Dec 23, 2014

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.


Anonymous said...

So basically he is asking to eliminate disability benefits all together and get rid of all Social Security representatives because the only people that can win under these new rules would never need a representative!

Anonymous said...

As a sustaining NOSSCR member, I got the e-mail last night describing this bill as will as Issa's report. NOSSCR indicated that it would be very likely that this bill will be reintroduced next year. What are the chances that this is introduced in its entirety and passed into law? Or is this just something to show that they're serious about so-called govt waste? Many of these changes costs money that is not in the budget and would only further add to the backlog. Other changes are so draconian that they'd cause big news. Still others, like the auto CDRs would just send waves of new clients back to our office for new claims. Any thoughts?

Anonymous said...

You realize that many of these suggestions/ideas will never be implemented, especially without Coburn around to champion them.

Anonymous said...

I'm curious to hear the opposition's stance on these initiatives. Is anyone aware of any groups that have published a line-by-line critique?

Anonymous said...

I'm usually very sympathetic to both counsel and the claimants, but I can see where some (by no means not all) of these provisions should be explored. First of all, while the overwhelming majority of the reps who appear before the Agency are top notch and care about their clients, there are about 25% of them who are simply in it for the money and do their clients a great disservice. If the Bar would police their own, that would be great. But you know we don't. So ending the 25% of past due benefits automatic award and going to a fee petition model, I am all in favor of that. However, ending EAJA fees is wrong. Those attorneys who take EAJA cases may make significantly more money but that is because they are usually experts in their fields and truly care about the claimants because EAJA cases are a whole lotta work.

As for the 62 year old conversion, sorry but a lot of people try to get dib around that age, not because they can't work but because they want to retire and want a larger benefit. I get it, I might do it myself it if it still legal in a few years. But it is a design flaw and should be corrected.

Limiting evidence to 5 days before the hearing is a little draconian and I am not in favor of it. The problem is that about 50% of reps will dump records at the last minute and that causes a real problem. Police yourselves with best practices and maybe an Act of congress won't be necessary on this front. However, I can tell you that the Agency is really pushing it.

Age should absolutely be considered a vocational factor. Especially in those cases of manual labor/factory work. That type of life is very hard on a body. But because there is no really bright line test, age should remain a vocational factor.

As for a government rep, I am all for it. Too many times the ALJs simply don't have time to prepare adequately for the hearing and then the case is a mess from there on after. It wastes time and resources. Enough already, have a rep at the hearing and finally state what we all know, this is a quasi-adversarial process. However, the government reps should be able to refer cases that that the ALJ denied as well as the one she paid for appeal if there are obvious problems.

I think the 35 month auto termination is a VERY BAD idea. There is already too much abuse in the CDR area. Now significant evidence of fraud or SGA should result in an automatic termination with appeal and termination rights. I know that there is a lot of debate over this, but there is a significant amount of "organized" fraud out there and it has to be stopped because it only makes it hard for someone who is really disabled.

ALJs should be able to assess fines and sanctions as well as ENFORCEABLE supeonas. However, there should be a fast track appellate process that stays the fine/sanction until the appeal is decided. Lacking that, I would be hesitant to give anyone inside or outside the Agency unchecked power. Sorry.

Anyways, those are just my thoughts. I'm not saying I am right, or wrong for that matter. However, although I do not like Coburn at all and am happy to see him go, I think there might be some good ideas here.

Polite discussion is welcome, but haters need not apply.

Anonymous said...

It strikes me that implementation of this Act would be outrageously expensive and, therefore, not likely to pass. My ODAR is holding over 500 hearings in January, 2015 (a slow month due to two federal holidays and a quarterly IVT). How many attorneys would the Agency need to hire to represent the government to the Senator's satisfaction in 500 cases? If 11 ALJs don't have time to prepare 500 cases adequately (as Coburn seems to think) how many attorneys would be necessary? Multiply this by the number of ODARs and the costs get very high very quickly, as we surely are not going to pay these attorneys less than we pay attorney advisors. Where would these attorneys be housed? Certainly not at ODAR; we're full to the brim and the Agency's current thrust is to reduce real estate by encouraging telework. The Senator may be glad he got this off his chest, but I just don't see it ever coming to pass.

Anonymous said...

25% of past due benefits generally amounts to $3k - $4k. Attorneys in small shops need these fees to keep up the work. If you start requiring us to working on an hourly basis then we're going to see our thin margins evaporate. The best attorneys are generally in the smaller shops. When our fees tighten up even more than they already have, then the claimants will be left with fewer representatives.

Assuming you think attorneys are part of the problem and want to see this happen, then imagine this scenario. If I'm required to file a fee petition for every single case then I'm going to spend an inordinate amount of time (on paper) researching, drafting, reviewing, and processing the case. And you can bet my paralegals will spend time on the case. Also, the evidentiary records will be as fat as we can possibly make them so that we can justify our fees.

If the SSA wants a government rep at the hearing, it can knock itself out. I know the crap cases and we'll all end up debating the same ten pages of evidence regardless of whether the judge reads it or the attorney. This was tried before, and (according to C. Hall) resulted in similar acceptance/denial rates for claimants as without gov reps.

I'd love a 35 month CDR. The claimant who wins and is then required to come back to me for more legal work is a profitable client.

All snark aside, this is a deeply unpopular program with Republicans that is only going to face increasing pressure as the budget continues to tighten around the disability trust fund. It's entirely possible that we'll see a 2016 resolution of the waning disability trust fund tied to draconian changes in the law designed to screw attorneys out of the business. Democrats don't have the political will power to stand up for the SSA.

Anonymous said...

I'd like to hear specific objections to these...rather than just general outrage.

I actually think that many of these are quite common sense, raising GRID age, having automatic cut-off, getting rid of "medical improvement" standard to name a few. What's the beef with these?

Anonymous said...

Most of this is nonsense. That being said there are a few nuggets worth exploring.

The raising the Grids argument is interesting. Even though I use it, I have always questioned the Grids rule for those 50-54.

But the other stuff is ridiculous.

1. 35-month termination? Where did he come up with this?

2. Fee petition on all cases. Contingency fees is part of almost all disability representations such as workers comp. We can discuss the actual percentage but it makes sense to keep the contingency fee basically for ease of reporting (FYI it I 15% for workers comp cases here in California).

I could go point by point why this new law is ridiculous. But giving time to nonsense gives the right-wing whackos like Coburn gives them what they want - attention.

Anonymous said...

*definitely yes

*definitely yes

*no way

*probably yes

*not sure/don't care

*pretty much yes--not my vision of the new evidence rule, but close

*of course, yes

*maybe if you just built this in to AA or SAA job duties, but I don't see this being possible even if everyone wanted it

*this would be great, but would never happen and would be abused if it ever did.

*Yes. Treating sources need more weight (all things being equal), but I never liked that any source was entitled to "controlling" weight, even if the exceptions do swallow the rule.

*no--waste of time and money, not sure this even exists (it's like he's saying "put the claimant in a 'am I disabled machine'")

*I like this, but it would be such a hassle to due process it (i.e., give Cls chance to rebut, verify the profiles, etc. are actually made/controlled by the Cls, etc.) that whatever value it may have would be eclipsed by the hassle of implementation.

*no. I don't like seeing reps get $6k for five minutes of work (I know, the $6k and the five minutes both rarely happen, but it happens), but the workload on SSA to handle all those billables/petitions--ha!

*ok, fine

*while I have some reservations about EAJA/SSA practitioner behaviors, this is a horrible idea

*love this--all outliers should be so scrutinized. If we have an objective legal system, and if most judges are getting a large, random group of N cases, then one would expect pay rates, dismissal rates, etc. etc. to be pretty similar among ALJs, at least as between ALJs within the same geographic areas.

Anonymous said...

I can't help but notice the outline doesn't call for assessments of low-paying outlier judges. Sounds about right for Coburn's witch hunt.

Anonymous said...

Cut retirement benefits for those who are disabled when they reach age 62. So the idea is to penalize workers for becoming disabled. That seems a bit mean-spirited. Well, where have I heard something like this before...

First Collector: At this festive time of year, Mr. Scrooge, it is more than usually desirable that we should make some slight provision for the poor and destitute.

Ebenezer: Are there no prisons?

First Collector: Plenty of prisons.

Ebenezer: And the union workhouses - are they still in operation?

First Collector: They are. I wish I could say they were not.

Ebenezer: Oh, from what you said at first I was afraid that something had happened to stop them in their useful course. I'm very glad to hear it.


Anonymous said...

To 7:01 pm,

I did not read it as cutting retirement benefits. My understanding is that it would prevent people from avoiding the early retirement penalty (via smaller monthly retirement benefits) at 62, which they do by filing for disability benefits instead of retirement benefits. As noted above, it is a design flaw. If someone becomes disabled at 55 or whatever, then their benefit should convert (at age 62)what their retirement benefit (usually lower)would be. That is how the system was intended to work. However, until the design flaw is fixed, it is perfectly legal to apply for dib benefits instead of early retirement benefits. This is not being mean spirited, it is trying to have the system work as it intended so that it does not implode. If everyone wants the dib loophole to remain, then they should be willing to pay more into the system (which I am in favor of). Something has to give and the dib/ret work around is only a very small part of it, but it is something.

Anonymous said...

10:43 :

"If someone becomes disabled at 55 or whatever, then their benefit should convert (at age 62)what their retirement benefit (usually lower)would be. That is how the system was intended to work. "

Give me a citation showing that "this is how the system was intended to work." Logic would dictate the opposite. Non-disabled workers CHOOSE to retire early and incur the penalty which is lower retirement benefits for as long as they live. Someone who becomes disabled at 55 or whatever does not have the choice to continue working and enjoy a full retirement benefit. An entitlement to disability gives you, more or less, full retirement earlier than your full retirement age. That's why this proposal penalizes disabled workers and unfairly reduces their retirement benefits. The current provision is not a design flaw. This is what Congress intended and for good reason.

If someone files for disability at age 55 or 60 "to retire early" and they are not disabled, they should be denied. If they are disabled, give them the benefits to which they are entitled. But don't penalize disabled persons because they cannot work until full retirement age.

Anonymous said...


So you think that someone who has worked until age 62 and then retired because they are worn out should get less than someone who (for medical reasons) stopped working at 55 and will continue to get a higher monthly benefit until they reach full retirement age? The disability program was meant to tide over those who could no longer work until they could retire. I don't have the cite handy, but I am sure it is in the Congressional Record somewhere.I note that you did not provide a cite for your position either.

We see many, many claimants who apply for disability around age 62, some even after they have started collecting retirement benefits, because they want the higher benefit, not because they are disabled as contemplated by the program.

I think that it is a design flaw and that it should be fixed.

We will have to agree to disagree.

Anonymous said...

The 1952 legislation introduced the idea of a disability freeze, in which a person could receive Social Security benefits at the normal retirement age, even if he or she dropped out of the labor force for a substantial period of time because of a disability.

The disability freeze provision was designed to protect the benefit rights of workers and their dependents by providing that the worker's period of disability would not be counted in determining insured status under the retirement insurance program or in determining the worker's average earnings for purposes of computing benefit amounts.

In effect, the law eliminated the penalty that a worker would have faced (with years of zero earnings) at retirement. So the intent in 1952 was to assist them by having a retirement benefit that would not be smaller because they could not work.

In its formative years between 1956 and 1960, SSDI paid benefits only to workers who were fifty years of age or older.

In its report on H.R. 7225, the Committee on Ways and Means stated as follows:
"Your committee believes that retirement protection for the 70 million workers under old-age and survivors insurance is incomplete because it does not now provide a lower retirement age for those who are demonstrably retired by reason of a permanent and total disability. We recommend the closing of this serious gap in the old-age and survivors insurance system by providing for the payment of retirement benefits at age 50 to those regular workers who are forced into premature retirement because of disability."

In effect, disability is a form of forced retirement based on the inability to work, and treated the worker as if he/she were the FRA by design.

Issa's bill is contrary to that assumption.

Anonymous said...

I'm not sure exactly what the "fix" is for the retirement /disability filing option is, but I do believe it needs to be addressed.

When you work full time and then retire, I'd assume most people experience a drop in income. It seems to me this should be no different for SSA. I understand people don't choose to be disabled, but my goodness, there are lots of things that occur that we can't choose.

Anonymous said...

You people realize that quite often the DIB applications by people ages 62 or above, but not yet full retirement age, are encouraged by the staff at the field offices. The individual goes to the field office intending to sign-up for early retirement and it is the claims representative who inquires into health problems and encourages the disability application.

Anonymous said...

10:45, sure I realize that because the good folks at the DO have been trained to advise claimants of all the benefits that they are entitled to. It is still legal to apply for dib when you never thought you were dib but a DO adviser advises you that you could very well be. It is a design flaw that needs to be fixed, IMHO.

What I don't understand is that very same good folks at the DO who advise people on this matter, are the very same people who crucify claimant's over over payments.

Talk about Jekyll and Hyde behavior. But I digress.

Anonymous said...

I am an Attorney who has handled Social Security Disability cases since 1979. At that time,all favorable cases required the filing of an attorey fee petition. I still currently file Attorney Fee Petitions in cases involving remands and more than one hearing. With the Attorney Fee Petition process expect approval and payment of attorney fees to be even slower.

Also, while Tom Coburn is retiring he will still be in the Senate in spirit. His replacement, Congressman James Lankford is every bit as conservative as Coburn is. Lankford has been making the same arguments about Disability on the House side.

Finally, I would not trust Obama or an Democratic President to veto whatever bill passes. Democratic Presidents have not been freindly to Social Security claimants and Attorneys. Jimmy Carter, not Reagan started the Cessation without hearings purge in 1978. Reagan signed the bill that implemented hearings before Cessation. Clinton implemented the Attorney Fee user "fee" (actually double tax). For the most part, both of the Bush Presidencies were periods of growth in the disability law practice.

Anonymous said...

I'm an attorney at ODAR and former rep. Here's how it works- the case is barely worked up before it gets to hearing (unless a decent attorney rep files a real advocacy brief and all records). The judge rushes through the file, makes a snap judgment decision, usually a denial in our low-paying office. Then the attorney writer gets to draft the decision, sometimes with nonsensical instructions, trying to make illogic into logic.

Having SSA attorneys be actual attorneys and advisors, would help the case at the offset. I'm tired of noticing missing evidence, thinking of questions not asked, that no one but the attorney notices at the end of the line. If we bring the evidence to the forefront earlier, it can't be ignored. The current process stinks.

I disagree with putting these attorneys in OAO, though.