Dec 31, 2014

Binder And Binder No Longer Getting Medical Records

     I'm hearing that Binder and Binder, which is in Chapter 11 bankruptcy, is telling Social Security's hearing offices that it can no longer afford to update medical records on the people it represents. Binder and Binder is asking Social Security to do it. 
     Social Security isn't going to do it, at least not routinely. Many decades ago the agency could do this but not today. The staffing isn't there. This means that Binder and Binder's clients won't be competently represented. Most people would argue that they never were but now there's no argument.
     This raises some questions in my mind:
  • What kind of idiots are running Binder and Binder now? The company is still in business. They're still paying their employees. They're still paying rent on their offices. They're still paying for phone service. How can they continue to stay in business if they're not going to pay for medical records? It's basic to what they do. Getting medical records is not inexpensive but it's not that big a deal. It only runs to about 2% of my firm's total expenditures, far less than what my firm pays in salaries and rent.
  • Charles Binder is listed as the attorney of record for most of the claimants that Binder and Binder represents. While the Binder and Binder that just went into Chapter 11 bankruptcy isn't a law firm, Charles Binder is definitely licensed to practice law. What are his ethical obligations as an attorney when he knows that he is incapable of providing them with competent representation? Doesn't he have an ethical obligation to withdraw from representing them or at least to warn them? If Binder and Binder is sending letters to Social Security saying that it can no longer pay for medical records, is it sending copies of this letter to its clients? Shouldn't Charles Binder insist that this letter be sent to his clients?
  • What are Social Security's obligations in this situation? Should it warn Binder and Binder's clients? Is there anything more it can do? Could it contact the New York bar about the situation since that is where Charles Binder is licensed?

What Would You Do?

     Back in May we received a fee of $5,911 on a client. That's what the "maximum fee" of $6,000 comes to after the "user fee." On November 20, we received a fee of $65.86. I sent the $65.86 back to the Social Security field office since it was in excess of what we are supposed to receive. Today, I received another check for $65.86 in the case.
     I could send the money back to Social Security but they may reissue the check to me once again. I could send the money to my client since it's almost certainly supposed to go to him but later Social Security may declare me overpaid by $65.86 and they won't care that I sent the money directly to the client. As far as they're concerned, it's always their money that's been overpaid and a direct payment to the client doesn't resolve the overpayment. I could tear up the check but the money really should go to the client. I could spend a lot of time on the phone trying to convince Social Security to take the money back from me and reissue it to my client but it's only $65.86 and it may not matter how much time we spend on the phone about this.
     What would you do?

Dec 30, 2014

NCSSMA Newsletter On Dramatic Decline In Service

     The National Council of Social Security Management Associations (NCSSMA), an organization of Social Security's management personnel, has issued its December 2014 newsletter. Here's an excerpt from the President's Corner column:
In Fiscal Year (FY) 2011, the wheels started coming off [at Social Security] as FOs [Field Offices] and TSCs [Teleservice Centers] went into a deep hiring freeze, with virtually no hiring for three and a half years. In addition, in FY 2011 and FY 2013, the hours FOs were open to the public were reduced by about 23% ... All of this was occurring as demands for our services increased due to baby boomers retiring and filing for disability.
Consequently, SSA’s waiting times went up, on average 50%, to levels never before seen. The average time to get an appointment increased to a month or more, while many FOs ran out of appointments each day and calendars were often extended to the maximum of 60 days.
The agency’s telephone answering rates dropped dramatically, with many FOs below 50%. TSC answering rates also took a dramatic drop and in FY 2014, with a decreased answering rate of 54%, callers waited, on average, 22 minutes to speak with a Teleservice Service Representative (TSR). 
Fortunately, FOs and TSCs were allowed to do a substantial amount of hiring in the second half of FY 2014, replacing about half of their staffing losses. SSA’s service levels will not immediately improve because new hires must be trained and staff attrition continues. Much will depend on SSA’s ability to continue to hire as annual staffing losses neutralize hiring gains.

Dec 29, 2014

Senior Attorney Decisions Resuming?

     My firm has received senior attorney decisions this month in two cases from two different hearing offices. These are the first we have seen since August 2013. 
     To what extent is the senior attorney program being resumed? Had it ever gone away completely? What about re-recon? Is that coming back?
     Given the backlog, both programs should be resumed in a big way, if there is enough staffing.

It's Not Just Overpayments

     From a recent report by Social Security's Office of Inspector General:
SSA [Social Security Administration] needs to improve its controls to ensure it properly pays underpayments due terminated beneficiaries. Based on our random sample, we estimate that 
  • 55,925 terminated beneficiaries were due $122.6 million in underpayments that SSA should have paid to eligible beneficiaries, and
  • 5,687 terminated beneficiaries had $5.2 million in erroneous underpayments that SSA should have removed from the [Social Security's records]

Dec 28, 2014

FBA Social Security Law Section Newsletter

     The Social Security Law Section of the Federal Bar Association has published its Winter 2015 newsletter. There's a great Federal Case Law Update, an article by Judge Robert Pratt, Chief Judge of the U.S. District Court for the Southern District of Iowa and a fine article on suicide among Social Security disability claimants.

Dec 27, 2014

Goodbye Christmas!

Dec 26, 2014

December 26

Dec 25, 2014

Merry Christmas

Dec 24, 2014

Merry Christmas

Last Minute Shopping

     I was at a store this afternoon. I wasn't buying a Christmas gift. I was there for a more routine reason. There was a fellow ahead of me making quite a purchase. He said he was doing all his Christmas shopping then and there. From the looks of things he was buying presents for at least 25 people. It was a convenience store. He was buying lottery tickets.

Binder And Binder Bankruptcy Details

     A few more details are emerging on the Binder and Binder bankruptcy. As I predicted, they have discontinued advertising. They're still taking on new cases, however. They say that their revenues last year were 20% below their projection, which makes it surprising that they were able to avoid bankruptcy so long. They've shut down offices in Atlanta, Brooklyn, Chicago, Newark, N.J., Raleigh, N.C., and Seattle. More of their offices will close in June.

Merry Christmas

Dec 23, 2014

Christmas In Japan

Yes, that's really Colonel Sanders. KFC does ten times more business in December in Japan than in any other month. “The prevailing wisdom here is that Americans eat chicken on the 25th.”

Coburn's Parting Shot

Tom Coburn has just finished his career as a U.S. Senator. On the way out, he introduced S. 3003 which may or may not influence how the upcoming Congress will deal with the Social Security disability programs. Here are a few excerpts from Coburn's bill.
  • With the exception of individuals who are classified by the Commissioner of Social Security as ‘medical improvement not expected’, any individual who, under this section ... is entitled for any month to both an old-age insurance benefit and a disability insurance benefit ...  shall only be entitled to the old-age insurance benefit for such month, as reduced for such month pursuant to subsection (q)(1). [Meaning that if you're over 62 and drawing Disability Insurance Benefits, your benefits will be reduced. This would immediately reduce benefits for about 20% of recipients of those benefits.]
  • [Social Security disability benefits may be terminated if there is evidence] that would be sufficient to support a finding in an initial determination that the individual is not under a disability and is able to engage in substantial gainful activity. [Essentially ending the medical improvement standard.]
  • In the case of an individual [who] ... is determined to be under a disability, and is classified by the Commissioner of Social Security as ‘medical improvement expected’, the termination month applicable to the individual shall be the 35th month following the first month after the individual’s waiting period... [Meaning that if Social Security has determined that your disability is expected to improve, the agency doesn't have to go through any process to cut off your benefits. They're just automatically terminated after 35 months. You have to reapply.]
  • ... [A]ge shall not be considered as a vocational factor for any individual who has not attained the age that is 12 years less than the retirement age for such individual [which would be 54 current and would eventually raise to 55] ...
  • Any review of an initial adverse determination with respect to an application for disability insurance benefits ... by reason of being under a disability shall only be made before an administrative law judge in a hearing... [Meaning that reconsideration would be eliminated.]
  • ... [M]edical evidence ... shall not be received if the evidence is submitted less than 5 days prior to the date on which the hearing is held unless the individual can show that the evidence is material and there is good cause for the failure to submit it before the deadline, but in no case shall medical evidence be received if is ... based on information obtained during the period that begins after a determination is made by an administrative law judge; or ... submitted more than 1 year after a determination is made by an administrative law judge ...
  • An individual and, if applicable, such individual’s representative shall submit, in its entirety and without redaction, all relevant medical evidence known to the individual or the representative to the Commissioner of Social Security.
  • Each case that is scheduled for a hearing to determine if an individual is under a disability ... shall be assigned to a disability hearing attorney as soon as practicable. ... The disability hearing attorney assigned to a case under paragraph shall ...  develop the evidentiary record ... [A]fter the hearing, if the attorney finds that the evidence clearly does not support the determination of the administrative law judge that the individual is disabled, recommend to the Appeals Council the determination on its own motion. [Meaning that there's a government representative at the hearing who can appeal from a decision approving a disability claim.]
  • The Commissioner of Social Security shall establish rules under which an administrative law judge may impose fines and other sanctions the Commissioner determines to be appropriate on a representative for failure to follow the Commissioner’s rules and regulations.
  • [I]n no circumstance shall opinion evidence from any source be given controlling weight.
  • For purposes of evaluating the credibility of an individual’s medical evidence, an administrative law judge ... may require the individual to undergo a symptom validity test either prior to or after the hearing.
  • For purposes of evaluating the credibility of an individual’s medical evidence, an administrative law judge responsible ... shall be permitted to consider information about the individual obtained from publicly available social media.
  • The Commissioner of Social Security shall establish rules and regulations relating to the fees payable to representatives of individuals claiming entitlement to disability insurance benefits  ... Such rules and regulations shall ... require representatives to account for the work performed with respect to a case ... [I have no idea what this is supposed to mean.]
  • [T]he Inspector General of the Social Security Administration shall conduct a review of the practices of a sample of the highest-earning claimant representatives to ensure compliance with the policies of the Social Security Administration. ...
  • [T]he Equal Access to Justice Act ... shall not apply to ... any review under this title of a determination of disability ... or  ... if new evidence is submitted by an individual after a hearing to determine whether or not the individual is under a disability, judicial review of a final determination of disability ...
  • [T]he Division of Quality of the Office of Appellate Operations of the Social Security Administration shall conduct a review of a sample of determinations that individuals are entitled to disability insurance benefits by outlier administrative law judges and identify any determinations that are not supported by the evidence. [T]he term ‘‘outlier administrative law judge’’ means an administrative law judge ... who, in a given year ...issues more than 700 decisions; and ... determines that the applicant is entitled to disability insurance benefits in not less than 85 percent of cases.

Manger Square, Bethlehem

Dec 22, 2014

ALJ Lawsuit Over Alleged Quotas Not Going Well

     The Association of Administrative Law Judges, a labor union that represents Social Security's Administrative Law Judges (ALJs), brought suit in federal court over the agency's productivity guidelines. They had no success at the District Court level. Apparently, things didn't go any better at oral arguments before the Court of Appeals. The panel they drew included Judge Posner.

Merry Christmas

Dec 21, 2014

Merry Christmas

Dec 20, 2014

A Few Details On The Binder and Binder Bankruptcy

     A few details are emerging about Binder and Binder's bankruptcy. The company, which is not a law firm, listed its assets and liabilities as being between $10 million and $50 million. The biggest creditor was Stellus Capital Management at $16.7 million. However, the company had to get a secured loan of $23 million from US Bank and Capital One to stay in business.

Merry Christmas

Dec 19, 2014

Issa Report On ALJs

     Darrell Issa's House Committee on Oversight and Government Reform issued a report yesterday on Misplaced Priorities: How the Social Security Administration Sacrificed Quality for Quantity in the Disability Determination Process. The report talks about the great pressures that have been placed upon Social Security's Administrative Law Judges (ALJs) to produce as many decisions as possible. The report accepts at face value the assertion that the pressures to produce have led to a higher proportion of favorable decisions issued. The report demands that Social Security fire some ALJs, which it lists by name, and discipline others. The report insists that Social Security should stop hiring more ALJs and focus its efforts on controlling ALJ decision-making. 
     Social Security lacks the power to act against ALJs in the manner recommended by the report. To protect ALJs from agency influence, it's quite difficult to fire or discipline them. What Issa wants is heavy-handed agency influence on ALJ decision-making. You can't do that. 
     A halt in hiring of ALJs and a total focus on controlling ALJ decision-making would result in an explosion of Social Security's already unacceptable hearing backlog. Darrell Issa might be happy with that but it's unworkable. It's inevitable that as the hearing backlog explodes media coverage of the backlog will explode.

Binder and Binder In Bankruptcy

     The Wall Street Journal is reporting that Binder and Binder filed for Chapter 11 bankrupcty last night. I wonder what they're telling their employees.

This Is Also Part Of Chrismas

December is the busiest time of the year for psychiatrists.

Dec 18, 2014

TV Station Covers Hearing Backlog

     A Nevada television station is continuing to cover Social Security's serious hearing backlog.

Merry Christmas

Dec 17, 2014

ABLE Act Approved By Congress

     The Senate approved the ABLE Act last night and sent it to the President. Here's a description of ABLE:
Modeled after tax-free college savings accounts, the ABLE bill would amend the federal tax code to allow states to establish the program.
To qualify, a person would have to be diagnosed by age 26 with a disability that results in "marked and severe functional limitations"; those who are already receiving Social Security disability benefits would also qualify. Families would be able to set up tax-free accounts at financial institutions, depositing up to $14,000 annually to pay for long-term needs such as education, transportation and health care.
The contributions would be in after-tax dollars but earnings would grow tax-free.
The ABLE accounts would be able to accrue up to $100,000 in savings without the person losing eligibility for government aid such as Social Security; currently, the asset limit is $2,000. Medicaid coverage would continue no matter how much money is deposited in the accounts.

Criticism For Senate Democrats On Colvin Nomination

     Michael Histzik is giving Senate Democrats a tough time for abandoning Carolyn Colvin's nomination for a term as Commissioner of Social Security. I'm with him.
     As best I can understand what happened, Senate Republicans threatened to drag out cloture on Colvin's nomination as long as possible which would have delayed the start of the Christmas break for all Senators. Their real reasons for making this threat are unclear but their stated reasons are ridiculous, as Hiltzik demonstrates. All Senate Republicans could do was delay since they lacked the votes to prevent confirmation. Would Republican Senators have actually insisted on hanging around the Capitol for a losing battle to prevent Colvin's nomination when there was no real reason to oppose her in the first place? We'll never know since Senate Democrats simply gave up on the nomination instead of taking the risk that they would be forced to delay their holiday break. No wonder Democrats are about to be in the minority in the Senate.
     As a footnote, the two Democratic Senators from Colvin's home state, Maryland, Mikulski and Cardin, went to the Senate floor yesterday to pointlessly ask for unanimous consent for the consideration of Colvin's nomination. Of course, a Republican Senator objected. Neither Mikulski nor Cardin spoke up Saturday night when Senator Reid asked for unanimous consent to withdraw cloture on Colvin's nomination. No one spoke up then. That's how Colvin's nomination died.

Merry Christmas

Dec 16, 2014

Commissioner's Broadcast E-Mail

From: ^Commissioner Broadcast
Sent: Monday, December 15, 2014 6:02 PM

A Message To All SSA and DDS Employees
Subject: Important Updates

I want to update you on some important Congressional actions that took place over the weekend.
First, the U.S. Senate did not vote on my nomination to be Commissioner of Social Security, citing the parliamentary requirement that, as a cabinet level official, 30 hours of debate would be required at a time when they had only a few days left to confirm over 20 nominees.  I will continue, however, to serve as the Deputy Commissioner of Social Security and as Acting Commissioner.  As always, I am heartened by your support and deeply appreciate your daily efforts to serve the American public.
Second, I am pleased to let you know that Congress approved our FY 15 budget, and the President is expected to sign it shortly.  This level of funding will enable us to continue to provide quality services to our customers today, and help position the agency for success in the future.
I look forward to continuing to work with you and the new Congress.  There is much to be done.  I know I can count on you to demonstrate the dedication and professionalism that makes our agency one of the top 10 best places to work in the Federal government.
Again, thank you for your support and well wishes.
Best regards,

Dec 15, 2014

Senate Democrats Back Off Effort To Confirm Colvin So They Could Go Home

     The New York Times has as good an explanation for why Senate Democrats backed off their effort to confirm Carolyn Colvin as Commissioner of Social Security as I can find:
On Wednesday, Democrats plan to turn to the confirmation of a dozen federal district court judges. They backed off an attempt to confirm Carolyn W. Colvin as head of the Social Security Administration because it was going to be too time-consuming and Republicans were unlikely to yield because of their objections over continuing investigations at the agency.
     Don't ask me why they bothered to start cloture if they weren't willing to see it through to the end.

Dec 14, 2014

Colvin Won't Be Confirmed

      In a surprise move, late last night Senate Democrats dropped their efforts to confirm Carolyn Colvin as Commissioner of Social Security.

When You Don't Know What Else To Say, Just Use The Old Pending Litigation Dodge

     From the Washington Post:
The Social Security Administration, which announced in April that it would stop trying to collect debts from the children of people who were allegedly overpaid benefits decades ago, has continued to demand such payments and now defends that practice in court documents. 
But although some people whose refunds were seized were reimbursed in recent months, some of those same taxpayers have since received new demands from Social Security, asserting that the debts remain and seeking repayment. ... 
Asked to explain the about-face, Social Security officials said they would respond only to written questions. Late Friday, four days after The Post provided questions, the agency issued this statement from spokesman Mark Hinkle: “We are finalizing our review of the Treasury offset program, but cannot discuss specifics due to the pending litigation.”

Dec 13, 2014

Colvin Nomination On Senate Floor; GOP Can't Block It Now

     I don't know when it will come up for a final vote but Carolyn Colvin's nomination for a term as Commissioner of Social Security is being considered by the Senate today. Republicans lack the votes to prevent confirmation so it's going to happen.

     Update: Colvin has Ted Cruz to thank for her impending confirmation. Seriously.

What's Going On With The Binder And Binder Bankruptcy?

     I have no inside information about the impending Binder and Binder bankruptcy but I think I can give the most likely answers to three key questions.

Is Binder and Binder going out of business?
Not now. In Chapter 11 the debtor stays in business and tries to reorganize. Maybe Binder and Binder can reorganize so they can stay in business indefinitely but I would be surprised if they can. My guess is that they stop taking cases and work down the cases they already have. That would take around three years. Their expenses would drop dramatically since they would no longer be paying for advertising and they could start laying off employees but their gross receipts would stay almost the same for a couple of years. They would be making money as they wind down. Maybe they could hope to crank up the ads later if times got better.

Why is Binder and Binder going bankrupt?
In the best of times, representing Social Security claimants is a high overhead, low profit margin business. This is the worst of times to be representing Social Security claimants. There is almost no profit to make. Add in the fact that Binder and Binder owes about $40 million and the question isn't why they're going into bankruptcy but how they've stayed in business so long. This comes as no surprise to me.

Why is it such a tough time to be representing Social Security claimants?
Social Security's Administrative Law Judges are approving a much lower percentage of disability claims than they did a few years ago. Because of inadequate staffing backlogs are climbing rapidly at Social Security. If you think this means that Binder and Binder should be doing better since their fees would be increased by the delay, you'd be naive. The slowdown in getting to the eventual payday completely overwhelms the importance of the somewhat larger paycheck. If the backlog gets two months longer over the course of a year, you lose two months of gross income but your expenses are largely unchanged. A 5% or 10% larger fee isn't nearly enough to make up the difference.

Dec 12, 2014

I Was Kind Of Expecting This

     Binder and Binder may be about to enter Chapter 11 bankruptcy.

Colvin Nomination May Soon Come Up For Vote In Senate

     There are signs that Carolyn Colvin's nomination for a term as Commissioner of Social Security is a matter of some priority with Senate Democrats. She is currently the Acting Commissioner. Her nomination is apparently considered as being on the same plateau as lifetime judicial nominations. There is a rumor that it may come up on the Senate floor as early as today but it's not on the calendar at this time.

GAO Report Urges More Efforts To Find Fraud To Satisfy GOP

     From a report by the Government Accountability Office done at the behest of the Chairman of the House Social Security Subcommittee and the Ranking Member of the Senate Finance Committee:
The Social Security Administration (SSA) has policies and procedures in place for detecting and preventing fraud with regard to disability benefit claims. However, GAO identified a number of areas that could leave the agency vulnerable to physician-assisted fraud and other fraudulent claims:
  • SSA relies heavily on front-line staff in the offices of its disability determination services (DDS)—which have responsibility for reviewing medical evidence—to detect and prevent potential fraud. However, staff said it is difficult to detect suspicious patterns across claims, as directed by SSA policy, given the large number of claims and volume of medical information they review. Moreover, DDS offices generally assign claims randomly, so staff said it would only be by chance that they would review evidence from the same physician.
  • SSA and, in turn, DDS performance measures that focus on prompt processing can create a disincentive for front-line staff to report potential fraud because of the time it requires to develop a fraud referral. Four of the five DDS offices GAO visited count time that staff spend on documenting potential fraud and developing fraud referrals against their processing time. Some staff at these DDS offices said this creates a reluctance to report potential fraud.
  • The extent of anti-fraud training for staff varied among the five offices GAO visited and was often limited. SSA requires all DDSs to provide training to newly hired staff that includes general information on how to identify potential fraud, but does not require additional training. The five DDS offices GAO visited varied in whether staff received refresher training and its content—such as how to spot suspicious medical evidence from physicians—and staff at all levels said they needed more training on these issues.
  • SSA has not fully evaluated the risk associated with accepting medical evidence from physicians who are barred from participating in federal health programs. Although information from these physicians is not necessarily fraudulent, it could be associated with questionable disability determinations.
SSA has launched several initiatives to detect and prevent potential fraud, but their success is hampered by a lack of planning, data, and coordination. For instance, SSA is developing computer models that can draw from recent fraud cases to anticipate potentially fraudulent claims going forward. This effort has the potential to address vulnerabilities with existing fraud detection practices by, for example, helping to identify suspicious patterns of medical evidence. However, SSA has not yet articulated a plan for implementation, assigned responsibility for this initiative within the agency, or identified how the agency will obtain key pieces of data to identify physicians who are currently not tracked in existing claims' management systems. Furthermore, SSA is developing other initiatives, such as a centralized fraud prevention unit and analysis to detect patterns in disability appeals cases that could indicate fraud. However, these initiatives are still in the early stages of development and it is not clear how they will be coordinated or work with existing detection activities.
     It could be that there really isn't much fraud and that extensive efforts to find it wouldn't be cost effective. 

Dec 11, 2014

Threat Of A Shutdown

     The federal government will shut down tomorrow if Congress cannot agree on a continuing resolution to fund the government. 
     The last time there was a shutdown, which was just last year, almost all Social Security employees were told to keep working. The major exceptions were employees of the Office of Disability Adjudication and Review (ODAR) other than the Administrative Law Judges (ALJs) and most of the Office of General Counsel (OGC). Even without passage of a funding bill almost all the ODAR employees were recalled. The OGC employees were recalled just before passage of the continuing resolution. Social Security asked the state Disability Determination Services (DDS) to stay open and they did for a time but some started closing down as the shutdown continued. 
     I expect that Social Security employees were told today whether they should come to work tomorrow if there's a shutdown. What's the plan this time in case there's a shutdown?
     By the way, when's the next federal payday? If the shutdown, if it happens, is still going on at that time, no paychecks can be issued even for employees who have been told to work.

OIG Report

     Social Security's Office of Inspector General (OIG) has released its Semiannual Report to Congress. In Fiscal Year 2014 OIG received 121,461 allegations, opened 8,335 cases and get 1,291 criminal convictions. This is for a program that pays benefits to 63.2 million people. Only 6% of the allegations had enough substance to be worthy of an investigation. Only about 1% of the allegations resulted in a conviction. Whatever fraud there is at Social Security should certainly be investigated and prosecuted but it's only a tiny, tiny part of Social Security.

Dec 10, 2014

Social Security Asks Permission To Publish Final Rule On Submission Of Evidence

     Social Security has asked the Office of Management and Budget (OMB) to approve a final rule on the submission of evidence in disability claims. If this has not been significantly altered since it was published as a proposed rule, it will be completely unworkable.

TV Station Reports On Hearing Backlogs

     A Nashville television station is reporting on the huge backlogs and long waiting times to get a hearing on a Social Security disability claim. Expect many more similar reports. The backlogs are approaching record levels.

Dec 9, 2014

Former Service Representative Pleads Guilty To Social Security Fraud

     From a press release issued by Social Security's Office of Inspector General:
A former employee of the Social Security Administration (SSA) appeared in federal court in Dallas this morning and pleaded guilty ... to one count of conspiracy to commit theft of government funds. He faces a maximum statutory penalty of five years in federal prison, a $250,000 fine and restitution. ...
In some instances, for example, [Carwin Shaw of Arlington, Texas, who was a Service Representative] manipulated the verified income attributed to Supplemental Security Income beneficiaries that resulted in the issuance of larger payments than authorized, the issuance of payments when none were due, and the removal of legitimate overpayments posted to beneficiary’s record. Shaw further admitted using the SSA’s electronic systems that interface with the U.S. Treasury Department to issue duplicate checks to beneficiaries when only one check was due. Shaw would cut additional checks to the co-conspirators by alleging their initial check had been lost or stolen, split the second check with the co-conspirator and then access the system and waive the overpayment so that it would not be recovered from any future benefits. Each co-conspirator was the representative payee for one minor or otherwise incompetent Social Security beneficiary.
The loss to the SSA as a result of all of Shaw’s relevant conduct is approximately $78,165. ...

Dec 8, 2014

Republican Members Of Social Security Subcommittee Announced

     Republicans have announced their list of members of the House Ways and Means Subcommittee on Social Security for the upcoming Congress
  • Sam Johnson, Chairman
  • Jim Renacci
  • Vern Buchanan
  • Aaron Schock
  • Tom Reed
  • Todd Young
  • Mike Kelly

Allegation Of Computer System Coverup

Senior officials at the Social Security Administration (SSA) tried to hide a damning report on a $300 million computer system that lawmakers have called a “boondoggle” in order to protect President Obama’s nominee to lead the agency, a whistleblower claimed in an interview with  
Whistleblower Michael Keegan told that McKinsey & Company, a consulting firm, issued a draft report in December 2013 saying the agency had spent $288 million over six years for a new computer system processing disability claims that has yet to launch.
But Keegan said he was present at a meeting of senior officials in May of this year where they decided to sit on the report as long as Carolyn Colvin’s nomination for commissioner was pending.
“They hid the report,” he told
Keegan said it was discussed at that May meeting that Colvin, the acting commissioner, had been briefed on the findings.
He added: “There is absolutely no way that [Colvin] could be in the dark” on the effort to hide it.
     If there was a coverup it wasn't very successful since word first got out about this in July. It seemed to be no problem for Colvin's nomination until after the election.

Dec 6, 2014

Do Jobs With Higher "Cognitive Analytic" Skills Have Higher Rates Of Disability?

     The abstract of a study by Lauren Hersch Nicholas for the Center for Retirement Research at Boston College:
We use Health and Retirement Study data linked to the Department of Labor’s O*Net classification system to examine the relationship between lifetime exposure to occupational demands and retirement behavior. We consistently found that both non-routine cognitive analytic and non-routine physical demands were associated with worse health, earlier labor force exit, and increased use of Social Security Disability Insurance. The growing share of workers in jobs with high levels of cognitive demand may contribute to growth in DI use.
     It's obvious at ground level that people who work at jobs that have higher physical demands have higher rates of disability. It only stands to reason. However, increased rates of disability for those in jobs requiring the use of higher "cognitive analytic" skills comes as a surprise. I'm generally skeptical of government funded research that ends up calling for more government funded research. This report actually doesn't make that recommendation but this is a topic worthy of more research.

Dec 5, 2014

Colvin Defends Herself

     Here's Colvin defending herself against charges that there's somethintg illegal about a contract her agency is administering:
I've always met the highest ethical standards," ... I've worked in government my entire life. There's never been a suggestion, personal or professional, of any wrongdoing.
I'm certainly not ending my career with that, .. I came out of retirement to help this organization, not hurt it. ...
Colvin noted that the project was launched "way before I got here," ...
That's what I do, I'm a problem-fixer," ... Every organization I've gone into I try to identify what the vulnerabilities are and try to fix them. ...
     If Republicans want to block this nomination, they can. There's no need to cast ridiculous aspersions on a person who has done nothing wrong. Colvin has served Social Security and other agencies honorably.

Dec 4, 2014

ABLE Passes House

     The ABLE Bill has passed the House of Representatives. Under the bill, contributions may be made to an ABLE account set up for a recipient of Supplemental Security Income Disability (SSID) without affecting SSID entitlement. The funds in ABLE accounts may be used for "education, housing, transportation, employment training and support, assistive technology and personal support services, health, prevention and wellness, financial management and administrative services, legal fees, expenses for oversight and monitoring, funeral and burial expense."
     Although ABLE would affect needs based programs such as SSID, it will primarily help disabled people who come from middle class or wealthy families. They are the ones who will have the money to contribute to ABLE accounts. The ABLE Bill doesn't update the absurdly low income and resource limits in SSI. This is not the fault of those behind ABLE. They would like to update SSI as well. This was the best they could do. It says something about the current state of our politics that helping poor people would be considered a deal breaker for this bill.

Senators Want To Hold Up Colvin Nomination

     The Associated Press is reporting that a "group" of Republican Senators is planning to hold up Carolyn Colvin's nomination for a term as Commissioner of Social Security while they seek more information about Social Security's troubled $300 DCPS computer project. The article doesn't say who is part of this "group" or how big it is. However, it hardly takes more than one Senator to block a nomination. Holding up the nomination over this sounds preposterous to me. This was former Commissioner Michael Astrue's project. Colvin merely inherited it. It's a necessary project and one that everybody knew was bound to be messy. However, if you're looking for a pretext to block a nomination of an otherwise non-controversial nominee, I guess this will do.

     Update: It's all Republicans on the Senate Finance Committee. This nomination is dead at last for for this session of Congress.

Dec 3, 2014

Senate Finance Committee Schedules Hearing

     The Senate Finance Committee has scheduled a hearing for December 9 on Social Security: Is a Key Foundation of Economic Security Working for Women?

House Of Representatives Unanimous On Social Security Bill

     The House of Representatives has unanimously approved a bill to deny Social Security benefits to suspected Nazi war criminals. I have seen no count of the number of people affected. Probably they can be counted on one hand. It's more than possible that everyone who could be affected is already dead. If not, they certainly will be soon.
     Update:  Here's what Andrew Rosenthal  at the New York Times has to say on this bill:
[T]he crowing this week by some members of Congress over the House’s passage of a bill denying Social Security benefits to Nazis was ridiculous. ...
The Nazi bill is a political freebie. Passing it does not constitute a real achievement or a profile in courage. The issue is, at best, trivial. ...
Of those nonagenarian fiends, the AP said in October, “there are at least four living beneficiaries.”
The small number does not mean, once again, that the payments were acceptable. The AP said that “millions” went to these people over the years.
But none of that excuses the gas bagging by the Democratic co-sponsor of the bill, Representative Xavier Becerra of California, on Tuesday. ...

Dec 2, 2014

Sound Familiar?

From The Canadian Press:
Terminal cancer patients, organ-transplant recipients and suicidal, debt-addled Canadians are among the 11,000 people waiting to have their appeals heard by Ottawa's badly backlogged social security tribunal.
Some of those awaiting a decision on their eligibility for benefits, including people with debilitating injuries, have had their cases expedited due to severely declining health.# Others, however, have waited years — some are still waiting — to hear whether the initial decision to deny them Canada Pension Plan disability benefits will be overturned.
Given the nature of their illnesses, a decision may come too late.

Dec 1, 2014

They Didn't Take The Dare

Judge Easterbrook
     I thought I would update this one. See below for what I wrote a few months ago. It appears that Social Security (or perhaps the Solicitor General) didn't rise to the bait. I see no sign that a petition for rehearing en banc was filed. It looks like no petition for certiorari has been filed with the Supreme Court. The time for doing so has now passed. 
     Those of us in private practice with even a little experience always advise against taking weak cases to the Court of Appeals. It's good advice for Social Security as well.

     Marilyn Boley's claim for Social Security disability benefits was denied at the reconsideration level. She was represented at the time by an attorney. Ms. Boley received the reconsideration determination. Under Social Security's regulations the determination should have been sent to her attorney but it wasn't. Ms. Boley had 60 days to request a hearing before an Administrative Law Judge (ALJ). Ms. Boley, who was preparing for a double mastectomy at the time, thought her attorney would take care of the appeal but he didn't since he didn't know she had been denied. The request for hearing was not filed until nine months after the reconsideration denial. Social Security's regulations allow for accepting an appeal that has been filed late if there is good cause. The Administrative Law Judge to whom the appeal was assigned did not think there was good cause and dismissed the appeal. The Appeals Council affirmed the dismissal of the appeal. 
     Ms. Boley filed a civil action in United States District Court to obtain review of the dismissal of her appeal. The statute governing review of Social Security cases in federal court says that review may be had only of a "final decision of the Commissioner of Social Security made after a hearing." Social Security has always argued that the civil actions like Ms. Boley's must be dismissed because there was no hearing on the dismissal. Almost always Social Security has won these cases. In Ms. Boley's case the District Court agreed with Social Security and dismissed her civil action.
     Ms. Boley appealed to the Seventh Circuit Court of Appeals and finally won. In an opinion authored by Judge Easterbrook (who was nominated by President Reagan), the Court held that the term "hearing" merely meant whatever process Social Security used to render a decision, whether or not it involved an oral hearing. The Court held that there was good cause for the late appeal and that Ms. Boley should get her ALJ hearing. In doing so, the Court overturned its own precedent in Watters v. Harris, 656 F.2d 234 (7th Cir. 1980).
     In my opinion, Social Security had this one coming. You can say that Judge Easterbrook reached to construct the statute in the way that he did -- I think that the argument made by Ms. Boley's attorney that the dismissal was a denial of due process would have been the better route for the Court to follow to achieve the same result -- but the ALJ never should have dismissed the request for hearing and the Appeals Council never should have affirmed what the ALJ did. You can say that the attorney and client should have stayed in touch better and that the attorney shouldn't have allowed nine months to pass without checking on the case and you'd be right but that doesn't change the fact that Social Security's screw up was the primary reason for the late appeal. Late appeals because of Social Security's screw ups aren't rare. The reason you seldom see them in the federal courts is that almost always good cause is found for the late appeal. What the ALJ and the Appeals Council did in this case was just wrong. Defending this in the Court of Appeals or even in District Court was asking for trouble.
     I'm sure that there are many at Social Security's Office of General Counsel (OGC) who would disagree with me and say there is plenty of precedent supporting its position in this case. OK, if you feel that way, OGC, take this case to the Solicitor General. I dare you. The Solicitor General makes the decision for the federal government on whether to ask the Supreme Court to hear a case. The Supreme Court turns down the vast majority of requests to hear cases but this isn't just any case. This is exactly the kind of case that the Supreme Court usually does agree to hear because there is now a conflict between the 7th Circuit and other Courts of Appeal on the construction of a federal statute. I think it's close to automatic for the Supreme Court to hear a case like this when it's the Solicitor General making the request. OGC, do you think this is the sort of fact situation that the Solicitor General wants to take to the Supreme Court? For that matter, OGC, is this the sort of fact situation that you want taken to the Supreme Court? The ball is in your court, OGC. What are you going to do? I know, you'll ask for rehearing en banc but after that's denied, what will you do other than curse the Appeals Council for not remanding the case for a hearing on the merits when it had a chance?

Telephone Problems?

     We can't get through by telephone to any Social Security field office this morning. We haven't tried all the North Carolina field offices but we've tried quite a number. How widespread is the problem?

Supposedly The First Public Burning Of A Social Security Card

Year not given. It looks old enough that some of the participants may now be drawing Social Security benefits.