Scurrying To Address Individual Cases, But Not Addressing The Real Problem

There have been a number of stories over the past year or two about the hardships faced by Social Security disability claimants. Recently, there have been media reports about action taken by the Social Security Administration in the cases of claimants featured in these news reports .

I have received enough reports privately from attorneys representing claimants who have been featured in media reports that I can say with some confidence that there has been a high level decision at Social Security to do everything possible to expedite the case of anyone featured in a news report. This is new. In the past, when I have had clients who were featured in media reports as best I could tell, there was no concerted effort to expedite things. If anything was done to speed up things, it was all a local decision. Now, orders are coming down from on high to make dramatic efforts to expedite review for individuals featured in media reports. Somewhat distressing is one report I received that an attorney whose clients were featured in a news article received an unsubtle threat of retaliation from the Social Security Administration.

While I am glad that these individuals are getting relief, this does not promote justice and equity. Most Social Security disability claimants do not want to talk with reporters. I have more compelling cases than any featured in media reports, and so does any other attorney with a full time Social Security practice, but those clients do not want to talk with the media. Even if all those with the most compelling cases were willing to talk with reporters, the media can only report on so many cases anyway.

It seems obvious to me that this response to media reports is happening now because of the political campaign. What we are seeing is politicization of Social Security -- or perhaps what we are seeing is evidence that Social Security is inherently political.

This is one of many things which suggests to me that Michael Astrue's horizon does not extend past the election. This does not mean that he will leave as Social Security Commissioner after the election, even if Obama is elected, but he is intensely focused upon the very short term and nothing else.

This is one more proof that the concept of Social Security as an independent agency is a failure.

A Democratic Theme

A major theme of this blog is the undeniable deterioration of service at the Social Security Administration. However, Social Security's problems are just one example of a larger issue which is being addressed by Democrats.

Thomas Frank wrote in The Wrecking Crew: How Conservatives Rule that conservatives actually want poor government service because to them "effective government [is] somewhere between impossible and undesirable." For them poor government service just "leads to "another sour truckload of the mother's milk of conservatism, cynicism toward government."

Barack Obama, in his acceptance speech at the Democratic National Convention, echoed this theme telling us that:

... if you don't have any fresh ideas, then you use stale tactics to scare the voters. If you don't have a record to run on, then you paint your opponent as someone people should run from.

You make a big election about small things.

And you know what — it's worked before. Because it feeds into the cynicism we all have about government. When Washington doesn't work, all its promises seem empty. If your hopes have been dashed again and again, then it's best to stop hoping, and settle for what you already know.

Social Security Checks Delivered Early

From a Social Security press release:

The Social Security Administration announced that benefit checks are being delivered to Gulf Coast residents today and tomorrow, before the arrival of Gustav and ahead of the regular payment date. Nearly 400,000 people in Texas, Louisiana, Mississippi, Alabama and Florida will receive their Social Security checks August 29th and 30th, rather than on September 3rd, the regularly scheduled payment day.

SSI Monthly Stats

The Social Security Administration has issued its monthly package of statistics on the Supplemental Security Income (SSI) program.

OMB Clears Proposed Regs On Representation

On August 27, the Office of Management and Budget (OMB) cleared "with change" proposed regulations it had received from Social Security to "recognize entities as representatives, mandate the use of Form 1696 to appoint or revoke the appointment of a representative, define the roles of a principal representative and a professional representative, require professional representatives to file Form 1696 electronically, and require a representative to keep paper copies of certain documents ..."

Normally, proposed regulations appear in the Federal Register within a few days after OMB clears them, although the proposed new mental impairment listings were cleared by OMB on July 9 and have still not yet appeared in the Federal Register.

In Kind Support And Maintenance: Loans To Minors

I am not even going to try to explain why this matters. Those who know, know, and those who don't, probably aren't interested. From an opinion by Social Security's Acting Regional Chief Counsel for Region VII:

State law generally provides that a minor may enter into a bona fide loan agreement with an adult, but the minor maintains the right to disaffirm the agreement upon reaching the age of majority, absent factors such as the minor's own misrepresentations concerning his or her age and good cause reliance by the adult, or emancipation by marriage.

State law provides parents have a legal obligation to support their children. Therefore, a parent may not loan an apportioned share of household expenses to a child he or she is already legally obligated to support. Guardianship and foster care cases must be reviewed on a case-by-case basis to determine if an in kind loan is proper.

Good News For One More

From the Milwaukee Journal-Sentinel:

Here's a good news update on one of our stories from last week.

A man who's been waiting more than three-and-a-half years for a hearing to determine if he'll get disability payments is finally scheduled to see a judge next month. Since David Hintz first applied for disability three-and-a-half years ago, Social Security has lost his file, transferred it around the state or just let it sit idle, according to Hintz and his attorney. ...

Here's what happened to Hintz: at the end of July, the Social Security Administration called Hintz's attorney to schedule a hearing. A judge would finally determine if the 39-year-old man was eligible for disability payments.

I am glad these people are finally getting relief, but is it all accidental that things happen for them just after their names are in the paper?

New Regulation Proposed -- And Others Still Hanging

The Office of Management and Budget (OMB), which is part of the White House, must approve all proposed regulations before they are published in the Federal Register. The Social Security Administration just filed the following proposal with OMB:

We proposed to improve the operational efficiency of field offices by reducing the number of individuals who must be interviewed, face-to-face, in the office. Specifically, we will eliminate the requirement to re-interview individuals who became a representative payee (rep payee) for more than one beneficiary. Current policy requires a face-to-face interview for all proposed rep payees. This regulation will eliminate the requirement for that interview where an individual is already serving as a rep payee for another beneficiary.

Let me add a couple of "by the ways" which are probably more important. First, OMB cleared -- with changes -- new proposed mental impairment listings on July 9, 2008. Normally, once OMB clears a Notice of Proposed Rule-Making (NPRM), it appears in the Federal Register within a few days, but not this one. I wish I knew why. Second, another NPRM to "recognize entities as representatives, mandate the use of Form 1696 to appoint or revoke the appointment of a representative, define the roles of a principal representative and a professional representative, require professional representatives to file Form 1696 electronically, and require a representative to keep paper copies of certain documents that we may require" has been pending at OMB since May 30, 2008. The OMB's own rules require that they take action on this within 90 days. The 90 days are up tomorrow.

Woman Thrown Out Of Social Security Office Because Of T-Shirt

From the Los Angeles Daily News:

A routine trip to the Social Security office Monday turned into 30 minutes of shock, disbelief and irritation for Lapriss Gilbert, who was forced to leave the federal building by a guard who objected to her "lesbian.com" T-shirt.

As she headed for a line to pick up a Social Security card for her son, Gilbert was stopped by a guard who said her T-shirt, naming an educational and resource Web site for gay women, was offensive.

She said the guard, who works for a private company hired by the Department of Homeland Security, demanded that she leave the building or face arrest. ...

Lori Haley, a federal spokeswoman for the office of Immigration and Customs Enforcement - which is under the Homeland Security umbrella - said the guard was out of line.

"We believe that the actions of the contract security guard were inappropriate and unacceptable - we have notified his company, Paragon, of our position in the matter," Haley said.

Good News For Three More

The Atlanta Journal-Constitution reports that three disability claimants who were the subject of an article that the paper ran on backlogs at Social Security have been approved.

Good News For One Claimant

I posted a couple of weeks ago about a report on WSPA-TV in South Carolina about Social Security backlogs. WSPA's "7 On Your Side" now reports that Jennifer Satterfield, who was the subject of the report, has now been approved for Social Security disability benefits.

OK, that is one down. Now, how many hundreds of thousands of other claimants are waiting for their decisions?

Proposed Regulations On ALJ Hearings Withdrawn

The Office of Management and Budget (OMB), which is part of the White House, must approve most proposed regulations before they are published in the Federal Register. Yesterday, OMB posted a notice that proposed Social Security regulations described as follows were withdrawn.

We propose to amend several regulations and provide new regulatory language to address inefficiencies in the hearings process. The amendments include provisions clarifying that claims denied by state Disability Determination Services and other adjudicators for “failure to cooperate” are technical denials rather than medical determinations, and providing flexibility in setting the time and place of hearings. We also intend to propose new regulatory provisions that will allow ALJs to dismiss a request for a hearing where a claimant has abandoned his or her claim and to specify regulatory standards that require ALJs to clearly articulate their rationale when issuing decisions on remanded claims.

Does anyone know what happened here?

Results Of Last Week's Unscientific Poll

On the whole, what would best express your feelings on the productivity of Administrative Law Judges (ALJs)?

ALJ productivity is lousy. They should be forced to work harder. (14)	11%
ALJ productivity could be better if they worked harder. (23)	18%
ALJ productivity seems OK to me. (5)	4%
There may be a bit too much pressure on ALJs to issue decisions. (7)	6%
There is far too much pressure on ALJs to issue decisions. This has led to corners being cut and bad decisions. (18)	14%
There is a problem with ALJ productivity but it is due to a lack of adequate support staff. (58)	46%

Total Votes: 125

New Attorney Fee Regulations Proposed

Tomorrow's Federal Register will contain new proposed regulations concerning fees for attorneys and others who represent Social Security claimants. Here is the summary:

We propose to revise our rules regarding payment of representative fees to allow representatives to charge and receive a fee from third parties without requiring our authorization in certain instances. We also propose to eliminate the requirement that we authorize fees for legal guardians or court-appointed representatives who provide representational services in claims before us if a court has already authorized their fees. We are proposing these revisions to reflect changes in representatives’ business practices, and in the ways in which claimants obtain representation, and to make more efficient the way we process representative fees.

This seems aimed at helping Allsup and others who represent Social Security claimants at the behest of long term disability insurance companies.

Interesting that this will appear in the Federal Register only a few days after it cleared the Office of Management and Budget, while the new proposed mental impairment listings are still awaiting publication when they cleared the Office of Management and Budget on July 9.

Update: Here is a link to the proposed regulations as published in the Federal Register.

Data Quality Act

The Data Quality Act requires that each agency:

...issue guidelines ensuring and maximizing the quality, objectivity, utility and integrity of information ... (including statistical information) disseminated by the agency ... [and] establish administrative mechanisms allowing affected persons to seek and obtain correction of information maintained and disseminated by the agency that does not comply with the guidelines ..."

The Office of Management and Budget has issued regulations interpreting this Act.

There are many questions about the meaning of the Data Quality Act. It is far from clear that it could be used to make a court challenge to a proposed regulation. No one has even tried to use it to attack an existing regulation, such as Social Security's "grid regulations", which justify denials of disability claims based upon data that everyone concedes is ridiculously out of date and unreliable. However, the Data Quality Act certainly will be useful if, or more likely when, Social Security produces studies upon which it will finally update or replace the grid regulations.

Union Seeks More Work At Home Options

From the National Council Digest, a publication of the American Federation of Government Employees local which represents a large portion of Social Security's workforce:

Will more Social Security employees ever be able to work from home?

Witold Skwierczynski, the President of Council 220, thinks it’s a possibility and one that could be discussed during the next round of contract nego-tiations.

“If employees put that high on the list of their preferences, it will be high on the list,” he told the DIGEST.

The contract doesn’t expire until August, 2009 but the Union is already preparing for the next set of labor/management negotiations.

“It would appear that the current Commissioner of Social Security is not inclined to expand tele-work (or working at home) to employees who work in field offices and teleservice centers,” Skwierczynski said. “Hopefully a new Administra-tion which will take office in January will have a different attitude when this issue is addressed in contract negotiations next year.

Social Security Legislative Proposal On ALJs

An anonymous person posting on the ALJ (Administrative Law Judge) Discussion Forum has revealed what appears to be the text of a legislative proposal from the Social Security Administration. Here is the purported text:

A BILL

To amend the Civil Service Reform Act of 1978 to enact changes related to actions against administrative law judges.

Be it enacted by the Senate and House of
Representatives of the United States of America in Congress assembled, SECTION 1. SHORT TITLE.

Short Title.--This Act may be cited as the "Civil Service Reform Act Amendments of 2009".

TITLE X—PROVISIONS RELATING TO ADMINISTRATIVE LAW JUDGES , SEC. 101 ACTIONS AGAINST ADMINISTRATIVE LAW JUDGES.
(a) Section 7521 of the Civil Service Reform Act (5 U.S.C. 7521) is amended—
(1) in subsection (a), by striking "An" and
inserting "Except as provided in subsection (c), an";
(2) in subsection(b), by striking "this
section" and inserting "subsection(a)"; and
(3) by adding at the end the following new
subsections:
"(c) To ensure the integrity and impartiality of the position of administrative law judge, an agency may immediately discipline any administrative law judge appointed under section 3105 of this title without prior good cause established by the Merit System Protection Board when an administrative law judge:
"(1) is indicted or convicted of a crime for which a sentence of imprisonment may be imposed under state or Federal law;
"(2) is disbarred or suspended from the practice of law by any State, the District of Columbia, the Commonwealth of Puerto Rico, or any territorial court established under the United States Constitution;
"(3) is found by a state or Federal court, or by an administrative tribunal charged with enforcing discrimination laws, to have discriminated against an individual in a protected class, showed disrespect to an individual in a protected class, committed discriminatory physical or verbal conduct against a protected class member, or committed sexual harassment; or
"(4) is indicted or convicted of a misdemeanor involving fraud, theft, assault, physical violence, prostitution, solicitation, sexual misconduct, or an offense involving narcotics or is found civilly liable for engaging in one or more of these activities. "(d) An administrative law judge disciplined under subsection(c) is entitled to the protections provided employees under section 7513 of this title.",
(b) Effective Date.—The amendments made by this section shall take effect on the date of the enactment of this Act and shall apply to agency actions filed on or after such date.

Some of this is worthy of consideration (getting rid of an ALJ quickly if he or she is convicted of a felony sounds like a good idea), but it seems far too broad to me. Summarily firing someone just because of an indictment? Did anyone else notice what happened in the Duke Lacrosse Case? Most people who are indicted are guilty, but not all. What is "administrative tribunal charged with enforcing discrimination laws"? Could that be the Appeals Council? What does "showed disrespect" mean?

Response To I.O.U.S.A.

I had posted about the new documentary movie, I.O.U.S.A.. Here is an early response to the movie:

For years, Americans have been told revenue-slashing tax cuts are the answer to our financial woes and a borrow-and-spend economy is not a problem. Now, when faced with the ensuing budget deficits and an economic meltdown we’re being told we can’t afford Social Security and Medicare. This is not “speaking the truth” as David Walker has claimed. Instead, we are seeing the same old anti-Social Security and anti-Medicare ideology now masquerading as fiscal responsibility. We must talk about tax reform, spending and responsible healthcare reform if we’re serious about controlling our fiscal future. Unfortunately, that balance is still missing in this debate."

Barbara B. Kennelly, President/CEO, National Committee to Preserve Social Security and Medicare

Paper And Productivity

I reviewed an emergency room report recently. The patient was seen due to hyperglycemia. She is a diabetic and her blood sugar had gotten too high. This is a routine sort of emergency room visit. The report on the ER visit ran to 36 pages. Ten years ago, maybe even five years ago, the report would have been about three to five pages. I strongly doubt that her treatment was any different than it would have been five or ten years ago, but the hospital generated a lot more paper. This is routine in most medical settings today. Medical care generates far much more paper than it used to.

It takes more time these days to review an average Social Security disability claimant's file than it used to, because the average claimant's file is thicker than it used to be. This has an effect upon productivity. People in the field may not talk about this or even notice it because it has happened slowly over the years, but it is important.

I mention this because it is a reality that seems not to penetrate to the higher reaches of the Social Security Administration. Above a certain level one never reviews an actual claim file.

Commenting On Old Posts

Efforts have been made to use the commenting feature of this blog to promote pornography websites. Comments were posted about old items as part of an underhanded search engine optimization effort. I have deleted these posts and set the blog to require my approval before comments are posted on anything more than three days old.

Social Security -- The Movie

I have a hard time believing this will get many viewers, but I.O.U.S.A., a movie, is being released today. A blurb describes it as being … an alternately amusing and alarming primer on America's off-the-charts fiscal irresponsibility ...

The Comptroller General, Patrick Creadon, is featured in the movie according to the International Movide Data Base. I guess he is trying to go down the same path as Al Gore.

Apparently, Social Security must be discussed prominently in the movie, since the National Academy of Social Insurance is offering to make "experts" available to discuss the movie with reporters.

Atlanta Journal-Constitution Editorial And Commissioner Responds

The Atlanta Journal-Constitution is running an editorial on Social Security's backlog situation. The article tells us that the current level of service at Social Security is "unacceptable" and notes that "The reason for the backlog is not in dispute —- not enough workers to process the claims, and not enough administrative law judges to hear appeals of denials."

The editorial makes the common naive mistake of asking for "streamlining." In my opinion, Social Security is suffering from an excess of efforts to "streamline." These efforts, which have become more and more desperate and even ridiculous have had the perverse effect of making things worse because they have not worked (other than to cut corners, reducing the quality of the decision-making process) and because they have diverted attention and resources from the real problem of lack of staff.

The editorial also suggests that there is something awful about long term disability (LTD) insurers having offsets in their policies for Social Security disability benefits. Think about it a bit. Without that offset, how expensive would LTD be? Without being able to offset Social Security disability benefits, LTD would be so expensive that almost no one would be covered. The LTD available now is quite imperfect, but it is far better than nothing.

Michael Astrue, Commissioner of Social Security, was given an opportunity to respond. His response was adapted from a statement he made to a Congressional committee. It is not clear whether this was Astrue's choice or the newspaper's choice. There is nothing new in it.

A Unitary Theory Of What Went Wrong At Social Security -- And Beyond

From The Wrecking Crew: How Conservatives Rule by Thomas Frank:

Conservatism ... seems actively to want an inferior product [government service]. Believing effective government to be somewhere between impossible and undesirable, conservatism takes steps to ensure its impotence. The result is predictable enough: another sour truckload of the mother's milk of conservatism, cynicism toward government.

Waiting In Milwaukee

From the Milwaukee Journal-Sentinel:

David Hintz had waited nearly three-and-a-half years for this.

At the end of July, the Social Security Administration called his attorney to schedule a hearing. A judge would finally determine if the 39-year-old man from Custer was eligible for disability payments.

For years, Hintz and his wife had lived off her parents. Blood clots in his lungs, an injured leg and a plethora of daily pain medication and blood thinners had kept Hintz out of the work force since 2004. He hoped the call from Social Security signaled the end to a long road.

Instead, the red tape only got longer and more tangled.

When Hintz's attorney reported that his client had moved from Custer to South Milwaukee last year, the Social Security worker said the case had to be sent back to Milwaukee.

Stephanie Tubbs Jones Dies

Stephanie Tubbs Jones, a member of the House Social Security Subcommittee, has died.

Massive Shredding Of Charter Hospital Medical Records

Charter Hospitals, which had been the nation's largest chain of psychiatric hospitals, went bankrupt. At one time Charter operated 90 hospitals around the country. Some of the hospitals were sold and continued in business under other names, but many closed for good. I have recently learned that most, if not all, of the medical records generated by the Charter Hospitals that closed for good have been shredded. There was no money to pay for continued storage of the medical records. Apparently, the state governments in the states in which Charter had operated were offered the records, but most, if not all of them declined to accept the records.

This is awful, just dreadful. There should be laws to prevent this from happening. This can affect the outcome of Social Security disability cases.

OMB Clears Proposed Rules On Authorization Of Representative Fees

The Office of Management and Budget (OMB), which is part of the White House, must clear all proposed regulations before they are published in the Federal Register. This item just appeared on the OMB webite:

GENCY: SSA	RIN: 0960-AG82
TITLE: Authorization of Representative Fees
STAGE: Proposed Rule	ECONOMICALLY SIGNIFICANT: No
RECEIVED DATE: 05/30/2008	LEGAL DEADLINE: None
** COMPLETED: 08/19/2008	COMPLETED ACTION: Consistent without Change

Usually, within a few days after OMB clears a proposed regulation it appears in the Federal Register and people can comment upon it.

The proposed new mental impairment listings were cleared by OMB on July 9, but has still not appeared in the Federal Register. I do not know the reason for the delay, but it seems unusual, so my best guess is that it has significance.

Bizarre

Go Daddy.com runs a domain name aftermarket auction. Currently, they are auctioning off the domain name SOCIAL-SECURITY-DISABILITY-ATTORNEY-FLORIDA.COM. The current bid is $10, but the auction ends at 10:23 A.M. PDT today.

And by the way, I was not looking for this or anything like it. It came up on a search for "Social Security" on Google Blog Search.

Why Service At Social Security Has Gone To Hell

Service has gone to hell at Social Security since the Bush Administration took office. Why? It is all a matter of budget priorities.

Social Security's operating budget for the 2001 fiscal year (FY) was $7, 223 million. That was the operating budget for the year in which the Bush Administration took office. For the current FY Social Security's operating budget is $9,864 million, which is a 36.6% increase. Of course, you have to allow for inflation. Between October 2000 and July 2008 the inflation rate was 26.4%. This means that there was a net gain in Social Security's operating budget during the Bush Administration after inflation of about 10.2%.

As of September 2000, the closest date to when the Bush Administration took office for which I can find figures, Social Security had 64,521 employees. As of March 2008, the most recent date for which figures are available, Social Security had 60,465 employees, a 6.3% decrease.

After inflation Social Security's operating budget increased by 10.2% over about eight years, while the number of employees decreased by 6.3% over about the same time period.

The extra money appropriated to Social Security plus the money saved by not replacing employees must have gone to contractors. If that money had not gone to contractors I can make a rough guess that the Social Security Administration would now have about 10,000 to 15,000 more employees than it has and I can say with certainty that Social Security would be giving much better service to the public.

It is all a matter of priorities.

Poll

Free Web poll for your Web site - freepolls.com

White House Rates Social Security Administration

You have to consider who is doing the rating, but the White House rates the Social Security Administration pretty highly on its "Executive Branch Management Scorecard."

Video Service Delivery

The National Council of Social Security Management Associations (NCSSMA), an organization of Social Security management employees, included an article about video service delivery in its July 2008 newsletter. Here is more detail on video service delivery from the minutes of the August 7 teleconference meeting of the NCSSMA's Executive Committee:

Video service delivery [VSD], a new way of conducting SSA business, is being piloted in Wyoming. The public can conduct business with SSA at their local libraries. Equipment provided by two different vendors is being utilized. The public can file applications or conduct SR [Service Representative] type actions via VSD.

The first month of the pilot, 250 people utilized the SR VSD window, and 80% of claims that were scheduled were filed compared to the higher no show rate at a field office. One of the service options is to have a private reading room, which affords even greater privacy than in the FO [Field Office]. A future enhancement could allow documents viewed through the camera to be considered similar to viewing in person. Some of these VSD centers are within close proximity to actual FOs so that if the process fails, the public can still conduct business at the actual FO.

The Division of International Operations (DIO) is considering a VSD pilot in London, which can be set up for a fraction of the cost in foreign embassies. VSD is pretty much behind SSA firewalls so it is more secure and information is encrypted. It currently appears that there is no possibility of PII being compromised. VSD with DSL connections is good enough to see markings on drivers' licenses.

... The pilot is deemed an outstanding success. The Regional Commissioners all seemed to like it, and there is talk in the regions about which states will pilot VSD. It has also been very successful on Native American Reservations. The agency sees the value of VSD as being another form of face- to- face service and an alternative to internet usage. ...

I have written before about the problems that Social Security has with international claims. This would be an enormous improvement over the messy situation now, with untrained or poorly trained State Department employees taking claims. I am sure this will help improve service in sparsely populated areas of the United States as well. Unfortunately, it could also be used to justification for shutting down Social Security's field offices, which would be a terrible idea.

GAO Report On Withholding Of Medicare Premiums

I had missed it, but the Government Accountability Office (GAO) issued a report on July 15, 2008 on the withholding of Medicare premiums from Social Security checks. The report indicates that despite work, problems remain.

Debit Cards For Claimants Without Bank Accounts

Social Security is now going national with the program to allow claimants without bank accounts to receive their benefits by direct deposit to an account they can access through a debit card. Comerica Bank is managing the program. To sign up for this, a claimant is supposed to call Comerica, a detail which I find mildly jarring.

AALJ Press Release On "Laptop Law"

From a press release issued by the National Executive Board of the Association of Administrative Law Judges (AALJ), a labor union that represents many of Social Security's Administrative Law Judges (ALJs):

Currently the nation´s Social Security disability insurance program is struggling under a severe case backlog. In some parts of the country, claimants can wait more than two years for a hearing. According to the Government Accountability Office the backlog results primarily from increased applications, staffing shortages and management weaknesses.

The Social Security Administration (SSA) has tried a number of fixes to speed the process including video hearings. In recent years, these hearings have been conducted in special chambers located in government buildings where federal administrative law judges control the camera and where claimants can discuss the most intimate details of their lives and disability, without worrying others will hear. ...

Now, SSA´s management has begun testing a new and until now unpublicized form of video hearing where judges are not in control of the camera, where hearings originate from the offices of private disability lawyers and where no federal employee is present to monitor the hearing and oversee operation of the camera or protect the privacy of claimants.

Judges would like to see steps taken to reduce the backlog and more quickly settle claims, however the use of video hearings originating from claimants´ lawyers laptops is not the solution. Claimants who have paid into the Social Security system throughout their working lives have a right to a fair hearing before a judge in a dignified setting. The new "laptop law" video forum has no provision for the judge to position or move the camera during the hearing. It deprives the judge of control of the hearing process and creates too many opportunities to game the system. It is not hard to imagine a claimant testifying from his lawyer´s office reading testimony from a teleprompter or being coached by another lawyer in the background.

Don't Tell Anyone! It's A Secret!

Bender's Immigration Bulletin has obtained a Program Operations Manual Series (POMS) issuance on Social Security's implementation of the Ensign Amendment, concerning the crediting of earnings when a person was working under a false Social Security number with intent to deceive. The issuance is marked "Sensitive -- Not To Be Shared With The Public."

This POMS issuance is small potatoes. The larger issue is the preposterous secretiveness. What is truly "sensitive" about this? This is the public's business that Social Security is transacting. Those of us who do business with the agency deserve to know the policies the agency is applying. Trying to keep this sort of thing secret indicates an improper desire to avoid public scrutiny. I am appalled.

Time To Pull The Plug On Ticket To Work?

From a report by Social Security's Office of Inspector General on the Ticket to Work program (emphasis added):

We understand that the Ticket Program is a relatively new program and any savings achieved may be realized over a long period of time. Still, we found the economic self-sufficiency and related benefit savings outcomes were similar for beneficiaries, whether they participated in the Ticket Program or not. While the two groups had similar outcomes, SSA paid additional costs for the Ticket Program and recent changes are projected to increase the overall costs of the Ticket Program. Also, implementation of the Ticket Program did not appear to increase the percentage of disabled beneficiaries who returned to work, nor realize the outcomes and savings envisioned by Congress. Given our findings, we recommend SSA:

1. Evaluate the continued viability of the Ticket Program.

2. Work with Congress to reform or end the Ticket Program if the Agency determines it is not having the desired impact and/or it is not cost-effective.

AGENCY COMMENTS

SSA agreed with our recommendations ...

Bush Succeeded In Scaring People, If Nothing Else

From Rasmussen:

National Survey of 1,000 Likely Voters

Conducted August 1, 2008
By Rasmussen Reports

1* How confident are you that the Social Security system will pay you all promised retirement benefits during your lifetime?

15% Very confident
29% Somewhat confident
28% Not very confident
25% Not at all confident
3% Not sure

2* Should working Americans be allowed to opt out of Social Security and provide for their own retirement planning?

45% Yes
41% No
13% Not sure

3* Is Social Security a good deal for working Americans today?

46% Yes
37% No
18% Not sure

4* Currently, people pay Social Security taxes on the first $102,000 workers earn each year. People who make more than that do not pay Social Security taxes on salary and wages above that level. Should Social Security taxes be paid on ALL OR MOST OF THE income workers earn each year?

62% Yes
25% No
13% Not sure

5* Should people who pay more in Social Security taxes receive more Social Security benefits when they retire?

62% Yes
24% No
14% Not sure

NOTE: Margin of Sampling Error, +/- 3 percentage points with a 95% level of confidence

Happy 73rd Birthday, Social Security!

Screwup In Nebraska

From the Lincoln Journal Star:

About 7,400 Medicare beneficiaries in Nebraska can request a waiver of a recent decision that two months Part B premium arrearages would be withheld from their September Social Security check.

This situation arose when an incorrect list from the State of Nebraska was sent to Social Security identifying more than 9,500 Part B beneficiaries for whom the State of Nebraska was going to pay their Medicare Part B premiums beginning April 2008. ...

Each beneficiary received a refund of several months Medicare Part B premiums. After the list was corrected, beneficiaries were told that the overpayments created by this erroneous list would be collected from the benefit they will receive in September.

To request a waiver of the overpayment, beneficiaries should contact Social Security ...

Interesting that they are treating this as an overpayment subject to waiver.

Hearing Loss Listings

The Notice of Proposed Rule-Making (NPRM) for the new hearing loss listings will be in the Federal Register tomorrow, but you can read it today. I see no major departure from the current listings on a cursory review.

This was cleared by the Office of Management and Budget (OMB) on August 6 and will appear in the Federal Register on August 13, which is a fairly normal interval between these two events. The NPRM for the new mental impairment listings was cleared by OMB on July 9, but has still not appeared in the Federal Register. I do not know the reason for the delay, but I have to guess that it has some significance.

Waiting In South Carolina

WSPA-TV in Spartanburg, SC has a "Problem Solver" reporter. This reporter found that she was getting more calls about backlogs in adjudicating Social Security disability claims than anything else, so she did a story on the subject. Take a look at the video.

OIG Report On ALJ Productivity

Social Security's Office of Inspector General (OIG) has issued a report on Administrative Law Judge (ALJ) and hearing office productivity. The report tells us that higher producing ALJs approved a higher percentage of cases than lower producing ALJs and that an increased percentage of on the record reversals, that is approvals without a hearing, accounted for a good part of that difference. Higher producing ALJs also held shorter hearings.

The report tells us that a higher ratio of staff to ALJ helped produce more decisions. Commissioner Astrue had stated back in June that "We have also received some criticism that we are not providing adequate support staff for our administrative law judge corps. In my opinion, that is a fiction designed to sidetrack some of our productivity initiatives." That statement, which was not off the cuff, but in Astrue's written statement to a Congressional committee is not looking too good at the moment.

Here is an excerpt from the report worth quoting:

ALJs stated that the electronic folder has slowed case processing. While some ALJs indicated the slowdown is a result of the learning curve associated with the electronic folder, other ALJs assert that processing cases with the electronic folder will always be slower than with paper files. Specifically, some ALJs stated that it is faster to page through a paper file than navigate through the screens and documents attached in the electronic folder. ODAR has confirmed that there are general intermittent systems performance issues, such as limited bandwidth causing periods of slow response times. However, because the problems are intermittent, documentation of these occurrences was not available from ODAR. Information was not available for us to determine the impact the electronic folder has had on case processing times.

Why is it that this is the first official report from Social Security discussing this topic? Why is it that they lack sufficient information? It is like they have been afraid to try to find out whether the electronic folder is working. After this length of time the lack of proof that the electronic folder has improved productivity is rather powerful proof to me that it is not working. If the electronic folder were succeeding, Social Security would be quick to gather proof of the success and to tell the world.

Let me ask the question that OIG did not try to ask or answer. Where would Social Security be today if the money lavished upon the electronic folder contractors had been spent on additional employees to get the work done? The answer is obvious. The backlog at Social Security would be vastly smaller, maybe even non-existent.

I nominate the electronic folder as the worst single decision in the history of the Social Security Administration and Jo Anne Barnhart as the worst Commissioner in Social Security history.

Death Of Claimant After Denial

From a new Program Operations Manual Series (POMS) issuance:

When a disabled claimant dies from a non-traumatic impairment within 1 year of the date of denial or cessation, and a reconsideration was not requested by the claimant before his/her death, or one has not been filed subsequently by a survivor, the case is reexamined and possibly reopened. No Request for Reconsideration (SSA-561) is required. If death resulted from a subsequent traumatic event, no reexamination is made under this procedure.

Waiting In Minnesota

From the St. Paul Pioneer Press:

Patricia Heimerl landed her first job in high school, bought a house at 22 and worked the last eight years of a long office career at Intel. She paid her bills, built a retirement account and, like most Americans, watched as Social Security took its cut from every paycheck.

Part of those deductions went to an insurance fund that pays benefits to people who become too sick or injured to work. Heimerl couldn't imagine that would ever mean her.

Then it did.

Doctors diagnosed her with fibromyalgia, which causes chronic muscle pain. Heimerl couldn't hold a job.

In January, the Social Security Administration decided the 55-year-old McMinnville, Ore., resident was disabled and approved her for benefits.

Here's what it cost her: six years.

Six years fighting Social Security's delays. Six years dealing with lawyers and paperwork. Six years burning through savings and selling her house to survive.

A Little Help, Please

On a daily basis I take a look at the FedBizOpps website to see what goods and services the Social Security Administration is interested in purchasing, but I would also like to look at who gets those contracts. I see some of that now because vendors who get major contracts often issue press releases, but I would like to look at this on a more systematic basis. Is there a database of contracts issued by the Social Security Administration available online? If you know, please use the feedback button on the right side of the page to clue me in.

Lou Dobbs Take Note: Social Security Trust Fund Projections May Be Unreliable Due To Failure To Consider Immigrant Earnings

The most recent issue of the Social Security Bulletin has been released. It is labeled Volume 68, Number 1. I think they got so far behind in issuing the Social Security Bulletin that they no longer even put a date on them.

One interesting article tells us that the earnings of immigrants have not been factored into projections of the future financial status of the Social Security trust funds. Given the volume of immigration into the United States in recent decades, this tells me that the projections we now have of the future status of the Social Security trust funds may be unreliable. The trust funds may be in better shape than anyone realized. I am surprised that this is the first time that I have heard of this issue.

Sort Of Saying One Thing, While Meaning Another

Take a look at this memo from Social Security's Office of Disability Policy (ODP) in answer to the question, "Whether an individual with a below-knee amputation and no indication of stump complications, who does not use a prosthesis due to inability to afford one, can be found disabled." The memo was obtained by the National Association of Disability Exmainers (NADE). It sounds like a simple question that ought to have a simple answer.

Social Security's answer to the question, however, rambles on. While the memo suggests that the answer is "Yes", the memo mostly discusses various way in which an individual in the situation described could be denied and never says how such an individual could be approved. The overall impression I get from the memo is that the answer is actually "No, we want you to deny those folks, but you can't quote us on that."

Actually, it does not matter what the memo says. The real policy will never be in writing in a memo. Actually saying what the policy is might be embarrassing. NADE members will intuit the true answer from the tone of the memo and from the cases they see returned to them by Social Security's Quality Assurance process. Those Quality Assurance returns are hidden away in individual claimant files and cannot be released to the public, allowing Social Security to hide its true policy from public scrutiny.

If you are on the outside of Social Security wondering why so many disability claims get denied, study this and think about it. It is a microcosm of disability policy at Social Security. The policy documents released to the public are always hazy and hard to understand, but do not sound too unreasonable, while the actual results on the ground do not seem to match up with what the policy documents seem to say.

OMB Clears Hearing Loss Listings

The Office of Management and Budget (OMB), which is part of the White House, must clear all proposed federal regulations before they are published in the Federal Register for public comments. OMB has just cleared proposed new Listings for hearing loss. The OMB website lists the "completed action" on the proposed regulations as "Consistent with Change."

Normally, these proposed regulations appear in the Federal Register within a few days after OMB clears them. The proposed new mental impairment Listings were cleared by OMB almost a month ago but have still not been published.

The Oregonian Editorial On Backlog

The Oregonian followed its stories on the terrible backlogs at Social Security with an editorial. Here are a few excerpts:

Hundreds of thousands of disabled workers in America have become Hurricane Katrina-style victims of a failing federal bureaucracy. ...

This is yet another stain on the legacy of President Bush. A backlog in claims existed before he took office, but it had been shrinking under the Clinton administration. Under Bush it has nearly doubled. ...

Underfunding is part of the problem. ...

But White House ideology plays a role in this disgrace, too. Bush plucked Jo Anne Barnhart from the Republican political trenches to serve six years as his Social Security administrator, and she appeared to share her boss's lack of enthusiasm for the entitlement program. ...

It's fair to question the competence of the Social Security bureaucracy under Barnhart, too. In just one example cited by Denson and Walth, the agency mistakenly overpaid more than $4 billion in disability payments in 2006, and now it's adding grief to the lives of millions of recipients by billing them for reimbursement.

I think the cracks about "a failed federal bureaucracy" and the "[in]competence of the Social Security bureaucracy" are unfair. Any government agency will fail if it lacks the basic resources to get the job done. Blaming the "bureaucracy" is part of what got us where we are. If the incompetence of the "bureaucracy" is the problem, the solution is not to give the bureaucracy more money but to demand that the bureaucracy become competent. That is what has been done since 1994 when Republicans took control of Congress, with disastrous results. The ideology that incompetent federal bureaucrats were to blame for any problem in the federal government led to the fiascoes of "Reinventing Government," "Hearing Process Improvement" and "Disability Service Improvement," three efforts at "reforming" the bureaucracy that made things dramatically worse, while providing the crucial justification for cutting Social Security's operating budget.

The truth is that, on the whole, the Social Security Administration runs a pretty tight ship. Squeezing out further efficiencies is difficult. Only small incremental improvements can be achieved. Most of what is currently being presented as evidence of increased efficiency at Social Security is misleading. Employees and managers try to meet statistical goals -- for that which is being measured -- while that which is not being measured, primarily quality, goes to hell. As I have said before, it is reminiscent of Soviet five year plans.

What is needed at Social Security is not so much competence as honesty and modesty. We need upper management to be honest with itself and with Congress and the Office of Management and Budget about what is possible given current funding. We need upper management to be modest about the agency can do with the resources they have been given and more modest in talking about Social Security's productivity "gains."

Astrue Interview

The Atlanta Journal-Constitution has published a transcript of an interview with Social Security Commissioner Michael Astrue. Here are a couple of excerpts:

Q: How stressful is your job?

A: If you are doing this job right, you can't help internalizing some of this stuff. I am taking more hypertension medication than I was a year ago. ...

Q: There have been reports that even with all your efforts the backlog continues to grow?

A: We are nine months into this fiscal year, and we are at an increase of about 18,000 cases for the year. I am not happy about that. But the rate keeps going down. If you look historically, it went up at about 75,000 cases a year for many years in this decade.

So how come Commissioner Astrue is putting out a report talking about his plan to eliminate the backlog and prevent its recurrence when he has not yet been able to even stop the backlog from growing?

New ALJ Assignments Questioned

From the Charlotte Observer:

The federal government admits sick workers in the Charlotte area wait longer for help than almost anyone else in the nation.

But when officials hired nearly 200 new administrative law judges this year to expedite disability hearings, only one was assigned to Charlotte's Disability Adjudication and Hearing Office.

Instead, the Social Security Administration sent three or more judges to places like Huntington, W.Va.; Portland, Maine; and New Orleans, where waits are among the shortest nationwide. ...

Social Security Administration officials didn't directly explain why they put only one new judge in Charlotte.

“The new ALJs were assigned on the basis of the national workload needs assessment,” a Social Security Administration official said in an e-mail response to the Observer.

More From The Oregonian

The Oregonian has posted several stories, including videos, on local people having Social Security disability problems and an online "game", entitled Not So Fast.

Employee Verification Amendment Act of 2008

From a Social Security Administration Legislative Bulletin (emphasis added):

On July 31, 2008, the House passed H.R. 6633, the “Employee Verification Amendment Act of 2008” by a vote of 407-2. The bill would extend the basic pilot employment eligibility confirmation program, now known as E-Verify.

Provisions that would affect the Social Security Administration are described below.

Extension of Program

• Would extend the basic pilot employment eligibility confirmation program for an additional five years, until November 30, 2013.

Protection of Social Security Administration Programs

• Would provide that agreements entered into by the Commissioner of Social Security and the Secretary of Homeland Security on or after October 1, 2008, shall provide funds to the Commissioner for the full costs of the Commissioner's responsibilities for the basic pilot program. Such responsibilities include, but are not limited to:

• Acquiring, installing and maintaining technological equipment and systems necessary for the fulfillment of such responsibilities (but only that portion that is attributable exclusively to those responsibilities); and

• The costs of responding to individuals who contest a tentative nonconfirmation provided by the basic pilot.

• Would provide that these funds would be paid quarterly in advance of the applicable quarter based on a methodology agreed to by the Commissioner and Secretary.

• Would require an annual accounting and reconciliation of costs incurred and funds provided under the agreement, with a review by the Inspectors General of the Social Security Administration and the Department of Homeland Security.

• Would provide that, in any case where an agreement has not been reached by October 1 of a fiscal year, the latest agreement would remain in force until a new agreement is in effect. However, the Office of Management and Budget would modify the interim agreement to adjust the funds provided to the Commissioner for inflation and the volume of queries.

• Would require, during such interim agreement, the Commissioner and the Secretary to provide notice of the failure to come to an agreement to appropriate House and Senate Authorizing and Appropriating Committees. Until a new agreement is in effect, the Commissioner and the Secretary would notify these Committees every 90 days of the status of negotiations.

But Wait, There's More!

There is another article in The Oregonian entitled Sick And Homeless, Man Gets SSI Benefits Days Before Dying. The final two sentences of the article:

But four days after his check arrived, a friend found Rutherford dead in his Gospel Mission bed. He was 58.

Social Security officials identified no next of kin to whom to award his benefits. The agency kept his money.

Staff Instructions On Informal Remands

Social Security has finally gotten around to issuing staff instructions on the "informal remand" process, also known as re-recon. After a request for a hearing before an Administrative Law Judge (ALJ) some cases are sent back for what amounts to a new review at the reconsideration level. My understanding that only fully favorable decisions could be issued on re-recon is confirmed.

Oregonian To Run Piece On Social Security Backlogs

The Oregonian is planning to run a story on Monday on Social Security's backlog situation. The story is supposed to be on the paper's website already, but I have been unable to find it. Anyway, here are some excerpts from a copy that was sent to me:

Anyone who stands in line for Social Security disability benefits learns certain truths. The system is slow. It's wasteful.And it's often cruel.

Those who have tried to fix the system's immense backlog of claims know why: Congress and the White House have tried to run the agency on the cheap, starving a bureaucracy that must process 2.5 million disability applications a year.

Hundreds of thousands of American workers whose disabilities have pushed them out of the labor force wait in line for years before getting benefits -- if they live that long.

And in the Portland area, where Social Security runs one of the nation's slowest hearings offices, they'll wait even longer.

"It's hard to escape the conclusion that a system that's supposed to help people who are hurting works instead to wear them down and outlast them," says Rep. Earl Blumenauer, D-Ore., who has worked to fix problems in the local office. ...

Social Security has spent much of the last decade trying to streamline the way it evaluates and winnows cases.

But the plans have scarcely made a dent and sometimes made matters worse ...

The man who heads Social Security, Commissioner Michael J. Astrue, says he's optimistic about a computer program now in place that sifts through claims, identifies clearly disabled applicants and moves them into a pool for quick approval. He's also pushing another fast-track measure that will -- as it rolls out this fall -- speed cases for people suffering any of 25 rare diseases or conditions. ...

The commissioner says he hopes the average claim that reaches the agency's judges can be completed -- from claim to decision -- in about 15 months by the time his term expires.

In 2013.

Update: Here is the link to The Oregonian article.

Major Set Of Articles In Atlanta Journal-Constitution

The Atlanta Journal-Constitution is running three stories on Sunday regarding the backlogs and other problems at Social Security. You can read them today.

Here is some excerpts from Atlanta's Disabled Often Wait Years For Aid:

Atlanta is arguably the worst place in the country to live if you are too sick or injured to work and have to rely on the government for help.

While Social Security hearing offices nationwide are clogged with claims from severely disabled individuals seeking benefits, the two Atlanta locations are known as "the backlog capital of the country."

The Downtown hearing office at Peachtree Center takes 769 days on average — more than two years — to resolve a claim. It has 9,145 claims pending.

The Atlanta North office on Clairmont Road is even worse, with a backlog of 12,497 claims and an average wait of 793 days, according to Social Security figures. Month after month, the two offices consistently rank among the slowest in the country for resolving claims.

The physical and financial health of many of people waiting will deteriorate.

Some will lose their homes and declare bankruptcy. Others will die. ...

"Over the last several months, the Downtown hearing office has gone hog wild on scheduling," said Robert Hughes, an attorney who specializes in Social Security cases. "I've gone from five hearings a month to five a day." ...

"It used to be very uncommon that you would have a claim where someone would die while their appeal was pending," [Rick] Waitsman [an Administrative Law Judge] said. "Unfortunately, that is becoming much more common. People are dying from what they are complaining of." ...

Astrue said he can't explain why Atlanta received less financial support, given the level of filings here. "All I know is it is a very bad practice and we have moved as quickly as we can to provide redress," he said.

He is pushing Congress for more money to open a third hearing office in suburban Atlanta.

Astrue pushing for more money for his agency? He has been lobbying for President Bush's budget for Social Security, which is less than what Congress has wanted to appropriate!

The other two articles in the Atlanta Journal-Constitution are MS Forces Woman to Go From Employee Of The Year To Living With A Friend and Unable To Work, Social Security Has Rejected Benefits For Woman.

Social Security Managers Newsletter

The National Council of Social Security Management Associations (NCSSMA), an organization of Social Security management personnel, has issued its July 2008 newsletter. One article title of interest: "Stop the eServices Bandwagon -- I Want To Get Off." There is also an article about video service -- not for hearings but for field office service delivery. The pilots are in Riverton and Cody, WY.

By the way, the newsletter contains a link to an organization that I had not heard of before, the Social Security Employees Activities Association. Did you know that there is a Social Security chorus? A Social Security band? A Social Security basketball league?

OPM Stops Taking ALJ Applications

The Office of Personnel Management (OPM) started taking applications for Administrative Law Judge (ALJ) positions on Wednesday, July 30. The announcement said that they would take applications only until midnight of the day upon which they received the 600th application. It only too about a day and a half for them to get to 600. They stopped taking applications last night.