With Friends Like These ...

From the abstract for Disability Rights, Disability Discrimination, and Social Insurance by Mark Weber of the DePaul University College of Law, published in the Georgia State University Law Review:

This paper asks whether statutory social insurance programs, which provide contributory tax-based income support to people with disabilities, are compatible with the disability rights movement's ideas. Central to the movement that led to the Americans with Disabilities Act is the insight that physical or mental conditions do not disable; barriers created by the environment or by social attitudes keep persons with physical or mental differences from participating in society as equals. ...

But the civil rights approach to disability posits that disability is not a risk, not tragedy, and not a damage or defect. Instead it is a maladaptation of society to human variation. ...

This paper argues that a justification remains for social insurance under the civil rights approach to disability, and further suggests that expansion of social insurance for disability is both compatible with disability rights principles and supported by wise public policy.

Note that Professor Weber is arguing against the nutty position that there is no one who is unable to work due to illness, that in every case the supposed inability to work is due to discrimination.

One Week To Go

The deadline to send in comments on the proposed new rules on representation of Social Security claimants is a week from today, November 7. Thus far, there have been few comments and most of the comments that have been filed have little weight.

If you represent Social Security claimants, I urge you to study this proposal and submit comments. Comments may be submitted online, by fax to 410-966-2830 or by letter to the Commissioner of Social Security, P.O. Box 17703, Baltimore, MD 21235-7703.

By the way, I notice that there are also outstanding proposed regulations regarding representation before the Patent and Trademark Office and the Executive Office for Immigration Review. This must be coincidental.

Happy Halloween!

Opening A Can Of Worms

I posted earlier about the problems I see with Commissioner Astrue's Compassionate Allowance program. One of the issues I raised was why this did not include other diseases, such as metastatic prostate cancer.

Here it comes. David E of Overland Park Kansas is already agitating in his "The Big C" blog over the omission of advanced prostate cancer, in a post he labels "Outraged!!"

Frequently Asked Questions

Many thanks to everyone who commented on my draft list of Frequently Asked Questions (FAQs) about Social Security disability. Those comments helped me make these FAQs better. I have finalized the FAQs and posted them on the separate Social Security Perspectives blog.

You are free to link to these FAQs. You need not ask my permission to link. You may not simply copy the FAQs and use them elsewhere, with or without attribution, unless you get my permission. Copying them and using them elsewhere, whether online or offline, is copyright infringement. which is illegal

AALJ Letter On Staffing

From the Association of Administrative Law Judges (AALJ), a union that represents many of Social Security's Administrative Law Judges:

October 27, 2008

An open letter to:

Hon. Michael J. Astrue
Commissioner, Social Security Administration
6401 Security Boulevard, Altmeyer Building
Baltimore MD 21235

Dear Commissioner Astrue,

In the large volume of materials published by the Agency on its efforts to reduce the disability claims backlog, there has been no statement yet of any expectation regarding support staff levels. Of course we all understand that the Agency cannot publish any projection of staff levels without knowing what the budget will be. It would be unreasonable to expect any projection.

Nonetheless in most of those materials there are repeated reports that the administrative law judges have been asked to produce 500-700 decisions per year. Some of these have been quotations of you, Associate Commissioner deSoto or Chief Administrative Law Judge Cristaudo.

In recent reports the GAO and SSA’s OIG have confirmed what we have all known for years: there is a clear relationship between the level of support staff in hearing offices and the productivity of the judges.

We believe it is misleading to repeatedly state that the judges are being asked to produce some fixed number of decisions without any projection of the level of support staff or any acknowledgement that judges’ productivity is dependent upon the level of support staff and other resources. We are very concerned that readers of the Agency’s materials, including members of Congress, may come away with the impression that the unqualified request being made of the judges is a reasonable one.

We are also concerned that reiterating the request to produce 500-700 decisions per year with no acknowledgement that the future level of support is an unknown, sets up the corps of judges for failure. If we do not produce still more decisions as requested we will be perceived to have failed, never mind that we will almost certainly have fewer actual support staff per judge than we had last year.

We therefore specifically request, whenever the Agency states that the judges are being asked to produce some given number of decisions, it acknowledges the relationship between judge productivity and adequate resources.

We told you when you first took office that the AALJ wants to do all we can to assist the Agency in meeting our common goals, providing full and fair hearings and issuing legally defensible decisions. We are still committed to that principle.

We would be irresponsible to ask the judges to commit to try to achieve any specific numerical goal without tying it to the level of quantity and quality of future support staff and other resources such as shortages of vocational experts and medical experts, judges not receiving enough worked case files to fill their schedules, trying to work with unorganized so called “streamlined cases”, working with efiles which are still slower to review and shortages of decision writers.

Commissioner, we cannot tell you whether or not our judges will be able to achieve the Agency’s goals. We can tell you they will do what they have always done; they will do their best.

Sincerely,



Ronald G. Bernoski
President
Association of Administrative Law Judges

All The COLAs

Earlier I had posted the Cost Of Living Adjustments (COLAs) for Social Security benefit payments and the user fee charged to those who represent Social Security claimants. Here are Social Security's tables showing all of the major adjustments (and a lot of things that should be adjusted for inflation, but are not, most notably the SSI resource limits which have never been adjusted for inflation since the SSI program was created more than 30 years ago):

Tax Rate	2008	2009
Employee	7.65%	7.65%
Self-Employed	15.30%	15.30%
NOTE: The 7.65% tax rate is the combined rate for Social Security and Medicare. The Social Security portion (OASDI) is 6.20% on earnings up to the applicable taxable maximum amount (see below). The Medicare portion (HI) is 1.45% on all earnings.

Maximum Taxable Earnings:	2008	2009
Social Security (OASDI only)	$102,000	$106,800
Medicare (HI only)	No Limit

Quarter of Coverage:	2008	2009
Earnings needed to earn one Social Security credit	$1,050	$1,090

Retirement Earnings Test Exempt Amounts:	2008	2009
Under full retirement age NOTE: One dollar in benefits will be withheld for every $2 in earnings above the limit.	$13,560/yr. ($1,130/mo.)	$14,160/yr. ($1,180/mo.)
The year an individual reaches full retirement age NOTE: Applies only to earnings for months prior to attaining full retirement age. One dollar in benefits will be withheld for every $3 in earnings above the limit.	$36,120/yr. ($3,010/mo.)	$37,680/yr. ($3,140/mo.)
There is no limit on earnings beginning the month an individual attains full retirement age.

Social Security Disability Thresholds:		2008	2009
Substantial Gainful Activity (SGA)	Non-Blind	$ 940/mo.	$ 980/mo.
	Blind	$1,570/mo.	$1,640/mo.
Trial Work Period (TWP)		$ 670/mo.	$ 700/mo.

Maximum Social Security Benefit: Worker Retiring at Full Retirement Age	2008	2009
	$2,185/mo.	$2,323/mo.

SSI Federal Payment Standard:	2008	2009
Individual	$ 637/mo.	$ 674/mo.
Couple	$ 956/mo.	$1,011/mo.

SSI Resources Limits:	2008	2009
Individual	$2,000	$2,000
Couple	$3,000	$3,000

SSI Student Exclusion:	2008	2009
Monthly Limit	$1,550	$1,640
Annual Limit	$6,240	$6,600

Estimated Average Monthly Social Security Benefits Payable in January 2009:	Before 5.8% COLA	After 5.8% COLA
All Retired Workers	$1,090	$1,153
Aged Couple, Both Receiving Benefits	$1,773	$1,876
Widowed Mother and Two Children	$2,268	$2,399
Aged Widow(er) Alone	$1,051	$1,112
Disabled Worker, Spouse and One or More Children	$1,695	$1,793
All Disabled Workers	$1,006	$1,064

"Emergency and Expedited Procedures Related to Military Service Casualty Cases (MSCC)"

The Social Security Administration has transmitted a new Program Operations Manual Series (POMS) issuance entitled: Emergency and Expedited Procedures Related to Military Service Casualty Cases (MSCC). Here are a few excerpts:

The procedures to expedite disability claims apply to any military service personnel injured October 1, 2001 or later regardless of how or where the disability occurred, whether in the United States or on foreign soil, provided that the individual was on active duty when the injury occurred. ...

The Department of Defense (DoD) identifies Military Casualties and provides us with their Social Security Numbers (SSNs). We verify the SSNs, and store them until the claimant contact us.

If the SSN of the individual matches the DoD list:

• An alert appears in the Visitor Intake Program (VIP), Customer Service Record (CSR), and/or Customer Help & Information Program (CHIP) when we enter the claimant’s SSN; and

• The Electronic Disability Collect System (EDCS) automatically sets the MSCC flag when we establish the case at the initial or appeal level.

NOTE: If the claimant alleges that their disability was the result of a Military Casualty since October 1, 2001, and the SSN does not match DoD records (i.e., no alert is present in VIP, CSR, or CHIP), manually set the MSCC flag in EDCS. If the case is a paper Modular Disability Folder (MDF), the Field Office (FO) attaches a paper flag to the MDF. An exhibit of the paper flag is available in DI 11005.003H (in this section) for EDCS exclusions.

D. Teleservice center (TSC) action to expedite MSCC

The interviewer should be alert to the possibility of disability claims resulting from military service casualties. When a person contacts the 800 number to file a disability claim, identify if the claimant is alleging his or her disability is a result of a military service casualty.

1. If an appointment is available within 3 working days

• Schedule the appointment.

• In the remarks section of Leads/Protective Filings and Proofs (LPFP) screen, enter “Military Service Casualty Case.”

• Transmit the referral to the FO.

2. If an appointment is not available within 3 working days

• Advise the caller that the FO will call back within 2 days to schedule an appointment.

• Determine the best time for the FO contact.

• In the remarks section of LPFP, enter “Military Service Casualty Case, APPT NEEDED ASAP/BEST TIME FOR CONTACT” (time within the FO's business hours).

• Transmit the referral to the FO.

• Complete and transmit separate claims referrals for any auxiliaries, if applicable. ...

If an appeal is received in the FO for an MSCC, FO management will ensure that the case receives top priority handling.

Will combat veterans suffering from Post-Traumatic Stress Disorder (PTSD) get this "emergency and expedited" treatment? Why should a soldier who has a heart attack stateside or who gets injured in an off-duty automobile accident get special treatment? The soldier may be in a medical holding company and still receiving his or her full pay. Even if already processed out of the service, he or she is likely to have military retirement or VA benefits. Why is it urgent to help the soldier who is in no financial distress, but not urgent to help a person with the same medical problem who is destitute?

Final Rules On Age

From today's Federal Register:

We are modifying the rules we use to determine disability under titles II and XVI of the Social Security Act (``Act'') to revise the definition of persons ``closely approaching retirement age'' from``60-64'' to ``60 or older.'' These changes acknowledge that we make disability determinations for persons over age 64. We are also making minor technical changes that will not have any effect on how we determine your eligibility for benefits.

Attorney Fees Go Down Because Of Cost Of Living Adjustment

The maximum fee for representing a Social Security claimant is capped at $5,300. Social Security can increase this amount because of inflation, but is not required to do so. The cap has not been raised since 2001. A "user fee" is deducted from these fees. The user fee is to reimburse Social Security for its costs in withholding and paying the fees. In effect, it is a special tax on those who represent Social Security clamants. This user fee is adjusted for inflation. It has been $79 in 2008. Social Security has announced that it is going up to $83 in 2009, meaning that attorney fees just went down because of inflation. This sounds crazy to me.

Majority Leader Tries To Ease Byrd Out Of Appropriations Chair

Politico reports that Senate Majority Leader Harry Reid is trying to ease 90 year old Senator Robert Byrd out of his position as Chairman of the Senate Appropriations Committee. Byrd's health has been declining in recent years. The appropriations that the Social Security Administration receives have a tremendous effect upon the agency's ability to perform its duties. There is no reason to expect that Byrd's probably successor, Senator Inouye of Hawaii, would pursue different policies than Byrd, but, even though Inouye is getting up in years himself, he would certainly be able to perform the duties of Chairman of the Senate Appropriations Committee more ably than Byrd can now perform them.

Updated Fee Payment Stats

Below is a table showing the payments of fees to attorneys and others for representing Social Security claimants this year. These statistics are a useful analogue for how quickly or slowly Social Security is paying benefits to disabled claimants after a favorable decision. Notice the unevenness in the payments.

Fee Payments
Month/Year	Volume	Amount
Jan-08	20,559	$75,368,163.45
Feb-08	26,570	$95,228,284.32
Mar-08	23,088	$83,166,027.02
Apr-08	27,296	$98,616,579.78
May-08	29,305	$104,283,373.35
June-08	25,243	$89,786,459.83
July-08	22,238	$77,346,266.77
Aug-08	33,834	$120,819,791.05
Sept-08	25,239	$89,167,725.69

New Hampshire Office Closed For Week

The Nashua Telegraph reports that a "catastrophic drain failure" has caused flooding at the Nashua Social Security field office. The office will be closed for a week for repairs. No computers or files were damaged.

Update: Here is another article on what brought about the flooding.

Ohio Approves Specialization In Social Security Disability Law

The Ohio Supreme Court has approved Social Security disability law as a field in which attorneys licensed in that state may become certified as specialists. North Carolina and Tennessee already recognize specialists in the field of Social Security disability law.

Quick Disabilty Determinations Instructions Issued

Commissioner Astrue's other legacy project (or should I say vanity project?) is Quick Disability Determinations (QDD). No press release on this one, but new set of Program Operations Manual Series (POMS) instructions was released to the public today. Here is a brief definition of QDD:

The QDD process goes beyond Terminal Illness (TERI) and Presumptive Disability/Blindness (PD/PB) criteria to identify applicants with clearly disabling conditions whose medical evidence is readily available. With such applicants, a fully-favorable determination should be made quickly after receipt in the DDS (recommended timeframe is 20 days or less). A predictive model (PM) is used to identify QDD cases. A unique threshold selection, using scoring criteria, is set by the PM for each DDS which means that similar cases may or may not be identified as QDD cases depending on the DDS processing the case.

Compassionate Allowances Starting Before Election

A press release from Social Security:

Michael J. Astrue, Commissioner of Social Security, today announced the national rollout of the agency’s Compassionate Allowances initiative, a way to expedite the processing of disability claims for applicants whose medical conditions are so severe that their conditions obviously meet Social Security’s standards.

“Getting benefits quickly to people with the most severe medical conditions is both the right and the compassionate thing to do,” Commissioner Astrue said. “This initiative will allow us to make decisions on these cases in a matter of days, rather than months or years.”

Social Security is launching this expedited decision process with a total of 50 conditions. Over time, more diseases and conditions will be added. A list of the first 50 impairments -- 25 rare diseases and 25 cancers -- can be found at www.socialsecurity.gov/compassionateallowances.

Before announcing this initiative, Social Security held public hearings to receive information from experts on rare diseases and cancers. The agency also enlisted the assistance of the National Institutes of Health.

Compassionate Allowances is the second piece of the agency’s two-track, fast-track system for certain disability claims. When combined with the agency’s Quick Disability Determination process, and once fully implemented, this two-track system could result in six to nine percent of disability claims, the cases for as much as a quarter million people, being decided in an average of six to eight days.

"This is an outstanding achievement for the Social Security Administration," said Peter Saltonstall, President of the National Organization for Rare Disorders. "It has taken Social Security less than a year to develop this much-needed program that will benefit those whose claims merit expedited consideration based on the nature of their disease. Disability backlogs cause a hardship for patients and their families. Commissioner Astrue and his staff deserve our thanks for a job well done.”

“Unfortunately, many hardworking people with cancer may not only face intensive treatment to save their lives, but they may also find themselves truly unable to perform their daily work-related activities and as result, may face serious financial concerns, such as the loss of income and the cost of treatment,” said Daniel E. Smith, president of the American Cancer Society Cancer Action Network. “The Social Security Administration’s Compassionate Allowances program will help streamline the disability benefits application process so that benefits are quickly provided to those who need them most.”

“This is America, and it simply is not acceptable for people to wait years for a final decision on a disability claim,” Commissioner Astrue said. “I am committed to a process that is as fair and speedy as possible. The launch of Compassionate Allowances is another step to ensuring Americans with disabilities, especially those with certain cancers and rare diseases, get the benefits they need quickly.”

I wish I could call this an "outstanding achievement", but it is pathetic. I have been practicing Social Security law for 29 years. There is only one disease on the list that I have seen in my practice, Amyotrophic Lateral Sclerosis (ALS), and it is absurd that I have seen two cases of ALS denied at the initial level. I expect that the ALS cases are being paid quickly now anyway. That does not mean that all the other diseases on this list are all that rare. It means they have always been paid quickly by Social Security.

If anything, this arbitrary list may make it harder for those whose disease is not on the list to get a quick decision when that is justified. Got metastasized prostate cancer. Go to the back of the line. Got multiple myeloma that is progressing rapidly despite treatment. Go to the back on the line. Why would you have Creutzfeldt-Jakob Disease on the list but not metastasized lung cancer? Is it because most lung cancer comes from smoking? If you are going to have such a list, it should be much, much longer, but there is no need for such a list to begin with. Trust the people at the operational level. For decades they have been recognizing cases that deserve a quick allowance without this sort of unnecessary direction from above.

I do not think that Astrue is hustling to get this out before the election in order to have an effect upon the election. This is way too small for that. I think he is getting it out now because he does not expect to be around after the election and he wants this to be his legacy. I predict that after Astrue leaves, compassionate allowances will meet the same fate as former Commissioner Barnhart's legacy project, Disability Service Improvement (DSI). Astrue made a quick -- and sensible -- decision to cancel that one shortly after taking office. But before that, Barnhart made a quick decision to cancel Hearing Process Improvement (HPI), her predecessor's legacy project. At least, Compassionate Allowances will not have anything like the deleterious effects that HPI and DSI had on the agency.

Social Security Bulletin Out

The Social Security Administration has released the November 2008 issue of the Social Security Bulletin, a mostly statistical publication. This issue contains a technical article co-authored by Andrew Biggs, who had earlier worked at Social Security where he was a huge promoter of privatization of Social Security.

TMS For Depression -- It's Coming

Those who have much involvement with the Social Security Administration know that the primary work of the agency is adjudicating disability claims. Depression is an incredibly important element in producing disability. It may be the most commonly encountered illness in disability claims. Depression is often the primary cause of depression and is even more common as a complication to the treatment of physical illness or as a cause of somatization. Often, depression is so intertwined with a claimant's other health problems that it is impossible to say how much of the person's disability is due to depression and how much is due to other illnesses.

Any new treatment for depression is potentially quite important to Social Security. On October 8, 2008 the Food and Drug Administration approved Transcranial Magnetic Stimulation (TMS) as a treatment for depression.

Here is a description of TMS from Wikipedia:

TMS is simply the application of the principle of induction to get electrical current across the insulating tissues of the scalp and skull without discomfort. A coil of wire, encased in plastic, is held to the head. When the coil is energized by the rapid discharge of a large capacitor, a rapidly changing current flows in its windings. This produces a magnetic field oriented orthogonally to the plane of the coil. The magnetic field passes unimpeded through the skin and skull, inducing an oppositely directed current in the brain that flows tangentially with respect to skull. The current induced in the structure of the brain activates nearby nerve cells in much the same way as currents applied directly to the cortical surface.

Unlike Electro-Convulsive Therapy (ECT), TMS does not require anesthesia. There are far fewer side effects. It appears that TMS could be easily used routinely by psychiatrists. It will take time to tell if this will be used only rarely, as is the case with ECT, but anything that holds out hope for those suffering from depression, especially those who do not respond to medication is important.

Biggs In Wall Street Journal

Andrew Biggs, formerly the Deputy Commissioner of Social Security (on a recess appointment, after the Senate refused to consider his nomination) has a piece in today's Wall Street JournalWants Social Security To Be A Welfare Plan." claiming that "Obama Of course, in a larger sense Social Security has always been a "welfare plan" in the sense that it is intended to promote the welfare of the American people. The widespread belief that Social Security does promote the welfare of the American people is why the American people support Social Security, a point which Biggs has never understood.

Biggs' article, like everything else that I have read by him, is almost incomprehensible. His thesis, as best I can tell, is that because Barack Obama wants to cut income taxes on the poor and middle class while increasing the FICA tax on high income earners that somehow Social Security will become a dreaded "welfare program." As best I can tell, any increase in the progressivity of taxation in the United States is "welfare" to Biggs. I guess the word "Welfare" sounds more frightening to Biggs than "Socialism", the other term being thrown around by the McCain campaign to describe Obama's plan to increase progressivity of taxation. All Biggs is doing is coupling statistics of dubious relevance with a ridiculous argument and using a pejorative term to describe his opponent's plan.

Union Upset With Astrue

Below is an e-mail which I just received from James Marshall of the American Federation of Government Employees, which has attached to it two e-mail which he recently sent to Commissioner Astrue:

I know you are quite interested in Social Security matters and I believe you have a blog where you post various information concerning Social Security news. I am also aware that Commissioner Astrue has not kept his commitments made during his confirmation process that he would work with the employees' union in addressing the disability backlog, as well as other problems facing the Agency. I have pasted two e-mails below that I sent to Commissioner Astrue this month regarding the Agency's Strategic Plan and the barriers we will be facing due to the continuing resolution and shortfalls in funding and staff this fiscal year. I also noted that Deputy Commissioner de Soto and/or Chief Administrative Law Judge Cristaudo have not even met with me to discuss how we can work together to eliminated the hearing backlog and improve the overall processing of disability claims and the quality of such decisions. For the record, I have been employed by the Social Security Administration for 50 years and the Office of Disability Adjudication and Review (formerly Office of Hearings and Appeals) for 36 of those years and believe I can provide constructive input regarding the Agency's failures in eliminating the disability backlog in a more timely manner, improving employee morale and other critical issues facing the Office of Disability Adjudication and Review.

While I speak for approximately 5,000 ODAR employees, their constructive input to me has remained with me because the Agency's leadership does not wish to hear from its dedicated and outstanding employees as to how the Agency's quick fix changes are not the answer to decrease the backlog and improve quality of service. You may post this e-mail to your blog and/or question Commissioner Astrue directly as to his negativity towards AFGE which obviously affected the American people we serve.

James E. Marshall
Acting Spokesperson, AFGE General Committee and President, AFGE Council 215


From: Marshall, James
Sent: Wednesday, October 22, 2008 9:37 AM
To: Astrue, Michael J.
Subject: Pre-Senator Baucus (Strategic Plan FY 2008 - FY 2013 and FY 2009 CR)
Importance: High
Sensitivity: Confidential

Commissioner Astrue:
I note that approximately two weeks have elapsed since I sent the e-mail below to you without a response from you or any other individual in the Agency. Prior to referring this matter to Senator Baucus, as well as several other Congressional leaders, I am giving you a second opportunity as the head of the Agency to demonstrate some type of working relationship with AFGE, noting we represent over 40,000 Social Security employees. I still find it extremely difficult to understand why you have such reluctance to work with us to meet the challenges this Agency faces now and will face over the next several years. As you are fully aware, I have been extremely disappointed in the attitudes of Deputy Commissioner de Soto and Chief Administrative Law Judge Cristaudo in that neither of these individuals has met with me and/or has had the common courtesy to be responsive to me regarding a multitude of issues, as well as suggestions, many of which I believe would improve the overall processing of disability claims.

I would appreciate a timely response to this e-mail or I will proceed accordingly in the representation of the outstanding Federal employees who I represent.

James E. Marshall
Acting Spokesperson, AFGE General Committee and President, AFGE Council 215

From: Marshall, James
Sent: Thursday, October 09, 2008 11:48 AM
To: Astrue, Michael J.
Cc: Alfonzo, Carmen; Ennis, Cynthia; 'Ennis, Cynthia'; Fredericksen, Deborah; 'Fredericksen. Debbie'; Joseph, Agatha; Sipple, Cindy O.; Skayne, Susan; Tucker, Earl; 'witold1@attglobal.net'; Hicks, Cathy; Armet, James

Subject: Strategic Plan FY 2008 - FY 2013 and FY 2009 CR
Importance: High
Sensitivity: Confidential

Good Morning Commissioner Astrue:

On behalf of the AFGE General Committee, I am submitting this e-mail in response to your e-mail broadcast dated September 24, 2008, to all SSA and DDS employees regarding Agency Strategic Plan FY 2008 - FY 2013. At the outset, AFGE notes that in your letter, you indicated that this plan had been developed in part by conferring with our unions which we presume meant AFGE was included. To our knowledge, the only contact that the General Committee had with the Agency regarding the Strategic Plan was a slideshow with notice that if we had comments they should be submitted in writing within 10 days of the slideshow. Unfortunately, we were unable to meet such mandated time frames for submission of any comments and thought that we would subsequently have the opportunity to sit down with you and your executive staff and have a full and open dialogue regarding the Agency's goals. It appears that again, our thoughts and vision for the future SSA have been buried without being heard. Shame on someone because as the representative of over 40,000 employees in this Agency, their voices should be heard through us, especially since they are the most outstanding Federal employees of any Agency.

We recognize that for FY 2009, there will be significant barriers to meet goals because of the continuing resolution and shortfalls in funding and staff. Having said that, we would have thought you would have arranged a meeting with the General Committee to discuss these shortfalls and how we can work together to eliminate the hearing backlog and to improve the overall processing of disability claims and the quality of such decisions, as well as improving all other services for our retirees. To allow the progress in our attempts to meet such challenges over the past several years to erode like the stock market, is unconscionable and you as the Commissioner should embrace the General Committee leadership for the American public we serve to ensure that such erosion does not occur. I await your response on behalf of the General Committee for a face to face meeting with you, your executive staff and our AFGE General Committee leadership.

In closing, please be advised that I, as the President of AFGE Council 215 representing ODAR employees, have yet to have any meeting with Deputy Commissioner de Soto and/or Chief Administrative Law Judge Cristaudo since they been in their positions.

Rosasco Impressed By Astrue

Troy Rosasco, a member of the Board of Directors of the National Organization of Social Security Claimants Representatives (NOSSCR), met Commisioner Astrue at the pool while attending the recent NOSSCR Conference in Los Angeles and came away impressed, writing in his blog that "This is a very bright guy, and in my opinion he is moving the agency in the right direction."

The Transition Approaches

Paul Light, professor of Public Service at New York University, recently spoke at the Library of Congress about the upcoming transition to a new President. Here is a bit of the summary of the talk given by Tom Shoop at FedBlog:

The upcoming change of administrations "will be the most difficult transition since Abraham Lincoln," he said. Even Franklin Roosevelt at least had more time to begin planning to address the effects of the Great Depression (his inauguration wasn't until March 4, 1933) and didn't have to deal with two wars overseas.

And here is some detail on what the two candidates transition plans from Sam Stein at the Huffington Post:

As the 2008 campaign nears its conclusion, the presidential transition efforts of the two major candidates have become a study in contrasts: Sen. Barack Obama has organized an elaborate well-staffed network to prepare for his possible ascension to the White House, while Sen. John McCain has all but put off such work until after the election. ...

[O]ne official with direct knowledge, who spoke on the condition of anonymity, expressed concern with McCain's approach. The Arizona Senator has instructed his team to not spend time on the transition effort, according to the source, both out of a desire to have complete focus on winning the election as well as a superstitious belief that the campaign shouldn't put the cart before the horse. ...

With 100 or so days before the next president takes office, Obama's transition effort has been organized into roughly a dozen teams of six to eight people to plot out the approach for each agency, according to a Democratic official. ...

The president and CEO of the Center for American Progress, former White House chief of staff John Podesta, is reportedly heading up Obama's transition team.

Mostly A Win For UNUM

Remember that qui tam (or whistle blower) lawsuit claiming that UNUM was doing something abusive by forcing the people to whom it was paying long term disability benefits to file claims for Social Security disability benefits? It's over and UNUM mostly won. Here are some excerpts from UNUM's press release:

A news release issued this morning by Washington law firm Phillips & Cohen LLP claiming victory in a trial against Unum regarding Social Security Claims is misleading and filled with inaccuracies. [It looks like Philiips & Cohen has taken the press release off its website.] The jury actually sided with Unum on the majority of claims. The two claims that were decided in favor of the plaintiff resulted in a total award of less than $3,000. ...

As part of the trial, Unum produced 1,600 claim files that the plaintiffs then narrowed down to 101 claims that they said should not have been submitted to the Social Security Administration. This number was later reduced to 61 as it was revealed that many of these claims were actually awarded Social Security disability benefits, and in other instances there was no proof that an application was ever made to the government.

To put these numbers in perspective, Unum processed nearly 400,000 disability claims and paid more than $4 billion in disability benefits in 2007. ...

“Of the two remaining claims decided in favor of the plaintiff, we continue to believe they have no merit and we think we will ultimately prevail upon appeal,” Collins added.

I have no love for UNUM but this lawsuit just seemed ridiculous to me.

Someone Notices That Astrue Is Stretching The Truth

Alex Wayne has written an article in Congressional Quarterly (subscription required) that points out that while Michael Astrue, Commissioner of Social Security, is saying is saying that his agency is making progress on the backlog of disability claims awaiting a hearing, in truth, those backlogs have gotten measurably worse over the last year. A spokesman for Social Security could only make the argument that there was improvement because things were getting worse at a slower rate than they used to. Even this "improvement" is probably due to the fact that the agency has gotten a larger budget than President Bush and Commissioner Astrue asked for.

You may never have read Congressional Quarterly, but, trust me, it is an important publication. CQ is required reading for many in Congress and higher levels of government. No one else comes close to covering Washington the way CQ does. Issues that first appear in Congressional Quarterly are often picked up by the popular media. By the way, despite the name, Congressional Quarterly is published daily and e-mail updates throughout the day are available.

Update: The article is now available at CQ's free site.

He Won't Be Resigning

Robert Muller, the FBI Director, has a 10 year term of office which runs to 2011. On Tuesday, Muller spoke out to quell rumors that he would resign during the presidential transition.

Crack Is Awful Stuff

WHAS reports that Carol Hedges, an employee of the Louisville Social Security office, has been charged with prostitution and possession of a crack pipe and possession of controlled substances.

More TVs At Social Security Offices, But Fewer Employees

I am going to bump this post up since I think it concerns something important.

The National Council of Social Security Management Associations (NCSSMA), an organization of Social Security management personnel, has posted on its website a summary of meetings that its leadership had at Social Security's central offices on September 10, 2008. One of the meetings was with Linda McMahon, Social Security's Deputy Commissioner for Operations.

There is a casual reference in the summary to a hiring ceiling, also known as a head count cap ,at Social Security. I have seen Social Security's budget legislation. There has been no head count cap in that legislation. Has the Office of Management and Budget (OMB) set a head count cap for Social Security? There was legal authority for such OMB set head count caps for federal agencies during the Clinton Administration, but that authority ended in 1999. I can find a 2005 memorandum from OMB saying that it was not setting hiring ceilings at that time, probably because it had no legal authority to do so. I cannot find a record of legal authority being created for such head count caps at any later time. Can anyone explain to me what has been going on?

The summary says that most of Social Security will only be able to replace one employee for every three who leaves, even though Social Security has been receiving and will receive increases in its budget that are considerably more than the rate of inflation. One might infer that because of a head count cap that Social Security is going to lose employees, no matter how much extra money Congress gives the agency as long as George W. Bush is President, but is this cap a legal reality or, more likely, just something that Michael Astrue voluntarily chooses to observe because he is a loyal player on President Bush's team? Again, can someone explain to me where this head count cap is coming from and why Michael Astrue appears to be abiding by it?

Here is an item from the NCSSMA's summary of their meetings which seems to give at least a partial explanation of where the extra money not spent on personnel is going:

Linda indicated resources have been shifted to IT [Information Technology]. Systems is moving forward to buy a small number of large-screen TVs for reception areas for a pilot that will broadcast SSA messages while visitors are waiting, and they are also buying touch screens for visitor check in. The move is now to convert from COBOL to web-based systems and to have a common system for DDS [Disability Determination Services]. Another real issue is the need for a new National Computer Center (NCC). The existing one is rapidly proving inadequate for current needs, let alone the projected increases in demand that are anticipated. It will cost a significant amount to upgrade our infrastructure, but 5 years from now it will be too late to get started. The agency needs to start now.

Proposed Representation Regulations -- Speak Now

My official comments on the proposed new rules on representation of claimants before the Social Security Administration have finally appeared on the Regulations.gov website. My official comments are a reorganized and re-edited version of what I had earlier posted on this blog.

The deadline for comments on this proposal is November 7. Few comments have been posted so far. This is an important proposal that deserves the careful study of everyone who represents claimants. Comments may be posted online. I suggest that you not walk away without filing a comment if you review the proposal and find it confusing. Everyone whom I have talked to who has read this proposal has found it confusing. Commissioner Astrue appears to have conceded that there were drafting problems with the proposal when he spoke at the conference of the National Organization of Social Security Claimants Representatives (NOSSCR) recently. The confusing nature of the proposal is worth commenting on.

Cert Petition To Watch

From the SCOTUS [Supreme Court of the United States] Blog's list of cases that have a reasonable change of being granted certiorari at the conference of the Supreme Court Justices on October 31. Granting a writ of certiorari (or cert for short) means that the Supreme Court agrees to hear the case.

Docket: 07-1468
Title: Manning v. Astrue

Issue: Whether attorney’s fees awarded under the Equal Access to Justice Act must be paid to the plaintiff directly, where it may be attached by the government for outstanding debts, or to the plaintiff’s attorney.

• Opinion below (10th Circuit)
• Petition for certiorari
• Brief in opposition

Timothy White of Tulsa, OK is the attorney for the appellant.

A new Solicitor General, who represents the federal government before the Supreme Court, will be appointed by the next President. The new Solicitor General could have a different position on this issue than President Bush's Solicitor General, particularly if the next President is Barack Obama.

Class Action Lawsuit On Fugitive Felon Implementation

From the San Mateo County Times:

The letter didn't make any sense, Rosa Martinez said, because she had never been to Miami, had never used illegal drugs and had never been arrested for a crime.

And yet the Social Security Administration informed her the monthly $870 check she depended on would be cut off because there was an outstanding warrant for her arrest on drug charges, issued in 1980 by the Miami-Dade Police Department.

This week, the 52-year-old Redwood City woman became one of two plaintiffs in a class-action lawsuit against Social Security Commissioner Michael Astrue that contends more than 100,000 people have had their benefits unjustly halted by the federal government.

The suit, filed Wednesday in federal court in San Francisco, asks a judge to prohibit the federal agency from stopping any more Social Security payments to people "fleeing to avoid prosecution" for a felony, which makes beneficiaries ineligible under a 1996 law.

Attorneys for Martinez and a second plaintiff, 19-year-old Jimmy Howard of Santa Maria, say the agency has ceased sending benefit checks to people simply because there is an outstanding warrant in their name, without verifying whether the person is fleeing prosecution or is even aware of the warrant. ...

Social Security officials have demanded that Martinez get proof that she is not the person listed in the warrant, but Douglas said Miami-Dade police have destroyed the original warrant and "proving a negative was incredibly difficult."

A letter by the Social Security Administration's Redwood City district advised Martinez: "If you believe the warrant was issued in error, Social Security must have an original document that states the warrant was issued in error and does not pertain to you at all. It must state the date the warrant was rescinded. This is the only way this case can be resolved."

The suit demands that the agency reconsider the eligibility of anyone who gets any of several types of Social Security payments and has been cut off under the "fleeing to avoid prosecution" rule.

AFGE Disgusted With Astrue

A letter from Witold Skwierczynski, president of Council 220 of the American Federation of Government Employees (AFGE), which represents the vast majority of Social Security's workforce:

October 10, 2008

The Honorable Max Baucus, Chairman
Senate Finance Committee
2019 Dirksen Senate Office Building
Washington, DC 20010-6200

Dear Senator Baucus:

I feel compelled to notify you that SSA Commissioner Astrue is refusing to respond to correspondence from AFGE regarding key issues. The most recent example of this lack of responsiveness concerns issues related to the impacts of Hurricanes Gustav and Ike on SSA bargaining unit employees.

Although Commissioner Astrue made a commitment to you during his confirmation hearing to improve communications and work with AFGE, he has not honored this commitment.

The relationship with AFGE and SSA management has continued to erode under his leadership. SSA’s lack of concern for employees affected by Hurricanes Ike and Gustav are perfect examples of the eroded relationship.

As you may be aware, I have sent letters to Commissioner Astrue, requesting him to take immediate action to:

• Prevent the communications problems and employee hardships that resulted after Hurricane Katrina; and
• Insure employees would be afforded the benefits and provisions approved by OPM; and Inform employees as soon as possible so that they may make informed choices for themselves and their families; and
• Keep AFGE’s SSA General Committee informed of all events surrounding the affect of the hurricanes on SSA bargaining unit employees.
• Treat employees consistently and equitably from one region and component to another.

SSA Regional and Central Office Labor Management Relations staff informed the AFGE officials which offices were closed, after SSA employees were notified. The same staff confirmed that decisions regarding Administrative Leave for affected employees and the emergency provisions approved by OPM can only be authorized by Commissioner Astrue Tuesday during a meeting, Commissioner Astrue had his Labor Relations staff inform AFGE of the Commissioner’s decision not to implement OPM disaster guidelines. AFGE asked for an explanation or basis for his decision. However, the Labor Relations staff was unwilling to enlighten the Union. To date, neither the Commissioner nor his staff has submitted a written response to my initial letter of September 2, 2008 which was written during an emergency situation.

On September 25, 2008, Commissioner Astrue released a broadcast to all SSA employees with an update about Hurricane Ike and Gustav. In this broadcast he acknowledges that “our own employees who live and work in the areas touched by the hurricanes who have lost everything.” He goes on to encourage employees to donate to a hurricane relief fund, and that federal employees affected by the hurricanes may apply for relief funding.

This is unacceptable and insulting. As in the aftermath of Hurricane Katrina, SSA has provided exemplary service for the public following Hurricanes Ike and Gustav. SSA’s employees deserve the same exemplary treatment from their employer. There is absolutely no reason for SSA to deny travel and per diem benefits to employees as recommended by OPM. There is also no reason to deny administrative leave benefits to employees who can’t work because they were evacuated from a hurricane site or due to the fact that their homes were damaged and became uninhabitable. AFGE is aware that other Federal Agencies have provided their employees with such benefits.

Therefore Senator Baucus, we ask that you urge Commissioner Astrue to take the following immediate actions:

• Communicate with the AFGE General Committee regarding office closures, office reopenings, damaged offices, and Agency employee benefit decisions.
• Keep all evacuated employees on administrative leave until they are able to return to work at their duty stations.
• Provide evacuated employees with full travel and per diem benefits for themselves and their dependents for the duration of their absence in accordance with OPM guidelines.
• Provide travel and subsistence payments to employees whose homes have been made uninhabitable by the hurricane until the homes are habitable in accordance with OPM guidelines and 5 CFR 550.405.
• SSA will not require or allow employees to work in unsafe and unhealthy environments.
• SSA will not permit employees to work with damaged and/or contaminated files.
• SSA will inform employees of their rights regarding pay, travel and per diem, etc. quickly so that they can make informed choices (e.g., utilizing travel and per diem benefits instead of staying with friends and relatives).
• SSA will assist employees to interact with other Agencies to obtain any benefits that they may be entitled to access. (e.g., FEMA)
• SSA will provide administrative leave fairly and equitably for employees after they return to work to deal with disaster related issues (e.g., insurance, household repairs)
• SSA will only reopen offices after an assessment is made by competent inspectors that the facilities are healthy and safe and that they are equipped with adequate power and water.

On behalf of the hundreds of affected SSA employees and AFGE, I want to thank you in advance for your time and attention to this matter.

Sincerely,

Witold Skwierczynski

This letter can be viewed in a number of ways depending upon one's political views and views on labor unions, but let me first try to talk about it in practical political terms. The AFGE is a major constituency in the Democratic party. If Barack Obama is elected President along with a larger Democratic majority in Congress and Michael Astrue tries to stay on as Commissioner of Social Security, the AFGE will demand, at the least, that Astrue be forced to change his ways.

And, by the way, I think it is entirely accurate to say that Astrue made committments during the confirmation process about the way he would treat employee unions that he has not kept.

Anthrax Scare In Bloomington

The Pantagraph of Bloomington, Illinois reports that the local Social Security office was shut down on Friday due to the discovery of a powdery substance in a rest room. The story turns out to be farce, since the substance not only was not dangerous, but may have been curry powder!

Fascinating Responses

The two responses, so far, to my post of Social Security's press release on Michael Astrue's speech at the conference of the National Organization of Social Security claimants representatives -- the one where he claimed that the backlog situation is getting better and I commented that this claim seems to square poorly with the backlog numbers that Social Security has released -- are fascinating. Take a look at them.

The Last Time ...

The last time that the order of succession at Social Security was changed was April 17, 2006, which was before a change of Commissioner, but the change did not come until nine months later when Jo Anne Barnhart's term as Commissioner of Social Security ended. It seems unlikely that those two events were linked.

Make Of This What You Will

From the White House:

For Immediate Release
Office of the Press Secretary
October 17, 2008

Memorandum for the Commissioner of Social Security
SUBJECT: Designation of Officers of the Social Security Administration to Act as the Commissioner of Social Security

By the authority vested in me as President by the Constitution and the laws of the United States of America, including the Federal Vacancies Reform Act of 1998, 5 U.S.C. 3345 et seq., it is hereby ordered that:

Section 1. Order of Succession. Subject to the provisions of section 2 of this memorandum, the following officials of the Social Security Administration, in the order listed, shall act as and perform the functions and duties of the office of the Commissioner of Social Security (Commissioner), during any period in which both the Commissioner and Deputy Commissioner have died, resigned, or become otherwise unable to perform the functions and duties of the office of the Commissioner, until such time as the Commissioner or Deputy Commissioner are able to perform the duties of that office:

(a) Chief of Staff;

(b) Deputy Commissioner for Operations;

(c) Deputy Commissioner for Budget, Finance and Management;

(d) Deputy Commissioner for Systems;

(e) Deputy Commissioner for Quality Performance;

(f) Regional Commissioner, Atlanta; and

(g) Regional Commissioner, Dallas.

Sec. 2. Exceptions. (a) No individual who is serving in an office listed in section 1 in an acting capacity, by virtue of so serving, shall act as Commissioner pursuant to this memorandum.

(b) No individual listed in section 1 shall act as Commissioner unless that individual is otherwise eligible to so serve under the Federal Vacancies Reform Act of 1998.

(c) Notwithstanding the provisions of this memorandum, the President retains the discretion, to the extent permitted by law, to depart from this memorandum in designating an acting Commissioner.

Sec. 3. This memorandum supersedes the President's Memorandum of April 17, 2006 (Designation of Officers of the Social Security Administration).

Sec. 4. This memorandum is intended to improve the internal management of the executive branch and is not intended to, and does not, create any right or benefit, substantive or procedural, enforceable at law or in equity, by any party against the United States, its agencies, instrumentalities, or entities, its officers, employees, or agents, or any other person.

Sec. 5. You are authorized and directed to publish this memorandum in the Federal Register.

GEORGE W. BUSH

Of course, the next President can modify this any time he wants.

If It Sounds Too Good To Be True ...

Take a look at this website that promises that "You could add up to $1,033 PER MONTH to your Social Security paychecks, thanks to a little-known loophole used by only 230 Americans last year." This is from "Olivia Martin, Sr. Researcher, S&A Investment Research" who "interviewed a West Virginia man who has taken advantage of this situation... a spokesperson at Social Security Administration (SSA) Headquarters outside of Washington, DC... and a Boston University Social Security expert, who has testified before Congress 16 times." The ellipses are in the original. The website goes on to tell us "And remember: All you have to do is ask. The Social Security Administration can't deny you, no matter how long you've been collecting already, or what your age." Eventually, the website leads to an offer of a subscription to "Dr. Steve Sjuggerud's True Wealth Investment Advisory."

The deal is that someone noticed that it is possible to withdraw a claim for retirement benefits and then refile a new claim. Since retirement benefits go up the older you are when you go on benefits, you receive a higher monthly benefit amount on the new claim. Sounds wonderful, doesn't it? Just one little catch. When you withdraw your earlier claim for retirement benefits, you have to pay back all the Social Security retirement benefits you have already received. How many people on Social Security retirement benefits are able and willing to do that? Probably a lot fewer than are foolish enough to pay "Dr. Steve Sjuggerud" for his "True Wealth Investment Advisory."

I have already received a message from a client asking about this. This has the potential to create unnecessary business for Social Security. There may be many people who will be angered when their delusions smash up against harsh reality.

Press Release On Astrue Speech At NOSSCR Conference

A press release from Social Security:

During a speech to the National Organization of Social Security Claimants’ Representatives, Michael J. Astrue, Commissioner of Social Security, reported on the progress made in fiscal year (FY) 2008 in the agency’s efforts to expedite backlogged disability cases.

“The plan we presented to Congress in May 2007 is working,” Commissioner Astrue said. “We have moved quickly to utilize new technologies, improve our business processes and add new staff. Combined with the hard work of our employees and the support of Congress, we are clearly on the right track to providing Americans with disabilities the prompt service they deserve.”

During FY 2008, Social Security hired 190 new Administrative Law Judges (ALJs), opened a National Hearing Center (NHC), eliminated virtually its entire aged case backlog of more than 135,000 cases waiting over 900 days for a hearing decision, and implemented a quick disability determination (QDD) process in all 50 states.

As a result of these and many other activities, the disability backlog at the hearings level, which had been growing at the rate of about 70,000 cases each year for most of this decade, grew by only about 14,000 cases.

“The hiring of 190 additional ALJs was critical but will not yield immediate results,” Commissioner Astrue noted. It generally takes about nine months for new ALJs to become fully productive. With attrition and experienced ALJs being used to train the new judges, the agency actually had 46 fewer ALJs available in FY 2008 than the prior year. Despite this fact, ALJs held more hearings and issued more dispositions than in FY 2007. The agency exceeded its targeted goal by over 16,000 cases.

The opening of the NHC gives Social Security the capability to quickly and flexibly move cases and conduct video hearings in the cities with the worst backlogs. NHC judges initially focused their efforts on the backlogs in Atlanta, Cleveland, and Detroit – cities where claimants had been waiting the longest. Atlanta continues to be a focus for the NHC, along with Flint, MI and Indianapolis. The agency plans to expand the NHC in Falls Church, VA as well as open additional centers in Albuquerque and Chicago. In addition, the agency is working with the General Services Administration to establish new hearing offices in the most backlogged states: Florida, Georgia, Kansas, Michigan and Ohio.

Social Security completed the nationwide roll-out of the QDD process in February 2008 and it has proven to be an unqualified success. QDD cases now represent about three percent of all new claims. This means more than 75,000 people each year will have their cases allowed in about 8 days, something that was unheard of just a year ago. The QDD threshold has now been adjusted for 31 Disability Determination Services (DDS), and the agency plans to gradually increase the volume of QDD cases while maintaining the same level of quality.

Other accomplishments in FY 2008 include:

• More than 2.6 million initial disability claims processed;
• Approximately 560,000 reconsideration cases processed;
• Over 575,000 hearing requests processed;
• Over 83,000 Appeals Council Reviews processed;
• Implemented procedures to allow attorney adjudicators to issue fully-favorable decisions -- over 24,000 decisions issued;
• Implemented a process in which the hearing office returns specific cases to the DDS for review for potential allowance -- to date, DDSs have allowed about 24,000 cases;
• Improved the process to identify and expedite military casualty claims;
• Implemented the Request for Program Consultation process nationally to improve accuracy and consistency in the disability decision-making process; and
• Implemented a process that allows the public and third parties to file disability reconsideration and hearing requests via the Internet.

“The progress we have made is significant, especially since receipts at the hearings level were five percent higher than we expected in FY 2008. While the backlog grew slightly, the rate of increase in pending cases continues to drop,” Commissioner Astrue said.

Looking ahead to FY 2009, Commissioner Astrue hopes the energy and talent of the new ALJs, the national rollout of Compassionate Allowances, and other initiatives will improve the quality of reviews and steadily reduce the number of pending cases starting this spring. However, he stated, “the effects of an extended continuing resolution are clearly slowing our progress. We simply cannot address the challenges we face without adequate and timely funding. Many things we need to do, such as increase support staff and add new hearing offices, will not happen if Congress fails to pass an adequate appropriations bill by March. Social Security is an agency of great skill and accomplishment and we are ready to work with Congress, the new Administration and all of our stakeholders to improve service to the public.”

If Social Security is making progress, why are the backlogs going up?

One Nugget Worth Repeating

Here is one little nugget from Eric Schnaufer's excellent summary of the presentations at yesterday's National Organization of Social Security Claimants Representatives (NOSSCR) Conference in Los Angeles that deserves further attention. This was from Lisa de Soto, the Deputy Commissioner for the Office of Disability Adjudication and Review (ODAR):

There is “some debate” about whether there is an adequate ALJ-staff ratio. In FY 2008, the ratio was 1:4.4. With the new hires, the ratio is 1:4.1.

Let me explain this a bit. Administrative Law Judges (ALJs) hear the appeals of Social Security disability claims. There is a humongous backlog of claimants awaiting hearings before ALJs. This is causing great human suffering. People are committing suicide while awaiting hearings. The Commissioner has called the backlog a "disgrace." ALJs are not one man (or woman) shows. They need help, doing things like preparing files and getting out written decisions. The current ratio is 4.4 other employees for each ALJ. Most, but not all, observers think that the 4.4 to 1 ratio is not enough. Social Security has hired some ALJs. More will be hired. Social Security is not adding anything like 4.4 staff members for each ALJ hired, so the staffing ratio will decline from 4.4 staff members per ALJ to 4.1 staff members per ALJ. I know of no one other than Lisa de Soto and Michael Astrue who thinks this decline in the staff ratio is a good idea. Michael Astrue and Lisa de Soto expects each ALJ to produce more decisions even though the staff per ALJ is being cut by about 7%. What is wrong with this picture?

New NOSSCR Officers

Here are the newly elected officers of the National Organization of Social Security Claimants Representatives (NOSSCR):

• Treasuer-Charles Martin
• Secretary-Ray Kelly
• Vice-President-Lawrence Wittenberg

A Lot More From NOSSCR Conference

More from Eric Schnaufer at the conference of the National Organization of Social Security Claimants Representatives (NOSSCR) in Las Angeles:

Michael Astrue, Commissioner of Social Security:

I. Backlog

Average processing time is the average length of time that a claimant waits after filing a request for an ALJ hearing (RH) to an actual oral hearing before an ALJ. An ideal average processing time is 270 days. Only 1 Office of Disability Adjudication and Review (ODAR) Hearing Office (HO) meets the 270-day standard.

There are no “magic bullets” to decrease the backlog. There are only commonsense and incremental advances. The Commissioner was “stunned” and “embarrassed” by the backlog. He is now “incredibly pleased” with the ALJ [Administrative Law Judge] corps.

The Agency reduced and reduces the backlog by attacking “aged” cases. In FY 2008, the Agency defined “aged” cases as pending for a hearing for 900 or more days. There were 135,000 such RHs. Less than 300 of them remained in FY [Fiscal Year] 2009.

In FY 2009, an “aged” case has been pending for 850 or more days. There are about 165,000 such RHs. The Commissioner was confident that these aged cases would be processed before the beginning of FY 2010.

The average processing time at ODAR increased 2 days in FY 2008.

There were reasons to be optimistic about FY 2009. In FY 2008, none of the new ALJs was working. Further, some of the best ALJs had lowered productivity in FY 2008 given their responsibilities to train new ALJs and to train their peers at the national training conferences.

In FY 2008, 56% of ALJs met the standard of disposing of 500 or more RHs per year. In the Denver Region, 89% of ALJs met that standard.

The Commissioner expected that the newly hired ALJs would be fully productive in 9 months. There was “universally positive feedback” about the new ALJs.

The ultimate goal is to have 1,250 ALJs. No new ALJs will be hired until the summer of 2009.

II. Geographic Allocation of Resources and Hearing Office

Atlanta and Detroit are “dramatically underresourced.” Atlanta, Cleveland, and Detroit have pending caseloads per ALJ 4 times those of Southern California and New England.

The Agency will transfer video hearings to HOs that were less busy.

The National Hearing Center (NHC) was working on Atlanta Downtown, Detroit, and Cleveland cases. The NHC would soon start taking cases from Flint, Michigan, Indianapolis, and both Atlanta HOs.

Two new NHCs will open: Albuquerque and Chicago.

There will be 5 new HOs [Hearing Offices]: Tallahassee, FL, Toepeka, KS, Mt. Pleasant, MI, Toledo, OH, and Atlanta (South), GA.

There will also be offices of some sort in Anchorage, AK and Boise, ID.

There will be “satellite offices” in Madison, WI, Sioux Falls, SD, and Rochester, NY.

There will be video offices in Detroit, Omaha, and Cleveland.

II. Information Technology

Eighty-five percent of claims are now electronic.

There are two 2 sites testing advanced software for the state agencies, one in California and the other in Michigan.

IT initiatives including, ePulling, electronic signatures, electronic scheduling, and centralized mailing of notices. (Deputy Commissioner DeSoto spoke approvingly of ePulling. Charles Hall has questioned that technology on this blog.)

The pilot project in which claimants testify from their representatives offices has started.

The pilot project in which representatives access their clients’ claim files online has begun. 418 files have been accessed. Privacy issues must be resolved regarding this pilot project.

III. DSI Ending

DSI [Disability Service Improvement -- former Commissioner Barnhard's plan] is winding down. The regulations to convert Region I back to the old ALJ-to-Appeals-Council process are pending at OMB [Office of Management and Budget].

DSI was sold as a “magic bullet.” It was not.

IV. Quick Decisions and Compassionate Allowances

Quick Disability Determinations (QDD) are currently 3% of initial applications. The goal is to increase QDDs. 95% of cases identified for QDD are allowed. Average processing time for QDDs is 8 days.

Compassionate Allowance (CA) is different than QDD. QDD cases are identified by a computer profile. CA cases are identified by the impairment, e.g., cancer. Under CA, a claimant will be found disabled at step three of the five-step sequential evaluation after review of only “minimal” medical evidence. The purpose of CA is to allow claims for claimants who are “clearly” disabled. There have been 2 public hearings about CA. There will be a third.

IV. Health Information Technology

The Commissioner reviewed the well-known Health IT initiative with Beth Israel Hospital in Boston and the MA state agency.

V. DOT
The Dictionary of Occupational Titles (DOT) is obsolete. The Agency plans to have a replacement for the DOT in 3-5 years. In the meantime, there are contracts with vendors to “patch” the DOT. There will be an advisory panel of outside experts to address DOT issues.

VI. Notices
Notices are letters that the Agency sends to claimants providing program information, adjudicative results, etc. There is now a new unit/office headed by Alan Lane the sole responsibility of which is to review and revise notices. The Agency issues 350,000,000 notices per year.

The Commissioner stated that he had personally added the word “please” to a notice. He tried rewriting notices himself.

(Nancy Shor stated that NOSSCR members can send defective notices to her for possible routing to the Agency for review.)

VII. Retirement Application
There will be a new Internet retirement application within 60 days.

Lisa DeSoto, Deputy Commissioner for ODAR:

I. Backlog

The goal was to process RHs on a first-in-first-out (FIFO) basis.

In FY 2008, pending RHs increased 1% and there were 5% more RHs then anticipated.

If all ALJs disposed of 500 cases per year, ODAR would dispose of 60,000 cases per year.

The goal is for each ALJ to dispose of 500-700 cases per year. Many ALJs now dispose of 400-500 cases per year.

In FY 2007, 46% of ALJs did 500 or more cases per year. In FY2008, 56% of ALJs did 500 or more cases a year.

There is or will be a Decision Writer Productivity Index.

There is “some debate” about whether there is an adequate ALJ-staff ratio. In FY 2008, the ratio was 1:4.4. With the new hires, the ratio is 1:4.1.

Electronic case processing means that less labor was required for each case.

The Senior Attorney program disposed of 25,000 cases in FY2008. The Senior Attorney program will be continued.

Informal remands to DDS disposed of 17,000 cases in FY2008.

There will be ten ALJs at the National Hearing Center in Fall Church, VA. There will be four ALJs at the Albuquerque, NM NHC and about 15 ALJs at the Chicago, IL NHC. These will be fully staffed by the Summer of 2009.

II. IT [Information Technology]

There were only 105,000 paper disability files left. By the end of FY2009, there will be no paper disability files pending. Paper files take 18 more days to process.

Central printing and mailing of notices was now full operational. Eleven notices are now centrally printed and mailed.

The Deputy Commissioner is “very excited” about ePulling.“It does work.” However, ePulling is “in transition” and is not yet ready for “prime time.” “Bear with us.”

III. DSI

The Deputy Commissioner addressed winding down DSI in Region I.

IV. Blogs

The Deputy Commissioner stated that she did not “read the blogs,” probably with reference to this blog. She did confess to read blog posts that were brought to her attention by her “staff.”

Frank Cristaudo, Chief Administrative Law Judge

I. Backlog

The Agency wants to hire 120 more ALJs.

The current average processing time (from RH to oral ALJ hearing) is 514 days. This was “not acceptable.” The backlog is caused by inadequate resources and increased “receipts,” i.e., increased RHs.

There are now 650 cases for each ALJ. In Michigan, there are 1,100.

Despite the need for productivity, the Judge stated that the “legal sufficiency” of unfavorable ALJ decisions was important.

The Judge echoed Deputy Commissioner deSoto’s comments about the Senior Attorney program and informal remands to the state agencies.

There will be 100 additional Senior Attorneys.

FIFO was the rule except for TERI and on-the-record cases.

II. New ODAR Medical Expert

The Judge described a process in which an ODAR medical expert (ME) reviews a case before it is assigned to an ALJ. If according to the ME a fully favorable decision is warranted, the case is sent to a senior attorney. The ME’s case review becomes part of the ODAR file if the case is not allowed by a Senior Attorney.

III. Request to Representatives

The Judge made several requests/suggestions:

-- communicate with Hearing Office Chief ALJs and Hearing Office Mangers about problems,
-- remove duplicate evidence from files,
-- don’t submit duplicate evidence,
-- submit evidence at least 1 week before a hearing,
-- submit evidence electronically when possible,
-- don’t request postponements of hearings,
-- use online appeal forms,
-- consider using video hearings,
-- please don’t wait to the last minute to opt out of a video hearing,
-- write fully favorable decisions with the FIT template,
-- don’t submit a request for an OTR decision in a case where an OTR will probably not be granted,
-- draft short, not lengthy OTR requests,
-- alternatively, provide a summary with any lengthy OTR request,
-- provide suggestions about the Senior Attorney program,
-- be professional, and
-- report unfairness.

There were 50,000 - 60,000 video hearings in FY2 008, i.e., about 12-13% of hearings.

IV. Detailed Earnings Statement

The Judge took questions. The Judge stated that a detailed earnings statement should be included in Exhibit files if an ALJ relies on it. There was a brief discussion about detailed earnings statements.

At the present time, a detailed earnings statement cannot be moved automatically to the electronic claims file.

Nancy Shor, Executive Director of NOSSCR:

I. Backlog

The backlog is aggravated by the economic downturn, increased receipts, and SSA’s lack of resources while functioning under a Congressional continuing resolution. NOSSCR is part of a consortium of groups addressing the Agency’s budget. Send NOSSCR and your elected officials compelling human/personal stories about the backlog.

Information technology will not solve the backlog. The “only” way out of the “morass” is money.

The Inspector General issued a recent report on ALJ productivity. Several factors cause delay: poor work ethic, use of experts, rewriting of decisions, lengthy hearings, and difficulty making decisions.

The Agency does not control the hiring process for ALJs. The current process is “unfair.” There should be a 3-month notice before applications are taken, and the acceptance of applications should not be cut off when a certain number of applications is reached. The process is “crazy.” Of the new ALJs, only 20% are from private practice. Twenty-five ex-NOSSCR members are ALJs.

The Agency has a tool that it will or might use to make some ALJs more productive. ALJs currently schedule their own hearings. Take that responsibility away and simply schedule more hearings for less productive judges.

II. Notices

Send NOSSCR problematic notices. It will route them to Alan Lane, the Agency official now responsible for notices.

III. 9/8/08 NPRM [Notice of Proposed Rule-Making]

NOSSCR has information about the 9/8/08 NPRM. There are problems with the NPRM. See the NOSSCR web site.

At the present time, representatives cannot file applications. They can under the NPRM. Representatives have new affirmative duties under the NPRM.

IV. Banks and 1099s

The IRS wants 1099s for fees for representatives. If firms can receive fees instead of individual representatives, then the IRS can verify the income of a firm.

It is possible that the Agency will not issue in January 2008 1099s for work performed in 2008, but will issue 1099s for work performed in 2009 in January 2010.

Banks, not the US or the Agency, are responsible for not providing information about the source of direct-deposited funds.

V. Information Technology

ePulling is “pretty impressive.” ePulling is slower than the Bates system but faster than a human.

eScheduling (when a computer schedules hearings by comparing a
representative’s calendar to ODAR’s) won’t happen until at least 2010.

Many thanks, Eric. This is truly impressive.