strikes me about Astrue is the contrast with his predecessor, Jo Anne Barnhart. She seemed indifferent to service delivery problems at Social Security except to the extent that they were a public relations problem. She managed the service delivery problem as a public relations problem. She loudly decried the service delivery problems and promised that she had a plan that would solve the problems. Her "plan" was even emptier than Richard Nixon's plan to end the war in Viet Nam but she managed to use her "plan" to evade responsibility for terrible service throughout her term as Commissioner. Her "plan" had the effect of convincing Congress that Social Security's service delivery problems could be solved through management initiatives, an illusion which badly undercut agency lobbying for an adequate administrative budget. Astrue inherited this mess. To his credit, he made a major effort to do something about the service delivery problems. He told Congress from the beginning that there was a direct relationship between Social Security's appropriations and the service it could deliver. He lobbied hard for the money needed to run the agency. He avoided vanity projects like Barnhart's "plan" apart from the harmless "compassionate allowances." It was not a given that a Republican Commissioner would set to work on Social Security's service delivery problems with a purpose. Jo Anne Barnhart never did. At his confirmation hearing, Astrue said that he believed that "brute force" in the form of additional manpower would be required to deal with the backlogs he had inherited. Jo Anne Barnhart would not have said anything like that. I also don't think that Barnhart would have used the term "callous Kumbaya attitude" or anything like it, to describe the completely unjustified state furloughs of disability determination employees. Astrue was genuinely frustrated with this fecklessness and it showed. I believe that Astrue worked diligently throughout his term to improve service at Social Security or in the last two years to slow down erosion in service. I commend him for this.
         On the other hand, I have been struck by how much Astrue conformed to Republican norms in ways that I cannot laud. Fortunately, he was blocked in most cases. Here are some examples:
    • Astrue attempted to develop a new occupational information system to replace the Dictionary of Occupational Titles (DOT) in a way that would be thoroughly controlled by Social Security management. An occupational information system should be, to the extent possible, a neutral document based upon the facts on the ground, not something controlled by the agency. Realistically, that's the only way a new occupational information system could survive judicial review. Astrue's effort ultimately failed but it caused an unnecessary delay of several years in the creation of a new occupational information system. We're adjudicating disability claims based upon an occupational information system that everyone concedes is ridiculously out of date. This sad state of affairs will continue for some time to come because of decisions made by Michael Astrue. In my opinion, this is Astrue's biggest failure.
    • Social Security's practices in evaluating disability claims based upon mental illness became harsher during the time that Astrue was Commissioner. I've been around long enough to say that Social Security's treatment of disability claims filed by those who suffer from mental illness is the harshest it's been since the early 1980s. What was going on then was a disgrace. When a significant number of schizophrenics are being denied at the initial and reconsideration levels, something is seriously wrong. That happened in the early 1980s. It's happening now.  I do not buy the argument that this is the result of decisions made below Astrue's level. Astrue tried twice to adopt new mental impairment Listings. We don't know what his first attempt looked like but judging by what he tried later,  it's only reasonable to guess that his first effort would have been terrible. He withdrew the first proposal after Obama was elected President. His second attempt at new mental impairment Listings included language that would have significantly reduced the number of disability claims approved based upon mental illness.
    • Astrue was hostile to the employee unions for the most part. (Apparently, he had good relations with the National Treasury Employees Union but it has only a small presence at Social Security.) I carry no brief for the unions. I have not forgotten that the AFGE bears much responsibility for the Hearing Process Improvement (HPI) debacle at the end of the Clinton Administration and the beginning of the Bush Administration. HPI led to the horrible hearing backlog that persists at Social Security. I am also aware that AFGE management uses harsh, unjustified rhetoric in talking about Social Security management. If you read AFGE publications you would think that the Haymarket Riot had just happened and that Joe Hill was still alive. AFGE has been provocative but the blame for this doesn't all fall on the union.
    • After the 2010 election, Astrue implemented new policies preventing claimants from filing a new claim while an old claim is pending at the Appeals Council and keeping the identity of an Administrative Law Judge secret until the day of the hearing. One can give justifications for both but I think that both decisions were unjustified. I don't think a Democratic Commissioner would have done either. For that matter, I don't think Astrue would have done either before the Republican victory in 2010. The secret ALJ policy is ending because it cannot withstand judicial review.
    • Astrue proposed regulations that would have limited remands of disability cases to closed periods only. This would have been terribly harsh, unworkable and almost certainly would have been found to be illegal. Because of external pressure, Astrue was forced to back off this idea.
         Astrue made important information technology decisions but I cannot evaluate them. Some of these decisions sparked mild controversy, although nothing that the wider public was aware of. The vastly expensive new National Computer Center was a major decision that sparked little or no controversy but I have to wonder about it. Businesses and other government agencies are closing large computer centers but Social Security is spending huge sums of money to build one? Wasn't there a less expensive option? I am sure Astrue's information technology decisions will have a lasting influence on the agency but I don't know how these decisions will be viewed in a few years.
         On the whole we could have done far worse than Astrue. His predecessor is proof of that. However, I'm looking forward to his successor.

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  • Feb 24, 2013

    Large Wrench In His Backpack And Cuts On His Hands

         From KGW:
    Officers arrested a man who they said was smashing out the windows of the Social Security Administration office in Downtown Portland [OR] Friday evening.
    At 7:30 p.m., police arrested 49-year-old Andrew Sauter after reports that he was breaking windows with a crowbar near Southwest 16th Avenue and Southwest Yamhill Street, said Sgt. Pete Simpson with Portland police.
    In all, five windows of the Social Security office were broken. Sauter had a large wrench in his backpack and cuts on his hand, Simpson said.

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  • Feb 23, 2013

    Practicing Law Would By A Lot Easier If It Weren't For The Clients

         I thought I would share a note I made recently in the file of one of my clients "Client no longer seeing psychologist because she's so upset about her [close relative's] recent death!"

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  • Feb 22, 2013

    Only Eight Days To Obtain ALJ Name With FOIA Request

         I have a report that an attorney who made a Freedom of Information Act (FOIA) request on February 13 for the name of the Administrative Law Judge (ALJ) scheduled to hold a hearing received a response on February 21 that named the ALJ. Can we just stop this farce now? It's ridiculously easy to make these FOIA requests. An attorney doesn't have to request this information on just one client at a time. One request can cover all of an attorney's scheduled cases. 
         If Social Security had given any serious consideration to the FOIA it never would have gone forward with this really dumb idea. And, by the way, the idea that Social Security apparently has for another way to protect the National Hearing Centers is even dumber. Requiring the claimant, just after requesting a hearing, to decide whether to demand an in person hearing won't work because virtually every represented claimant will decline a video hearing. There is only one reason that claimants accept video hearings now -- to avoid delay. If a claimant declines a video hearing after one is scheduled, he or she is looking at a several month delay before a new hearing is scheduled. If the decision to decline a video hearing is made up front, there's no delay! Does Social Security believe its own hype? Does it really think that those involved believe that video hearings are just as good as in-person hearings?
         Update: One person posting here is saying that hearing offices are now authorized to release the name of an ALJ scheduled to hold a hearing. I have heard the same thing from another source today but have not personally verified it. It would be easier for everyone if Social Security would announce what they are doing. If some written directive has been issued to hearing offices, I'd love to see a copy.

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  • NPR Interview With Astrue

         Forner Social Security Commissioner Michael Astrue gave an interview to Michel Martin, an NPR reporter, that was aired yesterday. Here are a couple of excerpts (emphasis added):
    MARTIN: You've only recently stepped down from the Social Security Administration. Is there anything that you miss? Or is there anything you particularly don't miss now that you've left?
    ASTRUE: Well, I think what I miss the most are the people of the agency. Unlike other government agencies, almost everybody at Social Security is a lifer. And they're very talented, they're very dedicated. And so when you leave you know that you're not going to have, you know, that experience again. And that's sad.
    MARTIN: Anything you particularly don't miss?
    ASTRUE: Sure. I mean, I don't miss having everything I say being cleared by a 28-year-old at OMB [Office of Management and Budget, part of the White House]. And I'm not critical of OMB for that. Don't get me wrong. I mean, I think the president needs to have some consistency of message. But it does get very frustrating. And particularly when you're trying to say something important and it's neutered down to a platitude. I always found it difficult to go out and just voice the platitudes.
    So, you know, getting my First Amendment rights back and being able to say what I think, you know, you don't miss that until you've given it up. And I guess, you know, when you've given it up you appreciate it more when you get it back. So. ...
    MARTIN: Secret is not quite right, right? I mean, because you're a published poet, but you kept your worlds very separate.
    ASTRUE: I kept my worlds very separate and I think when I first started thinking about trying to publish poetry I realized that the business and government worlds that I was functioning in, in a fairly high level, didn't really respect people that engaged in the arts. And likewise, in artistic communities, people that have substantial jobs outside those artistic communities tend to be looked at with suspicion.
    And so I explained it to one of my friends, the great local poet XJ Kennedy, is I didn't want to be a novelty act. You know, I wanted to sort of stand, particularly in the literary world, on my own merits. And I was pretty comfortable keeping it separate and was rather annoyed in 2010 when I was first outed in the trade press for Social Security.
    And then later there was a very flattering article in First Things that went into a lot more detail, which made me feel a little better about it because the article was so nice. But I think down deep I still wish that I'd been able to keep my life separate ...
         There was no way the White House could force Astrue to submit to OMB editing of his remarks. The White House couldn't fire him. I wonder what carrot and/or stick persuaded Astrue to consent to this.

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  • Feb 21, 2013

    What Happens With Sequestration?

         Sequestration, the odd term for automatic budget cuts, seems almost certain to take effect on March 1 unless there is a last minute "Come to Jesus" moment. Thank goodness the furloughs don't start instantly. From Government Executive:
    Federal employees will not feel the immediate impact of sequestration, should automatic budget cuts set to go into effect March 1 take place, an Obama administration official said Thursday.
    Office of Management and Budget Controller Danny Werfel told the Senate Appropriations Committee that union negotiations would start on March 1, if sequestration hasn’t been averted, and most federal employees would not receive furlough notices until mid-March.
    “Will the furloughs take place on March 1st?” Werfel asked himself rhetorically. “No, because of legal requirements,” referring to the need to bargain with unions and provide 30 days notice to employees.
    OMB clarified on Friday that Werfel was referring specifically to Defense Department civilians when setting April as the earliest possible start date for sequestration furloughs. The Obama administration is leaving open the possibility furlough notices could be sent out to non-Defense feds before March 1.
         Below is a letter that then Commissioner Michael Astrue sent to Senator Mikulski concerning the sequester. You can click twice on each page to view at full size. It appears to me that Astrue was understating the effects of sequestration on Social Security. I don't see how the agency avoids widespread furloughs. We won't have to wait long to find out. If furloughs are coming, Social Security will have to notify the employee unions and begin negotiating with them pretty much immediately after sequestration begins on March 1.

         Update: Let me respond to a persistent misunderstanding. Social Security benefits are exempt from sequestration. Social Security's administrative budget, the budget that pays employee salaries and that pays for rent and electricity and paper clips and all the other goods and services needed to keep the Social Security Administration operating, is very much subject to sequestration

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  • Feb 20, 2013

    ALJ Augustus Martin 1944-2013

         Social Security Administrative Law Judge Augustus Martin of the Charleston, SC hearing office has passed away after suffering a stroke.

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  • Going All Qui Tam In Kentucky

         From the Lexington, KY Herald-Leader:
    An Eastern Kentucky lawyer who has represented hundreds of people in Social Security disability cases schemed with a federal judge to commit wholesale fraud, two whistle blowers charge in a civil complaint.
    Eric C. Conn received millions of dollars from the government for handling disability claims that the administrative law judge improperly approved, the complaint alleges.
    Many people were approved for lifetime disability payments they didn't deserve, which could eventually cost the federal government tens of millions of dollars, said Benjamin J. Vernia, one of the attorneys who filed the claim. ...
    The judge named in the complaint, David B. Daugherty, improperly manipulated a docketing system to get control of Conn's cases, the lawsuit alleges.
    In 2010, Daugherty approved 99.7 percent of the claims before him, when the national average was 62 percent, the complaint said. ...
    A court motion in the case indicates federal authorities are conducting a criminal investigation in the case.
    Conn issued a statement Tuesday saying he had not seen the complaint and could not comment on it until he had.
    "I can certainly say that I have always tried to represent my clients in the best and most appropriate way possible, within all the laws and rules," Conn said in the prepared statement. ...
    The complaint against Conn was filed under the federal False Claims Act, under which whistle blowers can get a portion of the money recovered in cases in which the federal government is defrauded. ...
    Vernia and Lexington attorneys Mark A. Wohlander, a former assistant federal prosecutor; Brian A. Ritchie; and William Nicholas Wallingford filed the lawsuit for two whistleblowers in October 2011.
    The case was sealed until Tuesday, however. That was because the federal government had asked for several stays throughout 2012 as it considered whether to join the case.
    The government ultimately said it could not decide whether to intervene by a deadline Thapar had set. Conn said in his statement that it is noteworthy the government decided not to take over the case.
    The whistle blowers in the case are Jennifer Griffith and Sarah Carver. Both worked in the Huntington, W.Va., office of the Social Security Administration, which handled appeals in disability cases from Eastern Kentucky, according to the complaint.
         This type of lawsuit is known as a qui tam action. Qui tam actions have at times been spectacularly successful. In this case, I doubt that's going to happen. Daugherty was approving almost all disability claims that came before him. Conn wasn't representing all those claimants. Other lawyers were representing many of these claimants. Some claimants were unrepresented. Regardless, almost all of these claims were approved. Were all those other attorneys and all those unrepresented claimnats bribing Daugherty? That makes no sense. If it didn't take a bribe to get Daugherty to approve a disability claim, why would Conn bribe him? Would Conn bribe Daugherty to get him to manipulate the docketing system? That's way too visible. This whole case seems awfully improbable to me. Mere suspicions aren't enough to win a qui tam case. You have to have facts. Social Security didn't find enough merit in the case to get involved. Qui tam actions are much less likely to succeed if the government decides to not get involved.

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  • Getting Freaked Out Over Removing F.I.C.A. Cap

         There are more and more signs that the right is getting freaked out at the prospect that Social Security's long term funding problems will be solved by lifting the cap on F.I.C.A. contributions. Today's New York Times has an op ed piece by Yuval Levin promoting the idea of means testing Social Security benefits. Levin works for a right wing think tank and edits a right wing journal.
         As Levin and others who promote this idea well understand, means testing undermines Social Security in the long run. If means testing is adopted, Levin and others will immediately start describing it as "welfare" and calling for it to be abolished. 
         Yuval Levin and others may try to label lifting the F.I.C.A. cap as some weird left wing idea that could never be adopted but there is wide support for lifting the F.I.C.A. cap even among Republicans. That's why Levin and others on the right are so freaked out. They're doing everything they can to derail the freight train headed their way. I know. The freight train isn't going to arrive while Republicans control the House of Representatives but that won't last forever.
         Maybe those who oppose lifting the F.I.C.A. cap ought to just shut up about Social Security's funding problems. The more they agitate on this subject, the closer we get to removing the F.I.C.A. cap

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  • Astrue Was Busy On February 12

         The Ruling that Michael Astrue signed on February 12 wasn't the only one he signed that day. Tomorrow's Federal Register will have another Ruling he signed that day, although this one isn't that important. Social Security Ruling 13-3p says that:
    In this SSR [Social Security Ruling], we are adopting as our nationwide policy the holding in Difford v. Secretary of Health and Human Services, 910 F.2d 1316 (6th Cir. 1990). We have applied the holding in that decision under Acquiescence Ruling (AR) 92-2(6) to cases involving beneficiaries residing in States within the Sixth Circuit ... Because this SSR addresses the issue decided by the Difford court, in this issue of the Federal Register, we are also publishing a notice rescinding AR 92-2(6) as obsolete ...
    In Difford, the United States Court of Appeals for the Sixth Circuit interpreted the references to “now” and “current” in section 223(f) of the Act to require that when we review a medical disability cessation determination or decision, we must consider whether the beneficiary was disabled at any time through the date of the adjudicator(s)’s final determination or decision.

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  • Another Problem On Colvin's Desk

         According to a new audit report from Social Security's Office of Inspector General, Social Security and the Office of Personnel Management (OPM) are having a serious disagreement. OPM has been billing Social Security for its work in administering Administrative Law Judge (ALJ) positions. OPM's work includes administering the ALJ exam, which isn't an exam in the traditional sense, but which takes plenty of staff time to administer.Social Security is refusing to pay OPM's bills. Social Security is not satisfied with the documentation that OPM is providing for the bills and is generally unsatisfied with the quality of OPM's work. It appears that budgetary problems at OPM and Social Security's desire to undertake hiring of ALJs without OPM's help are both playing a part in this dispute. There's no indication that this could delay future ALJ hiring -- assuming there's ever money to hire more ALJs -- but problems of some sort are inevitable if this dispute isn't resolved. To this point, the Office of Management and Budget (OMB), which is part of the White House, seems to be trying to stay out of the dispute but they may have trouble staying out if the two agencies can't come to an agreement.

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  • Feb 19, 2013

    A New Ruling On Drug Abuse And Alcoholism As A Parting Gift From Michael Astrue

         From Social Security Ruling 13-2p, scheduled to be published in the Federal Register tomorrow:
    Although the DSM [Diagnostic and Statistical Manual of Mental Disorders] includes a category for nicotine-related disorders, including nicotine dependence, we will not make a determination regarding materiality based on these disorders. ...
    When we apply the steps of the sequential evaluation a second time to determine whether the claimant would be disabled if he or she were not using drugs or alcohol, it is our longstanding policy that the claimant continues to have the burden of proving disability throughout the DAA [Drug Abuse and Alcoholism] materiality analysis. There does not have to be evidence from a period of abstinence for the claimant to meet his or her burden of proving disability. ...
    [From a footnote] The finding about materiality is an opinion on an issue reserved to the Commissioner under 20 CFR 404.1527(e) and 416.927(e). Therefore, we will not ask a treating source, a CE [Consultative Examination] provider, a medical expert, or any other source for an opinion about whether DAA is material. ...
    At the State agency levels of the administrative review process, a State agency medical or psychological consultant (MC/PC) may use his or her knowledge and expertise to project improvement of a physical impairment(s). At the hearing and appeals levels, Administrative Law Judges (ALJs) and the Appeals Council (when the Appeals Council makes a decision) must consider such MC/PC findings as medical opinion evidence and may base their findings about materiality on these opinions. ALJs and the Appeals Council may also base their findings on testimony from medical experts. As we provide in our regulations on considering nonexamining source opinion evidence, ALJs and the Appeals Council will give weight to these opinions to the extent that they are supported and consistent with other relevant evidence in the case record. Medical source knowledge and expertise are factors that may support the finding. ...
    Adjudicators should generally not rely on a medical opinion to find that DAA is material if the case record contains credible evidence from an acceptable medical source from a relevant period of abstinence indicating that the impairment(s) would still be disabling in the absence of DAA. ...
    Adjudicators must not presume that all claimants with DAA are inherently less credible than other claimants.
          The big thing going on here is not what this Ruling says but what it doesn't say. Social Security's previous instructions on DAA said that "“When it is not possible to separate the mental restrictions and limitations imposed by DAA and the various other mental disorders shown by the evidence, a finding of ‘not material’ would be appropriate.” This statement is not in the Ruling. In fact, the Ruling says the exact opposite.
         This was signed not by Acting Commissioner Colvin but by Michael Astrue on February 12. It was filed with the Office of Federal Register on February 19, after Astrue left office. Was Colvin aware of this? If this were a regulation, I would say it would be invalid without Colvin's signature but a Ruling? Colvin could disavow this at any time but would she? Of course, she could "correct" it by adding the omitted language.

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  • Mr. True On Cavuto

         Michael Astrue appeared on Neil Cavuto's show on Fox Business News yesterday. Here are some things I gleaned from this appearance:
    • If you thought that the Fox News attitude wouldn't carry over to Fox Business News, you'd be wrong. Cavuto had all the Fox News talking points on Social Security down pat. He could not refer to any Democratic idea without sneering.
    • Cavuto seemed incapable of pronouncing Astrue's surname. A couple of times he seemed to refer to Astrue as Mr. True. Eventually, he just referred to him as Michael.
    • Astrue wanted to talk about the serious problems affecting the Social Security disability trust fund.
    • Astrue was promoting a Simpson-Bowles Commission to deal with Social Security. He wanted a requirement that there must be a vote on the floor of each House of Congress on this Commission's recommendations.
    • Astrue thought it was a "trendy but facile" idea to remove the cap on earnings covered by the FICA tax because this would put a "crippling burden on the younger generation" and it would make it very difficult to operate a small business.
    • Astrue believes that raising the retirement age "has to be on the table."
    • Astrue made a dig at President Obama by noting that George W. Bush had nominated him four months before his predecessor's term had ended while, in Astrue's words, Obama was only in the "early stages" of selecting a new Commissioner.
    • Astrue criticized an unnamed candidate or candidates for the job of Social Security Commissioner whom he characterized as being from the "very far left" because they denied that Social Security had any serious funding problem and because they believed that only minor tweaks would be required. He thought that the Social Security Commissioner should stay out of the debate and be an operational manager.
         I don't understand why Astrue would want to promote a Simpson-Bowles Commission to deal with Social Security. Simpson-Bowles was a disaster. That Commission never agreed to any recommendation. Their work didn't move Congress or the American people any closer to a resolution of our budget problems. There's no reason to believe such a commission to deal with Social Security would be any less of a failure. The reason is simple. People like Astrue insist that raising the retirement age has to be on the table but also insist that tax increases have to be off the table. How does that position get one to an agreement? How would lifting the FICA cap put a crippling burden on younger people? The vast majority of younger people would be unaffected by such a change. How would raising the FICA cap make it difficult to operate a small business? Few small businesses have any employees who have earnings above the FICA cap. If Astrue really wants to move the U.S in the direction of some grand bargain on Social Security, he has to say that increasing taxes must be on the table along with benefit cuts but if he says this he won't be appearing on Fox Business News again and he'll be ostracized by his fellow Republicans so he can't say that.
         I agree with Astrue that the next Social Security Commissioner should stay out of the Social Security funding debate and should be an operational manager. Nancy Altman is undoubtedly a fine person with great qualifications but those qualifications don't match up with the job description for the position of Social Security Commissioner. However, I don't think it's accurate or helpful to characterize Altman as being from the "very far left." To my mind, Altman is a political realist. Her position is that any attempt at this time to deal with Social Security's financing difficulties is doomed. Anything that Republicans would agree to would rely almost exclusively on benefit cuts. There's no point in agreeing to this sort of deal or even agreeing to talk about it. Medium and long term demographics strongly favor the Democrats. Wait a bit and this problem can be resolved on Democratic terms. Is that a "very far left" position or just political realism?

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  • Feb 18, 2013

    Errors In Colvin Biography

         I'm going through what I can find about Carolyn Colvin's background so I can do a post about the new Acting Commissioner. I'll try to get something up soon but I've encountered problems with her biography on Social Security's website. It contains at least two inaccuracies. This has to be unintentional since there's nothing she would want to keep secret. The error may have happened at Social Security's press office. She's omitted her time as Director of Human Services for the District of Columbia from 2001-2003 and the bio on Social Security's website is way off on the dates of her service as Director of the Montgomery County Department of Health and Human Service. The biography shows that job as being from 2001-2003 but she was working for the District of Columbia then. I know she was fired from the Montgomery County job in 2006 after a new County Executive was elected.
         Maybe the new Acting Commissioner would be sympathetic to the argument that it's a bit much for Social Security to consider work going back 15 years to be past relevant work for purposes of disability determination.

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  • Should She Be "Hopping Mad"?

         From the Salt Lake Tribune:
    Nearly 19,000 elderly Utahns, and millions more across the country, are being pushed into the digital banking world by the federal government.
    Starting March 1, the U.S. Department of the Treasury plans to stop mailing out most paper Social Security checks. Instead, it will require recipients to switch to an electronic form of payment: either direct deposit into their bank account or onto a Treasury-issued debit card. ...
    The switch away from mailbox delivery has others just plain upset.
    Michigan resident Mike Clement told the McClatchy Newspapers service that he and his elderly mother were "hopping mad" that she was being forced to switch to electronic payment.
    "It really should be a matter of personal choice," Clement said. "Unfortunately, the feds seem not to care a whit about personal preference."
         There have been articles like this in papers all over the country. To the best of my knowledge, nothing is changing on March 1. This appears to be nothing more than the latest and most strident effort to convince recipients of Social Security checks to switch to direct deposit. Those who receive checks now will continue to receive them after March 1. Those who start receiving Social Security benefits in the future will face the now familiar pressure to receive the benefits in an electronic form but if they resist hard enough they can still receive a check.

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  • Feb 17, 2013

    The Absurdity Of One Aspect Of One Social Security Ruling

         I have been looking at some old Social Security Rulings in the last few days. There is much that I agree with, or at least don't disagree with, in these Rulings but then I come across this from Social Security Ruling 96-8p "It is incorrect to find that an individual has limitations or restrictions beyond those caused by his or her medical impairment(s) including any related symptoms, such as pain, due to factors such as age or height ..."
         Does that sound reasonable to you? Let me ask the question another way. Does it sound reasonable to you for Social Security to find that a woman who is 5'2" tall and who weighs 110 pounds can do lifting of up to 100 pounds? That is what the Ruling says. This is preposterous on its face yet it is Social Security's official position, applied every day at the initial and reconsideration levels. No one talks about it or even realizes it but this one absurd aspect of this one Ruling accounts for a not inconsiderable percentage of all reversals by Administrative Law Judge (ALJ).
         Anyone in the higher reaches of Social Security want to go all out to force ALJ compliance with this one?

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  • Feb 16, 2013

    Democrats In House Oppose Chained CPI

         From a press release issued yesterday:
    107 House Democrats, a majority of Democrats in the House of Representatives, wrote President Obama today, urging him to reject any proposals to cut benefits millions of American families depend upon through Medicare, Medicaid and Social Security. The letter was led by Rep. Jan Schakowsky (D-IL),Congressional Progressive Caucus Co-Chairs Reps. Keith Ellison (D-MN) and Raúl M. Grijalva (D-AZ), Rep. John Conyers (D-MI), and Rep Donna Edwards (D-MD).
    The Members specifically singled out “Chained CPI”—a proposal to reduce Social Security benefits by changing the way inflation is calculated—and raising the Medicare retirement age as policies they oppose. ...

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  • Annual Statistical Supplement Issued

         Social Security has released its Annual Statistical Supplement for 2012, a compilation of every statistic you could want about Social Security other than statistics on agency operation. A few of those are published but not many. I've never understood why.

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  • Feb 15, 2013

    House Social Security Subcommittee Members Announced

          The lineup of members of the Social Security Subcommittee of the House Ways and Means Committee has FINALLY been announced:

    Subcommittee on Social Security 

    Rep. Sam Johnson, R-TX, Chairman

    Republicans
    Rep. Pat Tiberi, OH Rep.
    Tim Griffin, AR Rep.
    Jim Renacci, OH Rep.
    Aaron Schock, IL Rep.
    Mike Kelly, PA Rep.
    Kevin Brady, TX

    Democrats
    Rep. Xavier Becerra, CA, Ranking Member
    Rep. Lloyd Doggett, TX Rep. Mike Thompson, CA
    Rep. Allyson Schwartz, PA

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  • Not Acting Like A Caretaker



    Memorandum
    Date:         February 14, 2013                                                                                                                   Refer To:  S7K
    To:          Senior Staff

    From:        Carolyn W. Colvin  /s/
                  Acting Commissioner

    Subject:    Executive Personnel Assignments - INFORMATION
    As one of my first communications as Acting Commissioner, I want to share with you the makeup of my immediate executive team as well as several other Senior Executive Service (SES)  leadership changes.
    Jim Kissko, formerly the Deputy Inspector General, is Chief of Staff. 
    Kate Thornton, formerly one of my Senior Advisors, is Deputy Chief of Staff.
    Karie Kilgore, SES Candidate Development Program (CDP) Class V graduate, is the Executive Secretary. 
    Stacy Rodgers, Greg Pace, and Dot Smallwood will continue as my Senior Advisors.
    In the Office of Budget, Finance and Management, Mike Gallagher will leave for the Appeals Council March 4.  Pete Spencer, former Regional Commissioner in San Francisco prior to his retirement, has agreed to return and serve as the Deputy Commissioner for Budget, Finance and Management through the end of the year.
    In the Office of Operations, Chicago Regional Commissioner (RC) Nancy Berryhill will serve as the Acting Deputy Commissioner for Operations.  Terrie Gruber will resume her position as Assistant Deputy Commissioner (ADC) for Operations.  Marianna LaCanfora will remain as a second ADC for Operations during this transition.  Marcia Mosley will serve as Acting RC, Chicago, while Nancy is on assignment in headquarters.
    In the Office of Systems, Marti Eckert, currently Deputy Associate Commissioner (DAC) for Telecommunications and Systems Operations (OTSO), will serve as Acting Associate Commissioner for Information Systems when Brad Flick reports to his new post in Chicago.
    Dave Thomas, currently the Assistant Associate Commissioner (AAC), OTSO (Enterprise IT Services Management), will serve as Acting DAC, OTSO.  Sylvia Heist, SES CDP Class V, will serve as Acting AAC, OTSO (Enterprise IT Services Management). 
    Commissioner Astrue’s executive team will report to new assignments next week.  Jo Tittel and Tiffany Flick will move to the Office of Appellate Operations.  Dean Landis has accepted an external assignment with the National Institutes of Health.  Steve Nash will move to the Office of the Deputy Commissioner for Disability Adjudication and Review.   I would like to thank all of Commissioner Astrue’s team for their fine work and dedication to the agency’s mission.  I am confident they will continue that support in their new roles.
    Please join me in congratulating everyone on their new roles and giving them your full support.

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  • Some Things To Parse In First Message From Acting Commissioner

         An e-mail that went out yesterday:
    From: ^Commissioner Broadcast
    Sent: Thursday, February 14, 2013 9:22 AM
    Subject: COMMISSIONER'S BROADCAST--02/14/13
    A Message To All SSA And DDS Employees
    Subject: Together, We Will Move Forward
    “Today, a hope of many years’ standing is in large part fulfilled…. We have tried to frame a law which will give some measure of protection to the average citizen and to his family against the loss of a job and against poverty-ridden old age.”
    The words that Franklin Roosevelt spoke upon signing the Social Security Act into law in 1935 have added meaning for me today. It is with great pride and humility that I assume the role as the Acting Commissioner of Social Security.
    I consider it an honor of a lifetime to work with each of you in fulfilling FDR’s great vision for providing a measure of economic security to more than 60 million Americans—the elderly, persons with disabilities, survivors and dependents.
    Please join me in thanking Commissioner Astrue for his years of service and leadership. We wish him and his family a safe journey and much success as they return to Massachusetts.
    In the coming days and months, Social Security is sure to remain a vital part of the domestic agenda as the nation continues to grapple with its fiscal challenges. It will be more important than ever that we build upon the great legacy left to us.
    Whether you are helping people every day by providing direct service to the public or supporting those who do, you are the key to our success. I sincerely appreciate what you do every day on behalf of the citizens of this country.
    I know I can count on your continued support and commitment. I will be meeting with many of you in the coming days to share my leadership vision, and solicit your ideas and suggestions. We must work with renewed vigor to fulfill the program’s great promise. Together, we will move forward.
    Carolyn W. Colvin
    Acting Commissioner
          There's no mention of the President nominating a Commissioner. Colvin is talking of her "leadership vision." Does a person who is only acting as a caretaker for a few weeks need to communicate a "leadership vision"?

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  • Feb 14, 2013

    Astrue Speaks Out

         From an interview that outgoing Social Security Commissioner Michael Astrue gave to the Associated Press:
    I think that Social Security is a gem. I think it is the most successful domestic program in the history of the United States government and it is fraying because of inattention to its problems. And I think it’s a shame that Washington cannot get its act together to look at Social Security in detail in isolation and say, What do we need to do? ...
    Q: There are some in Congress who say only benefit cuts should be considered — no tax increases. Others say benefit cuts should be off the table. Where do you come down?
    A: Nothing is going to happen if you establish preconditions for the conversation. I do think that for the people who simply want to tax more, you need to be very mindful of the fact that that tax will fall disproportionately on the younger generation and that if you’re not careful, that could be a huge economic drag. ...
    Q: One of the few issues that the president and Republicans in Congress agree on is changing the way the government measures inflation. As you know, this would reduce the annual cost-of-living adjustment, or COLA, for Social Security recipients. Advocates for seniors hate the idea. They want bigger COLAs, not smaller ones. What do you think?
    A: As a general matter I do think that the president and the Congress are right that before you start talking about increases in the retirement age and things like that it’s appropriate to try to have a conversation about what we might be able to do in terms of COLA adjustments.
    Q: The age when retirees can receive full benefits is gradually increasing from 66 to 67. There are proposals to increase it gradually even more, perhaps as high as 70. What do you think of those proposals?
    A: I think there’s some historical inevitability that we will move in that direction. How far, I don’t think is historically inevitable. Part of this we need to remember is not that the system is flawed or that there are evil people around here. I mean, we should celebrate a little bit of good news. Most of the pressure on the system comes from the fact that we’ve had great medical advances and people are living a lot longer than before.
    Q: Social Security payroll taxes only apply to the first $ 113,700 of a worker’s wages. There have been proposals to increase this threshold or even eliminate it, applying the tax to all wages. What do you think of those ideas?
    A: I think there’s some historic inevitability on at least some lifting of the (payroll tax) cap. I think that most politicians and I think most economists I’ve talked to generally think that that would have less of a negative impact on the economy than raising the rate itself.
    Q: Applications for disability benefits increased dramatically when the economy went bad. Why did that happen?
    A: I think a lot of people applied out of economic desperation. Very few of those people actually ended up getting benefits. If you look at the numbers, it’s one of the reasons why our approval rates have dropped dramatically in the last few years. ...
    Q: The Association of Administrative Law Judges says that in order to reduce backlogs some judges are deciding more than 500 cases a year. Is that too many cases to do a thorough job on each one?
    A: No, not at all. We set for the first time productivity standards in 2007. It was actually done by the chief judge, and it was done looking at best demonstrated practices of existing judges. At that point in time about 40 percent of the judges were doing 500 to 700 cases a year. And so that’s what we set as our goal, and that’s what it is, it’s a goal to shoot for. … Now, about 80 percent of the judges hit that goal.
          I wonder where Astrue goes from here. Think tank? Teaching? Writing poetry? All of these?
         By the way, I don't think there's any "historical inevitability" about raising full retirement age. In fact, I think that's quite unlikely. In retrospect, I'm amazed it happened the first time.

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  • "Secret ALJ" Policy On Its Last Legs

         For months, Social Security has been withholding the identity of the Administrative Law Judge (ALJ) scheduled to hold a hearing until the day of the hearing. This "secret ALJ" policy is on its last legs. The agency has been unable to defend the "secret ALJ" policy in court -- and I mean literally unable to defend the policy. Social Security has to work through the U.S. Attorneys when it is sued and the U.S. Attorneys are refusing to defend Social Security on Freedom of Information Act (FOIA) lawsuits on this issue, not that the agency had much of a defense anyway. Social Security is now revealing the identity of ALJs scheduled to hold hearings to claimants and their attorneys who file FOIA requests. The National Organization of Social Security Claimants Representatives (NOSSCR) advised its members of this fact yesterday afternoon. It can only be anticipated that Social Security's Office of Privacy and Disclosure (which handles FOIA requests) will be deluged with FOIA requests which are easily made online.
         Michael Astrue is gone. There is no reason to continue this failed policy a day longer.

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  • Feb 13, 2013

    Major Downtime For Online Claims And Services But What Is Down?

         From a message I just received from Social Security:
    Due to scheduled systems maintenance, some of our Online Claims & Services applications will not be available from:
    • 11 PM on Friday, February 15 until 5 AM on Saturday, February 16
    • 11 PM on Saturday, February 16 until 5 AM on Monday, February 18.
         I know it's over the weekend but the ambiguity of this bothers me. The "when" question is answered but the "what" is mostly unanswered. Why does it say "some"? Does this mean that the only thing that is down is filing applications? If other online services are down, what are they? What about the appointed representative suite of services? Does this affect Social Security employees who might be working over the weekend as well?

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  • Astrue's Last Day

         This is Michael Astrue's last day as Commissioner of Social Security. Readers have already expressed their opinions on Astrue's term as Commissioner in a poll. Expand on those thoughts now by commenting in response to this post. What do you think of the job that Astrue has done? What do you think are his accomplishments? What were his mistakes? Did he change the agency in positive ways? What is his legacy?
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  • Feb 12, 2013

    Why Social Security Shouldn't Be Cut


    From the Center on Budget and Policy Priorities

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  • Feb 11, 2013

    Social Security Cuts On The Table But Not Medicare Cuts

         The White House said today that increasing the age at which Medicare is first available from 65 to 67 is off the table but reducing Social Security by switching to the Chained CPI method of computing Cost of Living Adjustments is on the table.

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  • I Wonder What Would Happen If Obama Calls For This In His State Of The Union Address

         From R.J. Eskow:
    Archaeologists of the future will sift through our newspapers, websites, and other ephemera and marvel at the inverted shape of our political debate. They'll be particularly surprised to discover that, at a time when retirement security was being destroyed for an entire generation, politicians were posturing over how to make the problem even worse by cutting Social Security.
    And they'll marvel over how long it took us to agree on the right solution: Increasing Social Security benefits instead. ...
    In a USA Today op-ed, economist and influential blogger Duncan Black (Atrios) proposed a 20 percent increase in benefits.  So did Joan McCarter at the widely-read Daily Kos site. ...
    [F]ear for the fate of Baby Boomers is warranted... This squeeze was brought about in part by the end of fixed corporate pensions and the rise of 401(k) plans which [one commenter] calls a "grand experiment" turned "disaster."  But I consulted with major corporations on benefit plans during the rise of 401(k)'s, and from my experience it wasn't an experiment at all. It was a calculated wealth shift away from workers and toward employers.
    The long-term implications  weren't always obvious - to employees or policymakers - especially because these changes were often buried in complicated "cafeteria style" benefit plans. But corporate executives knew. As one famous CEO said to me of his company's cafeteria plan and 401(k): "I want to give them less and make them think it's more."
    The other reason Baby Boomers are in dire shape is because the vast bulk of their net worth was in real estate. ... 
    Immediate action would stave off the impending crisis among Baby Boom elders, while strengthening the financial security of generations to follow.

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  • SSA Requesting Comments On Rep Payees

         Social Security is requesting comments on how it applies the prohibition on people who have been convicted of certain crimes serving as representative payees. Applying this isn't as simple as one might think. Quite a number of people who need a representative payee have no one willing to be their representative payee who doesn't have a criminal history. There are many people who have criminal histories who make fine representative payees. I can think of one old client of mine who killed an abusive husband who would make a fine representative payee. These issues only seem simple when seen from a distance. Up close, everything looks complicated.

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