Maybe He Really Is Disabled

From the Traverse City Record-Eagle:

A Kingsley man who crashed his van into the Social Security Administration Office in Traverse City "in a fit of rage" over repeated disability claim denials finally had his claim approved.

Douglas McCallum, 47, stands to receive about $1,000 a month in Social Security disability benefits, despite pending criminal charges for damaging the SSA office building and sign.

What Is The Point Of The Appeals Council?

     In its current form, does the Appeals Council have any legitimate function? The Appeals Council usually takes at least a year and often much longer. It reverses only about 5% of the decisions it reviews and remands only about 20%. I have never seen any rationality in Appeal Council decisions. Frequently, review is denied even though the Administrative Law Judge (ALJ) decision has obvious, severe defects. This is not just my judgment. Social Security's Office of General Counsel (OGC) clearly agrees with me. Often, after attorneys file civil actions is Social Security cases, OGC takes a voluntary remand because they know they cannot defend the ALJ decision. This probably happens in 25% or more of cases. The remands and reversals that do come out of the Appeals Council seem almost to have been selected at random.

     Does the Appeals Council serve any purpose other than to delay and frustrate claimants who want to obtain review of ALJ decisions? To put it another way, I ask myself the question: "If you could waive Appeals Council review and proceed directly to District Court, would you?" The answer to me is obviously "yes."

    The question of whether the Appeals Council should be abolished has been around a long time. It has usually been coupled with the question of whether reconsideration should be abolished. However, reconsideration does not waste nearly as much time as the Appeal Council and, in its own way, is not nearly as irrational as the Appeals Council. 

     The calls to abolish the Appeals Council were pretty loud before 1999 when claimants were allowed to file new claims while cases were pending at the Appeals Council. In fact, the pressure was so bad at that time that Social Security employees often refused to enforce the policy that sought to prevent a claimant from filing a new claim while an appeal was pending. The 1999 decision to allow a claimant to file a new claim and an appeal released much of the pressure. The issuance of Social Security Ruling 11-1p, which seeks to prevent a claimant from filing a new claim and an appeal, bottles up that pressure once again. This time I think the pressure will build more rapidly because the Appeals Council is even less effective than it was in 1999. As of 1999, if I remember correctly, the Appeals Council was remanding in something like 30% of cases. It's now about 20%, making the Appeals Council even more useless than it was in 1999.

Quiz Answer

Question: Ms. A is a native of Italy. She married an American and emigrated to the United States in 1991. She eventually became a citizen. She is now divorced. She worked for many years under U.S. Social Security law. Recently, she became sick. Ms. A has only modest income from investments. Ms. A decides to move back to Italy and live with her sister since she will be eligible for free medical care in Italy but not in the United States. Ms. A files a claim for U.S. Social Security disability insurance benefits in Italy. Which Disability Determination Service (DDS) will make the initial determination on her disability claim?

Possible answers:
DDS for the last state in which Ms. A lived
DDS for the District of Columbia
International DDS within the Office of International Operations
Federal DDS
Under the U.S.-Italy Social Security treaty, the Italian Social Security system using U.S. law

Answer: The  International DDS which is part of the Office of International Operations.

Progress On Electronic Access

From Electronic Services for Claimant Representatives, a report by Social Security's Office of Inspector General (footnotes omitted):

In Fiscal Year (FY) 2010, the Office of Disability Adjudication and Review (ODAR) processed approximately 738,000 hearings. About 78 percent of these claimants were represented by another party....

In the first 8 months of FY 2011, claimants filed approximately 52 percent of all requests for hearings using iAppeals. Claimant use of iAppeals has increased over the years, thereby removing workloads from SSA’s FOs [Social Security's Field Offices].

As of the end of June 2011, SSA enrolled approximately 6,400 claimant representatives in ARS [Appointed Representative Services, that is electronic access to claimant files], corresponding to approximately 71 percent of the represented claimants who filed appeals. ...

SSA plans to add a number of features. For instance, ODAR is considering providing claimant representatives ARS access to the digital recording of the hearing. Additionally, SSA plans to create a hearing office status report in ARS that will provide claimant representatives information on all their pending cases. This status report should be available in January 2012.

Quiz

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Decision Fatigue

From the New York Times Magazine:

Three men doing time in Israeli prisons recently appeared before a parole board consisting of a judge, a criminologist and a social worker. The three prisoners had completed at least two-thirds of their sentences, but the parole board granted freedom to only one of them. Guess which one:

• Case 1 (heard at 8:50 a.m.): An Arab Israeli serving a 30-month sentence for fraud.
• Case 2 (heard at 3:10 p.m.): A Jewish Israeli serving a 16-month sentence for assault.
• Case 3 (heard at 4:25 p.m.): An Arab Israeli serving a 30-month sentence for fraud. 

There was a pattern to the parole board’s decisions, but it wasn’t related to the men’s ethnic backgrounds, crimes or sentences. It was all about timing, as researchers discovered by analyzing more than 1,100 decisions over the course of a year. Judges, who would hear the prisoners’ appeals and then get advice from the other members of the board, approved parole in about a third of the cases, but the probability of being paroled fluctuated wildly throughout the day. Prisoners who appeared early in the morning received parole about 70 percent of the time, while those who appeared late in the day were paroled less than 10 percent of the time.

The odds favored the prisoner who appeared at 8:50 a.m. — and he did in fact receive parole. But even though the other Arab Israeli prisoner was serving the same sentence for the same crime — fraud — the odds were against him when he appeared (on a different day) at 4:25 in the afternoon. He was denied parole, as was the Jewish Israeli prisoner at 3:10 p.m, whose sentence was shorter than that of the man who was released. They were just asking for parole at the wrong time of day. 

There was nothing malicious or even unusual about the judges’ behavior, which was reported earlier this year by Jonathan Levav of Stanford and Shai Danziger of Ben-Gurion University. The judges’ erratic judgment was due to the occupational hazard of being, as George W. Bush once put it, “the decider.” The mental work of ruling on case after case, whatever the individual merits, wore them down. This sort of decision fatigue can make quarterbacks prone to dubious choices late in the game and C.F.O.’s prone to disastrous dalliances late in the evening. It routinely warps the judgment of everyone, executive and nonexecutive, rich and poor — in fact, it can take a special toll on the poor. Yet few people are even aware of it, and researchers are only beginning to understand why it happens and how to counteract it. 

 Do you think this has any relevance to Social Security?

Did You Know This Guy Is Leading In the Republican Presidential Polls?

The Houston Chronicle quotes Texas governor and Republican Presidential candidate Rick Perry as saying that Social Security "is a Ponzi scheme for these young people. The idea that they're working and paying into Social Security today, that the current program is going to be there for them, is a lie ... It is a monstrous lie on this generation, and we can't do that to them."

Kentucky Supreme Count Holds That Child Benefits Do Not Reduce Child Support Obligation

The Kentucky Supreme Court has issued an unpublished opinion holding that "Social Security benefits received by a child as a result of a parent’s disability—unlike other types of benefits, such as SSI—are not the type of “independent financial resources” that would permit a deviation from the child support guidelines ..." This question comes up fairly frequently around the country. There are fewer published opinions on this than one would expect.

Man Shot To Death At Detroit Social Security Office

CBS Detroit reports that "One man is killed, another flees on foot Friday night around 5:30 p.m. after a Detroit security guard fires nine shots at two men who jumped a fence at the Social Security office near Wyoming and 7 Mile Road."

Update: There was a break-in at the Social Security office but there are serious questions about the security guard's behavior.

Identity Theft Hearing Scheduled

From an announcement by the House Ways and Means Committee:

U.S. Congressman Sam Johnson (R-TX), Chairman of the House Committee on Ways and Means Subcommittee on Social Security announced today that the Subcommittee will hold a field hearing on Social Security numbers (SSNs) and child identity theft.  The hearing will take place on Thursday, September 1, 2011 in the Plano City Council Chamber, 1520 Avenue K, Plano, Texas at 12:00 p.m. Central Standard Time. 

Social Security By The Numbers

I recently posted a piece on my firm's website on Social Security By The Numbers that I had done earlier this year for the North Carolina Advocates for Justice magazine. You might find it interesting and revealing. Take a look.

Claims Can Be Taken During First 60 Days After ALJ Denial --- But ...

I am told that this recently showed up on Social Security's intranet:

Scope: All Regions
Tracking Number: 11-015
Status:  Active

Brief Question
If a claimant receives an unfavorable decision, can the claimant file a new disability application during the 60-day appeal period (plus 5 days mail time) for the prior claim?

Detailed Question:
If a claimant receives an unfavorable decision, can the claimant file a new disability application for the same title and benefit type (as the prior claim) during the 60-day appeal period for the prior claim?

Answer:
Yes.  If the claimant receives an unfavorable decision, the claimant has the option of filing an appeal or filing a new application during the 60-day appeal period (plus 5 days mail time).

If the claimant files an appeal, we will not accept a new disability application while a prior disability claim for the same title and same benefit is pending at any level of review (initial, reconsideration, hearing or Appeals Council) unless the exception in EM-11052 REV applies. 

If the claimant submits a request for reconsideration, request for hearing, or request for AC review to the FO [Field Office]  after filing a new application, the FO will contact the claimant or the claimant's representative to advise they have the option of filing an appeal or filing a new application, but not both.

If the claimant appeals an unfavorable hearing decision to the Appeals Council after filing a new application, the AC will contact the claimant or the claimant's representative to advise they have the option of filing an appeal or filing a new application, but not both.

Category:  Disability Policy
Posted:  08/18/2011
Subcategory:  Subsequent Disability Claims

Answered on: 08/18/2011
Purpose:  Policy Clarification

Answered by:  ODP [Office of Disability Policy]
Last Reviewed:  08/18/2011
Responsible CO [Central Office] Component: ODP
Due for Review: 08/18/2012

 I have a question. If the claimant refuses to withdraw either the new claim or the appeal, what is Social Security going to do? There are specific regulations on dismissing appeals and trying to appeal and file a new claim is not listed as a basis for dismissing an appeal.

Poll

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For Californians Who Snigger At East Coast Reactions To Yesterday's Earthquake

Disability Statistics

Social Security has released its Annual Statistical Report On The Social Security Disability Insurance Program for 2010. If you think that higher and higher percentages of Social Security disability claims are being approved, take a look at the chart above. Note in particular the increase in technical denials.

The Sky Isn't Falling

     Kathy Ruffing at the Center on Budget and Policy Priorities gives a good antidote to the alarmist reports about the state of the Social Security Disability Trust Fund. Ruffing reminds us that money has been reallocated from one trust fund to another in the past and that this will happen again this time. 

     The reasons for the increase in the number of people drawing Social Security disability benefits are primarily the aging of the baby boom population, the increase in the number of women in the workforce and the increase in the full retirement age. 

     Ruffing's piece does include a chart showing an age and gender adjusted increase in the prevalence of disability over the last 15 years, although not a dramatic one. I have added the chart to the left. The chart is based upon a study done by Social Security's actuarial staff. The study includes some interesting projections on the prevalence of disability in the future. Basically, the actuaries have no clue. They think that the rate of people going on Social Security disability benefits could go up dramatically or down dramatically or not change all that much. They just can't say.

Answer To The Quiz

Question: Under Social Security policies which of the following does NOT count as an Impairment Related Work Expense (IRWE)?

• Medical insurance
• Attendant care by family member
• Residential modifications to allow work at home
• High speed internet service needed to allow telework
• Dog food for service dog

Answer: Medical insurance. See POMS §DI 10520.001 et seq.

Earthquake!

     There has been an earthquake which may have been centered in the Washington, DC area. The earthquake was felt as far north as New York City. I can report that it was felt as far south as Raleigh. I hope there has been no serious damage.

    Update: The earthquake was apparently centered near Louisa and Mineral, VA, which, I believe, is a fairly lightly populated area but not far from Richmond and Charlottesville. It was a magnitude 5.9.
    Further update: This is apparently the biggest earthquake in the recorded history of the state of Virginia.  What happened at Social Security headquarters? I have heard that the Pentagon and many other government buildings in Washington were evacuated.
     By the way, please, no smug comments from Californians.
     Further update: Social Security headquarters have closed for the day because of the earthquake.

Quiz

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The Real Problem Is Appeals Council Backlogs

     In the wake of Social Security Ruling 11-1p which seeks to prevent claimants from filing a new claim while an old one is pending before the Appeals Council, I thought I would check on my firm's oldest pending Appeals Council cases. We have one that was filed on January 8, 2009 and another filed on April 28, 2009.
     A claimant is supposed to wait over two and a half years for Appeals Council action without the possibility of filing a new claim? Social Security claims that it is trying to stop an abusive practice, but isn't the real problem the backlog at the Appeals Council? Take that away and there is little incentive to file a new claim while an appeal is pending at the Appeals Council.

     By the way, any numbers you get out of the Appeals Council on their backlogs are misleading. For many years, maybe decades, the Appeals Council has followed a practice of shoving the easy ones out the door as quickly as possible. If an unrepresented claimant files a request for Appeals Council review, it gets denied quickly, at least in Appeals Council terms. If a represented claimant files a request for Appeals Council review but the attorney or representative gives no specific reason for the appeal, it gets denied quickly. However, if the claimant is represented and gives good reasons why the Appeals Council should reverse or remand the case, expect it to take at least a year.

Fair And Balanced Reporting From The AP

From the Associated Press:

Laid-off workers and aging baby boomers are flooding Social Security's disability program with benefit claims, pushing the financially strapped system toward the brink of insolvency. ...
"It's primarily economic desperation," Social Security Commissioner Michael Astrue said in an interview. "People on the margins who get bad news in terms of a layoff and have no other place to go and they take a shot at disability," ...
The disability program "got into trouble first because of liberalization of eligibility standards in the 1980s," said Charles Blahous, one of the public trustees who oversee Social Security. "Then it got another shove into bigger trouble during the recent recession."  ...
Last year, Social Security detected $1.4 billion in overpayments to disability beneficiaries, mostly to people who got jobs and no longer qualified, according to a recent report by the Government Accountability Office, the investigative arm of Congress.

Average Retirement Age Increases

The Center for Retirement Research at Boston College is reporting that since the mid-1990s the average retirement age for men has increased from 62 to 64 and for women from 60 to 62. The researcher relates this to:

• changing incentives in Social Security and employer pensions;
• better education and health coupled with less strenuous jobs; and
• the decline in retiree health insurance.

Planning For Austerity

From instructions sent out by the Office of Management and Budget (OMB), which is part of the White House, to all federal agencies:

In light of the tight limits on discretionary spending starting in 2012, your 2013 budget submission to OMB should provide options to support the President's commitment to cut waste and reorder priorities to achieve deficit reduction while investing in those areas critical to job creation and economic growth. Unless your agency has been given explicit direction otherwise by OMB, your overall agency request for 2013 should be at least 5 percent below your 2011 enacted discretionary appropriation. As discussed at the recent Cabinet meetings, your 2013 budget submission should also identify additional discretionary funding reductions that would bring your request to a level that is at least 10 percent below your 2011 enacted discretionary appropriation.

The 2013 federal fiscal year will begin on October 1, 2012.

OIG Report On Representative Video Project

Social Security's Office of Inspector General (OIG) has released a report on the "Representative Video Project" that allows attorneys and other representing Social Security claimants to participate in Social Security hearings using their own video equipment. OIG reports that there has been a problem with public communication about the program, probably because Social Security did not think through what it wanted to accomplish.

Social Security Employee Indicted For Defrauding Claimants

From the Los Angeles Times:

A federal grand jury has indicted an employee at the Social Security Administration’s Whittier office on charges that she stole money from beneficiaries.

Gezal Rebbecca Duran, 32, of Pomona was indicted Tuesday on four counts of theft by a government employee.

Duran, who worked as a claims representative, allegedly told benefit recipients that they had received overpayments and needed to pay her in order to bring their accounts current. Investigators believe she sole more than $17,000 from at least 15 benefit recipients, said Thom Mrozek, a spokesman for the U.S. attorney’s office in Los Angeles.

Work Incentives Planning And Assistance

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

From 2006 through 2010, SSA awarded about $93 million in grant funds to 103 grantees to provide work incentives planning and assistance[WIPA] to Disability Insurance and/or Supplemental Security Income beneficiaries. However, the Agency was still unable to show employment outcomes for beneficiaries receiving WIPA services because of the challenges with the quality and accuracy of the beneficiary data collected and reported by WIPA grantees. In addition, SSA did not clearly outline specific performance measurements that defined the level of performance the WIPA grantees were to achieve.

I have seen no evidence on the ground of anything accomplished by these WIPA grantees. Is anyone familiar with anything whatsoever accomplished by these WIPA grantees?

"38 Life-Altering Mistakes A Day"

     From CNN Money:

Of the approximately 2.8 million death reports the Social Security Administration receives per year, about 14,000 -- or one in every 200 deaths -- are incorrectly entered into its Death Master File, which contains the Social Security numbers, names, birth dates, death dates, zip codes and last-known residences of more than 87 million deceased Americans. That averages out to 38 life-altering mistakes a day. ...

"It is unfortunate, but some of the death data that we post to our records ... proves to be wrong and we correct it as soon as possible," said administration spokesman Mark Hinkle. "Usually the error was inadvertently caused because of a human typing error when death information was entered into a computer system."

This inaccurate information is then sold to the public, as well as to banks and credit bureaus.

Those who are declared dead not only lose their ability to apply for credit or receive benefits, but they are also at a high risk for identity theft now that all of their personally-identifying information has been made public.

In one review, the Inspector General found that months after the Social Security Administration deleted incorrect information from the database, the personally identifiable information of 28% of the individuals was still publicly available on at least one other web site.

Answer To Quiz

     People had trouble with this one!

     Question: Mr. A drives while intoxicated. He causes a terrible car crash which kills the driver of another vehicle. Mr. A is convicted of vehicular homicide, a felony under state law. He is sentenced to two years in prison. He serves those two years in prison. After he leaves prison, Mr. A files a claim for Disability Insurance Benefits (DIB) and SSI (SSI) since in the same car crash Mr. A was badly and permanently injured. He has no serious health problems other than those related to the car crash. He has no income or resources. Mr. A is potentially eligible for:

     Possible answers:
DIB only
SSI only
Both DIB and SSI
Neither DIB nor SSI

The answer is SSI only. 42 U.S.C. §423(d)(6) provides that:

Notwithstanding any other provision of this title, any physical or mental impairment which arises in connection with the commission by an individual (after the date of the enactment of this paragraph) of an offense which constitutes a felony under applicable law and for which such individual is subsequently convicted, or which is aggravated in connection with such an offense (but only to the extent so aggravated), shall not be considered in determining whether an individual is under a disability.

There is no parallel provision in the statute defining disability for purposes of SSI.

Customer Service Delivery Plan

     Social Security's Office of Inspector General (OIG) has issued a report recommending that Social Security adopt a long term service delivery plan and by long term they mean ten years.

     I have heard this sort of recommendation before. I think it is nonsense. First of all, how do you make a long term plan when you have no idea what sort of appropriation you will have for the next fiscal year much less ten years from now? Second, even if you could predict your appropriation, how do you predict future information technology availability and public usage of that technology.? 

     The report is based upon a firm conviction that the public's usage of the internet will continue to soar indefinitely and that Social Security must plan for this. That is preposterous. At some point in the near future, internet usage is going to bump into hard barriers. A certain proportion of the population is illiterate or barely literate. There will always be limits on how much that group will use the internet. There are only so many hours in the day that the rest of us will spend on the internet. Internet use does not keep soaring forever. 

     I can tell you and any experienced field office employee at Social Security can tell you that Social Security is just too complicated and people are just too complicated to make the assumption that the agency's workload can ever be transferred to computers.

Quiz

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New Claim After Unfavorable ALJ Decision -- What's Going On?

     Because of Social Security Ruling 11-1p many claimants will now elect to file only a new claim after an unfavorable decision from an Administrative Law Judge (ALJ). My clients who are attempting to do so are encountering a brick wall of resistance from local Social Security field offices. They are being told that they may not file a claim until 60 days have elapsed after an ALJ decision. This potentially costs my clients in this situation two months of Supplemental Security Income (SSI) benefits as well as unnecessary delay. Social Security has not released to the public any instructions that would tell its staff to do what I am seeing. It is unclear to me whether I am seeing only a local phenomenon or whether there are instructions that have not yet been released to the public.

     Are attorneys in other parts of the country seeing the same problem in having a claimant file a new claim after an unfavorable ALJ decision? Are there staff instructions that have not been released to the public?

AFGE Report On Contract Negotiations

A recent posting by the American Federation of Government Employees (AFGE) on the state of its contract negotiations with the Social Security Administration:

In recent months, the agency urged AFGE to agree to use small teams of management and union negotiators to address a variety of unresolved issues, so that we could narrow our differences and make progress in contract bargain-ng. Initially we had success, reaching agreement on almost everything in Article 33 (Temporary, Probationary, Part-Time Permanent and Seasonal Employees) through this small team approach.

However, progress came to a screeching halt in July when management walked away from a joint effort to reach agreement on a set of AFGE-proposed appendices to the Official Travel Article (Article 8).

SAA Usage At Social Security

Social Security's Office of Inspector General (OIG) has issued a report on the use of Senior Attorney Adjudicators (SAAs). The report is quite favorable for SAAs.

Happy 76th Birthday, Social Security!

By the way, note that the man in the light colored suit to FDR's left appears to have a cigar in his left hand. How times have changed!

Another Kentucky Law Firm In The News

From WYMT:

     An eastern Kentucky law firm has agreed to pay a more than seven thousand dollar penalty to the Social Security Administration.

     Kirk Law Firm was investigated by the SSA Office of Inspector General after signs were put up at offices in Prestonsburg and Inez that read, “Social Security Sign Up Office.”

     The OIG says the signs were confusing and misleading.

John Kirk says there was no attempt to mislead anyone with the signs.

Compassion Rewarded

From the Washington Post:

Diane Braunstein’s large smile and warm laugh can be infectious. She speaks calmly as she sits in a high-backed, dark wooden chair in her spacious Baltimore office, a master bureaucrat.

If that seems a cold or callous characterization, her actions have been anything but. One look at her résumé shows she’s spent a lifetime mastering the minutia of process and regulation on behalf of the elderly, the ill and the disabled at the Social Security Administration and other organizations.

Social Security Commissioner Michael J. Astrue appointed Braunstein director of a program called Compassionate Allow­ances in 2007 after she helped him about 20 years earlier when his terminally ill father could not quickly obtain benefits.

The two were working together at the Department of Health and Human Services. Astrue’s father developed glioblastoma, an often-fatal brain cancer that resulted in a coma. Astrue found himself trying to file for benefits on behalf of someone who wasn’t able to speak.

“It was a huge surprise and a time of high anxiety,” he said. “Having someone as competent as Diane was a great blessing.”

Some Things That Ought To Be On The Public Record

I have finally gotten around to uploading to Scribd some documents that I have that I think ought to be on the public record. Most are of current relevance but a few have mostly historic value. I don't know where else you would find any of these. Take a look.

• Notice of Proposed Rule Making On Grid Regulations 1978
• Federal Register Notice When Grid Regulations Adopted 1979
• Government Representative Plan 1979
• Settlement in Bono v. Social Security 1979
• Government Representative Interim Report 1983
• Decision in Association of ALJs v. Schweiker 1983
• Bradley Memo Cutting Maximum Attorney Fee To $1,500
• Letter Regarding Fee Agreement Process 1992 
• Study On Racial Differences In Disability Determination At Social Security 1992
• Re-Engineering Plan 1994
• Emergency Message On Substance Abuse 1996
• Childhood Disability Questions and Answers 2001
• Memo Regarding Americans with Disabilities Act - "Skoler Memo" 1993
• Drug Abuse and Alcoholism Teletype 1996
• Memo to Regional Commissioner Regarding O*NET 1999
• Memo to OHA Regarding O*NET 1999

     If you have documents you think ought to be in the public record concerning Social Security, scan them and upload them to Scribd and let me know  I'll let others know. Or just send the document to me and I'll upload it. Don't upload or send me anything that includes personally identifiable information or anything that should genuinely remain secret, such as documents concerning security plans at Social Security. Don't upload material under copyright.

     I cannot seem to find a copy of the DSI or HPI plans. It would be good to get those in the historical record so we never repeat bad ideas. I'm sure that Social Security would like to toss both of them down the memory hole.

Social Security Addresses Office Space At DDS

Social Security has added a section to its POMS manual to address the amount of office space to be allocated to employees at the state Disability Determination Services (DDS) offices. These state DDS's make the initial and reconsideration determinations on Social Security disability claims. Although DDS employees are state employees, they are treated much the same as federal employees in many respects. They even have ssa.gov domain e-mail addresses. Here are Social Security's space allocations for DDS employees:

Position	Total Square Feet
Director, DDS	200
Assistant or Deputy Director	150
Program Director or Manager	150
Unit Supervisor	120
Technical Consultant and Systems Specialist	100
Hearing Officer	100
Quality Assurance Specialist	100
Vocational Specialist	100
Claims Examiner (adjudicator)	100
Clerks and other support positions	75
Chief Medical Consultant	150
Full-Time Medical Consultants and Part Time Medical Consultants (electronic claims adjudication makes it more difficult for consultant to share space)	100

Answer To Quiz On Military Personnel And Social Security

Question: Sergeant X is in the U.S. Army. He is badly injured in an automobile accident while off duty. He is unable to perform his normal duties and is assigned to "medical holding company" until he can either get better and return to regular duties or it becomes clear that he will not be able to return to regular duties at which time he would be medically retired. While in medical holding company, Sergeant X receives his normal Army pay but he performs no duties. If Sergeant X files a claim for Social Security disability benefits, how will it be treated?

 Answer: Social Security's Program Operations Manual Series (POMS) addresses this. There is nothing which automatically disqualifies active duty military personnel from receiving Social Security benefits. The work done by Sergeant X is not substantial gainful activity since he was not performing any actual duties. Social Security fully accepts that individuals in Sergeant X's situation may file Social Security disability claims and have them adjudicated normally. 

     Sergeant X is entitled to have his case expedited under Social Security's policy on wounded warriors under another POMS section since the policy does not require that the disability be combat related or even service related.

A Quiz On Military Personnel And Social Security

I am starting a new feature to run occasionally, a quiz on Social Security law and practice. The answer will appear tomorrow. I would appreciate any ideas for future quiz topics.

Free Web poll for your Web site - freepolls.com

For extra credit, is Sergeant X eligible to have his case expedited on the grounds that he is a wounded warrior?

Barbara Kennelly Out At NCPSSM

     Barbara Kennelly, a former Congresswoman, became President of the National Council to Preserve Social Security and Medicare (NCPSSM) in 2002. She has recently been replaced by Max Richtman, a long-time NCPSSM board member. No explanation was given for Kennelly's departure. You would think that if this were a simple case of Ms. Kennelly retiring or moving on to another job that there would have been a press release.

     NCPSSM has been around for more than 20 years. It started out under the leadership of a son of Franklin Roosevelt and quickly got into trouble for its fundraising activities which featured over the top scare tactics at a time when there was little reason to be scared about Social Security's future. If I remember correctly, there was a Congressional hearing. Ever since, NCPSSM has struggled with a questionable reputation. My impression is that the organization is a far more interested in fundraising than anything else. They put out press releases and they engage in relentless fundraising but I have never noticed them having any impact.

Updated Fee Payment Stats

Social Security has posted updated data on payments of fees to attorneys and others for representing Social Security claimants. This is an analogue for backlogs in Social Security's benefit payment process. Once a Social Security claimant is approved for benefits, someone has to authorize payment of their benefits. This can take time. At the moment, that timeframe is increasing. Attorney fee payments are running 3% behind last year even though they should be running higher because there are more Administrative Law Judge hearings this year than last.

Fee Payments
Month/Year	Volume	Amount
Jan-11	34,467	$113,459,847.04
Feb-11	33,305	$107,796,771.38
Mar-11	34,885	$112,463,768.46
Apr-11	48,033	$153,893,755.37
May-11	36,479	$115,159,012.77
June-11	33,568	$104,782,743.07
July-11	40,451	$123,981,011.36

Strange Stuff

There have been accusations, or perhaps intimations, of some poorly defined impropriety concerning attorney Eric Conn. Maybe there is something there, but I have seen nothing that seemed substantive to me. Conn is fighting back with an ad that must be seen to be believed. By the way, that woman at the end of the ad, what is she supposed to represent?

     Update: A reader in West Virginia wants to make it clear that while Conn may practice before a West Virginia hearing office that he is based in Kentucky.
     I have an idea about that woman at the end of the ad. If my guess is correct, this adds an incredibly lurid aspect to this ad.
     If bad taste were a crime, Mr. Conn would deserve drawing and quartering.

Preaching It However You Want

     Social Security's effort to create an Occupational Information System (OIS) to replace the Dictionary of Occupational Titles (DOT) is the most important policy development at the agency in more than thirty years. Recent activities at the agency's Occupational Information Development Advisory Panel (OIDAP), which is tasked with creating the OIS, remind me of the story of a young preacher, badly in need of a job, who is sitting before a church board. A member of the board asks, "How do you feel about same sex marriage?" The young preacher immediately replies, "Just tell me how you feel. I can preach it either way." OIDAP wants to make sure they are creating the OIS in such a way that it will say whatever Social Security management at any given time wants it to say -- and remember that the term of Social Security Commissioner Michael Astrue expires in January 2013. OIDAP wants to please not just the current Commissioner but his successor as well. No one knows how that person will want it preached so OIDAP is building in the capacity to preach it any way the new Commissioner wants it preached.
     Recently I asked what I think are the key questions about Social Security's OIS plans:

• Let us suppose that you collect data on a job, such as office assistant, and this data shows it to have been performed at the sedentary level at 20% of employers, at the light level at 70% of employers and at the medium level at 10% of employers. How would this job be categorized in the occupational information system you are developing -- as sedentary, as light or as medium -- or would it be categorized as all three -- or would it be broken down into three new job titles of Office Assistant I, II and III? A similar question could also be asked about the length of time it takes to learn the job of office assistant or many other criteria.
• When will the decision be made on how to categorize jobs? Before or after the data is collected?

     OIDAP has released its Occupational Information System Fiscal Year 2011 Research And Development Plan which gives us a good idea of how these questions will be answered. I have uploaded this using Scribd, a helpful service that allows anyone to get documents on the public record for free. This is a roadmap for Social Security's OIS development. It definitely answers the last question I asked above and sets forth the process for how the rest of the questions will be answered, although everything is expressed in OIDAP's typically opaque prose.
     One early stage in the development of the OIS to is create a prototype data analysis plan. The plan identifies the following as a "key question": "What are SSA's analytic objectives (e.g., aggregation of position-level data to job-and occupation-level categories and calculation of occupational prevalence) How do they align with SSA OIS requirements." page 36. Exactly. They are not asking the abstract question of how this data should be classified but how does Social Security want the data classified so that it meets the agency's "requirements." They are going to be making the decision about whether the hypothetical job I was asking about will be aggregated simply as Office Assistant or broken down as three separate jobs of Office Assistant I, II and III or how the information about this job or jobs is presented based upon what the Social Security Administration wants. But you may object that the language I quoted above only shows that OIDAP is legitimately concerned with Social Security's needs and isn't really going to tailor the OIS to what Social Security management wants at any given time. Read on.

     The next stage is to conduct a pilot using the prototype. Here the report identifies a key question as being "What can SSA learn for OIS design from the occupational information collected as part of the data collection analysis pilot? (For example, does the information help SSA determine what level of within-title heterogeneity is acceptable given the agency's program needs.)" page 37. That term "within-title heterogeneity" tends to throw one, doesn't it? The titles they are talking about are job titles and by heterogeneity they mean how wide or narrow to make the job titles. Again, do we just have the job title of Office Assistant or do we divide it into Office Assistant I, II and III. They say explicitly that this decision will be made based upon "the agency's program needs" after data collection has started Again, the decision is not being made on the basis of any science or the basis of any independent judgment but on the basis of what Social Security wants. Are you starting to get the picture?

     Next we go to a national pilot and again there is the same key question about "within-title heterogeneity." pages 39 and 41.

   Beyond that, OIDAP must formalize an "occupational title taxonomy" and again the same key question of "heterogeneity" pops up. page 43.

    At the next step, OIDAP intends to evaluate what will happen when the OIS is implemented in the real world by comparing results using the OIS with results using the DOT "to assess relative utility of new OIS data and potential operational and programmatic gaps." page 44. They want to make sure that Social Security is achieving whatever goal it has in approving and denying claimants. Of course, as part of that they will again address that pesky issue of "within-title heterogeneity." page 48.

     If you read the whole thing, it is clear that this plan explicitly allows Social Security management to control the process each step of the way to achieve whatever goals that agency management has at any given point. OIDAP is ready to "preach" it however Social Security management wants it preached.

     Science is being employed here, to be sure, but science will not determine the results. The results will be determined by the agency's policy desires. That is the whole point. Social Security management doesn't want to spend hundreds of millions of dollars to produce an OIS that it cannot stand and the Social Security employees working on the OIS don't want to worry that they will be fired by a new Commissioner because they were unable to predict what that future Commissioner would want. What we have here, to quote Dilbert, is "the way of the weasel."

A Law School Professor Looks At Social Security Disability Determination

     If you are an Administrative Law Judge (ALJs) or an attorney who represents Social Security claimants and your blood pressure has been a little low lately, take a look at What Should We Do About Administrative Law Judge Disability Decisionmaking by Richard J. Pierce, a professor at George Washington Law School and a member of the Administrative Conference of the United States. Here are a few highlights:

• He argues that disability determinations made by ALJs are inherently inferior to those made at the initial and reconsideration levels
• He recommends that we should make a claimant's former employer pay a portion of disability benefits granted and give that employer the ability to contest a Social Security disability claim.
• He believes that Social Security should implement quality assurance reviews of ALJ decisions.
• He recommends eliminating the consideration of non-exertional impairments although he concedes that there are some people who suffer disabling pain or mental illness.
• He recommends the elimination of all ALJs and, apparently, any right to a hearing at Social Security. He thinks it highly unlikely that the Supreme Court would have a problem with that, especially since he regards ALJs as unconstitutional.

Hearing Office Average Processing Time Report

From the National Organization of Social Security Claimants Representatives (NOSSCR) newsletter.

For comparison purposes:

• January 25, 2007 -- 508 days
• February 29, 2008 -- 511 days
• March 8, 2009 -- 499 days
• July 5, 2010 -- 415 days
• February 1, 2011 -- 371 days
• April 29, 2011 -- 357 days 
• June 24, 2011 -- 353 days

Australian Disability Determination For Adults May Look A Lot Like SSI Disability Determination For Children

     An advisory committee in Australia has recommended new rules for the determination of disability under that country's Social Security system. It bears more than a little resemblance to the way in which disability is determined for children under the U.S. Supplemental Security Income (SSI) program, complete with the impossibility of determining whether an individual is mildly, moderately, severely or extremely impaired. To make the Australian plan even better, it looks like they have no equivalent of the Listings!

     Reading the Australian plan may be a sobering experience for anyone who thinks that disability determination in the U.S. is a mess and that there must be a better way. What is being recommended in Australia looks far more unworkable than what we have in the U.S.

Lowered Appropriations For Social Security? Shutdown Looming On October 1?

     The Labor-HHS appropriations bill, which includes the Social Security Administration, was set for House Appropriations subcommittee markup on July 26 and for full committee markup on August 2 but that was postponed due to the debt ceiling crisis. No doubt it will be rescheduled for the near future.

     Some time ago, the House Appropriations Committee announced subcommittee allocations, that is the total amount of each subcommittee appropriation. The Labor-HHS Subcommittee has been told to cut appropriations by 12% from FY 2011 and by 26% from the President's budget. If I understand correctly, one aspect of the debt ceiling bill that will finally pass later today is that it essentially enacts the budget limits for FY 2012 that had been reported out of the House Budget Committee, the limits that the House Appropriations Committee used in preparing its subcommittee allocations. What is unclear to me is the extent to which the appropriations process is bound by the budget. The top line number for the entire budget will soon be established but how far down does that go? Does that debt ceiling bill enact the allocation to the Labor-HHS appropriation or is it still possible to trade off between the Labor-HHS appropriation and the Defense Department appropriation, for instance? In any case, I am pretty sure that nothing has yet been settled about the allocations within the Labor-HHS budget, so there can be tradeoffs between Social Security and HHS, for instance. If this sounds like an amateurish attempt to explain a complicated situation, it is. Still, it's far more than you're likely to find anywhere else.

     Social Security's operating budget is not going to be cut by 12%. If that happened, Social Security might have to do something like shut down one day every week for an entire year. The agency's business just wouldn't get done. However, some cut may be inevitable. Furloughs are a distinct possibility. Increased backlogs are inevitable.

     Is there a risk of a government shutdown on October 1? You would think not since we will shortly have a budget cap established for the year. Even if there is still jockeying for position among agencies surely Congress can adopt a continuing resolution to keep everything going until things can be sorted out. Unfortunately, appropriations are also about policy. There are no policy issues of substance affecting Social Security's appropriation but there are major issues affecting appropriations for the Department of Health and Human Services (HHS). Social Security has the misfortune of being linked to HHS in the appropriations process. Republicans want to use appropriations to make it impossible to implement what they love to refer to as "Obamacare." This has the possibility of causing a shutdown at least in the parts of the government covered by the Labor-HHS appropriation and again I remind you that this includes Social Security. Will Republicans press things that far? In the wake of the debt ceiling mess, who knows? The Federal Aviation Administration is currently shut down over lesser issues.

Can You Trust The Answers You Get When You Call Social Security's 800 Number?

From Steve Vernon's CBS Money Watch blog:

Since I’ve been writing my posts on Social Security benefits, I’ve received emails and comments from several readers who complain that they can’t get a consistent or correct answer when they call the Social Security Administration. So is it true? Can you trust the answers you get when you call Social Security?

I’d be very careful relying on answers you hear when you’re on the phone with Social Security, particularly when it comes to complex situations. ...

The laws and regulations that surround Social Security and Medicare benefits can be extremely complex. Now mix this complexity with situations like these:

• Citizens might not ask questions accurately, or they may use certain terms incorrectly, at a time when you need absolute precision with the terms you use.

• Social Security representatives are expected to instantly respond to questions on a very complex subject, and occasionally they might not get it right. Or they might be tired at the end of the day — after all, they’re human, too.

• Social Security is not immune from cost-cutting initiatives, which can impact the skills and training of Social Security service representatives. ...

So here’s the bottom line for me: If the answer to a question about Social Security is really important to your planning, I’d call two or three times, just to compare the answers you get. Ask for citations on Social Security’s website or the internal administration manual that supports the answers. You might even ask to speak to a claims representative, just to be sure.

Vernon gives the example of asking an unusual question about "file and suspend." He got two different answers from Social Security. I am not at all sure that the answer that Vernon thinks is correct is actually right, although I would have to research it a bit more. Unlike Vernon -- and many Social Security employees -- I do not regard Social Security's POMS manual as infallible. Anyway, there are people reading this who would be able to give a definitive answer to Vernon's question, so help him out.

The bigger point is that no matter how good Social Security's online systems ever get to be, there will always be a need for a well-trained human element.

More Funds For Continuing Disability Reviews And SSI Redeterminations

 From the Congressional Budget Office (CBO) analysis of the debt ceiling bill to be voted upon tonight in Congress:

The bill would allow adjustments to the discretionary caps that would permit additional appropriations to:

• The Social Security Administration (SSA) to conduct continuing disability reviews of beneficiaries of the Disability Insurance (DI) and Supplemental Security Income (SSI) programs and redeterminations (of the eligibility criteria other than disability) of SSI beneficiaries ...

Social Security Administration [SSA]. The annual discretionary funding caps would be adjusted by the amount by which funds appropriated for the SSA program integrity activities for a year exceed $273 million; the maximum such adjustment would rise from $623 million for fiscal year 2012 to $1.309 billion a year for fiscal years 2017 through 2021. If the Congress were to appropriate the maximum amounts eligible for the cap adjustment related to SSA funding, spending for such activities would be about $4 billion above CBO’s baseline. Based on the $4 billion increase, CBO estimates that benefit outlays for DI, SSI, Medicare, and Medicaid would fall by nearly $12 billion over the 2012-2021 period (see Table 2). Additional savings would accrue after 2021. ...

Can Anyone Explain This To Me?

     From Jay Newton-Small writing at The Swampland blog at Time, writing about the debt ceiling agreement :

... [J]ust to ensure we don’t have another bruising government shutdown fight over cuts in September, the deal deems and passes the 2012 budget. Yes, that’s right, the old Gephardt Rule or Slaughter Solution, is back. What’s deem and pass? It’s a legislative trick that essentially means that Congress will consider the budget passed without ever actually having to vote on it.

     Neither the House nor the Senate Appropriations Committee has even started formally considering the Labor-HHS appropriations bill that includes Social Security, so how can we now rule out a government shutdown after September 30, 2011?

Debt Ceiling Deal Causes No Cuts For Social Security Until At Least 2013

     Nate Silver at the New York Times makes it clear. The debt ceiling deal will cause no cuts in the operating budget of Social Security or any other domestic agency until at least fiscal year 2013. The expiration of the  Bush tax cuts at the end of 2012 may prevent any cut in Social Security's operating budget.

     There is less to this debt ceiling agreement than meets the eye. There is little chance that the "super committee" that has been set up will recommend anything. Even if it does, there is even less chance the recommendation will be adopted. The failure to adopt something will have little immediate effect. Even down the road, the effect should be limited if President Obama is re-elected. If he is not re-elected, there will be problems but there would be problems for Social Security anyway.

     By the way, I really like the idea of using the super committee as a means of forcing Republicans in Congress to vote for enormous cuts in Social Security and Medicare.

So What Just Happened?

     You have heard about the debt ceiling agreement reached yesterday. Here's what you may not have heard:

• It is far from clear that this can pass the House of Representatives. Many Republicans members oppose increasing the debt ceiling. It will take Democratic votes but most Democrats in the House oppose the agreement. However, Wall Street appears to believe that this will pass since the market is up this morning. 
• If the bill does not pass, we are in default. Probably, the August 3 Social Security payments will go out on time -- probably -- but anything beyond that will be delayed.
• The bill would cap domestic spending for the next 10 years. This means that it will be difficult for Social Security to get a larger budget or even to hold onto the operating budget it already has.
• The bill, if passed, sets up a process whereby a special 12 member joint committee of members of both the House and the Senate will recommend measures in November to dramatically cut the budget. Congress will then vote on the recommendations on December 23. If the committee cannot agree or if Congress does not enact the recommendations, automatic budget reductions kick in. The reductions exclude Social Security and apparently exclude Supplemental Security Income (SSI) and other poverty programs. Medicare is excluded except for provider payments.

     Unless Republicans on the joint committee are willing to include significant tax increases, I have a hard time imagining what the joint committee could come up with that Democrats would perceive as better than what happens if nothing is done and the automatic budget reductions kick in. After all, if the alternative is dramatic cuts in Social Security, Medicare, Medicaid, SSI, Food Stamps and Unemployment Insurance Benefits, what is so terrible about percentage cuts?

     I have this vision of how this joint committee will work. Democrats will come up with one plan, Republicans will come up with another plan and the two sides will be unable to come to any agreement. The joint committee has a vote on the rival plans. They deadlock 6-6 on the Democratic plan. When the Republican plan comes up, one of the Democrats votes "present." This means that the vote is 6-5 in favor of the Republican plan and it goes forward. Republicans in Congress are then forced to vote to dramatically reduce Social Security and Medicare. The plan fails, the country is left with the automatic cuts, and Republicans have to explain their votes to dramatically cut Social Security and Medicare when the election comes up.

     The question I wonder about is what would be the percentage reduction in appropriations for agencies such as Social Security if nothing is passed by December 23? I cannot seem to find the answer. Whatever the reduction is, furloughs at Social Security would be inevitable.
     Update: I am doing some very rough calculations and come up with a reduction in Social Security's operating budget of about 4% if no further agreement is reached. I am basing this upon the fact that the current agreement would call for $1.2 trillion in cuts over ten years. Divided by ten that would be $120 billion in cuts in this year's budget but that would be further divided in two between defense and non-defense spending and the Bloomberg business calculator figures on domestic expenditures-- although that is based solely on August 2011 expected expenditures, so I multiplied that by twelve. This is rough at best and there's certainly a chance that I have erred in some way. I hope someone can give us a more accurate number soon. A 4% cut in Social Security's operating budget would definitely cause furloughs and significantly reduced service but it would not cause the collapse of the Social Security Administration, at least in the short run.
    I do not know what effect the planned National Computer Center would have on this. Suspending that project would certainly save money. Isn't there a vacant data center building in the D.C. area that Social Security could take over so it doesn't have to build from scratch? That would be quicker and cheaper. If that project goes forward despite what has happened, I think some explanations are in order.
     Further update: I am reading that the cuts in domestic spending will be delayed until 2013 -- after the Bush tax cuts are due to expire. If I understand correctly, that would save Social Security from any immediate cuts in its administrative budget. The end of the Bush tax cuts, which is certain to happen, at least in part, will help avoid cuts after 2013. If I am understanding this agreement correctly, there will be huge pressure on Republicans to agree to tax increases and little pressure on Democrats to agree to anything.

New POMS On "Expedited Vocational Assessment"

Social Security has published some changes to its Program Operations Manual Series (POMS) that may explain the proposed regulatory changes it recently sent over to the Office of Management and Budget (OMB) for approval. The POMS change has the title, "Expedited Vocational Assessment at Steps 4 and 5 of Sequential Evaluation." The proposed change sent over to OMB has the title, "Expedited Vocational Assessment Under the Sequential Evaluation Process" so it sounds like these are the same thing. Why is Social Security already implementing a rule when it just asked OMB to approve a proposed rule?

Emergency Message On New Claims While Appeal Pending Does Not Help

Social Security has issued a new Emergency Message (EM) on the new Ruling which seeks to prevent a claimant from filing a new claim while an old claim is pending on appeal. The EM does not expand upon the Ruling in any meaningful way. It does not even address the question of what to do about cases where a new claim and an appeal are both already pending.