An Historical Question

Is the health care reform bill passed this year the most important piece of legislation signed into law since the Social Security Act?

The two other pieces of legislation that I can think of that might compare would be Medicare and the Civil Rights Act of 1964. Medicare was and is extremely important but this new legislation gives health care to far more people. The Civil Rights Act of 1964 was of such a different nature that comparisons are difficult.

What do you think?

Data Theft At Social Security Contractor

A New York television station is reporting that a man who was working on computers belonging to a contractor hired by Social Security downloaded personal information on 15,000 New Yorkers who had applied for disability benefits. The alleged culprit has been charged and those whose personal information was downloaded have been notified.

Furloughs May Continue In California

From the Contra Costa Times:

For more than a year, state workers who go through disability applications were ordered by [California] Gov. Arnold Schwarzenegger to take two or three unpaid days off each month.

That's a practice that disability advocates say has hurt disabled workers and state employees but hasn't helped the state.

But it's a practice that could continue, though to a lesser degree, after Schwarzenegger leaves office. ...

[T]he Social Security Administration has sent a letter to Gov.-elect Jerry Brown, asking him to ensure that SSDI processors are "exempt from any sort of furloughs or pay freezes or overtime restrictions."

It's not clear, though, if anything will change under Brown's leadership. Brown spokesman Evan Westrup pointed out that the once-per-month furloughs are now part of a new contract between the state and the union representing SSDI processors and that undoing those furloughs could require renegotiating that contract.

ALJ Pay Frozen As Well

From the Washington Post:

The two-year pay freeze that is now law for federal employees on the pay scale known as the General Schedule will also apply to hundreds of thousands of civil servants whose wages are set under a separate salary system, according to an executive order signed last week by President Obama. ...

They include ... administrative law judges and attorneys ...

Attorney User Fee Remains At 6.3%

Social Security has announced that the user fee charged for withholding and paying fees to attorneys and some others for representing Social Security claimants will remain at 6.3

5 in 2011.

Permanent End For FCIP

From the Washington Post:

President Obama plans to issue an executive order, perhaps as early as this week, ending a federal internship program that critics say circumvents proper hiring practices.

The program has drawn fire from federal employee unions and from the government board that oversees federal hiring practices, which ruled in November that the program undermined the rights of veterans, in particular, who were seeking federal work.

According to a draft copy of the executive order, which The Washington Post obtained from a person involved with the review process, the program will be terminated in March and be replaced with a program clearly designed to provide short-term federal work opportunities for recent graduates of schools of all kinds.

Updated Fee Payment Numbers

Updated numbers on payments of fees to attorneys and others for representing Social Security claimants:

Fee Payments
Month/Year	Volume	Amount
Jan-10	32,227	$111,440,046.23
Feb-10	29,914	$105,708,101.59
Mar-10	34,983	$122,874,426.87
Apr-10	44,740	$153,478,589.32
May-10	34,686	$119,527,194.40
June-10	32,432	$111,887,579.72
July-10	32,232	$132,328,622.27
Aug-10	34,755	$119,424,346.42
Sept-10	32,660	$108,650,373.60
Oct-10	38,705	$128,133,064.77
Nov-10	31,788	$106,559,848.38

For Unto Us A Child Is Born

Merry Christmas!

Contract To Lockheed Martin

Social Security has awarded a contract to Lockheed Martin for development of a new Disability Case Processing System (DCPS). The contract is for up to $200 million. It appears that Social Security can get out of this contract at just about any point, however.

Has This Been In Doubt?

From Emergency Message EM-10092:

The purpose of this message is to inform all technicians in the field office (FO) and program service center (PSC) that, without exception, we must make a determination on the reconsideration issue when we receive an SSA-561-U2 (Request for Reconsideration) for a Title II or Title XVI overpayment (OP).

The Christmas Spirit

A Christmas Present For Colvin

After only 14 months, Carolyn Colvin was confirmed by the Senate late today. She is now the Deputy Commissioner of Social Security. This was the last piece of business before the Senate adjourned for this session of Congress.

Update: Social Security issues a press release on the confirmation.

When Will DOMA Be Repealed?

President Obama has told The Advocate that he believes that the Defense of Marriage Act (DOMA) should be repealed. DOMA keeps Social Security from recognizing same sex marriages. Social Security would be far more affected than any other agency if DOMA is repealed.

Even a year ago I would have thought that repeal of DOMA was out of the question. Now, it seems like it is only a matter of time, even with Republicans in control of one house of Congress. This has to be one of the most amazing changes in public opinion in my lifetime.

EAJA Offset Decision

From Kellems v. Astrue (5th Cir. December 16, 2010):

In this social security case, we are asked to decide whether a federal court may order an attorney to remit to his client an award of attorney’s fees under the Equal Access to Justice Act (the “EAJA”) as an offset against fees awarded to the attorney pursuant to 42 U.S.C. § 406(a) for work before the Social Security Administration. This appeal was stayed pending our decision in Rice v. Astrue, 609 F.3d 831 (5th Cir. 2010). There we held that federal courts do not have the discretion to offset an EAJA award of attorney’s fees for work performed before a court with a future award of attorney’s fees by a federal agency pursuant to 42 U.S.C. § 406(a). Id. at 839. We now hold, in accordance with Rice, that a federal court may not order an award of attorney’s fees for work performed before a federal agency pursuant to 42 U.S.C. § 406(a) to be offset by an award of attorney’s fees for work performed before a federal court pursuant to the EAJA. We therefore vacate the order of the district court.

What About Your Own Shortcomings?

Barbara Kennelly, the President of the National Committee to Preserve Social Security and Medicare, writing in the San Francisco Chronicle:

Charles Dickens' Ebenezer Scrooge feared the Ghost of Christmas Future more than any other he'd met during his long Christmas Eve night. I can relate. After watching congressional passage of the White House-Republican negotiated tax deal, I, too, fear for the future. I fear this tax package is the first step toward radical changes to Social Security that will impact generations of working Americans.

While some elements in the tax package provide desperately needed stimulus for millions of Americans - including far too many who are suffering near-Dickensian levels of poverty and fear - this deal also diverts $112 billion in contributions from Social Security. A "tax holiday" may sound like a wonderful gift for workers now, however this one is wrapped in Washington promises that could turn out to be as thin as tissue paper.

As we've seen in Congress these days, it's easy to enact tax cuts but virtually impossible to allow them to expire. ...

Retirees and their families will watch helplessly as Social Security becomes dependent on general fund revenues rather than worker contributions, which have successfully funded the program for 75 years. Proposals like this threaten the program's independence at this time of unprecedented deficits, forcing Social Security to compete for limited federal dollars. ...

Conservatives have long dreamed of a payroll tax holiday because it fulfills two ideological goals: lower taxes and weakening Social Security's finances.

Ms. Kennelly ought to acknowledge that her organization took more than 24 hours to announce opposition to this FICA holiday and that AARP actually supported it! If there had been rapid, united opposition to this plan, we might not be where we are today.

Not A Good Place For Disabled People

Looks like Shreveport may not be the best place to live if you happen to be a Social Security disability claimant.

OIG Report Shows Bad ALJ Dismissal Problems

From a recent report by Social Security's Office of Inspector General (OIG) (footnotes omitted):

In an August 4, 2009 letter, Senator McCaskill requested that we review dismissals of hearing requests to ensure disabled individuals are afforded the rights and protections required by law and regulations. The Senator also requested we determine whether there were any unusual dismissal trends by individual ALJs [Administrative Law Judges] or by regions. ...

For our review, we analyzed selected hearing request dismissals to determine whether there was documentation in the case folder to support the dismissal. In addition, we examined dismissal rates by region, hearing office, and ALJ. ...

We reviewed 50 cases dismissed in FY 2009 where ODAR determined the claimant filed the hearing request untimely ...

In 2 of the 50 untimely hearing request dismissals we reviewed, it appeared the ALJ should not have issued an untimely hearing request dismissal. ...

For 7 of the 50 untimely hearing request dismissals we reviewed, there was no evidence in the claimants’ case folders that ODAR requested an explanation for late filing from the claimant (good cause). ...

In 3 of the 50 untimely hearing request dismissals we reviewed, we could not determine whether the ALJ considered the claimant’s good cause explanation. ...

For the 50 untimely hearing request dismissals we reviewed, ODAR took between 6 and 637 days to issue the dismissal to the claimant. ... In fact, more than half the dismissals took more than 60 days. ...

We reviewed 50 cases dismissed in FY 2009 because the claimant abandoned the hearing, that is, the claimant did not appear at the scheduled hearing. For seven cases, the claimants’ case folders did not contain evidence that ODAR attempted to contact the claimants, as required. ...

We reviewed 50 cases dismissed in FY 2009 because the claimant withdrew the hearing request. However, one claimant’s case file did not contain evidence the claimant wanted to withdraw the hearing request. ...

We analyzed all dismissals issued in FY 2009 and found that dismissal rates varied among ODAR regions, hearing offices, and ALJs. ...

For example, one hearing office in the Philadelphia Region had a dismissal rate of 10 percent, while another hearing office in the region had a dismissal rate of 25 percent. ...

Finally, we identified a wide variance in dismissal rates by ALJ. Although 95 percent of ALJs had dismissal rates of 25 percent or less, the dismissal rates by ALJ varied from 0 to 60 percent.

Most of the claimants whose requests for hearing are dismissed are unrepresented. Even when claimants are represented there can be inappropriate dismissals. For example, an ALJ is not supposed to dismiss a request for hearing because the claimant does not appear for his or her hearing as long as the attorney representing the claimant appears but ALJs frequently dismiss in these cases. The Appeals Council always remands them. I must have had a dozen of these cases remanded over the years.

Pre-Effectuation Reviews Of ALJ Decisions

From Emergency Message EM-10090:

This message provides case processing information to Field Offices and Processing Centers on cases selected for review by the ODAR [Office of Disability Adjudication and Review] Appeals Council (AC) Quality Review Branch (QRB). ODAR AC/QRB is instituting a pre-effectuation review of ALJ [Administrative Law Judge] favorable and partially favorable decisions. They have already pulled approximately 50 cases for their initial review. The AC/QRB expects to sample approximately 3500 cases per year, equally divided among all regions, when at full capacity.

It is only fair to note that this will be a review of less than 1% of ALJ favorable and partially favorable decisions.

I Cannot Believe This Would Happen

From Robert Kuttner writing at Politico:

The tax deal negotiated by President Barack Obama and Senate Republican leader Mitch McConnell of Kentucky is just the first part of a multistage drama that is likely to further divide and weaken Democrats.

The second part, now being teed up by the White House and key Senate Democrats, is a scheme for the president to embrace much of the Bowles-Simpson plan — including cuts in Social Security. This is to be unveiled, according to well-placed sources, in the president’s State of the Union address.

Paul Krugman writes in response that:

[T]his would be a political disaster on two levels. It’s not just that progressive activists would sit on their hands in disgust; Republicans would, inevitably, run ads attacking Democrats for cutting Social Security. You think that’s crazy? They just won the House in part by accusing Democrats of cutting Medicare.

Social Security Facing Waterloo In The Spring?

From Dean Baker, Co-Director of the Center for Economic and Policy Research, writing at the Huffington Post:

Sometime in the spring the government will run up against its debt ceiling. This will prevent the government from any further borrowing.

Since the government has a substantial deficit, with spending exceeding revenue, hitting this limit would mean that the government would not have sufficient funds to pay for all its programs. It also would mean that the government could not pay interest or principle on debt that is coming due; in effect requiring it to default on its debt.

The prospect of the U.S. government defaulting on its debt creates the sort of end of the world scenario in which Congress rushed to pass the TARP in 2008. Back then, President Bush, Fed Chairman Ben Bernanke and all sorts of other luminaries told members of Congress and the public that we would have a second Great Depression if the Wall Street banks were not immediately bailed out, no questions asked. And the money flowed.

The prospect of defaulting on the debt will create a similar outbreak of shrill warnings of disaster. This would likely to lead to scenario in which President Obama signs whatever debt ceiling package House Republicans hand him, even if it includes the privatization of Social Security and Medicare and major cuts and/or elimination of other important programs. The argument from the administration will be that they have no choice.

I do not buy that this is going to happen, especially since any form of privatization would increase the deficit dramatically, but Baker is not the only one sounding the alarm.

22% More Funding For VA But No More For SSA

The Senate is working on a continuing resolution (CR) to fund government activities for a few more months. This is facing the threat of a filibuster. A government shutdown just before Christmas is unlikely but not totally out of the question. The current version of the CR would increase funding for the Veterans Benefits Administration by 22% "to support efforts in reducing the processing times of disability claims." Social Security would get no increase from its 2010 funding level under the CR.

Social Security Hearing Office Average Processing Time Report

From Social Security by way of Nancy Shor, Executive Director of the National Organization of Social Security Claimants Representatives (NOSSCR).

Social Security Calls This The Waterfall Report

From the newsletter of the National Organization of Social Security Claimants Representatives (NOSSCR). Click on it to see it full size.

What Will It Be Like If Social Security's Operating Budget Is Cut By 25%?

From the New York Times:

The collapse of a government-wide spending package in the final days of this Congressional session sets up a politically charged fiscal showdown early next year, testing the determination of Republicans about to take over the House with promises to slash an array of domestic programs....

Republicans say that timeline will allow them to quickly put their stamp on the budget for the current fiscal year, and Mr. Boehner and his leadership team have vowed to eliminate about $100 billion in spending out of about $400 billion in domestic programs. ...

The 2011 spending fight could be complicated by the need to raise the federal debt limit to avoid a federal default — a vote that many new Republican lawmakers have indicated they would not make.

Republicans say the debt limit vote could also present an opportunity, allowing them to tie a package of spending reductions to the debt increase to make it more palatable.

FICA Tax Cut

The bill that cuts Social Security's lifeblood, the FICA tax, by 2% "temporarily" is awaiting the President's signature after both houses of Congress finished work on the bill last night. The bill calls for a transfer of funds from the Treasury to make up for the cut.

The fear among those passionate about protecting Social Security is that it will be impossible to avoid the temptation to make the cut permanent, thereby crippling the funding mechanism that has set Social Security apart from programs such as Food Stamps or Temporary Assistance to Needy Families which are perceived -- negatively -- as "welfare."

That Binder And Binder Lawsuit

I have received many questions about Binder and Binder's lawsuit seeking that Social Security be required to allow them to represent Social Security claimants at hearings solely by video appearance from their office -- meaning that they would never have to meet with the claimant in person. I have downloaded the most recent documents filed in the cases from PACER, the federal court's online system. I have uploaded the to Yousend it so you do not have to mess with PACER or pay its fees. The documents will be available for you to download from Yousendit through December 23.

Omnibus Fails

The effort to pass an omnibus spending bill for this fiscal year has failed. This means lower funding for the Social Security Administration for the rest of this fiscal year. The manner in which it failed -- nine Republicans reneged on promises to vote for the bill -- suggests massive problems in passing any appropriations bills or anything else in the next Congress. I fear that we are embarking upon a two year continuing resolution which will have terrible consequences for the Social Security Administration.

A Couple Of Nuggets

Nancy Shor, the executive director of the National Organization of Social Security Claimants Representatives (NOSSCR), spoke recently at a continuing legal education seminar put on by the Disability Advocacy Section of North Carolina Advocates for Justice. Here are a couple of news items from her presentation:

• There are now four pilots on providing encrypted CDs to attorneys representing Social Security claimants.
• Social Security expects to provide online access to cases pending at the Appeals Council by the middle of 2011 -- to attorneys who have been registered by Social Security for online access.
  

Saturday Shutdown?

From Federal Times:

The federal government could be headed for a shutdown at midnight Saturday, and the problem might not be fixed before Monday morning rush hour, Senate sources say.

Agencies currently are operating at fiscal 2010 spending levels under a continuing resolution that expires at midnight Saturday. It remains possible for the Senate to pass another short-term CR that would keep the government running for another three or four days beyond Saturday, then to vote on final appropriations for the entire fiscal year. But Senate sources, speaking on condition of anonymity, cite another scenario that could lead to a shutdown.

There is a strong possibility opponents of the $1.1 trillion fiscal 2011 omnibus funding bill will require clerks to read aloud the 1,924-page Senate document. Reading the bill is expected to start sometime on Friday, and not be finished until Sunday. Reading of the bill could be followed by another day or more of debate. Then, the Senate may not be able to vote on funding until 1 a.m. Monday, at the earliest.

Senate leaders believe a midnight Saturday shutdown of the government would cause little harm because essential employees are required to work even if there is no funding and most government workers wouldn't return to the office until Monday.

If the problem runs into Monday, federal workers likely would report to work for the day but could be sent home, Senate sources said.

The good news is the implicit assumption that the votes are there to pass on omnibus spending bill. I hope it is true that opponents can only slow it down, not stop it. Even if this passes, Social Security and other government agencies are not out of the woods. There will be a risk of a government shutdown when the debt ceiling needs to be raised. That date will apparently arrive in early Spring.

Colvin Nomination Still Moving

The nomination of Carolyn Colvin to become Social Security's Deputy Commissioner is finally moving through the Senate. It has been reported out of the Finance Committee and placed on the Senate's "Executive Calendar," whatever that is.

Personnel Changes

MEMORANDUM

Date: December 15, 2010 Refer
Refer To: S7K

To: Senior Staff

From: Michael J. Astrue /s/
Commissioner

Subject: Executive Personnel Assignments - INFORMATION

I have several announcements to share.

In the Office of Budget, Finance and Management, Mike Kramer, Senior Executive Service Candidate Development Program (SESCDP) Class V, will become the Acting Deputy Associate Commissioner for Facilities Management (Environmental, Security & Emergency Response) effective January 3.

In the Office of Operations, Linda Dorn, SES CDP Class IV, will become the Associate Commissioner for Disability Determinations. Ruby Burrell, currently serving in that role, will become the Associate Commissioner for Field Site Operations in the Office of Quality Performance effective December 19.

In Operations and Systems, I have established a second Assistant Deputy Commissioner position. Effective January 3, Terrie Gruber will move from Assistant Deputy Commissioner for Disability Adjudication and Review to the Office of Operations as Assistant Deputy Commissioner, and Debbi Russell will move from Associate Commissioner for Automation Support to the Office of Systems as Assistant Deputy Commissioner.

Jo Armstrong will move from Associate Commissioner for Electronic Services to the Associate Commissioner for Automation Support. Sylviane Haldiman will move from Deputy Associate Commissioner for Automation Support to Associate Commissioner for Electronic Services. Laura Train, SES CDP Class IV, will become Deputy Associate Commissioner for Electronic Services.

In the Office of Disability Adjudication and Review, Jim Borland, currently Associate Commissioner for Electronic Services and Strategic Information will become Assistant Deputy Commissioner. Natalie Lu, SES CDP Class IV, will become the Acting Associate Commissioner for Electronic Services and Strategic Information.

Chief Administrative Law Judge (ALJ) Frank Cristaudo has accepted a position as Associate Chief ALJ for Administrative Management.

Please join me in wishing everyone success in their new assignments.

Government Shutdown For The Holiday Season?

Republicans are threatening a government shutdown this month.

Why Social Security Cuts Don't Worry The Wealthy

From Yglesias.

Colvin Nomination Moving

The Senate Finance Committee has scheduled a meeting for tomorrow to report out the nomination of Carolyn Colvin to become Deputy Commissioner of Social Security.

Senate Omnibus Bill

The Senate version of an omnibus appropriations bill is out and it calls for $11.63 billion for Social Security generally (page 1083). Of that $1.86 million must be spent "only to increase the Social Security Administration’s acquisition workforce capacity and capabilities" and $283 million only for continuing disability reviews. There is another $513 million appropriated for additional continuing disability reviews on top of the $11.63 billion generally. The House bill called for $11.24 billion for Social Security. The President's recommendation had been $12.38 billion. At least, I think these are the numbers. I find appropriations bills to be extremely confusing.

I have no idea about the prospects for passage. I would like to think that the personnel who prepared this 1,924 page bill did not waste their time.

Shifting Focus

From Frontline, the newsletter of the National Council of Social Security Management Associations (NCSSMA):

Although Commissioner Astrue was not able to attend the [early October NCSSMA] conference, he did engage in active conversation with the delegates through a video conference. ... He also shared his vision of the future for field offices, describing the future as an “evolution rather than a revolution”. He expects field office positions will gradually evolve from handling repetitive, high volume workloads to handling the most complex cases while automated services begin handling more of the simple cases. ...

He predicted that ODAR [Office of Disability Adjudication and Review] will likely stop being the focus of the agency’s budget by the end of FY 2011 at which time field offices and customer service needs will likely become the primary focus of the budget.

And It's Not Even Popular!

A Washington Post poll shows that 57% of Americans oppose reducing the FICA tax by two percent. Even most Republicans oppose it. It is the only part of the package opposed by most people.

I think people understand the risk and they don't like it.

Expect A House Social Security Subcommittee Hearing On This Next Year

From the Boston Globe:

Her toddler was adorable and rambunctious, but his vocabulary was limited to “Mommy’’ and “that,’’ while other children his age knew dozens of words. When little Alfonso tried a full sentence it came out in a swirl of sounds, often followed by a major league tantrum when he realized he was not understood. And so his mother, Roxanne Roman, was not surprised when the 18-month-old was diagnosed by a specialist with speech delay.

It came as a shock, however, when she learned from relatives that Alfonso’s problem might qualify him for thousands of dollars in yearly disability payments through the federal Supplemental Security Income program. ...

Within three months, the boy’s application was approved. Alfonso receives $700 in monthly cash benefits, plus free government-paid medical coverage. Roman said her relatives told her she can pretty much count on the disability checks for Alfonso, now 5, to keep arriving in the mailbox for the rest of his childhood.

“They don’t ask many questions about the child once you’re approved,’’ Roman said. ...

Driving much of that growth is the twelvefold spike since 1997 of children approved based on a primary diagnosis of delayed speech, a sometimes persistent but more often short-lived affliction that starts in toddlerhood. ...

Government data show that Social Security officials have, over the past decade, fallen far short when it comes to conducting the regular case reviews required by statute. A typical SSI disability case is supposed to get a full medical review every three years, but from 2000 to 2008 the agency examined, on average, only 10 percent of the children on SSI. ...

Many early childhood specialists were stunned to learn that speech delay had become such a popular gateway for children’s SSI benefits and suggested that that may be because it is the easiest-to-measure impairment among preschoolers. ...

At a Social Security Administration waiting room in Lawrence one day this summer, the mother of a 9-year-old girl said her daughter was approved quickly for SSI payments as a toddler with speech delay and has never had a full review of her disability status. ...

When asked if she thinks her daughter is still severely disabled with her speech, Tina replied hesitantly, “No.’’ ...

“I know she’s not severely disabled anymore,’’ the mother said. “It’s an interesting thing, really, that she does still qualify. She gets better and better.’’ ...

Officials said they recognize that the lack of disability reviews is a major problem, one they tie to a shortage of staff and funds....

he Western Massachusetts city of Holyoke, one of the poorest in the state, provides an extraordinary window into how the SSI disability program works for some of the youngest children, for better and for worse.

Here, 1 of every 5 children living in poverty receives SSI disability benefits. And of the 939 children who qualified last year, 699, or 74 percent, were approved for behavioral, learning, or developmental delays, data show — the highest percentage among all ZIP codes in Massachusetts. One of three of those on SSI was approved after a diagnosis of speech delay, according to federal data obtained by the Globe through a public records request. ...

Expect the House Social Security Subcommittee to hold a hearing on this next year. Expect pressure on Social Security to approve fewer of these kids and to review more of their cases once they go on benefits. Expect Social Security to cut back on service in other ways in order to free up the money for these reviews and for the appeals from denials.

An Easy Solution

From Emergency Message EM-10086:

Discontinuation of the Mid-Atlantic Program Service Center (MATPSC) Remittance Accounting Unit (RAU) Hotline ...

MATPSC is discontinuing the RAU hotline due to extremely high call volume. Effective immediately, all FOs [Field Offices] and PSCs [Program Service Centers] are to contact MATPSC via e-mail ...

If a debtor contacts your office about canceling recurring credit card payments, please take the following actions:

· Send an e-mail to ||PHI ARC PCO RDDB DMS the same day the debtor contacts your office.

It sounds like the situation is that the activities of this unit generate a lot of calls from the public and from other Social Security employees who have been prompted to call by members of the public. There are just too many calls to deal with. They find a simple solution. They change to what amounts to an unlisted telephone number and send out a message telling Social Security employees to stop calling them. Social Security employees can send e-mail messages. The public can no longer communicate directly with them. This shifts the unit's problem to other components of Social Security. Probably, this means that this unit never hears of some problems. This unit does get to sort out the problems to the extent they have the manpower to address them and does not have to listen to members of the public complaining about the delays.

What Are AARP's Values?

From a 2005 Businessweek article:

In Washington, an entity's power can be measured by the vehemence of the attacks it draws. By that standard, AARP may be outmuscled only by the White House in the slugfest over restructuring Social Security. ...

AARP's role in the Social Security debate has focused new attention on the hundreds of millions of dollars the group makes by endorsing and co-branding health insurance, financial products, and travel services that are sold to its members. ...

Just as important is the question of whether a group that makes millions selling financial services to its members is quite as impartial a player in the debate over private accounts as it would appear. ...

[I]t is equally clear that AARP makes a substantial sum of money from its partners' sales of mutual funds and other investment products to members. That raises the appearance of a potential conflict of interest. Whatever version of reform passes -- whether Bush's accounts carved out from payroll taxes, or the "add-on" accounts that many liberals favor to encourage retirement savings -- the overhaul is likely to create new markets and opportunities ...

AARP officials reject the criticisms. The organization's marketing "does not in any way influence AARP's public policy positions," says Dawn M. Sweeney, president of AARP Services Inc., the for-profit subsidiary that manages AARP's co-branding deals. ...

Still, the scale of AARP's commercial activities is enormous. The nonprofit is one of the nation's most aggressive in selling its name to marketers of financial and travel products. In 2003, the latest year for which financial reports are available, AARP collected $300 million -- or 39% of its $770 million in revenue -- by co-branding ...

If critics have focused on its policy role, AARP has received less scrutiny for the quality of its products. Many of the funds and insurance policies that AARP markets provide considerably less benefit than seniors could get on their own, a BusinessWeek analysis reveals. ...

Ought To Be Held Sacrosanct

From the Associated Press:

Social Security taxes "ought to be held sacrosanct," said Rep. Earl Pomeroy, D-N.D., chairman of the House Ways and Means subcommittee on Social Security.

"When you start to signal that the (Social Security) tax levels are negotiable, you end up in long-term trouble, I think, in terms of making absolutely certain that the entitlement funding streams are secure," Pomeroy said. ...

"This 2 percent payroll tax cut is the beginning of the end of Social Security as we know it," said the National Committee to Preserve Social Security and Medicare, which is led by former Rep. Barbara B. Kennelly, D-Conn. "Worker contributions have successfully funded the program for 75 years and that critical linkage between contributions and benefits is what keeps Social Security a self-funded program."

Et Tu, Brute?

From Sam Stein writing at Huffington Post:

The country's foremost senior-issues advocacy organization on Friday night lent its support to a critical provision of the president's tax cut deal with Republicans.

In what could prove to be a consequential assessment of "the framework," AARP's Executive Vice President John Rother says that both he and his organization have determined that a two percentage point reduction in the payroll tax rate (from which Social Security gets its revenue) would not endanger the solvency of their community's cherished program.

"Benefits Denied" Isn't Enough

From Spiva v. Astrue (7th Cir. December 6, 2010)

The government implies that if the administrative law judge’s opinion consisted of two words—“benefits denied”—a persuasive brief could substitute for the missing opinion. That is incorrect. It would displace the responsibility that Congress has delegated to the Social Security Administration—the responsibility not merely to gesture thumbs up or thumbs down but to articulate reasoned grounds of decision based on legislative policy and administrative regulation—into the Justice Department, which represents the agency in the courts.

Update: Just to clarify: The Administrative Law Judge (ALJ) decision did not consist merely of two words. The Court of Appeals found the ALJ's rationale sorely lacking and held that Social Security could not defend the decision by telling the Court what rationale the ALJ could have used. The Court held that the ALJ decision must be judged upon what it said, not upon what it might have said.

VA Watchdog Reopens

I reported earlier that the VA Watchdog website had stopped adding new material because of the illness of its founder, Larry Scott. I am happy to report that Jim Strickland has picked up the torch and VA Watchdog Today has opened as a successor to Larry Scott's website.

Makes No Sense On Its Face

From an op ed piece in the New York Times by Peter Orszag, former director of the Office of Management and Budget in the Obama Administration:

One of the gravest dangers posed by the weak economy is that the unemployed will become discouraged and give up looking for work, perhaps permanently as their skills atrophy. ...

Unfortunately, at this point more than six million people have been unemployed for six months or longer. More than one million have already given up looking for work because they believe no job is available. And a drastic rise in applications for disability insurance suggests we may be headed for more long-lasting trouble. ...

The spike in disability insurance applications (and awards) does not reflect a less healthy population. ... [T]he weak labor market has driven more people to apply for disability benefits that they qualify for but wouldn’t need if they could find work....

Today, however, many people with disabilities are able to engage in some form of work — even if they can’t admit that and still keep their insurance benefits.

Orzag's solution for this problem: pass the President's "economic stimulus" package of tax cuts and extend unemployment insurance.

Orzag takes a job with Citibank next month.

Preliminary Design For Metro West Replacement

From the Baltimore Sun:

The winner of a national competition to build an office campus for the Social Security Administration unveiled a preliminary design for the project Thursday at a meeting of Baltimore's Urban Design and Architecture Review Panel.

The $200 million office campus, which will house 1,600 SSA employees in Northwest Baltimore, will be anchored by two office buildings — one five stories, the other seven stories — connected by a large glass atrium.

One of the largest and most costly projects planned for Baltimore, the campus will also include a six-story garage, cafeteria, fitness center, day care center and parking spaces for 80 bicycles. Each office building will have a "green" roof, and most employee workstations will be less than 50 feet from a window.

Planned for 11.3 acres near the Reisterstown Road Plaza Metro Station, the 538,000-square-foot project will replace the 30-year-old Metro West complex on Greene Street near downtown Baltimore.

Demonstration Outside Social Security Central Offices

From WBAL in Baltimore:

Employees frustrated with the federal government took their concerns to the Social Security building in Baltimore County on Friday, voicing anger about a possible freeze on federal pay and changes in Social Security.

WBAL-TV 11's Rob Roblin reported that the workers showed up in the snow at Social Security Administration headquarters in Woodlawn to let the government know that they want hands off Social Security.

"Hands off. the changes that they're proposing for Social Security (are) not good for anybody," said John Gage, national president of the American Federation of Government Employees. ...

U.S. Rep. Elijah Cummings, D-District 7, said he appeared at the gathering to show his support for federal workers, saying he opposes the proposed Social Security changes.

Camp To Be Ways And Means Chairman

Republicans in the House of Representatives have selected Dave Camp of Michigan to be the Chairman of the Ways and Means Committee in the new Congress.

Camp believes in fairy tales. From his website:

I support voluntary personal accounts for younger workers that would allow them to build a nest egg for retirement that they would own and control, and could pass on to their families. This will permanently strengthen Social Security, without changing benefits for those now in or near retirement, and without raising payroll taxes on workers. Inheritance rights in personal accounts would especially help widows who depend on Social Security and eliminate the need for cumbersome regulations that too often deny individuals from receiving their benefits in a timely fashion.

The truth is that if you divert money that would have gone into the Social Security trust funds into private accounts within only a few years you run out of money to pay current beneficiaries. But what difference does that make? Republicans have always regarded the Social Security trust funds as a fiction and Democrats are rapidly losing faith in their most basic convictions. Divert the entire FICA into private accounts, pay current benefits by borrowing money. Over a few decades Social Security disappears. It will only cost a few trillion dollars and destroy all retirement security but Wall Street will make even more obscene profits and Republicans will achieve the dream that they have had for the last 75 years. All Republicans may have to do is to threaten a default on our national debt.

ALJs Want More Security

From the St. Louis Post-Dispatch:

Mark Brown, a federal Social Security judge in St. Louis, recalls spending time in his courtroom with Russell Weston, the Southern Illinois man who later entered the U.S. Capitol and shot two police officers to death.

Brown cites the case to show that the nation's 1,400 Social Security judges can face potentially violent petitioners. He is pushing the federal government for more guards, better meeting rooms and other changes to improve the judges' safety. ...

Randall Frye, a Social Security judge in North Carolina and president of the association, said that besides additional guards, the biggest need was larger hearing rooms enabling more space between the judge and people pressing claims. He said that hearing rooms now averaged 300 square feet or less, about the size of a large bedroom.

Is Judge Brown giving the name of a claimant who appeared before him?

FICA Cut Likely To Pass

It appears that Congress will pass the tax cut compromise that will reduce the FICA tax "temporarily" while crediting the Social Security trust funds with the money they were supposed to receive.

There has been virtually no time for discussion of the long term Social Security consequences of this bill. This has been treated as a non-issue by almost everyone. There is every reason to be skeptical of the argument that this is only temporary. We are embarking upon a course that poses a grave long term danger to Social Security.

Update: I am not being paranoid. Congressional Republicans are making no secret of their plans:

Republicans acknowledged that the expiration of the tax holiday will be treated as a tax increase. "Once something like this goes into place, a year from now, when it expires, it'll be portrayed as a tax increase," said Sen. Bob Corker (R-Tenn.). So in a body like Congress, precedents matter and this is setting a precedent. I think that certainly is going to create some problems down the road if it passes." ...

"Once you bring a rate down, if it goes back up, people will feel that. They'll feel their paycheck being less and that argument" -- that letting it expire amounts to a tax hike -- "eventually is bound to be made," said Sen. Mike Johanns (R-Neb.).

"There's always a tendency to continue those things... Once something comes in, it's very difficult to change it," said Sen. George Voinovich (R-Ohio.) He then volunteered, without prompting, that "It would be detrimental to the Social Security system, especially when it's in bad shape." ...

Lamar Alexander, the Senate's number-three Republican, also said that reform of Social Security should be tied to moving that tax rate back up. "My personal hope is that it doesn't become permanent unless we deal with a way to make Social Security solvent over the long term ...

It also undermines the self-funding nature of the program, Bob Corker observed. "It really begins to break down the whole notion even further of a Social Security trust, when general fund money is going in," he said. "We've already abused the Social Security trust and there's no question that taking this action is just another portion of the camel nose under the tent."

Corker said he would have liked to see Social Security reform coupled with the tax cut.

GOP Thwarts $250 Checks

From the Associated Press:

House and Senate Republicans on Wednesday thwarted Democratic efforts to award $250 checks to Social Security recipients facing a second consecutive year without a cost-of-living increase.

President Barack Obama and Democrats have urged approval of the one-time payment, saying seniors barely getting by on their Social Security checks face undue hardships without the COLA increase.

But most Republicans contended that the nation couldn't afford the estimated $14 billion cost of the payment, and that the COLA freezes in 2010 and 2011 come after seniors received a significant boost in 2009.

The measure was brought up under a fast-track procedure in the House that required a two-thirds majority for passage. The 254-153 vote in favor of the bill fell short of that.

We cannot afford this but we can afford vastly more expensive tax cuts for the wealthiest Americans?

House Passes Appropriations Bill

The House of Representatives has passed the Omnibus Appropriations bill that would fund Social Security and most other agencies. It faces an uncertain prospect in the Senate.

NCPSSM Opposes FICA Holiday; AARP Sorta Opposes

A press release from the National Committee to Preserve Social Security and Medicare (no link available yet):

"Even though Social Security contributed nothing to the current economic crisis, it has been bartered in a deal that provides deficit busting tax cuts for the wealthy. Diverting $120 billion in Social Security contributions for a so-called 'tax holiday' may sound like a good deal for workers now but it's bad business for the program that a majority of middle-class seniors will rely upon in the future." Barbara B. Kennelly, President/CEO

Conservatives have long dreamed of a payroll tax holiday because it fulfills two ideological goals, lower taxes and weakening Social Security's finances. The White House claims the 2% payroll tax cut won't impact Social Security; however, we disagree.

There's no such thing as a "temporary" tax Cut. If Congress is unwilling to allow tax cuts for wealthy Americans to expire in the midst of economic crisis now, then why would it allow this so-called "holiday" to end in one year? The short answer--it wouldn't. Americans should expect that when this tax "holiday" ends, restoring Social Security's funding will be portrayed by those opposed to the program as a massive tax hike, rather than the legislated end of the "holiday". That leaves Social Security permanently dependent on general fund revenues rather than worker contributions which have successfully funded the program for 75 years. If extended, this payroll tax cut would then double Social Security's 75 year projected shortfall.

This 2% payroll tax cut is the beginning of the end of Social Security as we know it. Worker contributions have successfully funded the program for 75 years and that critical linkage between contributions and benefits is what keeps Social Security a self-funded program. Proposals like this threaten the program's independence, forcing Social Security to compete for limited federal dollars.

Cutting contributions to Social Security isn't the best way to stimulate the economy. The Tax Policy Center reports the wealthiest 40% of households benefit most from a payroll tax cut. According to The Center for Budget and Policy Priorities, extending the "Making Work Pay Tax Credit" is a much better and targeted stimulus.

For all of these reasons, the National Committee does not support proposals to cut the payroll tax. America's seniors understand the vital role Social Security plays during these difficult economic times and they're not willing to trade promises of possible short-term economic gains for real and measurable damage to this vital program which would impact generations of Americans to come.

The American Association of Retired Persons (AARP) seems to sort of agree but they do not seem ready to lead opposition.

Omnibus Hopes Still Live?

There is an attempt in the House of Representatives to go forward with a omnibus appropriations bill to cover almost all federal agencies. There is considerable reason to doubt that the Senate can pass anything. For what it is worth, the bill (page 115) provides $11.24 billion for Social Security's administrative expenditures, as I read it. I find appropriations bills to be quite confusing. The President had recommended $12.38 billion.

Interview With Carolyn Colvin

Destiny-Pride has posted a lengthy interview with Carolyn Colvin, the nominee to become Deputy Commissioner of Social Security. Colvin finally gets a Senate hearing tomorrow on her nomination.

Goodbye, Social Security?

Firedoglake (FDL) has an excellent piece on the danger posed to Social Security by the "temporary" reduction in FICA. His conclusion is that this "will lead inexorably to killing Social Security" because Congress will never allow FICA to go back up. This doubles the 75 year projected shortfall in the Social Security trust funds which will lead to pressure to cut benefits, probably by means-testing benefits. According to FDL we can say "Good bye, Social Security. You did a great job for 75 years. Apparently, the President is ready to pull the plug on you, if not on Grandma herself."

Update: It will be interesting to see how major advocacy organizations react to this. I will be paying attention.

Further update: I should note that the FDL piece was by Nancy Altman, co-director of Social Security Works so we have heard from one important group. As far as I can tell, the others are silent so far. AARP, I'm looking at you. National Committee to Preserve Social Security and Medicare, I'm looking at you.

Medicare Prescription Drug Regulations

From today's Federal Register:

We are adding a new subpart to our regulations, which contains the rules we will apply to determine the income-related monthly adjustment amount for Medicare prescription drug coverage premiums. This new subpart implements changes made to the Social Security Act (Act) by the Affordable Care Act. ... These rules describe the new subpart; what information we will use to determine whether you will pay an income-related monthly adjustment amount and the amount of the adjustment when applicable; when we will consider a major life-changing event that results in a significant reduction in your modified adjusted gross income; and how you can appeal our determination about your income-related monthly adjustment amount. These rules will allow us to implement the provisions of the Affordable Care Act on time that relate to the income-related monthly adjustment amount for Medicare prescription drug coverage premiums, when they go into effect on January 1, 2011.

Regulations Tomorrow On Application Withdrawal And Suspension

Social Security will publish final regulations in the Federal Register tomorrow to:

... establish a 12-month time limit for the withdrawal of old-age benefits applications, allow one withdrawal per lifetime, and limit the voluntary suspension of benefits for purposes of receiving delayed retirement credits to months for which you have not received a payment. We are making these changes to revise current policies that have the potential for misuse.

This is being done because "Recent media articles have promoted the use of our application withdrawal process as a means for retired beneficiaries to increase their benefits or acquire an “interest-free loan.” Social Security's opinion is that:

This "free loan" is not free. It denies the Trust Fund and the Federal Government the use of these monies and the potential returns on the use of those funds. Moreover, the processing of withdrawal applications uses resources that we could use to serve others. Our nation faces significant challenges resulting from the potential number of future retirees. Current market and economic conditions have exacerbated these challenges

The regulations address benefit suspensions:

We currently allow beneficiaries to suspend past, current, and future old-age benefit payments. Beneficiaries who suspend past payments must repay benefits received during the period of suspension. This policy also has the potential for misuse. Our current policy allows workers to apply for old-age benefits prior to FRA [Full Retirement Age], begin receiving reduced benefits, suspend the benefits retroactively, repay benefits, and earn DRCs f[Delayed Retirement Credits] or the period of suspension. Workers earn DRCs for each month retirement is delayed past FRA up to age 70. As a result, workers who retroactively suspend old-age benefits to earn DRCs receive a higher monthly benefit amount. Because beneficiaries could use retroactive voluntary suspension as a vehicle to repay benefits and then reapply for higher benefits at a later age, we are revising this policy.

Social Security is dispensing with the normal regulatory process to adopt these regulations without allowing a comment period. That is unusual, perhaps unprecedented, for something of this importance.

Don't Delay

From TriCities.com, the website of the Bristol Herald Courier and WJHL, which are located in the Southwestern corner of Virginia, where it abuts the Northeastern corner of Tennessee:

The Johnson City Office of the Social Security Administration says that since 2007, the number of folks filing for disability locally has risen by thirty four and a half percent.

According to Attorney Tony Seaton, "To give Social Security credit, they make that process difficult on purpose, because otherwise everybody with a sore back would want to be on disability. Its kind of a complicated bureaucratic process., and it becomes very frustrating for a lot of people."

If you are thinking of filing a Social Security disability claim, before going to the Social Security Administration, Lawyer Tony Seaton offers one piece of advice… make sure your medical history records are in order.

Seaton's advice is terrible. Disabled people need no encouragement to delay filing Social Security claims. Most delay for months and many delay for years. They certainly do not need some vague instruction to "make sure your medical history records are in order." What does that mean anyway?

The best advice for disabled people is to get on with filing their Social Security disability claims. Do not worry about getting the advice of your doctor or getting some test or surgery. Do not worry about gathering medical records. Put aside any fantasies that recovery is just around the corner. Just get on with filing the claim! It almost never happens that a claim is denied because a claimant forgot to write down something on a claim form. That is not the problem. The process takes many months, often years. Delaying filing a claim is a terrible mistake. If the claimant is uncomfortable with filing the claim on their own, they should hire a lawyer before filing the claim. Maybe they should hire a lawyer before filing the claim in any case, but they should never delay filing the claim.

FICA Tax To Drop For One Year

From the New York Times:

President Obama announced a tentative deal with Congressional Republicans on Monday to extend the Bush-era tax cuts at all income levels for two years as part of a package that would also keep benefits flowing to the long-term unemployed, cut payroll taxes for all workers for a year and take other steps to bolster the economy. ...

It would reduce the 6.2 percent Social Security payroll tax on all wage earners by two percentage points for one year ...

I have a couple of concerns:

• If the reduced payments into the trust funds are not made up in some fashion, Social Security's long term financing problem will be made significantly worse. It will be fine in a sense if they are made up out of general revenues -- or more accurately, out of Treasury borrowing -- but this puts us possible on a path towards the end of a dedicated financing mechanism for Social Security, which puts Social Security at more risk. Of course, there are some on the left who may favor this because FICA is regressive but there are even more on the right who would favor this since it would make it easier for them to categorize Social Security as "welfare."
  
• This recession is not going to end in the next year. How do you allow the FICA tax to go up dramatically a year from now? If you do not let it go back up, Social Security has an impossible long term financing problem without applying general revenues which leads us back to my first point.
  

Update: The Washington Post says that the FICA reductions will be made up to the Social Security trust funds out of general revenue.

Colvin Nomination Revived

The Senate Finance Committee has scheduled a hearing for Thursday to consider the nomination of Carolyn Colvin to become Deputy Commissioner of Social Security. The nomination had been blocked for unknown reasons for well over a year.

A Class Act

From Paul Krugman's blog:

...[C]utting Social Security is one of those things you’re for if you’re a Very Serious Person....

But why Social Security? There was a telling moment in 2004, during one of the presidential campaign debates. Tim Russert, the moderator, asked eight or nine questions about Social Security, trying to put the candidates on the spot, while asking not once about Medicare, which serious people – as opposed to Serious People – know is the real heart of the story. Why the focus on Social Security? ...

The answer, I suspect, has to do with class.

When medical expenses are big, they’re big; even the very affluent are grateful when Medicare pays the bills for their mother-in-laws bypass or dialysis. The importance of Medicare, in short, is obvious to all but the very rich.

Social Security, by contrast, is something that matters enormously to the bottom half of the income distribution, but no so much to people in the 250K-plus club. ...

So going after Social Security is a way to seem tough and serious — but entirely at the expense of people you don’t know.

E-Mail Delivery Of Social Security News Ends

While Social Security News is very much up and running, I am permanently shutting down e-mail delivery of Social Security News. Changes at Blogger have made it impractical to continue e-mail delivery.

Please come to this website to read Social Security News.

Errors In SSI Attorney Fee Payments

From a recent report by Social Security's Office of Inspector General (OIG):

The objective of our audit was to determine whether the Social Security Administration (SSA) accurately paid authorized fees to attorneys and non-attorney representatives (referred to collectively as representatives) for Title XVI claims, through its One-Time Payment system. ...

We reviewed 250 randomly selected Title XVI claimant representative fee payments issued through SSA’s One-Time Payment system during the 2-year period July 1, 2007 to June 30, 2009. ...

In total, 95 (38 percent) of the 250 randomly sampled Title XVI claimant representative fees had payment errors totaling $68,532. Projecting our sample results to the population, we estimate that approximately 10,306 fees had about $7.4 million in payment errors during the period July 1, 2007 to June 30, 2009. ...

Of the 82 overpayment errors, 44 (54 percent) occurred because SSA employees did not properly offset the Title II benefits. Additional overpayments occurred when SSA employees did not always consider the Title II attorney fee amount previously paid, resulting in combined Title XVI and II fees that exceeded the applicable fee limit.

I am not seeing anything like this sort of error rate in my fees. Maybe the local field offices I am dealing with are doing a much better job than is the case nationally.

Operations Building Renamed For Robert Ball

A press release from Michael Astrue, Commissioner of Social Security:

I am extremely pleased that the United States Senate has joined the House in passing legislation to name the Operations Building at Social Security headquarters in Baltimore as the “Robert M. Ball Federal Building.” Bob Ball was the longest-serving Commissioner of Social Security, and his dedication to the agency and its programs lasted until his death in 2008.

I want to thank Maryland’s two Senators, Barbara Mikulski and Benjamin Cardin, for their leadership on this issue. I also thank the Chair of the Committee on Environment and Public Works, Senator Barbara Boxer, and Ranking Member, Senator James Inhofe, who cleared the bill for Senate passage. I look forward to the President’s signing of the bill.

Claim Withdrawal Regulations Clear OMB

Those proposed regulations to prevent people from withdrawing claims for Social Security retirement benefits after several years of receiving benefits has now cleared the Office of Management and Budget (OMB). A few people have done this in recent years and then filed a new claim for benefits in order to increase their monthly benefit amount. This has worked but if you withdraw a claim you have to pay back all the money you received. For some reason, the proposal was changed while at OMB. Expect to see this in the Federal Register in the near future.

Pathetic

The President's deficit reduction commission has finished up its work without ever holding a vote on the proposal of the co-chairs or any other proposal.

Number Of Threats Increases Dramatically

From a report by Social Security's Office of Inspector General (OIG):

Preventing workplace violence is a growing concern. Public interest and media attention have focused on recent incidences of violence at Federal facilities. ...

SSA [Social Security Administration] uses the Automated Incident Reporting System (AIRS), an online, incident-based reporting system, to collect data about incidents that affect the safety and security of SSA’s personnel, property, or operational capabilities. ...

SSA has experienced a dramatic increase in the number of reported threats against its employees or property. The number of threats recorded in AIRS increased by more than 50 percent in Fiscal Year (FY) 2009 and by more than 60 percent in FY 2010. ...

Plowing Ahead With An Occupational Information System

From a report issued by Social Security's Office of Inspector General (OIG):

The objective of our review was to assess the Social Security Administration's (SSA) plans for developing an occupational information system (OIS) designed specifically for its disability adjudication process. ...

To conduct this review, we attended public meetings on the OIS, interviewed SSA staff, and gathered and reviewed information on the Agency’s efforts to develop an OIS designed specifically for its disability adjudication process. ...

Based on information available as of July 2010, SSA’s strategy to develop an OIS designed specifically for its disability adjudication process appears reasonable. ...

SSA has put much effort into developing an OIS and established the Office of Vocational Resources Development to oversee the project. ...

The Agency is performing an Occupational and Medical-Vocational Study to determine which occupations to review first when the Agency begins conducting job analyses. As a part of this study, SSA staff is reviewing 5,000 cases to determine the most common jobs reported by claimants for their past work and the most common occupations cited in medical-vocational denials by adjudicators.

There is not even a mention in this report of concerns that an OIS created by Social Security will be manipulated to achieve pre-determined goals and will lack the credibility needed to stand up to judicial review.

Michael Astrue's term as Social Security Commissioner will end in a little over two years. Unless Astrue is nominated to a new term, a new Commissioner will review the OIS project. It may well be derailed or shifted to a different track then. Even if the OIS project is completed as planned, it still has to stand up to judicial review. No one can now predict how that will come out.

To me, it is obvious that a consensus plan would be far more sensible. Achieving a consensus plan would require that Social Security relinquish the ability to control the process so that it can achieve pre-determined goals. Unfortunately, retaining the ability to control the process to achieve pre-determined goals seems to be the entire point for Social Security.

By the way, I have heard rumors about the size of Social Security's Office of Vocational Resources Development. Does anyone have any solid numbers on how many employees it has?

The Question Of Social Security Experience At ACUS

When I posted my concern a few weeks ago that the new incarnation of the Administrative Conference of the United States (ACUS) lacks members with Social Security experience, I received comments reminding me that Paul Verkuil, the Chairman of ACUS, has done a good deal of research on Social Security and that Jerry Mashaw, a public member of ACUS, wrote a book about Social Security. Actually, I was well aware of that. They are exactly why I have concerns about the lack of hands on Social Security experience at ACUS.

Let me start out with Professor Mashaw. He published a book in 1983 that praised Social Security disability determination and particularly its quality assurance program at the initial and reconsideration levels. The book is the worst example of academese that I have ever had the misfortune to read. However, that is not the real problem with Mashaw's book. At about the same time as Mashaw's book was published, Social Security's quality assurance program was getting terrible reviews where it really mattered, the federal courts. They found that Social Security was using its secretive quality assurance program to deny claims based upon a policy of "non-acquiescence." "Non-acquiescence" meant that Social Security was refusing to abide by judicial interpretations of the Social Security Act. Social Security ignored what the courts said and plowed ahead with improper interpretations of the Social Security Act. The most visible of the non-acquiescence disputes concerned the standard for terminating disability benefits. Social Security's position was that it could force a claimant to prove over and over again that he or she was disabled. The courts held that once a claimant is approved for disability benefits that Social Security could only cut they off if they improved. Social Security ignored the courts and cut off benefits for hundreds of thousands of people based upon an illegal standard.

Social Security was also denying almost all disability claims based upon mental illness at the time based upon a bizarre interpretation that required anyone claiming disability based upon mental illness to prove that they met one of Social Security's listings. This was made especially difficult because the listings at that time were both harsh and antiquated. Social Security tried to keep this policy a secret even though it was used to deny hundreds of thousands of claims a year. Eventually, disability determination service physicians blew the whistle. The result was Mental Health Ass'n of Minnesota v. Schweiker, 554 F.Supp. 157 (D. Minn. 1982), a devastating loss for Social Security. I think it would be fair to say that Social Security management was embarrassed, even humiliated, by the revelations in the Mental Health Association of Minnesota case. Social Security's actions that led to this debacle could never have happened without the quality assurance program that Mashaw lauded.

My opinion is that non-acquiescence and the Mental Health Association of Minnesota case discredit Mashaw's book. In any case, Mashaw has, for the most part, stayed away from Social Security since then. At best, his Social Security experience was almost thirty years ago.

Professor Verkuil, for his part, has certainly written about Social Security over many years. Verkuil has consistently advocated for several changes at Social Security:

• A Social Security court
• Government representation at Social Security hearings
• Taking elaborate steps to prevent even the remotest possibility of a case being remanded due to new evidence
  

All of these ideas are, to put it kindly, rather musty.

There are good reasons why a Social Security court was never created. Social Security attorneys have strongly opposed it. Social Security has always worried that a court dedicated to Social Security might be even worse for them than the regular federal court system. Everyone has been concerned that it would be impossible to get adequate funding for a dedicated Social Security court. The experience at the Court of Veterans Appeals lends credence to everyone's concerns about about a dedicated Social Security court. It is not going to happen yet Verkuil keeps calling for it.

Government representation at Social Security hearings was tried many years ago. It got a good, full trial. I only heard the results of the government representation experiment second and third hand but I think I have a pretty good idea what the results were. It turned out that the fears of some that government representatives would be terrible for claimants turned out to be exaggerated. Social Security's unstated hope that many more claimants would be denied turned out to be wrong. The hopes of some that the process would yield demonstrably better results turned out to be wrong. Whether rightly or wrongly, the same people were being approved and denied. The government representation program turned out to be such a disappointment for Social Security that they never issued a public report on it. I have even heard that in recent years that Social Security has claimed that they cannot even find any report on the government rep experiment! (If you happen to have a copy of some report on the government rep resentation experiment in your personal archives, please send a copy to me. This ought to be preserved.) For good reason, the government representation program is not going to be revived yet Professor Verkuil keeps calling for it.

Professor Verkuil has long seemed obsessed with the idea that attorneys who represent claimants deliberately withhold medical evidence and submit it only on appeal in order to increase their attorney fees. In response to the concerns that he and others had, the Social Security Act was amended to say that a federal court could only consider new evidence if there was good cause why it had not been submitted earlier. The reaction of attorneys who represent claimants to this change was basically, "Who cares? We haven't been deliberately withholding evidence." This statutory change did not result in any significant change in the number of cases remanded by the federal courts. Social Security's regulations were also amended to make it essentially impossible to submit new evidence to the Appeals Council. The reaction of attorneys who represent claimants to this change was basically, "You're going a bit overboard here. There are a few cases where you should make exceptions but this really won't affect us since we haven't been deliberately withholding evidence." The result was the same. There was no significant reduction in the number of cases remanded. This was an imaginary problem.

Despite the fact that Verkuil's ideas have been adopted without any good effect, Verkuil seems obsessed with the idea that attorneys who represent claimants are evil people who distort the process. He keeps recommending that the record be closed in Social Security cases as early as possible and as utterly completely as imaginable. I think that if he had his way records would be closed before a claimant ever filed a claim! Verkuil seems incapable of understanding that disability claims are not static. Claimants get sicker. They get better. The develop new health problems. Old problems get new diagnoses. Claimants who seemed not to have been that sick are revealed in the fullness of time to have been just as sick as they said.

If Verkuil had practical experience with Social Security he might have an appreciation for why things proceed as they do with Social Security disability claims. In law schools, the facts are almost always given. Professors and students concern themselves with how the law should be applied to the stated facts. In the real world, regardless of the type of case, the facts are almost always in dispute. Social Security adds the additional dynamic that the facts keep changing. The real world cannot be changed to suit Professor Verkuil's tastes. Any effort to do so wiould create far more problems than it solves. The evolution of medical evidence in these cases is not something that can or should be eliminated from consideration. Trying to freeze these cases in time would be artificial and unjust. If anything, we should recognize that full consideration of changing medical evidence is one of the good things about Social Security disability determination.

To damn Verkuil a bit more, he applauded former Commisioner Barnhart's Disability Service Improvement (DSI) plan in 2007. I think there were few people at Social Security, even then, who thought that DSI was a good idea. I doubt they would admit it today.

In any case, I urge readers to take a look at the recommendations that ACUS has made in the past on Social Security and ask themselves whether having some person or persons on ACUS with significant hands-on Social Security experience would be a good idea.

• 305.78-2 Procedures for Determining Social Security Disability Claims (Recommendation No. 78-2)
• 305.78-3 Time Limits on Agency Actions (Recommendation No. 78-3)
• 305.86-1 Nonlawyer Assistance and Representation (Recommendation No. 86-1)
• 305.87-6 State-Level Determinations in Social Security disability cases
• 305.87-7 A New Role for the Social Security Appeals Council
  
• 305.89-8 Agency Practices and Procedures for the Indexing and Public Availability of Adjudicatory Decisions (Recommendation No. 89-8)
• 305.89-10 Improved Use of Medical Personnel in Social Security Disability determinations (Recommendation No. 89-10)
• 305.90-4 Social Security Disability Program Appeals Process: Supplementary recommendation (Recommendation No. 90-4)
• 305.91-3 The Social Security Representative Payee Program (Recommendation No. 91-3)
• 305.91-9 Specialized Review of Administrative Action (Recommendation No. 91-9)