Mar 31, 2014

Special Fraud Prevention Unit

     A press release from Social Security:
Today, Carolyn W. Colvin, Acting Commissioner of Social Security, announced the establishment of a centralized fraud prevention unit in New York City to identify potential fraud and detect fraud trends that can be applied to disability cases nationwide.  This unit consists of experienced disability examiners who are currently involved in the re-review of disability medical decisions resulting from recent indictments in Puerto Rico and New York City.  Using their specialized experience, they will collaborate with Social Security systems personnel to help build data analytics to detect and prevent fraud at the earliest possible point in the disability decision-making process.
“Social Security strives to preserve the public’s trust in our programs and we have no tolerance for fraud.  We are aggressive in our efforts to detect and prevent fraud,” said Acting Commissioner Colvin, noting that Social Security’s anti-fraud approach has resulted in a fraud incidence rate that is a fraction of one percent.  “The employees in our anti-fraud unit will be our national experts, and we plan to compile data from their work to help us develop further analytical tools to find potential fraud.” 
This first-of-its-kind unit will start with 20 disability examiners at the Addabbo Federal Building in Jamaica, New York.  Based on the trends found in the Puerto Rico and New York cases, along with further analysis of doctors’ reports, the unit will use their findings to help create the systems and data analytics that Social Security will use for disability applications nationwide.  As these systems develop and begin to identify new cases of potential fraud, the New York fraud prevention unit will analyze those cases to prevent fraud from happening before the agency makes a disability decision and authorizes payments.
Acting Commissioner Colvin added, “To those who would try to cheat us: We will find you; we will prosecute you; we will seek the maximum punishment allowable under the law; and we will fight to recover any money you’ve stolen from the American people.”

Why Does It Take Almost A Year Longer To Get A Hearing In Shreveport Than In Tupelo?

     It's taking 17 months to get a hearing on a Social Security disability claim in Tupelo. MS. In the neighboring state of Louisiana it's only taking 6 months to get a hearing Shreveport. Why? Oh, wait, I know, they're in different regions. Why does that  matter? Oh, I know another reason. They had a hurricane in Louisiana. Katrina was almost nine years ago and Shreveport is well north of New Orleans. How can that possibly matter? Social Security has spent tens of millions of dollars equipping its hearing offices for video hearings but can't get one region to help another or overcome the effects of a hurricane after nine years? Why is this? For that matter, why is the wait time 8 months in Augusta, GA but 17 months in Miami? They're both in the same region. Why do these discrepancies continue? Why doesn't the agency get serious about this?

Mar 30, 2014

Big Rep Payee Problem In Oregon -- An Update

     From Williamette Week:
Disabled Portlanders filed suit yesterday on behalf of about 700 recipients of Social Security benefits who fear their funds will be cut off when Safety Net of Oregon loses its federal qualification to manage their accounts on April 1, Street Roots News reported today.
 Kathy Wilde, the legal director for Disability Rights Oregon, one of the advocacy organizations supporting the lawsuit, says people served by Safety Net must sign up with another provider to handle their Social Security benefits. She says many could be evicted or lose bus passes and allowances for food and medication if they don't know Safety Net is closing its doors. 
About 300 clients have found other providers, but officials haven't been able to reach another 700 clients, Wilde said.
 “Many of these people are homeless, or on the verge of homelessness, and most rely on these benefits for all, or almost all, of their income,” the lawsuit reads....
 Federal investigators seized computers and records from the Portland non-profit earlier this month after concerns mounted about how executives were handling its books.
     Update: Disability Rights Oregon has obtained a court order that assures that all who had Safety Net of Oregon as their representative payee will be paid in April. I think that Social Security would have taken care of this problem quickly even without the court order. I don't know that it would have been taken care of by April 1 without the court order, however.

Mar 29, 2014

Social Security's Foremothers

     Nancy Altman writes about Social Security's "Foremothers", the women who had prominent roles in the creation and development of Social Security in the United States.

Mar 28, 2014

Catch 22

     From First Coast News:
Tanner, 17, was born in Gainesville, Fla. and at one time had a valid Social Security card but lost it. Now, his mother, Wendy Andrews, is trying to get a replacement and discovered it is not as easy as it seems.
"Either you need a school ID which he doesn't have one because he is in private school, or a state ID or a passport," said Andrews,"but in order to get one of those, he needs to have a Social Security card." ... 
Andrews said a replacement card is now critical because of her child's education; he's on a scholarship. "He needs it for his scholarships" she said, "because he's on scholarship so he can attend a private school [because he's autistic]." 
Under Social Security guidelines, you can use a birth certificate to prove your child's age or citizenship but you cannot use it as proof of identity. ...
Andrews said there used to be a Social Security office in Putnam County but that's closed so she has been trying to resolve her problem by phone and that has only added to her frustration. 
 "I never thought it was going to be this hard to get a replacement card," she said," I could see if he had never had a card or he was an illegal alien. I don't understand why they can't just issue him a replacement."

Mar 27, 2014

The Role Of Overtime At Social Security

     Because of inadequate appropriations for its operations and huge uncertainty about how much money it would have to spend from year to year and even month to month, over the last decade Social Security came to rely more and more on employee overtime to get its work done. The overtime usually come in spurts once Social Security got an appropriation. Typically, work would slow to a crawl while Social Security was operating on a continuing funding resolution at the beginning on a fiscal year and would then surge once there was an appropriation. This happened because there was little overtime available during the continuing resolution but once it was over the agency would use overtime to try to catch up.
     I'm only seeing the narrow slice of the Social Security Administration that I'm dealing with but my theory is that things are different this year. Yes, I can certainly tell that some overtime was authorized after Social Security finally got its appropriation this year but it seems like far less than recent years. I know that Social Security is doing a good deal more hiring than in recent years. Has Acting Commissioner Colvin changed the priorities in this fiscal year -- less overtime, more hiring?
     I have mixed feelings about this change, if it has happened. In the long run, having more employees is definitely a good thing. It gives the agency a better ability to process its workload without the wild swings we've seen in recent years when the overtime spigot was turned on and off. On the other hand, as John Maynard Keynes said, "In the long run, we are all dead." Hiring more people helps but only well down the road. It takes many months to hire and train new employees. Once you finally put the new people to work, they make mistakes that more experienced employees have to sort out. In the short run, the backlogs seem to be growing, not shrinking as they usually do in the first two or three months after the agency gets its appropriation.
     What is the situation with the overtime-new employee balance at Social Security? What's the strategy? How consistent is it across the agency?

Mar 24, 2014

Cuts In Customer Service And The Future Of Social Security

     Michael Hiltzik writing about the cuts in customer service at Social Security, "revealed" by Mark Miler at Reuters (actually, I've been talking about these cuts for many years but it's good to see others paying attention):
It's no secret that if you really want to destroy a business, just hack away at its customer service. (Sears has been testing this axiom with considerable vigor.) The principle also holds true for government programs, which is why you should be very suspicious about the relentless budget-cutting at the Social Security Administration. ...
As Nancy Altman, co-director of the advocacy group Strengthen Social Security, told Miller, this is part of "a raging fight by conservatives to get rid of the government's footprint wherever possible." And since Social Security has long been in their cross hairs, it's unsurprising that a meat cleaver has been taken to its administrative budget. The budget request has been pared down in 14 of the last 16 years, Miller found. ...
The more those services deteriorate, the less faith people have fundamentally in Social Security, which is the strongest, most successful public program Congress has ever enacted. So when the program's customer services are slashed, think about who's really being served by the void that remains.
     It may be time to start talking about the latest right wing gambit to hurt Social Security. It goes something like this: "We'll give your agency more money but on the condition that you only spend the money on an enormous effort to find the vast criminal conspiracies that we know must be cheating the government out of billions of dollars." Of course, there are no vast criminal conspiracies so all the Social Security Administration can do is to spend a lot of money chasing down small time crooks while service to the millions of honest Americans who rely on Social Security continues to go to hell. The right wing will trumpet the existence of small time crooks as proof that Social Security is inherently corrupt while heaping scorn on the Social Security Administration for not finding the vast criminal conspiracies that exist in the imaginations of the right. It catches some small time crooks who deserve to be caught but the end result damages Social Security.
     I've got no problem with stepped up efforts at detecting fraud at Social Security so long as the agency can give good service to the public. I've got a problem with simultaneously cutting service at Social Security while spending a lot of money chasing down a few crooks. That's nuts.

Mar 22, 2014

A Sad Case

     Lawrence Schacht married Russell Frink Jr. as soon as the law allowed him to do so but five months later Frink died. The New York Times reports that even though Social Security recognizes the marriage, it won't allow Schacht to collect benefits on Frink's account because the marriage lasted less than nine months.
     I'm sad for Mr. Schacht but I don't know of an exception to the duration of marriage requirement that will cover his case.

Mar 21, 2014

The Battle Over Service

     From Reuters:
The loudest battles over Social Security are about potential benefit cuts like the recently vanquished "chained CPI" proposal. But another, less noticed fight has been going on for years. It's aimed at undermining Social Security through systematic budget cutting by Congress of the operating budget of the SSA, the agency charged with providing customer service to the public.
The SSA has received less than its budget request in 14 of the past 16 years. In fiscal 2012, for example, SSA operated with 88 percent of the amount requested ($11.4 billion).
"It's part of a raging fight by conservatives to get rid of the government's footprint wherever possible," says Nancy Altman, co-director of Strengthen Social Security, an advocacy group. ... 
The cutbacks have sparked a broad deterioration of services as demand rises with the aging of the population. ...
Budget cuts have forced sharp reductions in SSA staff and field service offices. Nationwide, staff is down to 62,000 from a peak of 70,000 in the 1990s. Since fiscal 2010, the agency has consolidated 92 field offices into 46 offices and has closed 521 contact stations (mobile floating service facilities that set up shop in other government offices).
Visitors to field offices waited more than 30 percent longer in fiscal 2013 than in 2012. Busy signals on the SSA's toll-free customer assistance line (800-772-1213) doubled in fiscal 2013 over the previous year. ...  
Altman argues that the SSA has an obligation to provide paper-based and one-on-one services to customers who want them.
"The Social Security population still has a significant percentage that likes to get paper checks, and to be able to go in and talk to someone. They're not that comfortable putting their financial information on Internet. Our view is that people are paying for these services and should be able to get them."

A Thought

     I'm sorry for my readers who work for the Federal government, at least today. It's a shame you guys can't have an office NCAA Tournament pool like your counterparts working in the private sector.
     On second thought, considering how my bracket is coming along, maybe I should envy you!

Mar 20, 2014

Criminal Stupidity: At Least Two Years In Prison For Stealing $4,200

     Alex Jamane Flowers, a former Social Security employee in the Birmingham area, has pleaded guilty to uning his position to obtain private information on Social Security recipients and using that information to steal $4,200 from those recipients. He'll be spending at least two years in prison and maybe a lot more. Flowers admitted to his actions in late June 2013 but contacted another Social Security employee in July 2013 attempting to obtain information on two other Social Security beneficiaries!

Mar 18, 2014

Barstow Field Office To Close

     The Barstow, CA Social Security field office is to close next week. It will be a 70 mile round trip to the nearest Social Security office. 
     The comments to the article are exactly the sort of thing seen in comments on this blog. All budget cuts that cause pain are President Obama's fault. That's ridiculous since austerity has been forced upon the country by Republicans in the House of Representatives. If pressed, those who post these comments say that Democrats control the White House and the Senate so everything bad must be Obama's fault. The logic is absurd, of course, but the consistency of these comments is amazing. It's the same thing everywhere you look. I don't think this is an accident. Someone is paying a lot of money to services that spread this sort of thing.

Mar 17, 2014

Central Offices Closed Again Due To Weather

     Inclement weather has once again closed Social Security's central offices in the Baltimore area today. This has been a tough winter for that area.

Mar 16, 2014

Take The Test

     Take an online Social Security quiz. Only 5% of those who took the quiz answered all the questions correctly but I bet that most readers of this blog can ace the test!
     By the way, yes, I know that technically some of the answers don't really fit into the True-False dichotomy used in the quiz but let's not get too technical here.

Mar 14, 2014

No, It's Not The Same Thing, You Ninny!

     Last week, Phillip Swagel wrote a piece in his Economix column in the New York Times saying that there should be no problem getting an agreement to rescue Social Security from long term doom. Liberals want to increase benefits for the poor. Conservatives are willing to increase benefits for the poor as long as benefits for the wealthy are reduced. So, hey, no problem, let's just do what the conservatives want and everybody will be happy. The column was so silly in my estimation that I didn't bother to link it here.
     Swagel writes this week to say that he just can't understand why people don't like his proposal. He notes that liberals seem to like eliminating the cap on earnings covered by the FICA tax as a solution to long term Social Security funding but, somehow, he just doesn't like that. He blows off the concerns of liberals that cutting benefits for the wealthy would undermine public support for Social Security as something that just doesn't interest an economist like him. Really? I thought that economists realized that politics was an inherent part of economic policy. More important, Swagel blows off the idea of lifting the FICA cap since as far as he's concerned lowering benefits for the wealthy would have the same "lifetime" effect as raising the cap. That notion is ridiculous. Lowering Social Security benefits for the wealthy would have little effect on the wealthy, the 1% and above, since Social Security benefits will never be more than a tiny percent of their retirement income. Lifting the FICA cap, however, would have a significant effect on the 1% since the FICA tax would cover all of their salary income. In any case, there's no way of balancing the books long term by cutting benefits for just the wealthy. The cuts would have to extend way down the ladder, especially if you're increasing benefits for the poor. Dramatic benefits cuts are politically impossible, no matter who's in power in Washington. Lifting the FICA cap is impossible only so long as Republicans control the White House, the Senate or the House of Representatives and that's not going to last forever.
     Really, Swagel, if raising the FICA cap and cutting benefits for the wealthy have the same "lifetime" effect, what's your problem with raising the FICA cap? You never explain this.

FOIA Processing At Social Security

     The Center for Effective Government has released a report on agency processing of Freedom of Information Act (FOIA) requests. The Social Security Administration had the highest overall rating of any agency.
Processing Results
Disclosure Rules
Quality of FOIA Website
Overall Score
Social Security Administration
107% (A+)
46% (F)
70% (C-)
83% (B)

Mar 13, 2014

Ending Social Security Number Printouts

     An announcement from the Social Security Administration:
To meet the increasing demands for our service, we need to make changes to how we provide some services to our customers. To protect the integrity of the Social Security number and prevent fraud, we will discontinue providing Social Security number printouts effective August 1, 2014. If you need proof of your Social Security number and you do not have your Social Security card, you will need to request a replacement Social Security card by completing the Application for a Social Security Card ( Form SS-5 ) and providing the required documentation. 
Also, effective October 1, 2014, Social Security will stop providing benefit verification letters in our offices. You will still be able to get an instant letter online with a personal my Social Security account or you may call us toll-free to request a letter by mail.
     I think that ceasing the agency had already announced the end of benefit verification letters but I believe that ending Social Security number printouts is new.

President's Budget Would Restore Some Of Social Security's Workforce

     Social Security would be in for a significant restoration of its workforce if the President's budget for fiscal year 2015 is adopted but it won't since Republicans still control the House of Representatives.

Social Security Administration 2014 Estimated 62,200 2015 Estimated 64,100 3.1 percent

      This would still be well below the 70,000 peak achieved just before Republicans took control of the House of Representatives.

Mar 12, 2014

President's Budget Proposing To End "File And Suspend"?

     Fox News is saying that the President's budget proposes to end "file and suspend." I don't recall seeing that. Is this report accurate?
     Even though I was planning to do this myself, I don't know that ending it is necessarily a bad idea. So few people know about file and suspend that it may be nothing more than a hidden treat for the unusually sophisticated. Can there be any significant amount of money involved in ending file and suspend? I thought that only a few were employing this strategy.

Dealing With An SSI Overpayment

     A mother writes about the difficulty she's had dealing with a Supplemental Security Income (SSI) overpayment to her son.

Mar 11, 2014

The Appeals Council Is A Mess

    From a recent report by Social Security's Office of Inspector General (OIG) (emphasis added):
In FY [Fiscal Year] 2013, AC [Appeals Counsel] request for review dispositions exceeded FY 2007 dispositions by about 102 percent. However, receipts were greater than dispositions during the same period, resulting in a tripling of pending cases from about 53,000 to about 157,000 cases by the end of FY 2013. The increase in pending claims resulted in longer average processing times (APT) at the end of FY 2013, with claimants waiting about 364 days for an AC action , up from 227 days in FY 2007.
While SSA had an APT goal for AC workloads in prior years, SSA ended its annual reporting on APT in FY 2012. During this same period, t he AC focused its efforts on processing the oldest cases in the backlog under the Agency's Aged Case initiative and made progress in reducing the average age of its pending claims. Moreover, the growth in the number of dispositions over this 7-year period follows the addition of adjudicators and staff as well as efforts to increase the productivity of analysts and staff supporting adjudicators. While OAO [Office of Appeals Operations] established numerical productivity goals for analysts, it did not establish similar productivity goals for AC adjudicators, although it did have timeliness goals for its adjudicators. In FY 2012, AAJ [Administrative Appeals Judges] annual dispositions ranged from 780 to 3,471 cases. We found a similar range with AO [Appeals Officer] adjudicators. The lack of productivity goals and cap s for AAJs or AOs, particularly given the wide range in the number of dispositions each AAJ and AO issued, increases the risk that OAO may miss opportunities to increase production as well as identify potential quality issues. Finally, while OAO executives had created internal, division-level productivity goals for every DPA division and communicated those goals with OAO manager, some managers and staff were confused as to how those internal goals were determined. ...
In SSA’s FY 2013 APP, SSA explained that it eliminated the APT goal because “We have successfully reduced Appeals Council average processing time over the last few years and want to now focus on eliminating Appeals Council cases pending 365 days or over.”  However, as shown in Table 1, APT had increased over the last few years. ...
[W]e found the number of dispositions per adjudicator dropped in FY 2009 before rising annually through FY 2012. However, by the end of FY 2012, adjudicator productivity had not reached the FY 2008 disposition level ...

Mar 10, 2014

Social Security Headcount Decline

      The Office of Personnel Management (OPM) has posted updated figures for the number of employees at the Social Security Administration.
  • September 2013 62,543
  • June 2013 62,877
  • March 2013 63,777
  • December 2012 64,538
  • September 2012 65,113
  • September 2011 67,136
  • December 2010 70,270
  • December 2009 67,486
  • September 2009 67,632
  • December 2008 63,733
  • September 2008 63,990
  • September 2007 62,407
  • September 2006 63,647
  • September 2005 66,147
  • September 2004 65,258
  • September 2003 64,903
  • September 2002 64,648
  • September 2001 65,377
  • September 2000 64,521
     Since the Republicans took over the House of Representatives in January 2011, the number of employees at Social Security has gone down by  7,727, an 11% reduction, in the face of a rapidly increasing workload.
     As a result of the recent budget agreement, Social Security is currently doing some hiring. It's unclear to me whether this will add to Social Security's head count or just slow down the decline in the agency's workforce.

Mar 8, 2014

Mar 7, 2014

Senators Propose UI Offset

     Five Republican Senators have introduced legislation that would extend federal unemployment insurance benefits. The benefits extension would be fully paid for by other cuts. One of the "pay fors" is reducing Social Security disability benefits for unemployment insurance. I doubt this proposal will be going anywhere in the Senate. There are no Democrats sponsoring this legislation. This plan is almost certainly not going anywhere in the House of Representatives. Still, this shows that an unemployment insurance offset is gaining ground.

An Opinion On UI Offset

     Michael Hiltzik thinks that reducing Social Security disability benefits for SSI benefits received during the same time period is a bad idea.

Mar 6, 2014

Should The Government Be Double-Dipping?

     A high percentage of people who apply for Disability Insurance Benefits under Title II of the Social Security Act also apply for disability benefits under Supplemental Security Income (SSI). SSI benefits are already reduced for the receipt of unemployment insurance benefits. Would it be appropriate to offset the Title II and the SSI benefits for the receipt of the same unemployment insurance benefits? Wouldn't this be, dare I say it, double dipping by the government? If the government isn't allowed to double dip, aren't the estimates offered by Social Security's Actuary off considerably?
     If Social Security has to figure out a way to avoid double dipping, which isn't going to be easy, don't the implementation costs become substantial? The SSI reduction for unemployment benefits isn't necessarily dollar for dollar. There's no point trying to explain it here because it's complicated but usually, not all the unemployment benefits will be offset in computing SSI, just most of them. I think the Actuary needs to take another look at this and assume that there will be no double offset and to try to compute in the costs of administering an offset for unemployment benefits.
     Don't blow off the costs of implementation as a factor in this. Some years ago, in order to save money, Congress forced Social Security to pay out larger amounts of back SSI benefits in up to three installments. I think everyone who knows anything about SSI knows that this provision has cost far more money to implement than it ever saved. An unemployment insurance offset could be at least as complicated to administer as the windfall offset which I wouldn't dare to try to explain here. Can anybody at Social Security tell us how much it costs to administer the windfall offset? I'm just guessing but maybe a quarter of a billion to a half billion per year but, seriously, can anyone tell us?

Senate Committee Schedules Hearing

     The Senate Committee on Banking, Housing, and Urban Affairs, Subcommittee on Economic Policy has scheduled a hearing for Wednesday, March 12 at 2:30 on “The State of U.S. Retirement Security. Can the Middle Class Afford to Retire?” Among other things, the hearing will deal with the question of whether Social Security should be "strengthened."

Mar 5, 2014

They Want A Meeting

     Senator Charles Schumer and Congressman Brian Higgins have requested a meeting with Acting Social Security Commissioner Carolyn Colvin to discuss the closing of Social Security's Amherst, NY field office.

Actuary Estimates Effects Of UI Offset

     From a March 4, 2014 letter from Stephen Goss, Social Security's Chief Actuary, to the Office of Management and Budget:
I am writing in response to your request for estimates of the financial effects on Social Security of a proposal, included in the President’s FY 2015 Budget, to reduce Social Security Disability Insurance (DI) benefits, dollar for dollar, for any month in which a disabled-worker beneficiary receives unemployment insurance (UI) payments. ... 
We estimate that enactment of this proposal in January 2015 would reduce DI benefit payments by $ 2.67 billion in total for calendar years 2015 through 2024, assuming the DI benefit reduction applied for UI claims with payments starting in August 2016 or later (see enclosed Table 1) . Reduction in DI benefit payments through the end of Fiscal Year 2024 would be $2.57 billion (see enclosed Table 2). The proposal specifies that the DI offset would apply for UI claims with payments starting in months beginning at least 18 months after enactment. For the long-range actuarial status of the overall OASDI program, we estimate that enactment of the proposal would reduce the actuarial deficit by about 0.01 percent of taxable payroll. ...
     There are at least a couple of problems with this estimate. First, it doesn't factor in the not inconsiderable costs of implementation which will significantly reduce the value of this offset. $2.67 billion is a huge amount of money but it's spread over 10 years. The costs of implementation over the course of 10 years could easily be a billion dollars or more. Nobody ever considers the costs of implementing this sort of proposal. Second, many states already have an offset running in the opposite direction. What will be done about them? Will it be like workers compensation where Social Security doesn't offset if the state does? If so, that dramatically reduces the amount that Social Security can offset. And if you're adopting this offset, is it appropriate to limit it to disability recipients? Shouldn't it also apply to retirement and survivor benefit recipients? There would be a lot more money to offset there. Adopting this offset won't be nearly as simple a matter as OMB and the Chief Actuary seem to think.

Mar 4, 2014

President's FY 2015 Budget Released

     The President's proposed budget for Fiscal Year (FY) 2015, which begins on October 1, 2014, is out. The portion of the budget affecting Social Security begins at page 1,247, which is page 1,251 of the pdf.

     Update: Acting Commissioner Colvin has issued a statement on the President's proposed budget.

Proposed Regulations On Duty To Submit Or Notify -- Unworkable

     I have been taking some time to review Social Security's proposed regulations that would impose a duty on disability claimants to either submit or notify Social Security of all evidence that relates to their disability claims and, if they do obtain medical evidence, to submit the evidence in its entirety. I've already posted about the problems involved in demanding that medical evidence be submitted in its entirety.  I'll come back to that subject in another post but I'm writing today about the proposed duty to either submit or notify Social Security of all evidence. It's amazing.
     The problem with this proposal is that it's completely open ended. All that is said is that "You must inform us about or submit all evidence known to you that relates to whether or not you are blind or disabled." What does "all evidence" mean? What does "relates to" mean? The proposal says that "Evidence is anything you or anyone else submits to us or that we obtain that relates to your claim." That's not helpful since it only discusses evidence that Social Security already has, not evidence that Social Security doesn't even know about. However, the proposal goes on to say that "Evidence includes, but is not limited to" and then gives a list of certain things such as medical reports or statements that the claimant has made about his or her medical condition without any limitation as to whom the statement may have been made to.
     Immediately, there's a problem with this definition of evidence, to the extent that it is a definition. The average claimant will have talked to many people about his or her medical condition and not just doctors -- family members, friends, neighbors, co-workers, strangers met in a doctor's waiting room, a pastor, etc. When people talk they constantly make statements. On its face a requirement that the claimant, without being asked, reveal anything that he or she has ever said to anyone about his or her medical condition or anything else that might relate in any way to their disability claim is impossibly overbroad. No one can possibly comply with this.
     But the proposal is even broader than this. The "definition" of evidence says that it isn't limited to statements the claimant has made. It extends to knowledge that the claimant has. If the claimant knows something that "relates" in any way to their disability claim, they must, without being asked, disclose that knowledge to Social Security. Let me list some pieces of knowledge that a claimant might possess and ask which of these you think the claimant should be required to reveal to Social Security without even being asked:
  • Claimant was convicted of driving while impaired eight years before becoming disabled.
  • Claimant alleges disability due to depression. Claimant was sexually abused as a child. She has not revealed this fact even to her psychiatrist.
  • Claimant was sent for a Functional Capacity Evaluation (FCE) by the insurance company defending his workers compensation claim. (Different vendors have tried to sell Social Security on their FCE products. Social Security has always declined and has explicitly said that it regards FCEs as unreliable.)
  • The claimant goes to a new age healer who uses crystals to adjust the claimant's chakras. 
  • Water aerobics were recommended by one of the claimant's physicians. Claimant attended briefly.
  • Claimant had some massages in hopes of easing her back pain. It helped a little but it was too expensive to do regularly.
  • The claimant had a conversation with her doctor about whether she should stop work. The doctor encouraged the claimant to keep working, saying that he thought she would get better. The claimant decided to stop work anyway. There is nothing about this conversation in the doctor's records. (Is this a patient-physican privilege issue? Can there be any right to patient-physican privilege in a Social Security disability claim?)
  • The claimant has a meeting with his pastor and reveals his anguish about why God has afflicted him with so much pain. He wonders whether he is being punished for his past sin of drug dealing. The pastor says he doesn't think that God is punishing him and urges him to pray for forgiveness of his sins. (We have pastor-penitent privilege as well as self-incrimination involved if the claimant has to reveal this.)
  • On some days the claimant feels like he could work but most of the time he feels like he can't.
  • The claimant does some babysitting for her grandson but not on a regular basis.
  • The claimant, who has a bad knee, occasionally tries to take a walk. He doesn't get far.
  • The claimant suffers from bipolar disorder. Sometimes he goes out to eat with his father and mother.
  • The claimant is taking an online class in hopes of becoming a computer programmer eventually.
  • Claimant smokes marijuana from time to time.
  • Ten years ago, the claimant was accused of abusing her infant son. Ultimately, the charge was dismissed.
  • The claimant visits his sick mother on a regular basis. He helps with some of her housework.
  • The claimant went bowling once since becoming disabled.
  • The claimant went to the emergency room after accidentally cutting his hand. The wound was sutured and healed without incident.
  • In the course of an argument, the claimant's father in law said "You're not sick. You're just lazy. What kind of man won't even try to support his wife and child?"
  • The claimant recently baked a cake to help celebrate her daughter's birthday.
     To be honest, though, your opinion or mine on whether any one or all of these should be revealed is irrelevant. There is always someone who will think that any one or all of these must be revealed sua sponte, to use a legal term. As long as anyone thinks they're relevant, the claimant is at risk of civil penalty or criminal prosecution for failing to reveal any one of these. It puts the onus on the claimant to identify anything that might affect his or her chances of being approved for Social Security disability benefits and to reveal that information to Social Security even without being asked.
     In ordinary civil litigation, there is discovery. In discovery, the party you're suing or who is suing you has the right to ask you questions or to ask you to produce documents in your possession that relate to the case. However, your adversary has to pose the question or make the request for some specific document or category of documents before you have an obligation to respond. There is no open ended, undefined responsibility to identify and turn over everything that might conceivably relate to the lawsuit. Here, Social Security is making an amorphous demand that the claimant identify anything which could affect their case and turn it over. If the claimant fails to identify something or thinks it's irrelevant when Social Security thinks otherwise, the claimant may be punished.
     There is a special problem for claimants represented by an attorney. The proposal says that it is not intended to abrogate the attorney-client privilege. The problem is that while I, as an attorney, cannot reveal a confidence given to me by a client, I also cannot continue to represent a client who is engaging in continuing illegal behavior related to the representation. If the claimant's duty is to reveal anything that anyone might conceivably consider relevant to consideration of the disability claim, the claimant must reveal to Social Security anything that he or she tells me, since, clearly, either I or the claimant considered the information I received to be relevant to the case. If the claimant refuses to turn over to Social Security whatever they have told me, I have no alternative but to withdraw from the case since otherwise I am participating in what is arguably an ongoing fraud. As Social Security correctly points out in this proposal, merely telling an attorney something doesn't exempt a client from ever having to reveal that information. Under this proposal, telling it to an attorney just identifies it as something that should be revealed to Social Security sua sponte. My opinion is that this proposal effectively removes not just the attorney-client privilege but any meaningful right to legal representation.
     You may rightly say that Social Security couldn't possibly have intended anything as extreme as what I'm describing and you'd be right. They just never thought through what they were proposing. Their only real goal was to get Republicans in the House of Representatives off their back. Unfortunately, it doesn't matter what Social Security thought it was doing. Regulations can have unintended consequences. Anyone considering this proposal, including Social Security, has to do a worst case analysis since no one can now know how such an expansive set of regulations would be interpreted.
     Social Security could try to limit a claimant's duty to reveal statements or facts but they actually say in the notice in the Federal Register that they wished to do the exact opposite because they wanted to "minimize the extent to which a claimant or his or her representative must make subjective judgments as to the legal relevance of particular evidence." They did this by making the obligation limitless. The lack of limits isn't an accident; it's intrinsic to the design of the proposal.
     If Social Security does think up some limits on the duty to reveal, is it appropriate to just go immediately to final regulations without allowing the public to comment on the limitations first? Aren't those limitations so integral to the proposal that it is impossible to offer fully meaningful comments on the proposal without knowing what those limitations are?

Mar 3, 2014

Central Offices Open On Tuesday

     Social Security's central offices in the Baltimore area will be open on a regular schedule on Tuesday. Those offices were closed by a snowstorm on Monday.

House Budget Committee Attacks Child SSI

    The Republican-controlled House Budget Committee has issued The War on Poverty: 50 Years Later, which is, of course, critical of federal anti-poverty efforts. The major part of discussion in the report of programs run by the Social Security Administration has to do with children's disability benefits under the Supplemental Security Income (SSI) program. The report tells us that "SSI has become a more general welfare program that in large part targets able-bodied single mothers ..." No, actually it targets sick children. With or without SSI, the mothers of seriously ill children usually aren't working anyway. The question is whether we assist them and their children. The report goes on to note that most child SSI recipients don't go on to work and many don't get a high school diploma. What do you expect? If they're seriously ill as children, shouldn't we expect them to have trouble getting a high school diploma and working as adults? If the evidence were the exact opposite, that child SSI recipients were getting high school diplomas and going to work as adults, wouldn't this report say that this shows that the child SSI recipients weren't that sick?

AALJ Lawsuit Dismissed

     The Association of Administrative Law Judges (AALJ) the labor union, yes, labor union, that represents Social Security's Administrative Law Judges (ALJs) sued Social Security in the U.S. District Court for the Northern District of Illinois alleging that the agency imposed an illegal quota requiring that the ALJs decide 500-700 cases per year and that this quota infringed upon the ALJs' right to decisional independence. The Court has now dismissed the AALJ lawsuit on jurisdictional grounds, saying that the AALJ would have to exhaust its remedies under the Civil Service Reform Act before proceeding to federal court.

Should States Take Social Security Benefits Of Kids In Foster Care To Pay For Their Care?

     From the Baltimore Sun:
After Ryan Weinberger's parents died while he was in foster care, Maryland collected his Social Security survivor's benefits of more than $30,000 to help cover his state-funded living expenses.
Now Weinberger, 21, wants to persuade the General Assembly to pass legislation to stop the Department of Human Resources from confiscating benefits available to hundreds of foster children each year. ...

Some child welfare advocates are hoping Maryland will become one of the first states to block a practice that state agencies across the country quietly adopted decades ago. They want the money — projected to total $15 million in Maryland over the next five years — to be set aside for the foster children. The money could provide additional services for a child or a nest egg when he or she leaves foster care, as Weinberger did recently. ...

Mar 2, 2014

D.C. Area Offices Closed Monday

     Washington area federal offices will be closed on Monday due to a predicted snowstorm. This has been a terrible year for these closures. These delay many things at Social Security but for me the most prominent delays are in implementation of disability claim approvals. I don't live there but I don't remember many years with more weather closures.

OIG On Representation At Initial And Recon Levels

     Social Security's Office of Inspector General (OIG) has issued an audit report on Claimant Representation at the Disability Determination Services Level. They reviewed 379 cases involving representation. Their findings were that in:
  • 84, we found no evidence that the representative assisted with the claim;
  • 154, the representative assisted with filing the claim, but did not assist the DDS with claim development in the disability determination; and
  • 141, the representative assisted throughout the claims process
      The report does not describe how it decided whether a representative had assisted with the claim or assisted DDS with claim development. 
     How would OIG know whether the attorney or representative had assisted the claimant with setting an appointment to file a claim or with completing claim paperwork? 
     Much of the time, the most important thing an attorney can do is simply to encourage the claimant to get on with it. Most claimants delay filing a claim because they keep hoping to get better. This may be appropriate for a few months but eventually it's just procrastination and the claimant needs encouragement. I don't see how OIG would know about this sort of encouragement which can be of considerable value to the claimant. 
     There's also the efforts that attorneys and other representatives make to prevent things from falling between the cracks at Social Security. It's not rare for a claim to be filed but go astray somewhere at Social Security. Without representation, nothing happens. Eventually, the claimant returns to Social Security some months later. The assumption is made that the problem happened because the claimant failed to complete the claim process and a new claim is taken. Sometimes it's the claimant's fault. Sometimes it's true that the claimant never completed the process but Social Security never warned the claimant that there was a problem. The process is complicated enough that it's not hard for someone who's sick to fail to do all that was expected of them even though they were trying. Sometimes the problem is wholly Social Security's fault. (Please, if you work at Social Security, don't tell me this never happens. I know better. Claims get sidetracked all the time. Sometimes they reappear months later. Sometimes they never re-emerge without external prodding.) A good attorney or representative straightens out these problems. Would OIG have been aware of this sort of work done by an attorney? I doubt it. 
     In terms of medical development at DDS, there's little point in the attorney or other representative duplicating DDS' effort. There's a role for the attorney or representative but in many cases, there's nothing the attorney or representative can do that helps the claimant -- and the point of representation is to help the claimant, not Social Security.
     My view of representation at the initial and reconsideration level is that it usually doesn't involve that much work but the chance of getting a fee is low and the fee, if I do get one, is usually modest. It's a relatively low return for a relatively low effort. If OIG thinks that representation at the initial and reconsideration levels is so remunerative, why is it that most attorneys and representatives avoid this sort of representation?

Mar 1, 2014


     From Roll Call:
House Budget Chairman Paul D. Ryan has said he wants the Ways and Means Committee gavel next year, but the Wisconsin Republican will face a challenge from Rep. Kevin Brady, R-Texas.
Brady, the current chairman of the Joint Economic Committee, told columnist Al Hunt in an interview that will air Friday evening that he wants the top slot on the Ways and Means Committee, where he is currently the No. 2 Republican.
Reigning Chairman Dave Camp, R-Mich., must relinquish his title next year due to term limits.
     Ways and Means has jurisdiction over Social Security. I don't know that either is better or worse for Social Security. Ryan certainly has a higher profile.