Dec 31, 2013

Does This Tell Us Anything Useful?

     The abstract of a Working Paper issued by Yonathan Ben-Shalom and Arif A. Mamun of Mathematica Policy Research, a big contractor for Social Security:
We follow a sample of working-age Social Security Disability Insurance (DI) program beneficiaries for five years after their first benefit award to learn how certain factors help or hinder achievement of four return-to-work milestones: (1) enrollment for employment services provided by a state vocational rehabilitation agency or employment network, (2) start of trial work period (TWP), (3) completion of TWP, and (4) suspension or termination of benefits because of work. We find that younger beneficiaries are more likely than older beneficiaries to achieve the milestones and that substantial variation exists across impairment types. In addition, black beneficiaries and beneficiaries with higher levels of education have a greater probability of achieving the milestones, everything else equal. Also, such achievement is more probable if state unemployment is low at the time of the award. The probability of achieving the milestones is reduced by having a higher DI benefit amount at award, an award decision made at a higher adjudicative level, and by receiving Supplemental Security Income or Medicare benefits at the time of DI award. Finally, we find large variation in the relationships between state of residence and return-to-work outcomes and between award month and return-to-work outcomes. We attribute these variations to unobserved factors at the state level, policy changes over time, and trends in unobserved beneficiary characteristics.

Dec 30, 2013

Nice Try

     There's a new meme coming from the right. Sure, we ought to increase Social Security benefits, but only for the poor. We'll do it by means testing Social Security. Andrew Biggs started this but others are chiming in. I think it's a good idea to remind everyone that Social Security will not change in any fundamental way until one very determined party completely dominates the White House and the Congress. That's not coming anytime soon. Even if the Republicans did dominate the White House and the Congress I'd be amazed if they attempted this. If they did, they wouldn't control the White House and the Congress much longer.

Dec 29, 2013

The Last Drop

    Sue Regan died on November 5. The U.S. Treasury made a direct deposit to Ms. Regan's account at a credit union for one month's Social Security benefits on November 13. The money was supposed to have been paid since it was for October when Ms. Regan was still alive. However, the credit union made a mistake and sent the money back to the Treasury. A Dallas television station reports that this is a mistake commonly made by overly eager financial institutions. How long will it take for Ms. Regan's family to get the money back? How often do families fail to recognize the mistake? How often does Social Security or the Treasury correct this sort of mistake without prompting?

Dec 28, 2013

Social Security Employee Arrested For Routing Benefits To His Bank Account

     The Associated Press reports that Tabaris Archie Brown, an employee at a Social Security "telephone center" has been indicted on 14 counts of identity theft, theft of government property and wire fraud for changing records to route the Social Security benefits of 11 people into an account he controlled. The report comes from Birmingham, Alabama. My guess is that he worked at the Program Service Center in Birmingham but is there a teleservice center in Birmingham as well?

Dec 27, 2013

Better Than Living In A Tent

     Social Security disability benefits allows one man to move out of his tent and into a warm apartment.

I'm Getting Whiplash From Reading Froma Harrop

    Syndicated columnist Froma Harrop writes that the proposals to increase Social Security benefits are a refreshing sign that Social Security's political problems are receding into the past. That's a great observation. However, Harrop is also the author of a piece earlier this year which said that able bodied people were scamming Social Security disability to get on benefits for colds! That was the single worst Social Security opinion piece I've seen this year.
     I don't expect complete consistency from anyone. In fact, complete consistency is the sign of a person with a closed mind but this is just ridiculous. If you think it's important to keep Social Security strong, you don't go around spreading ridiculous lies about its disability programs.

Six Big Changes Coming To Social Security Disability

     Damian Palleta has a triumphalist article in the Wall Street Journal or maybe just his personal blog -- it's hard to tell online -- about six changes that the Social Security Administration is undertaking to tighten up its disability program because of articles he has written. One could argue about about which of these may actually come to pass or mean anything but one cannot argue about the fact that Palleta is confused. The first change he lists is to what he refers to as the "Listings" but he is talking about updating the agency's vocational information system. The second change he lists is to the grid regulations but he does not specify what change he is talking about. I'm pretty sure no such change is in the works.
     Update: And there's another WSJ piece on the change in the Administrative Law Judge job description.

New Allegations In Conn Lawsuit

     The Herald-Dispatch of Huntington, WV, is reporting that the plaintiffs in the qui tam lawsuit against Eric Conn are now alleging that Conn paid cash to Administrative Law Judge (ALJ) David Daugherty in exchange for favorable decisions in his clients' Social Security disability claims. Remember, folks, these are allegations which may or may not be true. I can allege that there are planets that are solid diamonds. That may or may not be true but my alleging it doesn't make it true.

Dec 26, 2013

The Death Master File Is Really Wonky But Still Interesting

     The American Thinker gives lots of background on Social Security's Death Master File (DMF). Did you know that Ronald Perholst, who was at one time the Postal Service's General Manager of Accounting, led the fight to make the DMF public? Did you know that the DMF is especially important to Native Hawaiians and Ashkenazi Jewish women?

Social Security Calls This The Waterfall Chart

Click on it to view in larger format

Dec 25, 2013

Old Overpayment Waived

     Social Security has waived a 41 year old overpayment of $493.80 for one man. Great for him but it's time for a statute of limitations on Social Security overpayments.

Merry Christmas!

Merry Christmas!

Dec 24, 2013

Christmas Eve

Americans Aren't Prepared Financially For Retirement And The Problem Is Getting Worse

     From the abstract of a study by the Center for Retirement Research at Boston College:
The National Retirement Risk Index (NRRI) measures the share of working-age American households “at risk” of being unable to maintain their pre-retirement standard of living in retirement. ... As of 2010, the NRRI showed that, even if households worked to age 65 and annuitized all their financial assets (including the receipts from reverse mortgages on their homes), 53 percent of American households were at risk.
     By the way, the study shows that the problem has been getting worse.

Merry Christmas

Dec 23, 2013

Change In ALJ Position Description

     I could use a link but I've been told that the position description (PD) for Social Security's Administrative Law Judges (ALJs) has changed. The new PD emphasizes increased supervision and management by the Social Security Administration.  There is a new emphasis on compliance with Social Security's procedures, regulations, rulings, and policies and on timely processing of cases.
     For those of you on the inside, what does this mean in practical terms? Has the agency explicitly told ALJs that their job has changed?

Merry Christmas!

Dec 22, 2013

Republicans Willing To Accept Higher Social Security Benefits?

     Steven Rosenfeld at Salon finds it remarkable that at the Senate Finance Committee hearing last week on "America's retirement crisis" none of the Republicans felt that Social Security benefits couldn't be increased, at least for the poorest Americans. 
     I have to point out that Republicans are cutting food stamps and cutting large numbers of people off unemployment benefits this Christmas season, hardly a sign that they have grown a heart. Andrew Biggs, who testified at the behest of the Republicans at the hearing, was willing to accept higher Social Security benefits for the poor only at the cost of means testing Social Security benefits, the long standing dream of Republicans to explicitly turn Social Security into a "welfare" program that they can hate more openly.
     I think that running on a plan to increase Social Security benefits would be a winner for Democrats in 2014 and 2016 but I'm sorry to say that don't see that sort of audacity in the Democratic party. I hope I'm wrong.

Merry Christmas

Dec 21, 2013

Has Washington Finally Woken Up To The Real Meaning Of Social Security?

     Josh Rosenbaum at AARP asks "Has Washington Finally Woken Up to the Real Meaning of Social Security?" I'd say that the answer is "no." Democrats didn't just awaken to the importance of Social Security. It's always been crucial to them. Republicans have  also taken Social Security very seriously all along. They've wanted to find a way to kill it but have almost always realized that it's an impossible dream. George W. Bush and a few other Republicans have occasionally had delusions of grandeur and tried to find a way to privatize or otherwise cut Social Security but they are always punished for their foolishness. There are plenty of pundits and think tank denizens in D.C. who think that it's mandatory that Social Security be cut. Serious People in Washington take them seriously but no one else does. The Serious People in Washington sometimes forget that we live in a more or less democratic country and that cutting Social Security is wildly unpopular everywhere other than D.C. It's hard for them to believe but the Serious People in Washington don't really matter, even in Washington.

Merry Christmas!

Dec 20, 2013

Federal Judge Strikes Down Utah Law Forbidding Same Sex Marriages

     The Salt Lake Tribune reports that a federal judge, relying upon the U.S. Constitution, has struck down the Utah state ban on same sex marriages as unconstitutional. I'm not sure if the Department of Justice has been waiting for something like this to decide what it wants to do about same sex marriages of people who are applying for Social Security benefits but who live in a state which refuses to recognize same sex marriages but it's more than possible.

Baucus To China; Wyden To Chair Senate Finance

     Senator Max Baucus (D-MT), the chairman of the Senate Finance Committee, has been nominated by President Obama to become the Ambassador to China. The Senate Finance Committe's jurisdiction includes Social Security. This probably means that Senator Ron Wyden (D-OR) will become Chairman of the Senate Finance Committee. Wyden is much more liberal than Baucus.

It's Not Just Carpal Tunnel Syndrome

     Andrew Biggs has responded to Michael Hiltzik's criticism of Bigg's testimony before the Senate Finance Committee saying that Social Security's full retirement age can be safely increased because the physical demands of work have gone down. Biggs admits to being a bit snarky in expressing his point but argues that what he said was substantially correct. Hiltzik isn't buying it.
     Biggs' testimony was that the biggest on the job threat to older workers is carpal tunnel syndrome. That statement may be snarky but it's also flat out wrong. The study that Biggs relies upon does show that, in general, work has become less physically demanding over the decades. No one disputes that. However, the study also shows that work remains physically demanding for a significant portion of the workforce. This is the key language from the report:
About 46 percent of workers were employed in occupations that entailed any general physical demands (which included strength, stamina, quick reaction time, balance, bending or twisting, kneeling or crouching, handling objects , standing, walking, running, and making repetitive motions). Spending time standing—the most common physical demand—was very or extremely important to job performance for 34 percent of workers. Only 7 percent, however, were employed in jobs that imposed high general physical demands.
     You don't have to be in a job that the study refers to as having "high general physical demands" to be in trouble as you age and your body changes. Let's just focus on the 34% of the workforce whose jobs require standing. That's a lot of people. Injuries or degenerative changes associated with aging (arthritis and related conditions) affecting the feet, ankles, knees, hips or low back can eliminate an individual's ability to stand for extended periods of time. Feet, ankles, knees, hips, low back -- that's a lot of body parts and it only takes a problem with one of them to eliminate the ability to stand for extended periods of time.I can't say what percentage of the population who are over the current full retirement age or even the early retirement age have injuries or degenerative changes significantly affecting their feet, ankles, knees, hips or low backs but I'm sure it's quite high. Yes, injuries can occur at any age but their effects are more difficult to overcome if you're older. Older people have more residuals after injuries. Many people are able to cope well with the effects of fractures when they're young but have increasing problems with their old fractures as they age. If Andrew Biggs needs proof of this, he need only look around among his own friends and acquaintances. How many of them have bad feet? How many have had knee surgery? How many have had joint replacement surgery before reaching 62? How many are a bit slow to rise from a seated position? How many seem to prefer to sit down to have a conversation? How many have shown up at the office from time to time using a cane? These people do just fine in office jobs but they can't work at the snack bar in the office building where Biggs works because they can't stand all day. Those are the 34% of the population that Biggs ignores because he hardly ever interacts with them in any substantive way.
     By the way, the study also showed that the cognitive demands of employment have been increasing over the years. This greatly disadvantages older workers who have lower cognitive abilities. Education and training can only do so much to overcome what nature has not provided. Most people with lower cognitive abilities never received much help in overcoming their cognitive limitations anyway. By the time they get older, it's too late. For that matter, psychiatric problems also limit an individual's ability to use their cognitive abilities. The study doesn't state what percentage of the population have cognitive or other mental limitations that limit their ability to work but the study certainly makes it clear that they have become progressively more disadvantaged by the changes in the workforce.
     If anything, the report that Biggs tries to rely upon shows to me that a huge percentage of those over Social Security's early retirement age of 62 have serious problems working because of physical and mental limitations and this problem isn't going away.

Little Support For Cutting Social Security, Even Among Republicans

From a poll released by the Pew Research Center

Merry Christmas!

Dec 19, 2013

Criticism Of Andrew Biggs' Testimony

     Michael Hiltzik wasn't favorably impressed by Andrew Biggs' testimony before the Senate Finance Committee yesterday.

Merry Christmas!

Dec 18, 2013

Status Of Social Security's Appropriations

     The "budget deal" that has already passed in the House of Representatives and should soon be passed by the Senate and signed by the President is only a first step. A "budget" only sets forth a rough framework for the appropriations bills that actually give the Social Security Administration (SSA) and other agencies their operating funds. Social Security's appropriations (technically the Limitation on Administrative Expenditures or LAE) is part of the Labor-HHS appropriations bill. The House Appropriations Committee hasn't even released a draft of a Labor-HHS appropriations bill. The Senate Appropriations Committee's Labor-HHS Subcommittee reported out a bill  several months ago which has not yet been acted upon by the full committee. Here's the Subcommittee's summary of the bill's Social Security provisions:

Social Security Administration Administrative Expenses 
  • FY 2013 $11,431 million
  • FY 2014 President's Request $11,070 million
  • FY 2014 Senate Subcommittee $11,965 million

SSA Program Integrity 
  • FY 2013 $756 million
  • FY 2014 President's Request $273 million
  • FY 2014 Senate Subcommittee $1,197 million
     For the time being, SSA is operating on a Continuing Resolution (CR) at last year's rate. It's difficult for SSA and other agencies to operate under a CR since an agency's need to expend money may not be stable from month to month but the CR allots them the same amount of money each month. More important, SSA and other agencies have difficulty planning for the future. They don't know what to expect. Everybody agrees that CRs are bad but we keep getting them.

Merry Christmas!

Dec 17, 2013

New Cancer Listing Proposed

     The Social Security Administration has published a Notice of Proposed Rule-Making (NPRM) in the Federal Register to alter its Listing of Impairments for cancer, which is currently referred to in the Listings as neoplastic diseases. An NPRM is just a proposal. The public is allowed to comment on the NPRM. Social Security must consider the comments before issuing a final regulation.

New Staff Instructions On Same Sex Marriages -- Not Much Decided

     Social Security has issued new staff instructions dealing with situations where a claimant has married a person of the same sex in a foreign country where such marriages are legal but is now living in one of the United States that refuses to recognize such marriages. Social Security's position is that it will not recognize such marriages, that it must go by the law of the state in which the claimant is domiciled. However, Social Security is not ready to announce what it will do in the vastly more common case of a person who enters into a same sex marriage within the United States in one of the states where such marriages are legal but who then moves to another state which refuses to recognize same sex marriages. Social Security is still holding such claims waiting for the Department of Justice to tell them what to do.
     I'm starting to wonder whether the Department of Justice is waiting for one of the Courts of Appeals to rule that state laws forbidding recognition of same sex marriages contracted in other states are unconstitutional. Maybe, Justice expects Social Security to just hold these claims for the next year and a half until the Supreme Court considers the issue.

Dec 16, 2013

Senate Finance Committee Schedules Hearing

     The United States Senate Committee on Finance, Subcommittee on Social Security, Pensions, and Family Policy has scheduled a hearing for Wednesday, December 18, 2013 at 10:00 on The Role of Social Security, Defined Benefits, and Private Retirement Accounts in the Face of the Retirement Crisis.

U.S. Social Security Benefits Are Low By World Standards

Dec 15, 2013

New Social Security Agreement With Switzerland

     The President has notified the Congress of a new Social Security agreement between the United States and Switzerland. This replaces an agreement between the two countries signed in 1988. Agreements such as these generally provide for administrative cooperation between the two countries and totalization of wage credits for situations where a person can qualify for benefits only by combining wages earned in both countries. The agreements also prevent situations in which wages might be subjected to Social Security taxes in both countries. 
     Few people will be affected by this agreement but those few will be affected in major ways. All told, Social Security's international operations affect millions of people.

Dec 14, 2013

Services To Be Curtailed

     From the Southtown Star:
In a move that one congressional staff member calls “absolutely devastating” to senior citizens and the poor, the Social Security Administration is planning to eliminate some walk-in office services.
In a letter sent to employee union officials this month, the SSA announced that as of April 1, it will no longer provide benefit verification letters to citizens at its local offices or Social Security number print-outs, which can be used as temporary identification while people wait to replace a lost or misplaced Social Security card.

Dec 13, 2013

We Don't Need Social Security One Bit -- People Can Just Plan Their Own Retirements

     From the summary of a study on financial advisors:

46% of financial advisers do not have a retirement plan for themselves, yet 40% are planning to retire within the next 14 years.

Dec 12, 2013

Senate Finance Committee Hearing

     The Senate Finance Committee will hold a hearing on December 18 on The Role of Social Security, Defined Benefits, and Private Retirement Accounts in the Face of the Retirement Crisis.

Congressional Hearing Postponed

     The hearing that had been scheduled for yesterdays before the House Social Security Subcommittee on identity theft and improper payments was postponed at the last minute. No new date has been announced.

Dec 11, 2013

Social Security Security Guard Suffers Broken Arm As Result Of Alleged Assault

     From KOMO in Silverdale, Washington:
A security guard at a Social Security office in Silverdale suffered a broken arm in a struggle with a man who was kicked out for being disruptive.
The 43-year-old guard told Kitsap County sheriff's deputies the man pushed him to the ground Monday in the parking lot.
Kitsap Sun reports the 26-year-old Hoodsport man was charged Tuesday with felony assault. He denied pushing the guard and said he threw himself on the ground.

Despite Budget Deal We're Not Out Of The Woods Yet

     The budget deal that you heard about yesterday isn't exactly what you might think it is. The process is supposed to work like this. First a budget is passed. The budget merely sets top line numbers for the total amount to be spent and for each separate appropriations bill. It's the actual appropriations bills that give agencies money to spend. Budget summaries often say how much individual agencies are to get but these summaries are merely recommendations.
     Passing appropriations bills is tough in this political environment. Social Security's appropriation, or Limitation on Administrative Expenditures (LAE) as it's officially known, is part of the Labor-HHS appropriations bill. The Labor-HHS appropriations bill is always the most contentious of the appropriations bills, particularly now since Republicans are still trying to find a way to use the appropriations process to hobble the Affordable Care Act. If the hobbling can be done, it would be done through the Labor-HHS appropriations bill.
     Passage of the budget deal announced yesterday is itself no slam dunk. House Democrats had earlier said they would not vote for the deal unless it included an extension for Unemployment Insurance benefits set to expire this month and this deal doesn't do that. Some Republican members of the House had announced that they would not vote for the deal because they thought that the budget was set too high. If all of the House Democrats and all the dissenting Republicans vote against this budget bill, it will fail in the House of Representatives and we're back to square one.
     Despite the budget deal announced yesterday, there's a real risk of a government shutdown in January either because the budget deal itself can't be passed or because appropriations bills can't be passed.

The Death Master File Again

      Even though budget bill announced yesterday is supposed to deal just with top line numbers, budget bills  often contain extraneous items. The agreement announced yesterday contains an extraneous item affecting Social Security. From the press release on the budget deal:
Restriction on access to the Death Master File 
This provision creates a program under which the Secretary of Commerce restricts access to information contained on the Death Master File (a list of deceased individuals and their Social Security numbers, dates of birth, and dates of death, maintained by the Social Security Administration) for a three-year period beginning on the date of an individual’s death — except to persons who are certified under the program to access such information sooner. A penalty of $1,000 is imposed for each improper disclosure or misuse of information obtained from the DMF, up to a maximum of $250,000 per person per calendar year. The Secretary is required to establish and collect user fees sufficient to recover all costs associated with the certification program.
     The Death Master File (DMF) sounds deadly boring but it's important. Benefit payments to dead people make for bad publicity for the Social Security Administration. That's why the DMF exists. However, the DMF isn't completely accurate. Some people get listed as dead when they're alive. It's a small percentage but it still amounts to a lot of people because the DMF is so large. It's bad enough that their Social Security payments are halted but what's worse is that financial institutions and other government agencies have been able to get access to the DMF and they have been freezing financial accounts and non-Social Security government payments of the supposedly dead people. Often these people have not been receiving Social Security benefits and have no idea that an error in the DMF is the reason that financial institutions and government agencies are freezing their accounts. They have no idea where to turn to prove that they are alive. Even after they have convinced Social Security that they are alive, they are at risk because bad people can compare the DMF over time to look for names that have been removed from the DMF. These are people that the identity thieves will know to be alive and they will know their name, date of birth and Social Security number. Also, some identity thieves look for the names of those who died as children years ago. They use the identities of those who died as children to apply for financial accounts which they loot. They seem to be able to do this despite the DMF. The relatives of those who died as children find this deeply unsettling.
     On the other hand, financial institutions have a legitimate interest in freezing the accounts of those who have died. The DMF is also used to identify life insurance policy holders who have died but whose relatives have not filed claims because they were unaware of the life insurance policies. The insurance companies don't really want to do this but they're forced to do so by state insurance agencies. Billions of dollars in life insurance benefits are paid each year because of the DMF. Those involved in genealogy research scream loudly about any possible change to DMF access since it's crucial to what they do. Genealogy researchers are a stronger lobby than you might imagine.
     I have no idea why this bill would give the Secretary of Commerce some control over the DMF. I have no idea who might get certified to get access to the DMF. Just government agencies? Just federal agencies? Some financial institutions? We'll have to wait for the fine print.

Dec 10, 2013

Central Offices Closed By Snow

     All federal offices in the Washington, DC area, including the Social Security Administration's Central Offices, are closed today due to snow.

Dec 9, 2013

Central Offices Opening Two Hours Late Today

    Because of weather conditions, Social Security's central offices are opening two hours late today.

Dec 8, 2013

Slowdown In Processing Claimants Onto Benefits

     Social Security has issued updated numbers on payments of fees to attorneys and some others for representing Social Security claimants. These fees are withheld and paid by Social Security but come out of the back benefits of the claimants involved. The attorneys and others who have their fees withheld pay a user fee for this privilege. Since these fees are usually paid at the same time that the claimant is paid, these numbers show how quickly or slowly Social Security is able to get claimants paid after a favorable determination on their claims.
Month/Year Volume Amount

Dec 7, 2013

Bad Social Security Reporting

     Trudy Lieberman writes for the Columbia Journalism Review on the bad reporting on Social Security issues.

Dec 6, 2013

Third Way Is A Fraud

    Michael Hiltzik at the Los Angeles Times has a fine article on Senator Warren's response to a misleading Third Way op ed in the Wall Street Journal. 
     The right wing lies about Social Security are out of hand and it mostly starts with bogus front groups like "Third Way" which poses as a centrist organization but which is nothing of the sort. Its board is thoroughly dominated by Wall Street and corporate executives who want no change in current law that allows most of their high incomes to escape the FICA tax while every penny of Joe Sixpack's income is taxed.

I Agree With Cato On This One

     From a press release issued by the U.S. Citizenship and Immigrations Services (USCIS) division of the Department of Homeland Security:
U.S. Citizenship and Immigration Services (USCIS) Director Alejandro Mayorkas today announced an enhancement to the E-Verify program that will help combat identity fraud by identifying and deterring fraudulent use of Social Security numbers (SSNs) for employment eligibility verification.
This enhancement provides a critical safeguard to the E-Verify system by detecting and preventing potential fraudulent use of SSNs to gain work authorization. An employer, for example, may enter information into E-Verify that appears valid – such as a matching name, date of birth, and SSN – but was in fact stolen, borrowed or purchased from another individual. This new safeguard now enables USCIS to lock a SSN that appears to have been misused, protecting it from further potential misuse in E-Verify. ...
USCIS will use a combination of algorithms, detection reports and analysis to identify patterns of fraudulent SSN use and then lock the number in E-Verify. This will help deter and prevent fraudulent use of SSNs in the E-Verify system.
If an employee attempts to use a locked SSN, E-Verify will generate a “Tentative Nonconfirmation” (TNC). The employee receiving the TNC will have the opportunity to contest the finding at a local Social Security Administration (SSA) field office. If an SSA field officer confirms the employee’s identity correctly matches the SSN, the TNC will be converted to “Employment Authorized” status in E-Verify. Employees who successfully confirm their identities are encouraged to call USCIS so they can learn more about available resources on identity theft and fraud prevention.
    Alex Nowrasteh at the Cato Institute is concerned about this process:
The largest and most obvious problem is the Kafkaesque bureaucratic resolution process that could catch employees in an endless loop of lockdowns. To begin with, the onus for establishing a valid ID is placed on the user of the number as opposed to USCIS having to prove that the user is fraudulent. Mere identification by a USCIS algorithm shouldn’t prevent somebody from lawfully working.
Legitimate holders of Social Security numbers that are locked down are forced to go through the standard and long TNC resolution process to unlock their numbers, which in turn involves the use of state and federal issued documents to prove the applicant’s validity.
But these documents are dependent on Social Security numbers.  Driver’s licenses in most states, passports, and most of the other forms of government issued ID use Social Security numbers to establish the bearer’s validity. In essence, the holder of a suspect Social Security number is forced to use documentation derived from a number considered suspect by USCIS in order to prove identification to USCIS.  The government has not stated how it will resolve this conundrum or even if it has considered it. 

Dec 5, 2013

Obama Speaks On Disability Programs

     From remarks made by President Obama yesterday:
[W]e should be willing to look at fresh ideas to revamp unemployment and disability programs to encourage faster and higher rates of re-employment without cutting benefits.  We shouldn't weaken fundamental protections built over generations, because given the constant churn in today’s economy and the disabilities that many of our friends and neighbors live with, they're needed more than ever.  We should strengthen them and adapt them to new circumstances so they work even better.
     An additional note: The White House is probably working now on next year's State of the Union address and is certainly working on the President's budget for Fiscal Year 2015.

Congressional Hearing On Improper Payments And Identity Theft

     The Social Security Subcommittee of the House Ways and Means Committee has scheduled a hearing for 1:00 on December 11 on Improper Payments and Identity Theft. The hearing is supposed to focus on the Internal Revenue Service, rather than Social Security.

Is This New?

     Is this new? Does it do you any good if you've filed a disability claim?

Dec 4, 2013

Unemployment Benefits And Social Security Disability

     Wonkblog at the Washington Post decided to look into the question of whether people who are about to lose their unemployment insurance benefits will go on Social Security disability benefits and finds plentiful evidence that that hasn't happened in the past. The article, unfortunately, goes on to discuss the theory that because job openings aren't as plentiful now as they used to be that Social Security has to approve more disability claims, a theory that cannot hold water since the Social Security Act says that the availability of job openings is completely irrelevant in the determination of disability but, hey, that theory sounds plausible if you've never read the Social Security Act and you don't bother to talk with anyone who has.

Hearing Office Attorney Advisor Ability To Issue Favorable Decisions Diminished

     From a Bulletin issued by Social Security's Chief Administrative Law Judge:
In November 2013 we began a pilot: the National Screening Unit (NSU). The NSU Core Team will review and select cases eligible for the program and will distribute those cases to hearing office (HO) management for assignment to AAs.
AAs [Attorney Advisors] may review and sign fully favorable decisions only in cases selected by the NSU. AAs may screen other cases (i.e., those not selected by the NSU) at the direction of HO management, but they may only do so for the purposes of identifying potential Administrative Law Judge (ALJ) OTR [On The Record] decisions or assisting an ALJ with a hearing. ...
AAs can only issue a fully favorable decision when the case is referred by the NSU and the evidence supports the following:
    • A claimant’s condition meets a listing at Step 3;
    • A claimant’s condition medically equals a listing at Step 3, based on medical expert (ME) evidence;
    • Applying the “special” medical-vocational profiles showing an inability to make an adjustment to other work (see 20 CFR 404.1562 and 416.962; Social Security Ruling 82-63); or
    • Directly applying a grid rule in Appendix 2 to Subpart P of Part 404 (Medical-Vocational Guidelines) to find a claimant disabled at Step 5.
      This was issued to dramatically cut down on AAs issuing decisions approving disability claims. This also has the effect of reducing Social Security's ability to deal with the growing backlogs of claimants seeking a hearing before an ALJ. However, these AA decisions came to a complete where I am even before this directive.

Getting Worse By The Month

     Some statistics from Social Security's Caseload Analysis Report and National Ranking Report, courtesy of the National Organization of Social Security Claimants Representatives (NOSSCR):

Average hearing office processing time:
FY 2012: 353 days
FY 2013: 382 days

Cases pending hearing office disposition over 270 days:
FY 2012: 271,557
FY 2013: 288,622

Cases pending hearing office disposition over 365 days:
FY 2012: 130,617
FY 2013: 149,288

Attorney Adjudicator dispositions of requests for hearing:
FY 2012: 37,423
FY 2013: 18,625

Dec 3, 2013

Hiltzik Reports On The Demographic Factors Affecting Social Security Disability

     Michael Hiltzik at the Los Angeles Times reports on the recent study by two Social Security economists showing that the 94% of the recent growth in the number of Social Security disability claims can be attributed to demographic factors. I had posted about this study on November 20.

A New Right Wing Group Attacks Social Security Disability

     There's a Social Security disability hit piece in today's issue of The Hill, written by MacMillin Slobodien, the executive director of Our Generation which has recently launched Reform SSDI Now. This is almost certainly a Koch Brothers front organization.

Congressional Leaders Reported To Be Close To Budget Deal

     Politico reports that Congressional leaders are close to a budget deal that would avoid another shutdown. The deal would include additional revenue from fee increases and would replace about $80 billion in sequester cuts over the next two years. Changes in federal retirement benefits may be part of the deal. The reductions in the sequester cuts would be evenly divided between defense and domestic spending. It's too early to say whether there would be any additional or increased Social Security fees or whether the Social Security Administration would get some sequestration relief.

Does This Look Like The Social Security Disability Program Is Out Of Control?

Final Outcome Of Disability Claims

Dec 2, 2013

Former Social Security Employee Sentenced

     From the Atlanta Journal-Constitution:
A former Social Security Administration employee, who charged a fee to elderly and disabled people seeking income assistance to speed their claims, was sent to prison Monday.
Cordell Fleming, a former claims representative in Morrow, was sentenced to one day and one year in prison, after pleading guilty to extortion in August. The sentence also requires three years of supervised release, 120 hours of community service and full restitution of the illegally obtained funds.
It is not clear exactly how much money Fleming got, but an investigation found that from October 2012 to April 2013, he extorted and attempted to extort money from at least nine Supplemental Security Income (SSI) recipients or their representatives. The amounts ranged from $500 to $1,800.

Soaring Number Of People Approved For Disability Benefits?

     Below are the total number of persons newly approved for Disability Insurance Benefits by the Social Security Administration over the last three years. The meme being promoted on the right is that the number of people going to Social Security disability is soaring and the program is completely out of control. That meme lacks a basis in reality.



Dec 1, 2013

Why Have ALJ Reversal Rates Gone Down?

     The Scranton, PA Times-Tribune looks into why Social Security's Administrative Law Judges (ALJs) are approving a lower percentage of the disability claims they hear than they used to. The bottom line is that there are many theories but no one, including the Social Security Administration, knows why this has happened.

Nov 30, 2013

Another Old Overpayment Story

     Another day, another story about Social Security trying to collect on an ancient overpayment. The claimant involved says he was told years ago that it had been taken care of but the computer says he owes $14,000 so Social Security is planning to just seize his benefits for the next year and a half to make it up. It's up to a very sick claimant to sort it out.
     Yes, I know he can ask for waiver -- possibly for the second time since the first waiver may have been lost -- but the claimant involved doesn't know which way to turn. Shouldn't there be a statute of limitations on overpayment collections? How long is too long for the agency to wait to try to collect? And why do we have this run of stories about very old overpayments? Is Social Security using some new computer program to dredge up these old overpayments out of its records in order to please Congressional Republicans? Does this really please Congressional Republicans?

Nov 29, 2013

Was It What You Expected?

     FedSmith visits a Social Security field office.

Nov 28, 2013

Happy Thanksgiving!

Nov 27, 2013

Social Security Offices To Be Closed To Public On Friday

     Social Security has just announced via its Twitter feed that its offices will be closed to the public on Friday. I'm not aware of any prior announcement. In recent years, Social Security has completely closed its offices on the Friday after Thanksgiving. That wasn't done this year, probably because of the government shutdown in October.

Social Security Gets A/A For Plain Writing

     The Center for Plain Writing is giving the Social Security Administration a grade of A/A for plain writing, higher than any other agency. The first A is for following the requirements of the Plain Writing Act and the second A is for following its spirit.

Nov 26, 2013

Nov 25, 2013

Gotta Collect Those Overpayments

     From The Missoulian:
A Corvallis man was floored last week when he received a letter from the Social Security Administration saying he has to pay nearly $2,000 by Thursday, Thanksgiving Day, due to a clerical error nearly 40 years ago.
Rudolph Weiglein said he was notified by the SSA that the agency had overpaid him on a claim, and he needs to pay back $1,995 to the government.
“At first, I thought for sure somebody stole my ID or my Social Security number or something,” he explained. “Because I didn’t have any claims with Social Security. So I called them and it turns out it was from when my father died in 1965 and my mother received survivor benefits.”
Weiglein said he was 11 years old when his father passed away, and he didn’t have any recollection of getting survivor benefits.
“I couldn’t believe it,” he said. “I talked to a guy at the SSA and I said, ‘Is this a joke?’ And he said, ‘No, it stays with you.’ He didn’t break it down or nothing. I can’t believe they are trying to collect an overpayment from almost 40 years ago. I don’t have any records from back then.” ...
     If you think it is a good idea that there is no statute of limitations on Social Security overpayments, how do you expect Mr. Weiglein to defend himself, to argue that he wasn't overpaid 40 years ago? It's more than possible that there wasn't really an overpayment back then. If there was an overpayment, Social Security probably can't explain how it happened. Is it fair to seize a person's benefits today to collect a 40 year old overpayment when neither the Social Security Administration nor the claimant involved has any idea how the overpayment got recorded in Social Security's records so long ago?

Interim Assistance Reimbursement NPRM

     From a Notice of Proposed Rule-Making (NPRM) posted in the Federal Register today:
We reimburse States that provide interim assistance to Supplemental Security Income (SSI) claimants under our interim assistance reimbursement (IAR) program. We provide this reimbursement from the SSI recipient's initial retroactive SSI payment. On November 20, 2010, we began using an electronic Interim Assistance Reimbursement system (eIAR) to streamline the way we process reimbursements to the States. The eIAR process replaced our prior paper-based process with an electronic one, and greatly reduced our and the State's involvement in manually processing IAR cases. This electronic system did not change the amount of payments we make to States and SSI recipients. We propose to revise our rules about how we administer the IAR process to reflect the electronic process. We also made minor language changes and reorganized the sections for clarity.


     From a notice to appear in the Federal Register tomorrow:
Under our current, long-standing policy, we do not purchase genetic testing to evaluate disability. However, we do consider all evidence in the record, including genetic testing and other genetic medical evidence, when we make a determination or decision of whether you are disabled. We are requesting information regarding how we should consider genetic information in the disability decision process and what issues we should consider. ... 
To submit your ideas and comments, please go to http://www.ssa- and go to the Campaign entitled "Genetic Information".
     The link given in the notice isn't working.
     Obviously, if there is genetic testing that shows that a disability claimant has a genetic disorder, that evidence should be considered. Genetic testing may be able to show that a person has a propensity to develop some disorder in the future but that's in the future and isn't too relevant to a disability claim today. Is there something else they're getting at here?

Nov 24, 2013

No Statute Of Limitations On Overpayments

     From the Contra Costa Times:

For Vietnam War veteran Thomas Testerman, a letter he recently received from the Defense Department was a reminder of the mistreatment his generation of soldiers faced.
Landing in his mailbox two days before Veterans Day, the letter informed him that he owes nearly $500 because of checks the Social Security Administration mistakenly sent him in 1972. If Testerman does not pay or dispute the bill, the letter stated, deductions from his monthly military retirement checks will begin just days before Christmas.
     I have posted this sort of story before. Every time I do, I get comments which say, in effect, "Death to all who defraud Social Security!"  I find this bloodthirstyness shocking. Do they really believe the government should be vengeful? I wonder if these people know that many Social Security overpayments are due to mistakes made by the Social Security Administration itself. That was almost certainly the case here as the rest of the article makes clear.
     I know this man can almost certainly get his overpayment waived but he doesn't know where to turn.
     Isn't it time for a reasonable statute of limitations on non-fraudulent Social Security overpayments? Five years? Ten years? Twenty years? Thirty years?

Nov 23, 2013

Getting Hosed By COLA

     Danny Vinik at Business Insider argues that Social Security recipients are getting hosed by the Cost Of Living Adjustment (COLA) even without chained CPI. He thinks Congress should require the use of the CPI-E (with E standing for Elderly) for the COLA instead of the measure being used now, CPI-W. The CPI-E would result in significantly higher benefits for those staying on Social Security benefits for an extended period of time.

Nov 21, 2013

Will President Nominate New Commissioner Now That Filibuster Is Off The Table?

     The Senate has voted to end filibusters on executive branch nominations.
     The Social Security Administration has had an Acting Commissioner since February of this year. So far there has been no nomination to the position.
     The Senate's action has to make it more likely that the President will nominate a new Commissioner and that the Senate will act promptly on that nomination. For that matter, it is also more likely that the President will nominate a new Deputy Commissioner for Social Security.
     The Senate confirmation process had degenerated to the point that all of the President's nominations were being delayed for months and large numbers of them were being filibustered. Often, the filibusters had nothing to do with the qualifications of the nominee. The President was forced to be obsessive about the qualifications of nominees.
     I cannot say whether a nominee can be expected in the near future but I hope so. It is certainly less difficult for the President to make a nomination now and to expect that nominee to be confirmed within a reasonable time.
     I have wondered whether the delay at Social Security had to do with same sex marriage. There is a very big question about whether Social Security will recognize same sex marriages for claimants who live in states that refuse to recognize same sex marriages. Today's action in the Senate would prevent Republicans from filibustering a nomination over this or any other issue. Majority rule will prevail. What a concept!

Privacy At Social Security Offices

     One person writing a letter to the editor of The Post Standard in Syracuse, NY thinks there's no privacy in the Hillside Commons Social Security field office.
     I'm aware of a not dissimilar situation at the Roanoke Rapids, NC remote hearing site. The walls are so thin there that anyone in the waiting room could hear anything said in the hearing room. The solution has been to play a radio in the waiting room.

Nov 20, 2013

Yesterday's Oversight Hearing

     I had a chance today to listen to the recording of yesterday's House Committee on Oversight and Government Reform Committee hearing on Social Security disability while I ate lunch and did some other things. I'd like to compliment the chairman of the Subcommittee, James Lankford, and the Subcommittee members for holding a hearing without partisan rancor, a hearing directed at informing the Subcommitte members. I'm tired of listening to Congressional hearings where the members are just trying to score meaningless political points or attacking career federal employees who have done nothing wrong. It's good to see that a Congressional hearing can still be done in an appropriate manner. 
     Marianna LaConfora testified that Social Security hoped to design a new occupational information system in such a way that no changes in the agency's regulations would be required. That's exactly what I expected and exactly the problem. I don't want the agency to massage the data so that it justifies what they're already doing. Follow the data where it goes. Amend the regulations if need be. If you're wondering why an attorney who represents Social Security disability claimants would be insistent on this, it's because I'm pretty sure that the data is going to show that the cognitive demands of employment have increased significantly over the years putting claimants with low cognitive abilities at a huge disadvantage. That's a lot of my clients. Add significant health problems on top of low cognitive abilities and you've got disability in my book. The United States is not Lake Woebegone. Not all the children or adults have even average cognitive abilities. That portion of the population in the lowest 20% of cognitive abilities account for a outsized portion of the disability claims filed. All those new computer jobs that have been created in the last thirty years are useless to those with low cognitive abilities. I don't think we're doing justice to people with lower cognitive abilities now. I don't like hearing a suggestion that Social Security will try to find a way to avoid following the data which should result in more of these claims being approved.
     I did hear references during the hearing to the "truly disabled." Let me repeat a point I've made many times before. There is no gold standard for determining who is disabled, truly disabled or truly, truly disabled. There is no way to say with certainty that an Administrative Law Judge (ALJ) who is approving 80% of the claims he or she hears is any more or less accurate in determining disability than an Administrative Law Judge who is approving 40% of the claims. You can call an ALJ who approves 80% of the cases he or she hears an outlier if you want but it's completely inappropriate to say that that ALJ is doing anything wrong and it would be wildly inappropriate to suggest that there is anything criminal or abusive going on when an ALJ is approving 80% of the cases he or she hears. A 99% reversal rate looks fishy but not an 80% reversal rate or even a 90% reversal rate. 
     By the way, I think that almost everyone agrees that ALJs who issue huge numbers of decisions are worrisome, regardless of their reversal rate. That sort of outlier worries everyone involved in the process, not because those ALJs have done anything criminal but because there's only so many hearings you can hold and so many hearing files you can review and do justice to the interests involved. Social Security could have reined in the handful of ALJs issuing well over 1,000 decisions a year but didn't do so until recently. They should have.
     Also, just in case any Subcommittee member or staffer reads this blog, they should be aware that the proposal pending at the Office of Management and Budget (OMB) to require attorneys representing Social Security claimants to obtain and submit all medical records on their clients is almost certainly unworkable. Scroll down and read my posts on this subject and the comments that others have posted. The proposal sounds great but I'd be very surprised to see it become a final rule.

The Growth In The Number Of People Receiving Disability Benefits Is Almost All Demographics

     The abstract of a study by Social Security's Office of Retirement and Disability Policy:
We find that three factors—(1) population growth, (2) the growth in the proportion of women insured for disability, and (3) the movement of the large baby boom generation into disability-prone ages—explain 90 percent of the growth in new disabled-worker entitlements over the 36-year subperiod (1972–2008). The remaining 10 percent is the part attributable to the disability “incidence rate.” Looking at the two subperiods (1972–1990 and 1990–2008), unadjusted measures appear to show faster growth in the incidence rate in the later period than in the earlier one. This apparent speedup disappears once we account for the changing demographic structure of the insured population. Although the adjusted growth in the incidence rate accounts for 17 percent of the growth in disability entitlements in the earlier subperiod, it accounts for only 6 percent of the growth in the more recent half. Demographic factors explain the remaining 94 percent of growth over the 1990–2008 period.

Nov 19, 2013

Today's Congressional Hearing

     I was unable to watch today's hearing before the House Committee on Oversight and Government Reform Committee because I'm a practicing attorney with clients to represent. Here are some excerpts from the written remarks of Patrick O'Carroll, Jr. Social Security's Inspector General, listing some ongoing reviews:
  • Trends Associated with Cases Decided by High-Denial Outlier ALJs , in which we are analyzing subsequent actions on high-denial ALJ decisions, as well as subsequent actions on denials made by other ALJs in the high-denial ALJ’s hearing office.
  • Quality Review of On-the-Record Decisions: OTR decisions — where no hearing was necessary because the documentary evidence alone supported a fully favorable decision —
  • accounted for about 1 of every 5 allowances in FY2012. We will assess the reasons OTR cases were decided upon receipt at the hearing office but not approved earlier at the DDS level.
  • Relationships Between Medical Providers and Represented Claimants: We will look at trends in medical source in formation provided by claimants and their representatives at the hearing level to identify any question able relationships that may merit additional Agency attention.
     Also, I have seen tweets from a reporter who watched the hearing indicating that there was testimony that the rate of people being approved for Social Security disability is at a 40 year low and that Social Security has a target date of 2016 for a new occupational information system. Of course, target dates aren't always met.

NPRM On Hematological Disorders

     The Social Security Administration has posted a Notice of Proposed Rule-Making (NPRM) in the Federal Register to revise the hematological Listings. This is only a proposal. The public is allowed to comment on the proposal and Social Security must consider those comments before adopting a final rule. 
     I have not had time to study the NPRM but I can quickly tell that it follows what has become the usual mode of dramatically increasing the preambles to the Listings. Usually, these long preambles add restrictions and qualifications to the Listings themselves. I am sure that Social Security will say that this is to make the Listings clearer but it seems to me that these long preambles are intended to make it harder for claimants to meet a Listing. It certainly makes the Listings more complex.

Preparing For Today's Congressional Hearing

     Apparently, Social Security is preparing for today's hearing before the Energy, Health Care and Entitlements Subcommittee of the House Committee on Oversight and Government Reform by publicly announcing via an "Emergency Message" goals for Supplemental Security Income (SSI) redeterminations.
     I wonder if the proposal sent over to the Office of Management and Budget (OMB) to require attorneys to obtain and submit all relevant evidence on claimants they represent before the agency is also related to this hearing. We'll have to see the actual language of that proposal but I have to think that Social Security knows that they can't go forward with this unless they water it down so much as to make it meaningless. There's a reason this sort of thing has never been proposed before. Social Security officials know that the basic concept is unworkable.

Wedge Issue?

     The idea of raising Social Security benefits is increasingly becoming a favorite among more liberal Democrats. Senator Warren just came out in favor of the idea. This is not going to happen while Republicans control the House of Representatives. Theoretically, control of the House could change next year but it would take a Democratic landslide. More realistically, raising Social Security benefits could be in the Democratic platform in 2016. It would make a nice wedge issue. Republicans skew older.  More than half of Republican voters are over 50. One major problem for Democrats has been that the public doesn't understand the Affordable Care Act. They will eventually and I'm convinced they'll like it a lot but a 10% rise in Social Security benefits is easy to understand and easy for many who now vote Republican to like.
     By the way, I'm not terribly interested in hearing Republicans argue that raising Social Security benefits is bad because that money should go to younger people. A party doing everything possible to hurt public education ought to be ashamed to make that argument.

Nov 18, 2013

Congressional Hearing Tomorrow

     The Energy, Health Care and Entitlements Subcommittee of the House Committee on Oversight and Government Reform will hold a hearing tomorrow, November 19, at 10:00 on "Mismanagement of Federal Disability Programs." That title might be a tipoff to what to expect. Social Security's Inspector General will testify.

Washington Post Doesn't Like Idea Of Increasing Social Security Benefits

     The Washington Post editorial board doesn't think that raising Social Security benefits would be a good idea because the money should be spent on younger people. The Post doesn't explain exactly how the money should be spent on younger people. Maybe someone can help me out by telling me how the Post wants to spend more money on younger people.
     .I wonder if the bigger problem for the Post is that, as the editorial board puts it, raising taxes to pay more Social Security benefits would be "a massive transfer of income from upper-income Americans to the retired." I doubt that Jeff Bezos, the founder of Amazon and the new owner of the Post, likes the idea of transferring income from the wealthy to the retired.

Nov 17, 2013

Most SSA Employees Satisfied With Their Jobs

     According to a new Office of Personnel Management survey, 65% of Social Security employees express satisfaction with their jobs. While this is down considerably from 2010 when 74% of Social Security employees expressed job satisfaction, it is still higher than the government wide employee satisfaction rate of 59%.

Nov 16, 2013

Try Collecting 700,000 Signatures On A Petition To Address The Real Social Security Issues

     The McClatchy newspaper chain's Washington bureau reports that "chained CPI is on the table" in budget negotiations. Sure, it's on the table, as long as Republicans allow tax increases to be "on the table" which means chained CPI isn't on the table and won't be on the table.
     There's a lot of silly huffing and puffing about chained CPI that I don't understand. Current political conditions make any agreement by political leaders to adopt chained CPI impossible. Even if political leaders agreed to chained CPI, it's hard for me to believe it would pass Congress. There's zero public support for cutting Social Security and chained CPI is a cut.
     There are two real threats to Social Security at the moment, the probability that the Disability Trust Fund will run out of money in 2016 or 2017 and the immediate problem of the lack of administrative funding making it difficult for the Social Security Administration to operate. These are vastly more urgent than chained CPI yet Social Security advocacy groups seem obsessed with chained CPI while remaining almost oblivious to the threats to the Disability Trust Fund and the continued operation of the Social Security Administration. Oh yes, they put out press releases on these subjects but they don't spend their time collecting 700,000 signatures on a petition to address the real issues affecting Social Security.

Nov 15, 2013

All Relevant Evidence From Any Source In Its Entirety

     You may have noticed the extensive comments on my post about Social Security's plan to make attorneys responsible for obtaining "all relevant evidence obtained from any source in its entirety" concerning a disability claim. I had posed the hypothetical of a claimant who had received treatment for infertility. Some people thought that was irrelevant to a disability claim. Others felt it was relevant. People had strong opinions of the subject. Let me lay out a few more common situations for people to comment on:
  • Claimant had an admission to a detox facility to help him stop drinking. This was two years before his alleged onset date. Claimant denies he is drinking now.
  • Claimant has a Functional Capacity Evaluation (FCE) as part of her workers compensation claim. Claimant was represented by a different attorney on the workers compensation claim. Remember, Social Security, itself, says that FCEs are unreliable.
  • Claimant claims that he is disabled by arthritis in his knees and back. He is also seeing a dermatologist for eczema which he says is an annoying but not a disabling problem.
  • Claimant was hospitalized. Her entire hospital record runs to over a thousand pages. Which of the following should the attorney obtain? 1) Admission summary 2) Discharge summary, 3) Nurses notes, 4) Physician notes, 5) TPR records (that's temperature, pulse, respiration), 6) Lab reports, 7) Imaging reports, 8) Consultant physician notes, 9) Other test reports such as pulmonary function reports, EEG reports, cath reports, etc., 10) Surgery notes, 11) Pathology reports. Does it matter why the claimant was hospitalized? If the obligation on the attorney is to obtain the record "in its entirety", how do you rationalize making exceptions?
  • Claimant sees a chiropractor for a few months for treatment for back pain.
  • Claimant was in physical therapy for his shoulder pain for three months. He then decided to have shoulder surgery but it didn't help. The alleged onset date is the date of the surgery.
     What I'm suggesting is that this proposal may sound good but it's going to be impossible to draft it so that it's enforceable. Taken literally, the "in its entirety" language is unworkable. There is also no way to adequately define "relevant evidence."

Astrue Trashes Democratic Candidate At House Hearing

     Former Commissioner of Social Security, Michael Astrue, testified before some House subcommittee yesterday. The article I'm getting this from says it was the "Health Subcommittee" but the House Ways and Means Committee site doesn't show its Health Subcommittee having a hearing this week. Anyway, Astrue was there to trash Donald Berwick, who is running for governor of Massachusetts. Berwick used to be head of the Centers for Medicare and Medicaid Services (CMS). Astrue was blaming Berwick for the terrible rollout of the Affordable Care Act.
     The big problem with Astrue's criticism of Berwick is that Berwick left his position as head of CMS twenty-three months ago. Maybe the early planning for the Affordable Care Act rollout was lacking but most of the rollout preparation happened after Berwick left office. How much of the responsibility can one legitimately lay on Berwick? It's also clear from the description of Astrue's testimony that Astrue simply has a personal distaste for Berwick. I don't know whether Astrue's feelings are justified but they are irrelevant to the question of responsibility for the rollout of the Affordable Care Act or Berwick's qualifications for governor of Massachusetts.

Nov 14, 2013

NPRM On Obtaining And Submitting Evidence Coming

     From the description -- and a short description is all that's available now -- of a Notice of Proposed Rule Making (NPRM) that Social Security has sent to the Office of Management and Budget (OMB) for approval:
We propose to require claimants to inform us about or submit all evidence known to them that relates to their disability claim, subject to two exceptions for privileged communications and work product. This requirement would include the duty to submit all relevant evidence obtained from any source in its entirety, unless subject to an exception. We also propose to require a representative to help the claimant obtain the information or evidence that the claimant must submit under our regulations. 
     This NPRM may be changed as a result as a result of OMB concerns. At best, it will take some months to get this through OMB. OMB has slowed down greatly as a result of the government shutdown and sequestration. If this gets through OMB, it is still just a proposed rule. It would have to be published in the Federal Register. Social Security would have to allow comments on the NPRM and then consider them. My gut feeling is that this proposal will prove to be problematic. Let me list a few concerns that occur to me off the top of my head which may indicate why this is more complicated than it may seem at first:
  • What does "all evidence known to them" mean? How far does this extend? A single hospital admission can generate more than a thousand pages of medical records. Does Social Security really want all of these? If Social Security doesn't really mean "all", how are attorneys supposed to decide what to obtain without using their judgment? Once attorneys start using their judgment, is this going to mean anything?
  • What does "relate to their disability claim" mean? What if a client has had treatment for infertility or something else probably unrelated to their disabling impairment or impairment that the client may reasonably feel is none of Social Security's business? How does one determine what is "related" to the disability claim?
  • How far does the duty to assist a claimant to obtain medical records extend? Medical records can be expensive to obtain. Are attorneys obliged to spend $500 to get medical records that Social Security, itself, declined to obtain? Does the Social Security Act even allow the imposition of this sort of financial burden on attorneys?
  • When does an attorney have this obligation? If attorneys have this obligation at the initial level, they're going to be duplicating Disability Determination Services efforts. If attorneys do have this obligation at the initial level, maybe they just won't take on cases at the initial level anymore since the effort and expense will be disproportionate to the potential fees. Does Social Security wants attorneys to withdraw from initial and reconsideration representation?
     If Social Security goes ahead with this and it has teeth, expect endless controversies and unintended consequences. I know the Republicans in Congress are howling about Binder and Binder but be careful. This isn't simple. Those Republicans are going to be howling about something no matter what Social Security does.