Interesting Eighth Circuit Decision

The Eighth Circuit Court of Appeals has issued an interesting decision in Maresh v. Barnhart, concerning SSA's mental retardation listings. If a claimant meets a listing, normally he or she will be found disabled. Social Security's interpretation of the mental retardation listing has become controversial in recent years. The Court held in Maresh that:

... the requirements in the introductory paragraph [of Listing 12.05] are mandatory. The overall introduction to the mental disorders section states: "Listing 12.05 contains an introductory paragraph with the diagnostic description for mental retardation. It also contains four sets of criteria (paragraphs A through D). If your impairment satisfies the diagnostic description in the introductory paragraph and any one of the four sets of criteria, we will find that your impairment meets the listing." Id at § 12.00.1 The cases Maresh cites are not to the contrary, because they do not discuss whether the introductory paragraph is mandatory. See Chunn v. Barnhart, 397 F.3d 667 (8th Cir. 2005); Jones v. Barnhart, 335 F.3d 697 (8th Cir. 2003); Sird v. Chater, 105 F.3d 401 (8th Cir. 1997). Under the plain language of the regulations a claimant must demonstrate or support onset of the impairment before age 22.

However, this court disagrees with the Commissioner that the Listing's introductory paragraph requires a formal diagnosis of mental retardation. The plain language of the Listing does not so state, and the Commissioner cites no supporting authority. This court also rejects the Commissioner's assertion that Maresh is not entitled to benefits, applying the definition of mental retardation in the Diagnostic and Statistical Manual of Mental Disorders–Fourth Edition (DSM-IV). In revising the Listings of Impairments in 2002, the Commissioner rejected a proposal that the DSM's definition be used for Listing 12.05. See 67 Fed. Reg. 20,022.

Thanks to Eric Schnaufer for his excellent up to date listing of Circuit Court decisions.

The End of February Is Here -- And No Regs

In December 2005, the Commissioner or those around her were confidently predicting to Nancy Shor, the executive director of the National Organization of Social Security Claimants Representatives (NOSSCR), that the final regulations on the Commissioner's proposal to revamp disability determination at SSA would be done "by the end of February, if not earlier." The end of February has arrived and no final regulations have appeared in the Federal Register. Of course, it is possible that SSA will deliver the final regulations to the Office of Federal Register by the end of the day or, at least, very soon. There is no way of knowing if the delay is due to the difficulties of sorting out all of the issues raised by the comments made on the proposal or whether the delay has to do with budget problems.

Brooklyn SSA Employee Arrested

From the Stamford Advocate:

A Social Security employee and three accomplices were awaiting arraignment yesterday in Brooklyn on charges alleging they formed an identity theft ring and stole tens of thousands of dollars in benefit payments from more than a dozen elderly and disabled beneficiaries.

The defendants used personal information from the Social Security Administration's computer system to steal the payments and other money from the beneficiaries between January 2004 and this month, officials said.

New Workload For SSA?

Senator Arlen Specter, the chairman of the Senate Judiciary Committee, has been working on an immigration bill that is expected to receive serious consideration this year. The "guest worker" provisions of the bill have attracted the most attention but the bill would also require employers to check an employee's name and Social Security number against a Social Security database. There are other signs that such a plan is coming. The House Social Security Subcommittee is holding a hearing on this issue of March 2. Social Security is looking for contractors to handle a name and Social Security number database, which it hopes to have available by May or June of this year, even though it is unlikely that it will be mandatory until at least next year.

If it is mandatory that employers check their employees' names and Social Security numbers against this database, Juan Rodriguez cannot work under a Social Security number that he picks at random, if that number belongs to someone not named Juan Rodriguez. The problem is that while there are millions of Juan Rodriguez's working under assumed Social Security numbers, there are tens of millions of Jane Smiths working under the Social Security numbers of Jane Jones, but Jane Smith and Jane Jones are the same person. Jane just never got around to informing Social Security that her name changed when she got married. Straightening out one of these cases is easy enough. Straightening out tens of millions of them in a short time period is a potential nightmare for the Social Security Administration.

Social Security Attorneys as Debt-Relief Agencies?

Often, bankruptcy is a reasonable consideration for Social Security disability claimants, because they are desperately poor and have huge medical bills hanging over their heads. However, the National Law Journal reports that the new bankruptcy act defines anyone who provides any bankruptcy assistance as a debt-relief agency. Debt-relief agencies are subject to dramatic limitations under the bankruptcy law. For instance, debt-relief agencies cannot counsel a debtor to incur additional debt -- and counseling a Social Security disability client to continue seeing their doctor would be to counsel a debtor to incur additional debt. Bankruptcy attorneys are warning that attorneys in other fields of the law who counsel their clients to consider bankruptcy may unwittingly become debt-relief agencies and subject to potentially dramatic penalties.

NOSSCR CLE Schedule Released

The National Organization of Social Security Claimants Representatives (NOSSCR), the largest organization of attorneys and others who represent Social Security claimants has posted the schedule for its Continuining Legal Education (CLE) Conference in Boston from April 5-8, 2006.

New ALJs Coming

People posting on the ALJ Improvement Board report that Social Security is going to hire a class of Administrative Law Judges (ALJs) this year and that the process has begun.

Problems At SSA As Congress Presses To Make It Even Harder For Aliens To Get Social Security Cards

The House Social Security Subcommittee has scheduled yet another hearing on Social Security's issuance of Social Security numbers. This hearing is set for March 2, 2006. The concern is that it should be more difficult for illegal immigrants to obtain Social Security cards. By making it more difficult to obtain Social Security cards, it would become more difficult for illegals to obtain work and remain in the U.S.

Meanwhile, new Social Security card procedures already put in place are causing serious problems. The National Council of Social Security Management Associations (NCSSMA) represents Social Security's front line managers. NCSSMA has recently written Linda McMahon, SSA's Deputy Commissioner for Operations, complaining of alarming problems at local Social Security offices with issuing new and replacement Social Security cards:

We are writing you today about many issues that have arisen in Field Offices concerning the new requirements for SS-5 [Social Security card] issuance. Although we understand and support the need for increased security with this process, there is no doubt that these changes have already added a significant workload to Field Offices. In many offices we are now seeing half the members of the public visiting us come in to obtain a new or replacement Social Security card. We are finding about one-third of those applicants need to return with additional documents. This is a key reason why walk-in traffic is up around 25% this year. We believe this impact will accelerate unless we take steps to improve the situation. ... Many managers and almost all Field employees dealing directly with the public on enumeration have noticed more anger and hostility from the public regarding the SS-5 documentation issues than all other workloads we handle including denied claims, overpayments, and cessation of benefits combined.

Medical Abbreviation Lookup Capacity

Since many of the people reading this blog are involved in representing Social Security disability claimants or adjudicating their claims, I have added a service to allow users to look up medical abbreviations. Look to the right side of this page.

Backup Computer Center To Charlotte

The Charlotte Business Journal reports that Social Security is looking at Charlotte, NC for a 100,000 square foot building for a backup computer center. The new center could open as early as 2007 and is expected to employ 70 people.

Beauty Queen Loses Social Security Fraud Appeal

WCCO.com reports that the Supreme Court has rejected the appeal of Dee Henderson, a former Mrs. Minnesota International, who was convicted of Social Security fraud after a jury saw a videotape of her scuba diving in Hawaii, while drawing Social Security disability benefits. She is now serving a four year sentence for defrauding Social Security out of $190,000.

Delays at Charleston OHA

News4.com reports on the dramatic delays in adjudicating disability claims in Charleston, SC. The local director of Crisis Ministries told the TV station that: "It boggles my mind that that process takes so long ... I don't understand. I just don't understand." The irony is that the article indicates that it takes only about 180 days to get a hearing in Charleston, which is well below the national average, although the article does mention that it sometimes takes up to a year to get a decision after a hearing.

Budget Reconciliation Problem Continues

Congressional Quarterly's Mary Agnes Carey gave the following assessment of the status of the Budget Reconciliation Bill in a question and answer session:

Question 5: President Bush has signed the fiscal 2006 budget reconciliation package into law, but now there is some dispute that what the president signed may not have been the legislation that both chambers passed. Can you explain this?

Answer: House Democrats have temporarily blocked an attempt by House GOP leaders to fix a potential constitutional flaw with the $39 billion budget saving package signed by Bush. The dispute centers over what has been described as a clerical error made in the bill once it had passed in the House and went to the Senate. .The mistake dealt with the amount of time that Medicare would pay to rent some types of medical equipment. After the House cleared the legislation, the Senate corrected the error.

Question 6: So what’s next?

Answer: Rep. Charles B. Rangel of New York, the ranking member of the House Ways and Means Committee, has expressed his concern that the legislation the president signed into law Feb. 8 is not what actually passed the House on Feb. 1. While the Senate has passed a resolution to state that the bill the president signed represented the will of Congress, Rangel is not so sure that will suffice. Rangel said he believes that both chambers of Congress need to vote on the budget reconciliation package again.

Question 7: Is that going to happen?

Answer: I think it’s doubtful. The bill passed by just two votes in the House and by just one in the Senate – with Vice President Cheney breaking a Senate tie – so GOP leaders in both chambers will probably do everything they can to avoid another vote. But the measure could be challenged on constitutional grounds if a court is convinced that the House and Senate did not approve the same bill that was sent to the president.

This is a matter of some concern to the Social Security Administration since the bill made significant changes in payments of SSI back benefits.

SSA Admits to Failing Employees In Aftermath of Katrina

According to a press release from the American Federation of Government Employees (AFGE), the Social Security Administration has belatedly agreed to provide up to six months of benefits to employees affected by Hurricane Katrina. Federal employees affected by a disaster must seek assistance from their employing agency before receiving assistance from the Federal Emergency Management Agency (FEMA). Many agencies provided assistance to their employees after Katrina, but not SSA, which is only acting after the AFGE filed a grievance.

SSAB Meeting Agenda

The Social Security Advisory Board (SSAB) has announced the following agenda for its meeting on February 24:

915 a.m. - 11:30 a.m. Dale Sopper, Deputy Commissioner for Finance, Assessment and Management and Bob Rothenberg, Associate Commissioner for Budget

1:45 p.m. - 3:30 p.m. Meeting with line Administrative law Judges: David Hatfield (Pittsburgh), Cam Oetter (Houston), Paula Gerrity (Elkin Park, PA)

Stanford Researcher Says To Increase Retirement Age to 85

A Stanford University researcher presented a paper at the American Association for the Advancement of Science meeting in St. Louis arguing for an increase in the full retirement age for Social Security to 85 by the year 2050. Shripad Tuljapurkar argues that longer life expectancies make this a wise choice. He believes that life expectancy will increase by 20 years in the 20 years between 2010 and 2030!

SSA Press Release On Identity Theft

The Social Security Administration has issued a press release (the first in more than four months from an agency that has become increasingly publicity shy) warning of a scam involving an e-mail purporting to be from SSA requesting the recipient's Social Security number and bank account information.

Social Security To Study Mental Health Treatment

Westat, ValueOptions and Colorado Health Networks have been awarded contracts with Social Security's Mental Health and Treatment Study. As best one can tell from the press release, the study is to determine whether better treatement for individuals disabled by mental illness can result in their enjoying more success in returning to work.

On-Line Quiz For Disability Claimants

Frederick Johnson, a non-attorney representative of Social Security disability claimants, has issued a press release touting an online test he has developed to determine the chances of success for a Social Security disability benefits claimant. There may be reason to question the validity of the test, since it does not ask about the claimant's age, education or work experience, all of which are crucial factors in determining disability under the Social Security Act.

Controversy Over Welfare Agencies Seizing Social Security Benefits

The New York Times (registration may be required) has an article about litigation in North Carolina over local welfare agencies seizing the Social Security and SSI benefits of children in foster care. This is happening because the welfare agencies are underfunded. The problem goes well beyond North Carolina. In the North Carolina case, seizing the child's Social Security benefits has left the child unable to prevent foreclosure on a house he inherited. A state trial judge has already ruled in the child's favor, but the case is on appeal.

SSA To Verify SSNs

Social Security is proposing to verify Social Security Numbers (SSNs) -- for a fee, with appropriate authorization from the number holder. According to the proposal:

SSA is planning to offer a new service to any interested parties. As long as the party first obtains the required written consent of the number holder, we will, for a fee, verify a name and Social Security number combination as being correct (or incorrect) for any party registered to use the service. There also will be a substantial fee to register to use the service because Social Security Trust Fund monies cannot be used to develop this service. This new service is contingent on OMB approval. Currently, we anticipate a May or June 2006 start date for the service. There will be a limited time for parties to enroll in this service. Once the enrollment period ends, there could be as much as a 3- year wait before additional companies will be permitted to enroll.

Mom on Ice

According to the Associated Press, "A man convicted of keeping his dead mother in a freezer for years was indicted Wednesday on a federal charge accusing him of illegally collecting thousands of dollars of her Social Security benefits after she died." Since he has already been convicted of keeping the mother in the freezer, they probably have him cold on the Social Security fraud charge.

Budget Reconciliation Still In Dispute

The Associated Press reports that the Budget Reconciliation Bill that would, among many other things, change the way in which SSI back benefits are paid, is still up in the air. The versions passed by the two houses of Congress were not precisely the same, a fact that was not recognized until after the President signed the bill. The Republican leaders of the House of Representatives have decided to do nothing about the matter, insisting that the differences between the bills passed by the House and Senate do not affect the validity of passage. There is considerable reluctance to bring the matter to a new vote in the House of Representatives since the bill was extremely controversial and only passed 216-214. An Alabama attorney has now brought a civil action to force a ruling.

Unnecessary SSI Claims Slowing Process at Social Security

Walter Wouk writes in his VVAW blog that the Social Security administration is taking unnecessary SSI disability claims and that this is slowing down processing of claims and leads to delay in paying benefits when claims are approved because of the time spent doing an unnecessary windfall offset computation. The SSI claims are unnecessary because SSI is a needs based program. There is no point in taking an SSI claim if the claimant is clearly not poor enough to qualify for benefits. Wouk believes that many clearly unnecessary claims and being taken. He attributes this to a policy of taking unnecessary SSI claims in order to make service at SSA look better than it is. However, a better explanation may be that Social Security District Offices are given staff based upon the number of claims they take, giving local managers an incentive to take as many claim as possible to get as much staff as possible.

Interesting Question, But The Answer Is Probably "No"

Social Security benefits may be partially taxable, depending upon the recipient's other income. George Saenz, who has a tax advice column at Bankrate.com, answers an interesting question. Imagine a disabled person who is receiving Social Security disability benefits under Title II of the Social Security Act and that the Social Security is that individual's only income, but this disabled person has a spouse who works and has substantial income. Would it make sense for the disabled person and his or her spouse to file separate income returns so that the disabled person's Social Security disability benefits would not be taxed? Interesting question, but the answer is "probably not" because the non-disabled spouse would be unable to take an exemption for the disabled person and would be unable to itemize, but this may still be an idea worth considering for some Social Security recipients.

Budget Reconciliation Bill Still in Question

Congress thought it had passed the Budget Reconciliation bill. The President signed it. Part of the bill requires staged payments of SSI back benefits that total more than three months of benefits. However, one little problem was noticed after the fact. The versions passed by the House of Representatives and the Senate were not exactly the same. The Senate agreed to a concurrent resolution that they thought would solve the problem, but House Democrats are unwilling to agree. The whole issue is still up in the air, according to The Hill.

PASS Success Story

The Plan for Acheiving Self Support (PASS) program has been a part of SSI for years. Under PASS, an SSI recipient is able to receive extra income and to amass resources without penalty in order to fulfill a plan to achieve self support. The limitations inherent in SSI -- it is very hard to get on SSI and most recipients are quite sick, desperately poor and have limited educational attainments -- as well as strict limitations upon the use of the PASS program have made PASS nothing more than an empty promise for most SSI recipients. But there are occasional success stories and here is one from Florida, where a woman has used PASS to start a real estate services company.

Overpayment Waiver Study

Social Security's Office of Inspector General (OIG) has done a study of decisions on waivers of overpayments and has decided that SSA is granting too many waivers. The problem with the study is that while OIG gives details on how it selected cases to review, no details are given on how OIG decided that the incorrecte decisions were made. It is unclear whether OIG personnel doing the study had enough knowledge and experience to second guess anyone on waivers or whether OIG was willing to acknowledge that some cases were close calls in which it would be inappropriate to say a mistake was made even if someone working in OIG would have made a different decision. The study does not mention the bias problem inherent in having personnel at OIG decide whether other SSA personnel have erred, when the jobs of the OIG personnel are justified by finding "mistakes" made by other components of SSA.

Monthly Statistical Summary

Social Security has published its monthly statistical summary.

The Crime Beat

The U.S. Attorney's office in Boston has announced that a Gloucester, Massachusetts man has been convicted of taking $116,000 in Social Security benefits paid to his mother after her death.

Attorney Fee Stats for January

Social Security has posted the attorney fee payment numbers for January. $64,848,326.02 was paid in attorneys' fees in January 2006, down 12% from December 2005.

Rumors

According to people posting on the ALJ Improvement board, rumors are circulating within SSA that budget problems mean that no new ALJs will be hired this year and that there may be no Reviewing Officers hired either. If these rumors are true, backlogs will worsen at OHA and the Commissioner of Social Security's plan to revise Social Security's appeals process can make little progress, if any. With Barnhart's term ending in January 2007, this could be the death knell for her plan, if she is not reappointed for a second term as Commissioner.

Social Security Subcommittee Hearing

The House Means and Means Committee's Subcommittees on Social Security and Oversight will hold a joint hearing on February 16 dealing with wage reporting issues.

More Action Needed on Budget Reconciliation?

The Budget Reconciliation bill that affects payment of SSI back benefits was signed by the President on February 8. The bill had passed in Congress by the barest of margins. Now, there is news of a possible technical problem with the bill which may require additional Congressional action. As controversial as the bill was and as hard as it was to get passage, this is bad news for the President and Republican leaders in Congress. The following is from a Reuters report:

But hours after Bush signed the measure [budget reconciliation], a Senate aide told reporters that a clerical error written into the bill as it bounced between the House and Senate could mean it may need another vote.

Disability Benefits and Private Accounts -- Can They Co-exist?

The Boston College Center for Retirement Studies has published a research paper entitled "Financing Disability Benefits in a System of Individual Accounts: Lessons From International Experience." The study indicates that there are three predominate methods for dealing with disability benefits when private accounts are carved out of a Social Security system:

1. The Chilean Model, under which the capital in a newly disabled individual’s account is augmented by additional capital provided by a private insurer, such that the combined account balance is sufficient to finance a lifetime defined benefit stream prescribed by law.

2. The Swedish Model, under which government-financed disability benefits are paid up to a particular cut-off age (e.g. the retirement age, or an age close to the retirement age), and, in addition, the government finances contributions to each disabled individual’s account. Upon reaching the cut-off age, the disability benefit ceases, and the assets of the individual account are used to finance a stream of retirement income. A disabled individual’s replacement rate may increase or decrease upon reaching the retirement age, because disability benefits are defined by a formula, while old age benefits are a function of interest rates and mortality rates.

3. The Hungarian Model, under which the assets of a newly disabled person’s individual account are transferred to the PAYG system, and, in return, the PAYG system finances a lifetime defined benefit stream.

Grassley: "I have no plans to pursue these proposals"

The Chairman of the Senate Finance Committee, Charles Grassley, did not mince words in reacting to the proposals in the President's Budget Proposal to end the Lump Sum Death Payment and to cut off child's benefits to children age 16 to 18 who are not in school. Here are some quotes from the Associated Press:

The administration didn't consult with me on these proposals. Even if someone had, I'd be hard-pressed to give them a second look ... I can't see how ending a pittance for widows and widowers, and modest benefits for kids who have lost a parent, would be good policy decisions. ... I have no plans to pursue these proposals

Bush Wants to Cut Kid's Benefits

Deeply hidden away in President Bush's FY 2007 Budget is a proposal to eliminate children's benefits for children ages 16-18 who are not in school.

Bush Not Done With Privatization

According to Allan Sloan at the Washington Post Social Security privatization lurks hidden away in the President's FY 2007 budget. The budget assumes that Congress will pass the "personal" accounts that were the centerpiece of Bush's grand plan for Social Security, a plan that received little public support and a huge amount of criticism.

McCrery's Chances for Ways and Means Chair Increases

Jim McCrery is on the House Ways and Means Committee and the Chairman of the Social Security Subcommittee. From today's Washington Post:

Rep. Jim McCrery (La.) : McCrery took a major gamble by supporting Boehner [for House Majority Leader], as backing the wrong horse probably would have cost him the Ways and Means Committee chairmanship when Rep. Bill Thomas (Calif.) is term-limited out of the post after this Congress. Boehner's victory strengthens McCrery's status as the front-runner for the powerful chairmanship come 2007, assuming the GOP keeps its majority this fall.

SSA To Lose 1,900 Employees Under Bush Budget

The Baltimore Sun reports that the President's proposed budget for fiscal year 2007 would pare Social Security's workforce by 1,900 employees, at a time when the agency's workload is increasing rapidly.

CLE in Atlanta

The Institute of Continuining Legal Education in Georgia is sponsoring a CLE in Atlanta on March 2-3, 2006 at the Westin Hotel.

FY 2007 Budget: Workers Comp Offset To Change and LSDP To End

The President's Budget Proposal for Fiscal Year (FY) 2007 is out. The proposed budget would give a 5% increase in funding for Social Security's administrative budget. Despite this increase, the proposal projects that the average length of time to get a hearing decision from SSA will increase from 443 days to 467 days even though the proposal assumes a 2% productivity gain at OHA, which is probably unrealistic in any case but especially given implementation of E-DIB and the Commissioner's proposal.

The President proposes a number of changes in Social Security law, some of which will be controversial. The Proposal would alter worker's compensation offsets dramatically:

One proposal would replace the current, complicated reduction to DI benefits for beneficiaries in some States who also receive Workers Compensation benefits with a uniform offset that would affect all such beneficiaries for not more than five years. This simplified offset will reduce erroneous DI payments and the burden on claimants in making large repayments, and will save SSA $7 million a year in administrative costs.

The Budget Proposal would end the Lump Sum Death Benefit:

A third proposal will eliminate the lump sum death benefit that currently goes to surviving spouses and children who receive benefits under a deceased worker’s Social Security record. This one time payment of $255 no longer provides meaningful monetary benefit for survivors and is normally less than one month’s widow/widower benefits and children’s benefits. This small payment costs SSA $15 million to administer annually, which will be redirected to higher priority activities beginning in 2007.

Less controversially, SSI recipients would be allowed to save money for certain purposes:

The Budget promotes the Administration’s Ownership Society agenda among the low-income disabled. In 2007, SSA will launch the Disability Freedom Account demonstration project to help disabled Supplemental Security Income (SSI) beneficiaries save more money to pay for their first home, education, or other services needed to get back to work, or for assistive technologies to make their lives easier. Current SSI asset limits will be waived for these individuals. Certain SSI recipients who also receive Medicaid and self-direct their long-term care support services may also be eligible to participate in this demonstration.

Job Openings for Commissioner's Plan?

Social Security has just announced job openings in Boston, MA, Portland, ME, Providence, RI and Manchester, NH for case technicians. These are all in Social Security's Region I, which is where implementation of the Commissioner of Social Security's proposal in supposed to begin. These job openings may be associated with the Commissioner's plan to alter the disability adjudication process. There have been few other announcements of job openings at SSA in recent weeks. Applications for all of the positions are supposed to be sent to the Regional Office rather than to individual Hearing Offices.

Linda McMahon Testifies

Linda McMahon, Social Security's Deputy Commissioner for Operations and the author of a leaked e-mail to Social Security staff that detailed SSA's difficulties in implementing the Medicare Prescription Drug Benefit, gave an upbeat assessment of the status of the Medicare Part D implementation in her prepared remarks to the Senate Special Committee on Aging on February 2. The Committee's Website includes the statements by the other witnesses at the hearing, which are also much more upbeat than one might think.

Philadelphia Inquirer on Social Security Regulatory Proposals

The Philadelphia Inquirer reports today on the controversy surrounding the Commissioner of Social Security's proposals to change the age categories in the Grid Regulations and to change the administrative adjudication process for determining disability.

Bipolar's Guide to Winning Social Security Disability

Dr. Susan Nickerson, who describes herself as a "professional advocate for the disabled" and who puts the initials "DC PT" [Doctor of Chiropractic, Physical Therapist?] after her name, has issued the “Bipolar’s Guide to Winning Social Security Disability.” It is sold online as an e-book and is intended to help those suffering from bipolar disorder who are filing for Social Security disability benefits and who are "unable or unwilling" to hire an attorney or other representative to help them in their dealings with SSA.

Senate Unable to Pass Medicare Part D Signup Changes

Senators voted 52-45 to give Medicare recipients until the end of 2006 to sign up without penalty for the Medicare Prescription Drug benefit, also known as Part D of Medicare, and to allow those who have already signed up to switch their coverage to another plan. However, the proposal failed since it was an amendment to a budget bill and amendments to budget bills require 60 votes under Senate rules. The Social Security Administration is currently having considerable difficulty coping with the number of calls and visits it is receiving from individuals seeking help with Part D questions.

Upcoming Meetings and CLE

There are always continuining legal education (CLE) seminars on Social Security and meetings of various groups of SSA and DDS employees. These are the upcoming CLEs and meetings that I am aware of:

• February 11, 2006 10th Circuit Social Security Claimants' Representatives, Salt Lake City, UT (contact Julie Byassee atjbyassee@troutmanlaw.com or by phone at (918) 587-0050)
  
• February 18-22, 2006 ATLA Social Security Disability Law Section CLE, Honolulu, HI
• February 24, 2006 Social Security Advisory Board, Washington, DC
  
• March 8, 2006 Philadelphia Trial Lawyers Association CLE, Philadelphia, PA
• March 24, 2006 NC Academy of Trial Lawyers CLE, Winston-Salem, NC
• April 2-5, 2006 National Association of Disability Representatives Non-Attorney Representative Education, Boston, MA
  
• April 5-8, 2006 National Organization of Social Security Claimants Representatives (NOSSCR) CLE, Boston, MA
• May 16-19, 2006 National Association of Disability Examiners Meeting, Virginia Beach, VA
• May 16-19, 2006 National Association of Disability Examiners (NADE), Jackson, MS
• May 19-20, 2006 Stetson University CLE, Tampa, FL
• August 10-11, 2006 Retirement Research Consortium, Washington, DC
  
• September 16-21, 2006 National Association of Disability Examiners, San Diego, CA
  
• October 11-14, 2006 National Organization of Social Security Claimants Representatives (NOSSCR) CLE, Phoenix, AZ
• October 16-19, 2006 National Council of Social Security Management Association Meeting, Milwaukee, WI
• May 20-23, 2007, National Association of Disability Examiners Meeting, Stowe, VE
  

If you know of others, please e-mail me: charles@charleshallfirm.com

OMB Criticizes SSA Overpayments

A report by the Office of Management and Budget (OMB) criticizes Social Security overpayments, which are said to have increased from $2 billion to $3.7 billion according to the Associated Press.

Study on When to Take Social Security

A study by two researchers at Boston College concludes that married women should take Social Security benefits early and that married men and single women should take Social Security retirement benefits late. More than half of men and women now take benefits at age 62. You have to wonder how many of of those retiring at age 62 were actually disabled and how all of this fits into the rise in full retirement age to 67 which is already underway.

Social Security Issues Strategic Plan for FY 2006-2011

The Social Security Administration has issued its strategic plan for fiscal years (FY) 2006 to 2011. The plan contains no news for anyone who has been following developments at Social Security in recent months and years, but contains a good summary of what has already been announced. The report is couched in "public relations speak" and paints an amazingly rosy picture of an agency that has great trouble answering its telephones, among other things.

SSI Payment Change Language

The Budget Reconciliation bill finally passed by Congress on February 1 includes the following language on payment of SSI back benefits:

Section 1631(a)(10)(A)(i) (42 U.S.C. 1383(a)(10)(A)(i)) is amended by striking `12' and inserting `3'.

(b) Effective Date- The amendment made by subsection (a) shall take effect 3 months after the date of the enactment of this Act.

This makes the effective date a bit ambiguous. Does it apply to decisions made three months after the President signs the bill or does it apply to decisions implemented three months after the President signs the bill?

The bill also includes language which will require Social Security to do more reviews of Disability Determination Services decisions approving SSI claims.

ALJs and OIG Investigations

Social Security's Office of Inspector General (OIG) has issued a report on a study it did on cases in which OIG had investigated a claim and, in essence, ordered it denied, yet an Administrative Law Judge (ALJ) later allowed the claim. The study showed:

...ALJs may not have always been aware that a CDI unit investigation was conducted and may not have always considered the investigative report in making the disability decision. These circumstances may have resulted in the allowance of benefits when a prior investigation by a CDI unit contributed to a denial decision. Specifically, our review of case folders for 100 ALJ decisions found:
• 97 case folders were not clearly marked to indicate an investigation was conducted and that the investigative report was included in the case folder;
• 40 investigative reports were missing from case folders;
• 28 investigative reports were not included on the exhibit list used to identify documents for consideration at the hearing; and
• 59 investigative reports were not discussed in the ALJ case decision write-up.

Administrative Law Judges made the following comments upon OIG's report that indicate problems with the OIG investigations themselves:

The ALJs also provided suggestions on some areas of the investigation that would make them even more beneficial to their disability decisions. Specifically:
• A longer period of surveillance tailored to the claimant’s alleged impairments would provide more complete evidence on some cases.
• Only factual observations about the claimant’s abilities identified during the investigation should be included in the investigative report. For example, when the claimant is observed walking only one block, the investigative report should not conclude the claimant can walk long distances.
• Specific details of the investigation, such as the length of time the claimant was observed, the distance the claimant walked, or the size of objects lifted should be reported in the investigative report.
• Standards applied to the CDI Unit’s observations should be placed in proper perspective. For example, investigative reports that indicate the claimant’s pace and gait were normal should provide a context for normal, such as pace and gate were similar to other people walking near the claimant.
• Documents that support statements made in the investigative report should be presented for consideration. For example, the investigative report states that medical evidence submitted by the medical provider for a different claimant was very similar to the medical evidence for the claimant under investigation, which could indicate duplicative use of medical evidence. Therefore, the CDI unit should provide the medical evidence from the other case to support their statement.

SSI Payment Changes Passed

The House of Representatives gave final passage to legislation that will significantly change payment of back benefits in SSI cases. Any SSI back benefits totaling over three months of benefits at the full rate must now be paid in up to three installments at intervals of six months. Previously, this was required only if the back benefits were more than a year at the full SSI rate. This means that most claimants approved for back SSI benefits by an Administrative Law Judge will not be paid most of their back benefits until more than a year after the favorable decision.

Lockhart To Leave SSA?

The Wall Street Journal reports that James B. Lockhart III, Deputy Commissioner of Social Security, is the frontrunner to head the Office of Federal Housing Enterprise Oversight which oversees federal housing financing corporations Fannie Mae and Freddie Mac. The Deputy Commissioner at SSA is the chief operating officer, second only to the Commissioner. Lockhart was appointed by the President, rather than the Commissioner, and was confirmed by the Senate. Lockhart is a long time friend of President Bush. The two first met at Phillips Academy Andover. Lockhart campaigned extensively for President Bush's plan for private Social Security accounts, while Jo Anne Barnhart, the Commissioner of Social Security, was essentially silent on the subject apart from one Op Ed piece in the New York Times, for which she received a good deal of criticism. There have been reports of friction between Barnhart and Lockhart.

Application Period For Non-Attorney Withholding Exam Begins

Applications are being accepted at Social Security from February 1 through March 1, 2006 to take the examination that allows non-attorney representatives to obtain withholding of fees for representing Social Security claimants. The examination will be heldon June 7, 2006. This will be the third time this examination has been offered.

Bush Proposes Another Commission to Examine Social Security

Almost completely lost in last night's State of the Union address was President Bush's call for yet another Commission to examine Social Security and other entitlement programs. Here are Bush's words:

We must also confront the larger challenge of mandatory spending, or entitlements. This year, the first of about 78 million Baby Boomers turn 60, including two of my Dad's favorite people - me, and President Bill Clinton. This milestone is more than a personal crisis - it is a national challenge. The retirement of the Baby Boom generation will put unprecedented strains on the Federal government. By 2030, spending for Social Security, Medicare, and Medicaid alone will be almost 60 percent of the entire Federal budget. And that will present future Congresses with impossible choices - staggering tax increases, immense deficits, or deep cuts in every category of spending.

Congress did not act last year on my proposal to save Social Security [*Democrats cheer], yet the rising cost of entitlements is a problem that is not going away - and with every year we fail to act, the situation gets worse. So tonight, I ask you to join me in creating a commission to examine the full impact of Baby Boom retirements on Social Security, Medicare, and Medicaid. This commission should include Members of Congress of both parties, and offer bipartisan answers. We need to put aside partisan politics, work together, and get this problem solved.