Dec 31, 2008

Backlog Report December 2008

Click on each thumbnail to view the processing time report for Social Security's Office of Disability Adjudication and Review, the part of Social Security that holds hearings on disability claims, obtained by the National Organization of Social Security Claimants Representatives (NOSSCR).

Compare the state of the national backlog over time:
  • January 25, 2007 -- 508 days
  • May 25, 2007 -- 523 days
  • July 28, 2007 -- 528 days
  • August 31, 2007 -- 523 days
  • November 30, 2007 -- 500 days
  • February 29, 2008 -- 511 days
  • May 30, 2008 -- 523 days
  • June 27, 2008 -- 529 days
  • July 31, 2008 -- 530 days
  • September 3, 2008 -- 532 days
  • November 5, 2008 -- 476 days
  • December 3, 2008 -- 480 days
Update: I am going to take a guess at the explanation behind that remarkable improvement in the reported backlog between September 3 and November 5. What I think happened was that a few dozen new ALJs came on board during this time period. While the total number of cases backlogged increased, Social Security assumed that the increase in the number of ALJs would improve its output, thus decreasing the wait time.

Czech Treaty And User Fee Notices In Federal Register

Wild Ass Guesses For The New Year

Early in my career as a lawyer I heard an expert witness at an administrative hearing (not before Social Security) testify that she could not answer the hypothetical question asked her with reasonable certainty, but that she could give a "wild ass guess." I think I have heard other wild ass guesses from expert witnesses over the years but that expert was the only one honest enough to describe her testimony accurately.

I will be honest enough to label my predictions for 2009 as being more wild ass guesses than anything else. Here they are:
  1. Michael Astrue will stay on as Commissioner of Social Security throughout 2009. However, he will be under increasing pressure from Congress to do something about the service delivery problems at Social Security. His problem is that he has backed himself into a corner by promising that his plans will bring down the backlogs without big increases in staffing, but what he has promised is impossible. There will be tense Congressional hearings with testy exchanges.
  2. John Lewis of Atlanta will become the new Chairman of the House Social Security Subcommittee, replacing Mike McNulty who is retiring. Lewis is currently the Chairman of the Oversight Subcommittee of Ways and Means. He will switch because the Oversight Subcommittee will be much less fun for a Democrat to chair in the Obama Administration than it was in the Bush Administration.
  3. Congress will enact and President Obama will sign a budget for Social Security for fiscal year (FY) 2009 (which began on October 1, 2008) of $10.477 billion, $150 million above the Bush budget proposal for the agency. This will happen by February 15, 2009.
  4. Obama and Astrue will put out similar proposed budgets for Social Security for FY 2010 (which begins on October 1, 2009) of about $11.2 billion. This appropriation will be passed essentially as is, before the beginning of FY 2010. This will not be enough money to add more than a modest number of new employees at Social Security.
  5. There will be little or no improvement in the hearing backlogs at Social Security in 2009 -- except in Atlanta where there will be dramatic improvements.
  6. Service at Social Security field offices will continue to slowly decline in 2009. Social Security's inability to answer its telephones and the increasing wait times at Social Security field offices will slowly become a public issue.
  7. Social Security will end the year with about 1225 Administrative Law Judges (ALJ) and an ALJ staffing ratio that is lower than what it is currently.
  8. In 2009, Congress will be working on plans to do something about the hearing backlog at Social Security, but nothing will pass in 2009. The plans under discussion will include removing Social Security from the unified federal budget and requiring regular reports on service delivery at Social Security. Time limits and interim benefits will be discussed but will not go forward. Commissioner Astrue will oppose all such legislative efforts and claim that his plans will solve the backlog problem. Even Congressional Republicans will be openly skeptical of his claim.
  9. President Obama will appoint a Democrat to the position of Deputy Commissioner of Social Security. That person will have no prior background in Social Security. Commissioner Astrue will give the Deputy Commissioner major duties, placing him or her in charge of modernization of Social Security's computer systems and procurement generally, but will keep him or her well away from budget, policy and anything pertaining to disability or hearings. Astrue will concentrate on these matters himself, in the vain belief that he will be able to manage Social Security into giving better public service without significant additional personnel.
  10. President Obama will appoint a Democrat to the position of Inspector General at Social Security. The appointee will have the Office of Inspector General (OIG) start preparing reports on service delivery at Social Security. He or she will testify before Congress frequently and will slowly become a major thorn in Michael Astrue's side.
  11. There will be an increase in the number of disability claims filed in 2009 which will be blamed upon the recession, but the real reason for the increase will be the aging of the baby boomer population. Commissioner Astrue will claim that the increase in claims filed was unexpected.
  12. There will be Congressional hearings on the 24 month waiting period for Medicare after a person qualifies for Social Security disability benefits. Legislation will move forward on this issue but will not become law in 2009.
  13. Commissioner Astrue will officially but quietly withdraw the regulations proposed by Commissioner Barnhart that would increase the age categories in the Grid Regulations by two years. He will also quietly withdraw the controversial procedural regulations that he proposed. Both are actually still pending and, in theory, could be made official at any time -- but it is too late for that to happen during the Bush Administration and neither could happen in the Obama Administration.
  14. Commissioner Astrue will raise the cap on attorney fees for representing Social Security claimants and will begin the process to adopt regulations that would put in an automatic cost of living adjustment, but he will slow roll this.
  15. The proposed rules on representation of claimants will still be pending as of the end of 2009.
  16. Commissioner Astrue will begin holding regular meetings with the heads of the employee unions at Social Security, but these meetings will be contentious. The American Federation of Government Employees (AFGE) will demand that Congress do something about the situation. Democrats in Congress will be interested in helping the union, but nothing will happen in 2009.
Basically, I am predicting that things will not change that much in 2009, but that by year's end there will be signs of significant changes coming in 2010 and beyond as well as a storm gathering around Michael Astrue. I have not seen enough sign of flexibility in Michael Astrue for him to avoid major conflict with Congress, the new Inspector General at Social Security and the employee unions. He has a history of resigning in a huff when others question what he is doing, but I do not see him doing that in 2009.

What are your predictions, or wild ass guesses, for 2009?

Waiting In Portland -- Shifting The Blame To The "Billion-Dollar Judge"

From The Oregonian:

The slow pace of a few judges and an overwhelmed staff at Portland’s Social Security hearing office are key reasons that people seeking disability benefits here endure some of the longest waits in the nation.

Across the country, it takes an average of 480 days to get a judge’s ruling on a Social Security disability claim — but 650 days if your case is in Portland.

The problems in Portland reflect a broader national crisis, according to Social Security Administration records obtained by The Oregonian under the Freedom of Information Act. Only about half the agency’s administrative law judges here meet its minimum goal of clearing 500 cases a year. Only three of nine Portland judges hit that mark in recent years, agency records show.

Last year, according to the national records, 132 of the agency’s judges — about 11 percent — failed to reach even half of the agency’s goal, dragging out appeals of disability claims as people faced financial ruin, got sicker and even died waiting.

And from a sidebar article:

Charles Bridges is Social Security’s billion-dollar judge.

When it comes to paying out disability benefits, no other Social Security judge comes close. Bridges awarded cash to 2,285 people last year — eight times that of the agency’s average judge — and he turns down only a small number of the people who plead for a check.

The cost to taxpayers? More than $2.1 billion for this judge over the last four years.

Bridges, 62, is the chief administrative law judge in the Social Security Administration’s Harrisburg, Pa., hearing office.

Inside Social Security, Bridges is a controversial figure, a symbol of the agency’s desperation to unclog its bottleneck of disability claims at any cost.

Stories about an unnamed judge who pays 2,000-plus cases a year arose in a congressional hearing in February, but the agency has never named him. The Oregonian identified Bridges through internal Social Security records obtained under the Freedom of Information Act. ...

Each time a judge approves a disability case taxpayers will pay out an average of $250,000 in lifetime cash and medical benefits, according to estimates. Experts say judges should spend hours considering each case, and that Bridges’ extraordinary production makes that all but impossible.

“It’s preposterous,” said Sylvester J. Schieber, chairman of the Social Security Advisory Board, an oversight agency, who has studied productivity of the agency’s judges.

“As complicated as these cases are, it’s outrageous that he’s doing 50 cases a week when most other judges are toiling to get out 10 to 15.”

The agency’s top officials can’t seem to agree about Bridges.

Social Security Commissioner Michael J. Astrue — without naming Bridges — told The Oregonian in a statement that if any judge produces that many cases a year, it “invariably means the quality of the review is low or nonexistent.”

But Frank A. Cristaudo, the agency’s chief administrative law judge, said Social Security has reviewed the record of high-producing judges (which would include Bridges) and found no problem with their accuracy. Cristaudo declined to comment on the quality of Bridges’ work.

“He’s putting in incredible hours,” Cristaudo said. “He feels very committed to public service.”

And from another sidebar:

Last fall, after investigating the glacial pace of Social Security’s disability claims process for several months, I decided to talk my way into one of the hearings in which people make their pitches for benefits.

Portland’s hearing office was one of the slowest in the country, and no one had adequately explained why. So I figured a look inside might show what a brutal system it was for thousands of people.

Trouble was, the hearing rooms were supposedly closed to the public — even though the judges inside award untold billions of dollars in taxpayer money each year. ...

I would later learn that judges frequently permit friends and family into the hearings, and that they have in the past admitted law students, academics and congressional staffers.

It seemed the only class of people denied access, after having been invited by claimants, were news reporters.

It is obvious to me that someone at Social Security gave this reporter the idea that the Administrative Law Judges (ALJs) are to blame for the backlogs and that a "billion-dollar-judge" is giving away the store. I cannot imagine this happened without Commissioner Astrue approving it.

Social Security's ALJs are not above criticism, but the idea that blaming them is going to work as an excuse for the backlogs at Social Security is just preposterous. It may sort of work with one reporter one time, but it is not going to fly as a general matter, because it is not true. Blaming the ALJs would not have worked even when Republicans were in control of Congress and the White House and it certainly will not work now. If this is Michael Astrue's main plan for deflecting the blame from himself, he needs to come up with a new plan.

ALJ Database

As part of the story about backlogs at Social Security discussed above, The Oregonian has posted a database online that shows the number of dispositions per Administrative Law Judge, by outcome, for each of the last four years.

From taking a look at it, I can take an educated guess that this lumps dismissals of requests for hearings with denials, which can be misleading, particularly for Hearing Office Chief Administrative Law Judges (HOCALJs). HOCALJs typically issue all or most of the dismissals for an entire hearing office when a request for hearing is clearly filed too late or too early.

Dec 30, 2008

New Disability Entitlement Program Proposed

They have not been making much noise about it so far, but some important disability advocacy groups are proposing a new entitlement program for the disabled. The name given to this proposal is CLASS, Communtity Living Assistance Services And Supports Act. The proposal is for a program run by the Department of Health and Human Services (HHS), but if this ever happens, I think it is a good deal more likely to be run by the Social Security Administration. Here are some details of the proposal:
  • Financed through voluntary payroll deductions of $30 per month (with opt-out enrollment like Medicare Part B)
  • Any individual who is at least 18 years old and actively working would be automatically enrolled (unless they opt out), and pay their premiums through payroll deduction or another alternative method. Any nonworking spouse could enroll in the program and pay their premiums through an alternative payment procedure.
  • To qualify for CLASS Act benefits, individuals must be at least 18 years old and have contributed to the program for at least 5 years. Eligibility for benefits would be determined by state disability determination centers and will be limited to: (1) individuals who are unable to perform two or more activities of daily living (ADL) (e.g. eating, bathing, dressing), or (2) individuals who, due to a cognitive or psychiatric impairment, require supervision, cueing, or hands-on assistance to engage in activities that will enable the individual to perform at least 2 of the following critical life functions: communicating; taking medications; household management; and basic money management.
  • To account for differences in independence support needs, there would be two cash benefit tiers. Tier 1 benefits ($50/day) will be payable to eligible individuals who are unable to perform 2 or 3 ADLs or have a cognitive or psychiatric impairment requiring assistance with 2 or 3 critical life functions. Tier 2 benefits ($100/day) will be payable to individuals who are unable to perform 4 or more ADLs or have a cognitive or psychiatric impairment requiring assistance with 4 or more critical life functions.
  • Eligibility for CLASS Act benefits would not have any effect on eligibility for Social Security retirement, survivors, or disability benefits, Supplemental Security Income (SSI) benefits, Medicare, or Medicaid.
There are some problems with this proposal beyond the obvious one of whether it is possible to enact a new entitlement program even in the current political climate. I have strong doubts that the $30 a month deductions would begin to cover the costs of this program. It would be quite difficult to administer. It would exclude those who have been disabled since birth, who are the people most in need of such benefits. Still, I have to give high marks for audacity to those sponsoring this proposal. I hope this gets serious consideration.

Grievance On ALJ Productivity Standards

A grievance that several Administrative Law Judges (ALJs) filed against the Social Security Administration in the Chicago region has been posted online. The grievance concerns the production standard that has been more or less established at Social Security that each ALJ should produce 500-700 decisions per year. The grievance argues at some length that the standard is illegal and unreasonable. It is also unenforceable, but that does not mean that it is unimportant.

What Would Open Government Mean At Social Security?

From Amy Harder at the Lost in Transition blog:

Fast-forward 10 or 20 years and you might see a Congress that passes "wikied" legislation created by millions of Americans, a president who submits a daily diary via video, and a vast online repository of all the Freedom of Information Act requests ever submitted.

Rewind back to today, and you'll see a handful of innovative, tech experts discussing these ideas at Google's Washington headquarters. During a panel discussion today, a packed room listened to Internet-savvy people within Congress, from the presidential campaign and third parties weigh in on how President-elect Obama should use the Web to promote open government.

So, what sort of things should the Social Security Administration do to promote open government? What are your ideas?

I will start by mentioning one small area. Social Security should quit keeping most of its Emergency Messages to its staff secret. Anything that is available to tens of thousands of Social Security employees cannot be truly sensitive. Social Security employees do not have to engage in the old school bureaucratic nonsense of keeping pointless secrets to prove their importance. I already think Social Security employees are important. Knock off the pointless secrecy, Social Security.

Dec 29, 2008

Judge Judy And Disability

The clip that I posted from the Judge Judy show may not be the first time that the subject of Social Security disability benefits has come up on her show. Here are some comments from the web about two other Judge Judy shows.
  • Judge Judy just had a case with a woman who was the defendant and losing and Judy did her usual grilling. She asked the woman if she worked and she said no, that she was on SSI. Judy asked the nature of her disability and she answered "multiple sclerosis." "Well, you look fine to me!" Judy said haughtily. MS World Board February 14, 2008
  • We LOVED the guy on Judge Judy who sued his wife (or ex wife) for selling his musical instruments, in order to feed their children. He said he needed them in order to earn $100 a night, playing in a band. This was the only work he could do, under the table, to supplement his SSI. HUH? Shocked Judge Judy declared the instruments "marital property" and said the wife was within her rights, to sell them. She added that someone from Social Security was going to see the show and would be very interested in his case. Etiquette Hell Forum April 19, 2007
Etiquette Hell! An appropriate forum to discuss Judge Judy.

OIG Report On Processing Time

Social Security's Office of Inspector General (OIG) has done a report on the agency's processing times on Social Security disability claims. It seems to me to show that a lot of the processing time figures given out by Social Security over the years may be misleading or at least may not accurately reflect what a claimant would experience. OIG was doing a study on calendar year 2006. Social Security reported that in 2006, the average processing time at the initial level was 88 days, 483 days at the hearing level and 203 days at the Appeals Council. OIG's audit found that it actually took 131 days at the inital level, 532 days at the hearing level and 242 days at the Appeals Council. OIG's description of how they did this study could be better, but it appears that the difference is that OIG included the time it took for the agency to get a new claim or appeal to the desk of the person who was supposed to work on it and also included the time it took for favorable and unfavorable decisions to be processed after they were made, including the time it took to compute and pay benefits when favorable decisions were made. It looks like OIG did not include the time it took claimants to file appeals, so the actual experience of a claimant would be even worse.

NOSSCR Comments On Proposed Scheduling Rules

The National Organization of Social Security Claimants Representatives (NOSSCR) has posted its comments on the proposed regulations that would allow the Social Security Administration to remove any control that an individual Administrative Law Judge (ALJ) has on scheduling hearings. NOSSCR's comments express concern that the proposal would diminish ALJ indepedence and that it is a distraction from the vastly larger problem of lack of adequate staffing at Social Security.

File your own comment online. The deadline for comments is January 9, 2009.

Dec 28, 2008

Dec 26, 2008

Across The Pond

Disability determination is very different overseas Here is an exchange from the Rightsnet board in Great Britain:
Joe Barton:
Had a client who could not use her right hand so could not peel or chop vegetables as a result we applied for the low rate Care Component of DLA [Disability Living Allowance, which looks as if it may be the rough equivalent of SSI disability benefits] on the basis that she could not plan, prepare and cook a main meal. At the tribunal hearing clients appeal was disallowed on the basis that she could buy packets of frozen veg that did not need chopping? Has the law on the cooking test changed because it seems judges at tribunals are now resorting to the above tactics and mentioning things such as microwaves.

I think that a tribunal could argue there is sufficient case law that allows for the reasonable use of a microwave to help in in the 'preparation' of a main meal.

However, in terms of ingredients, the commissioner in R(DLA) 2/95 held that -
  • 'The word 'prepare' emphasises a claimant's ability to make all the ingredients ready for cooking. This includes the peeling and chopping of fresh vegetables as opposed to frozen vegetables which require no real preparation.'
I imagine that we look similarly bizarre to those on the other side of the Atlantic.

Dec 25, 2008

Merry Christmas!

Competing SSI State Subsidy Cut Proposals In California

Looks like hard times are coming for SSI recipients in California. According to the Sacramento Bee, the Republicans, the Democrats and the governor all want to cut the state SSI supplement to help meet a huge budget deficit. Each has a plan. The Democrats want to cut the supplement by $656 million. The Republicans want to cut twice as much, $1.3 billion. Governor Swartznegger wants to cut the supplement by $1.4 billion.

Dec 24, 2008

Christmas Eve

Medicare Waiting Period Draws Attention

The Associated Press is running a story on the terrible human costs of the two year waiting period for Medicare after someone becomes eligible for Title II Social Security disability benefits. The story does not even mention that the waiting period is actually almost two and a half years for most disabled people, since the two year waiting period is on top of a five month waiting period for the cash disability benefits and those must be five full months. Here are a couple of excerpts from the story:
An estimated 1.8 million disabled workers are languishing in Medicare limbo at any given time. And about one out of eight dies waiting.

As many as one-third of those waiting are uninsured. ...

"The current law is really indefensible," said Sen. Jeff Bingaman, D-N.M. "There is no logic behind requiring people who are determined to be disabled to wait two years before they become eligible for Medicare." Bingaman introduced a bill to phase out the waiting period, and as a senator Obama co-sponsored it. ...

"When it comes to people dying of cancer, you can't help but be sympathetic," said Sen. Charles Grassley, R-Iowa. "But at a time when we have a big downturn in the economy, it may be questionable what can be done in a lot of these areas." Grassley, the senior Republican on the Senate committee that oversees Medicare, said he hasn't made up his mind about a repeal of the waiting period.

A possible compromise that could save taxpayers money would be to subsidize a continuation of employer coverage for disabled workers during the 24-month wait. Many can keep their benefits now, provided they pay the full premium, which not all can afford.

I do not recall Senator Grassley holding a hearing on repealing the Medicare waiting period when he was Chairman of the Senate Finance Committee and the economy was booming.

California Considers Cutting SSI Supplement

The federal government pays Supplemental Security Income (SSI) benefits to indigent people who are aged, blind or disabled. SSI was adopted in the 1970s and replaced earlier state programs. The federal SSI rate was lower than the benefits already available at that time in some states. Most, if not all, of those states chose to supplement the SSI benefits so that their indigent people who were aged, blind or disabled would not lose money because of the adoption of SSI. The state supplements are combined into one check or direct deposit sent by the U.S. Treasury.

California is one of those states that supplements SSI. The Sacramento Bee is reporting that because of its disastrous state budget situation the state of California is considering reducing its state supplement for SSI. If this happens, I am pretty sure that it will be the first time such a thing has been done. I have a feeling that this will not be the last time this issue comes up.

Dec 23, 2008

Occupational Information Development Advisory Panel

From today's Federal Register:
We are establishing the Occupational Information Development Advisory Panel (Panel) under the provisions of the Federal Advisory Committee Act (FACA). ...

Panel members will analyze the occupational information used by SSA in our disability programs and provide expert guidance as we develop an occupational information system (OIS) tailored for these programs. We plan to design the OIS to improve our disability policies and processes and to ensure up-to-date vocational evidence in our disability programs. We will select Panel members based primarily on their occupational expertise. This Panel will provide guidance on our plans and actions to replace the Dictionary of Occupational Titles and its companion volume, The Selected Characteristics of Occupations. We expect to tailor the OIS specifically for our disability programs. ...

The Panel will be composed of not more than 12 members, including: (a) Members of academia recognized as experts in relevant subject areas, such as occupational analysis, vocational assessment, and physical and occupational rehabilitation; (b) professional experts in relevant subject areas, such as vocational rehabilitation, forensic vocational assessment, and disability insurance programs; (c) medical professionals with experience in relevant subject areas such as occupational or physical rehabilitation medicine, psychiatry or psychology, and physical or occupational therapy; (d) professional experts who represent or advocate on behalf of the disabled claimants; and (e) an agency employee who has expertise in our disability program policies, processes, and systems. The Panel is continuing in nature. In accordance with the FACA, we will publish a notice of the first Panel meeting in the Federal Register.
This kicks any real decisions a few years down the road, which seems to be Social Security's strategy for dealing with its dirty little secret. The agency is basing decisions to deny claimants upon data that is decades old, data that everyone knows is unreliable and misleading. Newer data would almost certainly show that unskilled sedentary jobs have disappeared. My opinion is that the only way of forcing the agency to face up to its problem is through litigation.

Social Security Seeks Legislation To Allow Electronic Medical Release

From Social Security Update, an online newsletter from the Social Security Administration:
Each year Social Security makes more than 15 million medical record requests for disability applicants and beneficiaries. Social Security has been working diligently on ways to make the disability determination process go faster and smoother for applicants and all parties involved. Now, Social Security is working in collaboration with advocates and the Disability Determination Services (DDS) to get legislation passed that will streamline the medical release piece of the disability process.

Currently, when a person applies for Social Security or Supplemental Security Income, part of the application process is to have the applicant complete several medical release forms (SSA-827) which Social Security and DDS use to send to medical providers. Each time we need a piece of evidence from another source, we must send out another medical release form. Sometimes, it is required that we go back to the applicant to have additional releases signed which delays the process.

Expedited Records Request would make the process go much faster. Applicants will still be advised of the need to obtain medical records, but they will be asked to grant Social Security permission electronically instead of on a signed paper form. No additional evidence of authorization would be required for the provider to release the information to Social Security. The provision would also relieve providers of existing liability for disclosure of medical records to Social Security when they respond to a request.

AFL-CIO Calls For More Funding For Social Security

The Obama transition is posting documents and position papers it receives from organizations. The AFL-CIO has submitted a paper dealing with Social Security. They recommend a higher "replacement rate" for Social Security, that is higher Social Security benefits. That is unlikely to happen, but the AFL-CIO's justification is not without merit. Traditional pensions are disappearing. Most employer-based retirement plans now are defined contribution plans, such as 401Ks. Such plans do not guarantee retirement income in the way that traditional pensions do. Social Security benefits are more important than ever.

Of more immediate interest, AFL-CIO recommends higher funding for the Social Security Administration. It recommends achieving this by taking Social Security's administrative expenses "off-budget," so the agency's operating budget does not count against the unified federal budget. My guess, or perhaps hope, is that a number of other groups may recommend the same thing. AFL-CIO advises that Social Security's "focus on electronic filings and new requirements that claimants perform functions formerly provided by SSA staff should be reversed."

Somewhat embarrassingly, AFL-CIO told the transition team that "An immediate decision for the next President will be who should lead the Social Security Administration." Actually, no. While the new President can appoint a new Deputy Commissioner for Social Security, Michael Astrue can stay on as Commissioner of Social Security for another four years and, apparently, plans to do so.

SSAB Advice To Transition Team

The Social Security Advisory Board (SSAB) met recently with the Obama transition team for Social Security. The SSAB's written materials for this meeting are available on the SSAB website.

I hardly know how to describe the SSAB comments. They seem mostly to describe problems and issues at Social Security, but to provide few suggestions on what to do about them. Mostly, the comments suggest that Social Security needs to solve its problems by doing some sort of very smart reorganization. The SSAB has no idea what this very smart reorganization would look like, but Social Security has problems, so management at Social Security must come up with a very smart reorganization to solve the problems. There are vague hints at the possibility that SSAB thinks that the agency might just possibly need a few more warm bodies to get the work done, but these hints are submerged in a sea of this sort of thing:
SSA needs to develop a vision and focus on the integration of processes, investment in a modern technology platform, and development of a highly skilled and creative workforce. This is not merely tinkering around the edges—by addressing fundamental organizational change in these three areas—process, platform, and people, the agency has the potential to make the administration of the Social Security programs more effective in meeting the public’s demand for service.
This sort of drivel -- it sounds like something out of the comic strip Dilbert -- makes it hard to justify the continued existence of the SSAB.

Dec 22, 2008

Hearing Backlog Report

Social Security has posted its "Annual Report 2008 on The Plan to Eliminate the Backlog and Prevent Its Recurrence." Interestingly, the report is signed not by the Commissioner of Social Security, but by the outgoing Deputy Commissioner for the Office of Disability Adjudication and Review, Lisa de Soto. Should we ascribe any significance to this?

De Soto reports that "Fiscal Year 2008 was a tremendous year filled with impressive accomplishments" and, in a sense, it may have been since I am sure that everyone involved worked hard and some productivity gains were achieved, albeit usually at the expense of quality. However, the backlog still grew and that is the subject of this report, so it is hard to see how the last fiscal year could honestly be described as "tremendous."

The report predicts that the backlog will decline dramatically in coming years, but this prediction appears to be based upon an expectation of unprecedented increases in productivity.

Putting things in a positive light is one thing. Crowing about great successes when you have failed miserably is another. I do not know whether to call this spin or just fantasizing, but this report does not seem to be based upon reality -- a common complaint about the outgoing Bush Administration.

Dec 21, 2008

GAO Report On Medical Evidence Collection

Obtaining timely and complete medical records is a challenge to DDSs [Disability Determination Services, state agencies who do disability determination for the Social Security Administration] in promptly deciding disability claims ... 14 of 51 DDSs reported the percentage of requests for which they did not receive records was 20 percent or more in fiscal year 2007. In response to this challenge, all DDSs conduct follow-up with providers and claimants to urge them to provide records. Over half of the DDSs (34 of 51) have also implemented more timely payments for records and six increased the amount they pay. ...

Recruiting and retaining qualified providers is a challenge to obtaining consultative exams needed to supplement insufficient medical records. For example, 41 of 51 DDSs reported routinely asking claimants' own providers to perform these exams; yet 34 reported providers never or almost never agree to do so. DDSs directors in our survey believe that current payment rates account for some of the difficulty recruiting and retaining consultative exam providers. In response to these challenges, 32 DDSs rely on medical providers who specialize in performing disability evaluations, and 20 pay providers for time spent preparing for appointments claimants fail to attend. SSA evaluates evidence from consultative exams, but these evaluations and the data they yield are too limited to identify and share promising DDS practices.

SSA has made progress moving to electronic collection of medical records, but faces challenges in fully implementing electronic retrieval and analysis of medical evidence. SSA now uses electronic images instead of paper copies of new claimants' records. Though SSA seeks to obtain all records electronically and provides options for online submission of records, only one large provider accounts for most of the records submitted online, and about half of all records received are on paper. To date, SSA has taken only limited action to identify and analyze the barriers providers face in using current electronic record submission options, and has not developed a strategy to address them. In the long run, SSA is participating in an advanced prototype to collect medical records in formats that can be searched and analyzed by electronically querying a hospital’s records database and directly retrieving the claimants’ records.

Dec 20, 2008

Social Security Bulletin Released

The latest issue of the Social Security Bulletin, a publication of the Social Security Administration, has been issued. It contains a nice article on the late Robert Ball.

Dec 19, 2008

A Message From The Commissioner Of Social Security

This came out today from the Commissioner of Social Security:
A Message To All SSA And DDS Employees

Subject: Continuing Resolution

Since October 1, we have been operating under a continuing resolution (CR) that holds us to last year’s funding level. The CR causes a significant strain not only because our workloads are increasing, but also because our fixed costs, such as rent and guard services, increase substantially each year. This CR has exacerbated our already fragile situation. We have done what we can to mitigate the deterioration in service, but the reality is that our inability to replace most staff during the CR will result in longer waiting and processing times.

I am sure by now you have noticed the adverse impact that the declining economy has had on our day-to-day work. The actuaries recently issued new projections of even higher workloads than we are already seeing in our front-line operations. Retirement applications are up, although not as much as we might expect because for every person who is taking retirement due to an unexpected termination, there is probably another person deferring retirement due to a loss in retirement savings. Calls and visits to field offices are up substantially, and both disability filings and appeals are surging.

We are hopeful that we will have a full-year appropriation for FY 2009 soon. Current indications are that Congress plans to pass an appropriation for us in January, shortly after the inauguration. Congress on both sides of the aisle understands our needs. The House Appropriations Subcommittee has recommended an additional $100 million for the agency above the President’s request, and the Senate Appropriations Committee has recommended an additional $50 million above the President’s request. These figures indicate that we could receive more than the President’s Budget for FY 2009, which would give us some much needed relief.

I want you to know that I am aware of the strain that you are under. I really appreciate your hard work and dedication in these difficult times. I will keep you posted on the future developments concerning our appropriations.

Michael J. Astrue

No Match Resolution Process Working Poorly

From a report by Social Security's Inspector General:
A-03-07-17105 - Alternate Format

A-03-07-17105 - Alternate Format

As part of the Annual Wage Reporting process, the Social Security Administration (SSA) attempts to match the names and Social Security numbers (SSN) on Wage and Tax Statements (Form W-2) that are submitted by employers against SSA’s Numident file — the repository for all issued SSNs. A Form W-2 that contains a name and SSN combination that matches the Numident file is posted to the Master Earnings File (MEF). However, in cases where the name and SSN combination cannot be matched to SSA’s records, the wage information on the Form W-2 is posted to the ESF—the repository of unmatched items.

To resolve name/SSN combinations that cannot be matched, also known as “no-matches,” SSA began sending EDCOR letters to employers in 1994. These letters are commonly called “no-match letters.” The EDCOR letter was designed to help educate employers about their name/SSN no-matches and remind employers about the importance of submitting accurate information on Forms W-2. The EDCOR letter explains to employers that some of the name/SSN combinations reported do not agree with SSA’s records and asks employers to submit a Statement of Corrected Income and Tax Amount (Form W-2C) within 60 days for each SSN listed on the letter. In addition, it explains that some of the name/SSN no-matches may be the result of common mistakes, such as transcriptions or typographical errors, incomplete or blank name/SSN, or the failure of an employee to report a name change to SSA. SSA mails EDCOR letters to employers on a flow basis beginning in February of each year. As shown in Table 1, over the years, SSA has used various criteria to determine whether employers should receive an EDCOR letter....

SSA’s EDCOR letters were not effective in communicating wage-reporting problems to employers and reducing the size of the ESF. While EDCOR letters were established to help employers resolve name/SSN no-matches, for TY 2005, we found about 74 percent of employers who reported wage items with mismatched names and SSNs did not receive an EDCOR letter primarily because of the Agency’s criteria for issuing the letters. In addition, employers who received EDCOR letters were not always informed about all of their no-matches because the EDCOR letters only listed up to 500 mismatched SSNs. For example, about 1,650 employers received EDCOR letters that did not include about 1.7 million of their 2.6 million no-matches. Moreover, our review found EDCOR letters provided employers with limited information needed to resolve name/SSN no-matches. The letters only included mismatched SSNs and not the reported names.

Furthermore, name/SSN no-matches were less likely to be resolved under the EDCOR process as compared to the DECOR process. In TYs 2001 through 2005, about 680,500 wage items were reinstated because of the DECOR process, whereas only 60,500 wage items were reinstated because of the EDCOR process. Finally, although SSA had developed a more effective process for employers to review and correct name/SSN no-matches electronically, we found employers seldom used the Business Service Online, which is a suite of Internet services for employers to exchange information with SSA.

Dec 18, 2008

Video Hearings From Representatives Offices -- Claimant Must Be There

Social Security is making extensive use of video hearings. Recently, Social Security has begun experimenting with allowing attorneys and other representatives to do video hearings through their own equipment. I have been concerned that an attorney or other representative could appear via video without ever meeting their client in person, even on the day of the hearing. There is too much substandard representation already. Social Security should not be aiding those who engage in this.

I have recently obtained from Social Security a copy of the agreement that the agency is having those participating in this experiment sign. Here is an excerpt, making it clear that Social Security wishes to make this impossible:
The claimant and his or her representative must both appear from the same representative-owned VTC [Video Tele-Conference] site, except in instances where the ALJ determines that it is in the best interests of the claimant to penmit the claimant and his or her representative to appear from separate locations. Examples of such exceptions would be when the claimant lives in a remote area and there is limited access to representation within the standard 75 mile commuting area, or the claimant moves to a different area of the country but wishes to keep a representative with whom there is an existing business relationship. Please note that any and all non-SSA locations being used for a multi-point connection must be certified as a representative-owned VTC site and otherwise meet all the requirements for this program.

Dec 17, 2008

Preponderance Of Evidence Standard Adopted

The Social Security Administration is publishing final regulations in the Federal Register tomorrow to officially adopt a preponderance of the evidence standard of proof at all levels other than the Appeals Council. Unless there is some deep purpose that I cannot understand, this is so trivial that I cannot see why Social Security went to the trouble.

Update: And here is the link to the final regulations as posted in the Federal Register. By the way, I have gotten a number of messages about this saying that, yes, this should be so obvious that no regulation is needed, but that there are enough confused Administrative Law Judges that this regulation really is needed.

Dec 16, 2008

More Deflation -- COLA Consequences?

Consumer prices were down by 1% in October. It has just been announced that they declined by a record 1.7% in November! Neither of these was factored into the cost of living adjustment that affects Social Security benefits paid beginning next month, but both will affect the cost of living adjustment to be announced in mid-October 2009. The odds now are pretty good that there will be a net deflation in the year leading up to next year's cost of living adjustment. My reading of the statute is that there will be no negative adjustment in Social Security benefits if that is what happens, but Social Security will need to put out some press release on this in the not too distant future. What about the following year, however? Would any deflation in 2009 be taken out of the 2010 cost of living adjustment -- assuming there is inflation in 2010?

Electronic Records Touted

A press release from Social Security:

The Social Security Administration announced today that it will be the first government agency to utilize the Nationwide Health Information Network (NHIN). Beginning in early 2009, Social Security will receive medical records for some disability applicants electronically through the NHIN gateway.

“Social Security is proud to be a leader in the use of health information technology,” said Michael J. Astrue, Commissioner of Social Security. “This safe and secure method for receiving electronic medical records will allow us to improve our service to the public by cutting days, if not weeks, off the time it takes to make a disability decision.”

Through the NHIN, Social Security will have instantaneous access to medical records. This will significantly shorten the time it takes to make a disability decision and make the process more efficient. Social Security uses individual medical records when making a decision for more than 2.6 million people who apply for disability each year. To make those decisions, Social Security relies on doctors, hospitals, and others in the healthcare field to provide medical records in a timely fashion. The NHIN will help ensure records are received timely by making it easier and less labor-intensive for medical professionals to submit records.

Social Security is working with MedVirginia, the North Carolina Healthcare Information and Communications Alliance, and Kaiser Permanente to implement the NHIN. In early 2009, the first real-world use of the system will begin between Social Security and MedVirginia.

The NHIN is an initiative of the Department of Health and Human Services and is supported by multiple government agencies and private sector entities. Please go to for more information.

I am glad they are doing this, but talking of cutting weeks off the process is unrealistic. Only hospitals and the largest medical practices are involved. In the vast majority of cases, Social Security will have to get medical records on a claimant from other medical practices that do not have electronic records. Like all other technology changes at Social Security, this is being oversold. Disability determination is a labor intensive business no mater what technology you implement and Social Security is terribly short of labor.

Proposed Rules On Protective Filing

Social Security will have a Notice of Proposed Rule-Making (NPRM) in the Federal Register tomorrow on protective filing dates. Here is Social Security's summary:
We propose to revise our rules for protective filing after we receive a written statement of intent to claim Social Security benefits under title II of the Social Security Act (the Act). Specifically, we propose to revise from 6 months to 60 days the time period during which you must file an application for benefits after the date of a notice we send explaining the need to file an application. We are proposing this revision to make the time period used in the title II program consistent with the time period used in other programs we administer under the Act. We believe that eliminating the difference between the time periods in the programs we administer would make it easier for the public to understand and follow our rules.
Would it not work just as well to revise the SSI rules to provide for a six month period there? It seems that the intent is to save a modest amount of money.

Update: This has now been published in the Federal Register.

Dec 15, 2008

Could Social Security Take Over Some Functions From Railroad Retirement?

The New York Times has been reporting on troubles at the Railroad Retirement Board, (RRB) which, unlike Social Security, has been approving a very high percentage of disability claims. Today's New York Times article on the situation reports that the Inspector General At RRB has been proposing that the Social Security Administration assume some of RRB's duties.

Fee Cap Legislation Introduced

Representative John Lewis of Georgia has introduced H.R. 7285 on Social Security attorney fees. Here is the relevant language of the bill:
    (a) In General- Section 206(a)(2)(A) of the Social Security Act (42 U.S.C. 406(a)(2)(A)) is amended--
      (1) in clause (ii)(II), by striking `$4,000' and inserting `$6,264.50'; and
      (2) in the matter following clause (iii), by striking `The Commissioner of Social Security may' and all that follows through `such date.' and inserting the following: `The Commissioner of Social Security shall adjust annually (after 2008) the dollar amount set forth in subclause (II) of clause (ii) under procedures providing for adjustments in the same manner and to the same extent as adjustments are provided for under section 215(I)(2)(A), except that any amount so adjusted that is not a multiple of $0.10 shall be rounded to the nearest multiple of $0.10.'.
    (b) Effective Date- The amendments made by this section shall apply with respect to fees to be recovered to compensate for services with respect to claims of entitlement to past-due benefits presented to the Commissioner of Social Security on or after the date of the enactment of this Act.
    It is way too late for action on the bill in this Congress, but Representative Lewis will presumably reintroduce the bill in the next Congress, which convenes on January 3.

    Update: By the way, is Lewis' sponsorship of this bill a sign that he is interested in becoming the new Chairman of the Social Security Subcommittee? Lewis has been the Chairman of the Ways and Means Oversight Subcommittee.

    Dec 14, 2008

    Social Security Subcommittee Chair To Become Lobbyist

    Jim McCrery, who has been the Chairman of the House Ways and Means Subcommittee on Social Security, is leaving Congress at the end of this year. He will become a lobbyist with Capitol Counsel.

    Dec 13, 2008

    New Ways And Means Committee Members

    The following representatives have been newly added to the powerful House Ways and Means Committee, which has jurisdiction over Social Security:
    • Danny Davis (D-IL)
    • Bob Etheridge (D-NC)
    • Raúl Grijalva (D-AZ)
    • Brian Higgins (D-NY)
    • John Yarmuth (D-KY)
    Higgins has been especially active in promoting the rights of Social Security disability claimants and would be a wonderful addition to the Social Security Subcommittee.

    I have not heard yet about Subcommittee assignments or Subcommittee Chairmanships.

    Dec 12, 2008

    Social Security Offices To Be Closed On December 26

    Normally, federal employees get only one day off at Christmas. This year, by order of President Bush, they will get off both the 25th and 26th. Why did he wait until now to make the announcement?

    Does ADA Apply To LTD?

    From the Employer Law Report:
    The Sixth Circuit weighed in on an issue that has split the federal courts and has joined the Seventh and Ninth Circuits in holding that disabled former employees lack standing to sue under Title I of the Americans with Disabilities Act. McKnight v. Gen. Motors Corp., No. 07-1479 (6th Cir., Dec. 4, 2008). The Court found that three General Motors Corp. retirees lacked standing under the ADA to challenge the reduction of their pension benefits when they started receiving Social Security disability benefits. ...

    In contrast, the Second and Third Circuits have held that former employees who are totally disabled can be considered “qualified individuals” with standing to file suit under Title I. Unlike the Sixth, Seventh and Ninth Circuits, the Second and Third Circuits found that Title I is ambiguous with respect to the definition of a “qualified individual with a disability” and therefore concluded that a broader interpretation, including disabled former employees, was consistent with the purposes of the statute.
    This issue may be headed to the Supreme Court. I do not think this issue was addressed in the recent ADA Restoration Act.

    Dec 11, 2008

    Benefit Offset Demonstration To End

    The Social Security Administration published a notice in the Federal Register today that the Benefit Offset Pilot Demonstration will end.

    Here is a description of the pilot:
    On August 1, 2005, we began a pilot demonstration testing the effects of applying a benefit offset as an alternative to the current rules for treating the work activity of a title II disability beneficiary who has completed a 9-month trial work period. Under the benefit offset in this demonstration project, we reduce disability benefits $1 for every $2 a beneficiary earns above the SGA threshold amount instead of stopping benefit payments.
    The pilot program is ending because "the process we developed for administering the benefit offset under the BOPD [Benefit Offset Demonstration Pilot] proved to be inefficient and administratively burdensome," but Social Security says that " ... we are developing a system to provide an efficient method for administering a benefit offset provision under the national demonstration project."

    A lot of people have had a lot of hope for this benefit offset demonstration. Maybe Social Security can still make it fly, but this notice cannot be a good sign. Of course, the real problem may be that the Social Security Act makes it so difficult to get on disability benefits that few disability benefits recipients have any real capacity to return to work no matter what incentives they are given.

    Astrue Interview

    Michael Astrue, Commissioner of Social Security, gave a lengthy interview to the Business Of Government Hour, a service of the IBM Center for the Business of Government, on December 6. I assume this is a non-profit. The interview is available online.

    I found the interviewers' frequent reference to the Commissioner by his first name to be surprising and inappropriate. It is not like being a high government official pays that well. At least you ought to be addressed by your title.

    Here are a few highlights of what he said:
    • Astrue described the Commissioner of Social Security as reporting directly to the President of the United States.
    • "I'm staying" in the new Administration.
    • Social Security has not had a true strategic plan in the past, but the agency now has a "terrific" strategic plan.
    • "We need to make sure our employee base does not keep shrinking."
    • "We give the highest priority to the oldest [disability] cases." In the past, for political reasons, it was otherwise.
    • Astrue feels it is important for Social Security to encourage retirement saving.
    • Some simplification of the SSI program would help Social Security in achieving accuracy in administering the program.
    • Social Security now has a notice improvement office.
    • Social Security is reaching out effectively to military veterans.
    • He wants the National Institutes for Health to run clinical trials on biomarkers to test for disability for various impairments.
    • Social Security is providing technical advice for the Department of Veterans Affairs
    • Patty Duke will be an unpaid celebrity spokesperson for Social Security. She is 62. She is also a spokesperson for those suffering from bipolar disorder. [Does she know how badly Social Security treats those suffering from bipolar disorder who apply for Social Security disability benefits?]
    Update: When I originally listened to this, there was a problem with the last segment of the interview. I e-mailed the IBM Center and they e-mailed me the last segment. I thought they must have corrected it on the website, but I should have checked. They have not yet done so. E-mail them and I am sure they will send you a copy.

    Dec 10, 2008

    No One Asked To Resign At Social Security

    A December 1 memorandum from the Chief of Staff to President Bush to all cabinet and executive agency heads:
    To provide the President-elect maximum flexibility in assembling his Administration, and consistent with past practice, President Bush is requesting letters of resignation from all non-career appointees except Inspectors General and those individuals who hold termed positions.

    Please transmit the attached "Memorandum for Non-Termed Presidential Appointees" to each non-termed Presidential Appointee in your organization.

    Please also collect letters of resignation from non-career SES and Schedule C appointees. These letters should be addressed to you and should indicate an anticipated departure date of no later than noon, January 20, 2009. A sample letter is attached.

    Non-career SES and Schedule C appointees at independent and regulatory agencies headed by termed appointees are not being asked to submit letters of resignation at this time.
    Once he becomes President, Barack Obama can fire Social Security's Inspector, General Patrick P. O'Carroll, Jr. As a general matter, I would expect a new President to replace the Inspector Generals at all agencies.

    Obama will also be able to fill the vacant positions of Deputy Commissioner of Social Security and Chair of the Social Security Advisory Board.

    I am unclear on whether the new President will have the ability to fire Senior Executive Service (SES) and Schedule C personnel at Social Security. Even if he does have the ability, I have to guess that he would not exercise the authority as long as Commissioner Astrue cooperates with the Obama White House as well as he has cooperated with the Bush White House.

    Dec 9, 2008

    Saving Millions, Wasting Billions

    The Oregonian, which ran an article over the weekend on Social Security's inability to do continuing disability reviews because of lack of operating funds, has an editorial today titled "Saving Millions, Wasting Billions." The editorial is a bit overblown, but the basic premise of the editorial is accurate. The Social Security Administration is unable to conduct an adequate stewardship program because it lacks adequate operating funds. The agency is also unable to give the public even adequate service, which undermines the very concept upon which the agency was founded. Social Security is the proudest accomplishment of the Democratic Party. Restoring public confidence in Social Security should be a priority for the Obama Administration.

    Proposed Regs on SSI Income And Resources

    Social Security has published a Notice of Proposed Rule-Making (NPRM) in the Federal Register on Supplemental Security Income (SSI) income and resources. Here is Social Security's summary:
    We propose to amend our Supplemental Security Income (SSI) regulations by making technical revisions to our rules on income and resources. Many of these revisions reflect legislative changes found in the Consolidated Appropriations Act of 2001, the Economic Growth and Tax Relief Reconciliation Act of 2001 (EGTRRA), an amendment to the National Flood Insurance Act of 1968, the Energy Employees Occupational Illness Compensation Program Act of 2000, and the Social Security Protection Act of 2004 (SSPA). We further propose to amend the SSI home exclusion rules to extend the home exclusion to individuals who, because of domestic abuse, leave a home that would otherwise be an excludable resource. Finally, we propose to update our "conditional- payment'' rule to eliminate the liquid resource requirement as a prerequisite to receiving conditional payments.
    There was an unusual delay after this proposal was approved by President Bush's Office of Management and Budget (OMB). It is unclear whether Commissioner Astrue also ran this by the Obama transition. It is not controversial.

    Forty Organizations Lobby On Social Security Budget

    The National Treasury Employees Union (NTEU), which represents 900 Social Security employees at Social Security's Office of Disability Adjudication and Review, issued a press release Monday on Social Security's budget situation. Here are some excerpts:
    The nation’s largest independent union of federal employees has joined with a group of 40 organizations in urging key members of the House and Senate to support additional funding to allow the Social Security Administration (SSA) to make significant inroads in the growing and highly damaging backlog of disability appeals hearings ...

    The message from NTEU and other groups comes on the heels of a similar request from House and Ways Committee Chairman Charles Rangel (D-N.Y.) and the heads of two Ways and Means subcommittees to Rep. David Obey (D-Wis.), chairman of the House Appropriations Committee. ...

    The organizations seek final administrative funding for SSA in fiscal 2009 of no less than the House-recommended level of $10.427 billion—which is $100 million above the president’s budget request. The administration’s budget proposal did recommend an increase in SSA administrative funds, but the groups say that proposal is insufficient. “We strongly believe” funding of less than $10.427 billion “would exacerbate the massive backlog” of disability appeals hearings, they wrote.
    It is unfortunate that these groups feel that they must still fight for an appropriation for Social Security for the current fiscal year that is only $100 million above President Bush's inadequate budget recommendation. The contrast with the bailouts is obvious. We must hope for much better for the next fiscal year which will begin on October 1, 2009.

    I have reproduced on the separate Social Security Perspectives blog the letter that this forty organization coalition sent to the relevant Congressional committees.

    Dec 8, 2008

    Transition Meeting On Social Security Coming Up

    From the December 8 Capitol Insider put out by the Disability Policy Collaboration (DPC):
    DPC staff will meet this week with members of the Obama Transition teams to discuss high priority disability agenda issues and the Social Security Administration. The purpose of these meetings is to educate and inform the transition team about major disability policy issues. In addition, some meetings are targeted to specific federal agencies as the transition team conducts its reviews.

    New Federal Judges

    "What I do want is a judge who is sympathetic enough to those who are on the outside, those who are vulnerable, those who are powerless, those who can't have access to political power and as a consequence can't protect themselves from being . . . dealt with sometimes unfairly"
    -- Barack Obama in May 2008.
    The federal courts have had relatively little impact on Social Security in recent years. This may change as the composition of the courts changes over the next four or eight years as a result of Barack Obama's appointments. A Washington Post article reports that 56% of the judges on the Courts of Appeals are now Republicans. Congress seems likely to approve a bill to add 14 judges to the Courts of Appeals and 52 District Court judges.

    The most dramatic change will occur at the 4th Circuit Court of Appeals. Republicans have a 6-5 majority on the court, but there are four vacancies on the Court.

    My advice in recent years on appealing to the 4th Circuit has been to not appeal, no matter how strong the case or how egregious the mistakes below may have been. It has literally been impossible to win at a Court this has become astonishingly right wing. The impression given was that the judges of the 4th Circuit did not bother to read the briefs before entering two paragraph per curiam opinions.

    There will also be a change in control of the 2d and 3d Circuits as well.

    Dec 7, 2008

    Christmas At Social Security 1959

    Christmas party in Equitable Building in 1959. Left to right: Victor Christgau, Terri Farina, Nell Gallagher, Leona MacKinnon, Mary Alice Bearden, Rita Pulos, Carol Boch, Gladys Sander, Clif Gross, Robert M. Ball, Jackie Ball, Doris Ball, Delphien Bjerragaard, Jack Futterman, Nancy Long. SSA History Archives.

    Dec 6, 2008

    Waiting In Illinois

    From the Northwest Herald in McHenry County in Illinois:
    LuAnn McAuliffe ... realized that she couldn’t work anymore, so in summer 2005 she filed an online application for Social Security Disability Insurance.

    It wasn’t until January 2008 that McAuliffe started receiving payments. ...

    But industry experts say that’s not the only reason the system is so backlogged.

    Many people are being denied after a first or second application because they don’t know how to complete the paperwork.

    “If you don’t do this every day, you’re not going to be an expert,” said Rebecca Ray, corporate communication manager for Allsup, an SSDI representation company.
    I am glad that Allsup is generating this sort of article. I do not mind them getting the publicity. I have been quoted in the press before and I never got much business out of it. Allsup probably does not either. But telling claimants that the problem is that they did not fill out their paperwork properly? Come on, that is a typical claimant misconception. Do not mislead people that way. The problem is not that simple and Allsup knows it.

    $2.4 Billion More Needed Just To Get Current On Continuing Disability Reviews

    From The Oregonian:

    The Social Security Administration has fallen behind in reviewing the medical conditions of 1.7 million Americans on its disability rolls, potentially paying up to $11 billion in benefits to people who are no longer disabled.

    The agency's failure to tackle those pending disability reviews allows tens of thousands of undeserving people to bleed government funds that Americans count on when they become too sick or injured to work, The Oregonian found in an ongoing investigation of Social Security.

    "It's lost money to taxpayers," said Rick Warsinskey, past president of the association representing Social Security's field managers. "There's going to be less money available to pay people their Social Security. We're setting aside money for them. ... It's going to be spent." ...

    The reviews have a phenomenal rate of return, last year saving $11.74 for every $1 spent, according to agency records. But Social Security's leaders have pushed those potential savings aside to confront another embarrassing backlog -- 766,905 people waiting to plead cases for benefits before the agency's corps of judges.

    Social Security's chief priorities -- speeding up disability claims and serving customers -- leave the agency scarce funds to conduct disability reviews. The agency processed about one in three that came due last year, says Kelly Croft, the agency's deputy commissioner for quality performance....

    Officials at Social Security's Baltimore headquarters say 1.7 million medical disability reviews are now overdue. Another 1.7 million of them will come due next year, but the agency says that it expects only enough funding to process 1 million. ...

    Astrue, confirmed as commissioner in early 2007, declined through a spokesman to be interviewed about the disability review problem, saying he was too focused on the agency's budget and backlog of disability claims. ...

    Astrue's budget officers now estimate that Congress would have to make special appropriations of $2.4 billion just to get current with medical disability reviews and return the agency to its historic volumes of SSI eligibility reviews. And they estimate, even with that funding, it would take until 2013.

    Agency officials acknowledge that the Bush administration hasn't sought nearly enough money from Congress to fix the disability review problem.

    If $2.4 billion is how much is needed to get up to speed on continuing disability reviews (CDRs), how much is needed to get up to speed on holding hearings for disability claimants and answering the telephones at Social Security?

    Dec 5, 2008

    Potemkin In Indiana

    Here is another example of the Potemkin effect, this time in Indiana. A TV story on Sheila Dorrel, a claimant who had been waiting for three years to receive Social Security disability benefits, brought about a quick and happy resolution for Ms. Dorrel. Social Security told the TV station that they could not move up a specific case, but apparently did, approving Ms. Dorrel shortly after the TV story. If we could just get several hundred thousand media stories on invididual cases we could solve the backlog.

    New Regs On Hold

    On November 21, 2008, the Office of Management and Budget (OMB) cleared proposed regulations to make "technical revisions to our rules on income and resources to conform with previous changes to the Social Security Act" and "to extend the home exclusion to individuals who leave a home because of domestic abuse."

    Ordinarily, proposed regulations appear in the Federal Register within a week after they clear OMB. This one has not yet been published.

    I can only surmise that the Obama transition team has asked Commissioner Astrue to put a hold on all regulatory activity until after the inauguration and that hold includes something as innocuous as this proposal seems to be.

    Update: I spoke too soon. The proposed regulations will be in the Federal Register on December 9.

    Dec 4, 2008

    Can't Spend The Money Fast Enough

    Take a look at this post by Nobel-prize winning economist Paul Krugman to his blog at the New York Times. Krugman believes that our economy is losing jobs at an incredible rate. The new conventional wisdom is that we need massive infrastructure spending to prevent an economic calamity, but Krugman fears that it will take most of a year before infrastructure projects can kick in. We may be at double digit unemployment before infrastructure projects can even help the economy in any significant way.

    As I read this, I wonder how Social Security would fit into a situation in which it becomes urgent for the federal government to spend money rapidly. A temporary moratorium on the FICA tax? Large bonus payments to Social Security recipients? Interim benefits for Social Security disability claimants? Massively increased operational budget for the agency? Obviously, every agency in government would be affected, but Social Security distributes more money than any other agency.

    Social Security Retirement Woes

    From Government Executive:
    As 78 million baby boomers near retirement, the Social Security Administration faces double trouble; not only will it have to provide benefit and pension services to this large retiree population, it also must address a retirement wave within its own workforce.

    While many federal agencies have not yet been shaken by the mass exodus of seasoned workers projected in the next eight years, Social Security expects its retirements to peak by 2010. Currently, about 25 percent of its 61,000 employees are eligible to retire, including 60 percent of senior executives. "The retirement wave has doubled for us," says Reginald Wells, deputy commissioner for human resources and chief human capital officer at Social Security. "As the baby boomers are retiring and moving into more leisure activities, they are coming to us to register for that retirement, and our employees are retiring in record numbers." ...

    "Our workforce is the lowest it's been since the [1974] supplemental Social Security income came into being," Wells says. "We're down to 61,000 employees, down from 85,000 at one point." ...

    And while Congress has offered Social Security a bigger budget and more staffing flexibilities, Wells says, the agency still cannot replace every position one for one, and it's the commissioner's and managers' responsibility to pinpoint where the most urgent hiring needs are.

    Dec 3, 2008

    Unions To Have More Clout Under Obama

    From the Federal Times:
    For eight years, federal unions have felt left out in the cold with an administration clearly at odds with organized labor. Now that Barack Obama is on his way, unions expect a warmer relationship — and more clout. ...

    For federal managers, the change will mean the likely return of the Clinton-era formalized labor-management partnerships between senior government officials and union leaders. Those were dissolved within weeks of the Bush administration taking power....

    Greg Heineman, a district manager for the Social Security Administration in Norfolk, Neb., who is also president of the National Council of Social Security Management Associations, worries that managers could lose some important authorities if partnerships aren’t implemented correctly.

    “If we go back to the partnerships, it should be clearly defined what areas are open for partnership discussions and which areas are still management’s prerogative,” Heineman said. “Under [President Bill] Clinton, at least from the feedback we got from our members, a lot of the problem was that it wasn’t clear what the rules were.”

    Heineman said unions sometimes had too much say in management decisions, such as choosing exceptional SSA employees for financial awards. SSA’s partnership allowed the American Federation of Government Employees to help decide who received awards, and Heineman said the union pushed to hand out smaller awards to more people. Managers wanted to hand out bigger awards to only the best employees, he said.

    “It took the ability away from managers to reward employees doing an outstanding job, and the awards were more flat,” Heineman said.

    If partnerships return, Heineman said managers will welcome the opportunity to exchange ideas with employees and unions. But he wants to make sure managers retain important authorities, such as the ability to assign work to employees as they see fit.
    Of course, the extent of the President's ability to order an independent Commissioner of Social Security to cooperate with employee unions is unclear. Will Commissioner Astrue discover the indepedence of his office after President Bush leaves office and, if so, what the wouldCongress and President Obama do about the exercise of such indepedence?

    Dec 2, 2008

    Results Of Last Week's Unscientific Poll

    How good a job do you think that Lisa de Soto did as head of ODAR?

    Excellent (16) 15%
    Good (6) 6%
    Good, Considering (12) 12%
    Fair (12) 12%
    Poor (24) 23%
    Terrible (34) 33%

    Total Votes: 104

    Allsup Plans Large Expansion

    The Belleville News-Democrat has a story on sewer service to Allsup, one of the largest, if not the largest, entity providing representation to Social Security disability claimants. The sewer story itself is of little consequence to anyone who does not live in the area, but the reason behind the story is of more consequence to those interested in Social Security. Allsup needs sewage service changes because it wants to make a $10 million expansion that will create hundreds of jobs. Allsup is seeking a promise of service to an unlimited number of additional buildings. Allsup is threatening to do the expansion elsewhere if it does not get what it wants.

    Dec 1, 2008

    SES Jobs Increase While Other Jobs Cut At SSA

    Even though the Social Security Administration's workforce has been shrinking, the number of high level managers (Senior Executive Service or SES) at the agency has been going up. This is from a GAO report on Diversity In the Federal SES And Process For Selecting New Executives:

    • Number of SES employees 118
    • Women 35.6% %
    • Minorities 33.1%
    • Number of SES employees 134
    • Women41.8%
    • Minorities 27.6%
    Not much to complain about on the diversity front, but note the 14% increase in high level managers over seven years! This is at a time when other Social Security employees, including lower level managers, have been told to suck it up and just work harder and smarter as their ranks have thinned. Maybe there is a good explanation, but it does not look good. Any explanation that talks about increased responsibilities will not look good since field operations have had increased responsibilities as well.