The Mess Left Behind By Eric Conn

One minor point: The reason that attorneys cannot get fees for representing claimants at these upcoming hearings isn't that Conn already got the maximum fee. The problem is that these claimants are still receiving benefits. No back benefits accrue from which an attorney can obtain a fee.

I Keep Asking The Question -- Does This Look "Out Of Control"?

From a study by Social Security's Office of Chief Actuary

High Stakes In Disability Determination

     People drawing the British equivalent of Social Security disability benefits are being subjected to new examinations to determine whether they're really disabled. Many are being cut off benefits. It turns out that more than 80 a month of those cut off are dying shortly after being found not disabled.

The Hunt For Social Security Disability Villains

     From a report by Social Security's Office of Inspector General:

On December 12, 2014, we received a request from the Chairman of the Subcommittee on Social Security, Committee on Ways and Means, to provide information on how SSA ensures beneficiaries follow prescribed treatment. ...

We identified 15 instances where SSA [Social Security Administration] denied benefits — or removed a beneficiary from the disability rolls based on a CDR [Continuing Disability Reviews]— for failing to follow prescribed treatment. Of the more than 2 million disability denials in 2012, only 5 were denied because the individuals failed to follow prescribed treatment. Of the 122,000 initial CDR cessations in 2012, the Agency ceased 10 because the individuals failed to follow prescribed treatment. ...

Additionally, w e reviewed a sample of 200 initial claims allowed in 2012 and found 23 had a possible failure to follow prescribed treatment issue. In 22 of these 23 claims, the adjudicator processed the claim in accordance with SSA policy. However, in one claim, the adjudicator did not follow Agency policy since he/she did not develop a potential failure to follow prescribed treatment issue. 

We also reviewed a sample of 200 CDRs continued in 2012 and found 11 had a possible failure to follow prescribed treatment issue. In all 11 claims, SSA handled the issue in accordance with policy. ...

     Perhaps the interesting thing here is the request from the Chairman of the House Social Security Subcommittee. It seems to be part of a Republican search for Social Security disability villains. It is similar to the recent suggestion by one Republican officeholder that mothers were intentionally poisoning their children with lead in order to get free housing. Sorry, guys but you're not going to find claimants refusing medical treatment so they can be found disabled or remain disabled. That's virtually nonexistent. And, no, Social Security's failure to find instances of this happening doesn't mean that Social Security hasn't been looking for it. It's because it just about never happens.

Maine Congressional Delegation Reacts To The Hearing Backlog

     Maine's Congressional delegation is reacting to Social Security's vast and growing hearing backlog.

GOP Wanted FOIA Investigation

     Congressional Republicans asked Social Security's Office of Inspector General (OIG) to see whether political appointees at Social Security were manipulating the agency's responses to Freedom of Information Act (FOIA) requests. OIG found no evidence of this.

     I have no idea why the GOP would think there was a problem with political interference with FOIA requests at Social Security. However, there is a big FOIA problem at Social Security. FOIA requests at Social Security take forever! Months and even years can pass without a response. This isn't because of political interference. It's because of lack of resources. It's the same at other government agencies. FOIA is a mess but the problem isn't political.

NO COLA This Year?

     The Center for Retirement Research at Boston College says there probably won't be a Social Security Cost of Living Adjustment (COLA) this year. If so, it would be only the third time this has happened in 40 years.

What's A Signature?

     With Adobe Acrobat it is possible to send Social Security forms to claimants via e-mail and for those claimants to sign the forms with their mouse if they're using a desktop or using their finger if they're using a smartphone or tablet. Is that sort of signature acceptable to Social Security? Is there a policy on this? If there isn't a policy, shouldn't there be? Doesn't 15 U.S.C. §7001 require Social Security to accept this form of signature?
     I'm not asking these questions because I'd like for the Social Security Administration to use this method of collecting signatures. It's fine with me if they do but that's not my point in asking. I'm asking because I'd like to use this method so that my clients can quickly sign the necessary paperwork so I can represent them.

Anyone Still Wanting To Invest The Trust Funds In The Stock Market?

     Is there anyone out there who still wants to invest the Social Security trust funds in the stock market? Anyone? 'Fess up, right wing trolls. That was a terrible idea.

Improvement In 800 Number Service

     I don't know how they've done it but Social Security is reporting dramatic improvement this year in average speed to answer times and agent busy rates for their 800 number.

Oblique Response

     The Acting Commissioner of Social Security has sent a letter to the Chairman of the House Ways and Means Committee responding obliquely to his request for information about whether the agency would be providing names of claimants with representative payees to other government agencies for use in determining capacity to obtain firearms. The Acting Commissioner says that Social Security isn't doing that now. She does not say whether there is a plan to do so in the future although she does say that no names would be provided merely because a claimant has a representative payee.

About Time

     Social Security has now announced that it will recognize same sex marriages even before the date of the Supreme Court decision requiring that all states recognize same sex marriages. Just yesterday there was a New York Times article saying that the Department of Justice was still considering the issue.

Same Sex Marriages Still A Problem For Social Security

     From the New York Times:

Same-sex couples may have won marriage equality, but some gay and lesbian individuals have been left wondering if their unions are still less than equal in the eyes of the government.

Kathy Murphy is one of them. She has been unable to collect survivor and death benefits from Social Security since she lost her spouse, Sara Barker, to cancer in 2012. Ms. Murphy retired from her career in publishing in 2011, earlier than she expected, to care for Ms. Barker, who died at 62.

Ms. Murphy finds herself in this predicament largely because her spouse died before the Supreme Court’s monumental ruling in June, Obergefell v. Hodges, which declared that marriage is a fundamental right. That case came after the landmark Windsor decision, in 2013, in which the court ruled that same-sex couples are entitled to federal benefits. ...

A spokesman for the Social Security Administration said it was working with the Justice Department to analyze the Supreme Court’s decision in Obergefell. He said the agency would provide updated instructions as new information became available.

Use Of ERE Message Function

     By chance I noticed recently that I was the only one at my firm using the message function in Social Security's Electronic Records Express (ERE) system. I've been using it to send simple messages such as as “We have submitted all the evidence that we promised on the day of the hearing and you can proceed to issue a decision” or “The post-hearing CE strongly supports our argument that Mr. _____ is limited to sedentary work.” I've only been sending these messages to one hearing office. The process has been working well for me.
     After finding out that no one else at my firm was using the message function, I asked outside my firm. I couldn't find anyone else using the message function.
     I'm curious. Are attorneys in other states using the message function? Is it working OK if you are? If you're not using it, is it because you tried and there were problems? Were you even aware of the message function?
     If this technology isn't being used widely, there's something wrong. Either the system isn't functional or people just don't know about it.

Social Security Headcount Up From A Year Ago But Still Way Down From Peak

     The Office of Personnel Management (OPM) has just posted updated figures for the number of employees at the Social Security Administration as of the end of the first quarter of 2015:

• March 2015 64,432
• December 2014 65,430
• September 2014 64,684
• June 2014 62,651
• March 2014 60,820
• December 2013 61,957
• 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

Early Intervention Contractor Sought

     Social Security is seeking a contractor for an early intervention mental health study. This would only be for denied applicants. The overwhelming majority of applicants for Social Security disability benefits who suffer from mental illness are denied.

Why Do So Many Republican Candidates For President Favor Cuts In Social Security?

     Today's opinion pieces:

• Paul Krugman at the New York Times believes most Republican candidates for President support cuts to Social Security not because these cuts are popular with the Republican base (they aren't) but because big money donors support cuts in Social Security.
• Tim Worstall at Forbes says that you don't have to be a bloated plutocrat to favor cuts in Social Security. In fact, retirement age should be raised to 80!
• Ezra Klein at Vox believes that one of the major reasons that Donald Trump is popular with Republican voters is that Trump doesn't favor cuts in Social Security.

Grim Processing Time Report

      From the newsletter (not available online) of the National Organization of Social Security Claimants Representatives (NOSSCR). Click on the image of each page to view full size.

When It Comes To Age Of Retirement, Don't Believe What People Tell You

From EBRI -- Click On Image To See Full Size

They've Got Opinions And Some Facts

     Here's a roundup of today's columnist pieces on Social Security:

• Michael Hiltzik on the lack of a confirmed Commissioner of Social Security
• Tom Margenau on the Lump Sum Death Payment (LSDP)
• Laurence Kotlikoff and Robert Pozen on how the retirement earnings test for those between age 62 and full retirement age discourages people from working

House Appropriations Committee "Believes" In Functional Assessment Batteries

     From the report (page 150) of the House Appropriations Committee on the Labor-HHS Appropriations bill, which covers the Social Security Administration:

The Social Security Administration (SSA) has partnered with the National Institutes of Health to create a functional assessment tool that is reliable and objective and may inform the disability determination process. One of the major projects of this partnership is the Functional Assessment Battery (FAB). The Committee believes the FAB tool could serve to provide uniform, objective evidence to the disability determination.The Committee notes its concern that SSA is currently limiting the use of this tool for only survey research. The Committee directs SSA to test the use of the FAB as part of the demonstrations undertaken within the Disability Early Intervention Initiative.

     The bill has now been reported out of Committee.
     The Committee can "believe" what it wants but any function assessment battery will be worthless in determining disability. You cannot test someone's work capacity over the course of a few hours and extrapolate from that to determine the person's ability to work eight hours a day, five days a week, fifty weeks a year. You cannot say that because a person has run 100 yards that they can run a marathon, much less say that the person can run a marathon at the same pace that they have run 100 yards. There's no way around this problem.
     Functional assessment batteries have always been and will always be fool's gold. They appeal only to those who give little thought to the matter, especially if they have no interest in justice, and to those who stand to profit from performing the functional assessment batteries.
     The United Kingdom has started using functional assessment batteries in determining disability. It's been pretty disastrous.
     If you think disability determination in the United States is problematic, you'd right. Disability determination is an inherently messy, imprecise business. That doesn't mean that things can't be made worse. Things could get a lot worse with widespread use of functional assessment batteries.

Happy 80th Birthday, Social Security!

Survey On Having Enough Money To Live Comfortably In Retirement

From EBRI -- Click On Image To View Full Size

Eric Conn's Former Clients Awaiting Word From Federal Court

     There was a hearing Monday on a motion to prevent the Social Security Administration from forcing almost 1,500 former clients of Eric Conn to prove all over again that they're disabled. There's no decision yet from the Court but the attorney representing the class has posted about the hearing on Facebook. He says that he gave the judge his best estimate that only about a third of the claimants would be able to obtain legal representation. Training for volunteer attorneys is tentatively scheduled for August 29.

Some Right Wing Ideas On Reforming Social Security Disability

     The Washington Examiner, a right wing publication publication owned by Denver billionaire Philip Anschutz, has a compendium of ideas for reforming Social Security disability. Here are some:

• Add temporary disability benefits
• Add partial disability benefits
• Change the definition of disability to "a medically determinable physical or mental impairment that has resulted in a substantial impediment to employment and is expected to result in death or has lasted or is expected to last for continuous periods of at least 12 months."
• Early intervention to help disabled people to work such as providing career coaches.

     Those proposing these ideas do so because they actually believe that in the long run they would cut costs. They're dead wrong.

     I'd love to see the first three ideas implemented but they're complete non-starters. Temporary disability benefits would be extremely expensive to implement. Partial disability benefits would multiply costs by, who knows, three or four or five times. Changing the definition of disability to merely require a "substantial impediment to employment" would have a similar effect. Early intervention would be extremely difficult to implement and would be ineffective. People can't wrap their minds around the fact that most people who meet Social Security's current definition of disability either suffer from chronic, progressive conditions or suffer from overwhelming mental illness. Early intervention doesn't help them.

     The underlying problem is that no one on the right has a good understanding of Social Security disability. They have attitudes about Social Security disability. Boy, do they have attitudes! But when it comes to actual knowledge, they just don't know their stuff, which is how they come up with this blue sky stuff.

Astrue Not A Fan Of Obamacare

     I was wondering what Michael Astrue, the most recent Commissioner of Social Security, was up to. I found an opinion piece that he had done in May for The Weekly Standard, a right wing publication, on the implementation of the Affordable Care Act, which he and many others call Obamacare. I won't bore you with the details of Astrue's piece. I'll just list a few of the words he used and you can infer the rest:

• Self-preservation
• Waste
• Fraud
• Abuse
• Criminal
• Wreckage
• Massive
• Failure
• Mislead
• Stonewall
• Failures
• Reckless

     Astrue was a Massachusetts resident at the time that state implemented a health care plan devised by its Republican governor, Mitt Romney. Astrue was active in Massachusetts politics at the time. I can't find any record of him publicly criticizing Romney's plan. The Affordable Care Act was modeled after Romney's plan. It's no exaggeration to say that Obamacare is Romneycare writ large. If you hate the Affordable Care Act, you should have hated Romney's healthcare plan too.

Law Firm Agrees To Represent Several Hundred Former Clients Of Eric Conn

     Morgan and Morgan, a law firm, has agreed to represent "several hundred" of the nearly 1,500 former clients of Eric Conn who may be losing their Social Security disability benefits. Morgan and Morgan appears to be based in Florida but has offices in Kentucky.

New Regs On Social Security Number Applications

     The Social Security Administration has adopted new regulations on Social Security number applications to allow for electronic applications.

Jump On The Bandwagon

Interesting Tweet

Mike Conrad ‏@mikeconrad1 5h5 hours ago

Social Security projected to hit 100 year mark in good shape. This will also mark 100 years of opponents' constant claims of impending doom.

Is PEBES Worth The Cost?

     The Center for Retirement Research at Boston College has issued a report asking "Does the Social Security 'Statement' Add Value"? The Social Security "Statement" they're talking about is what the agency calls the Personal Earnings and Benefit Estimate Statement (PEBES). 

     Most people say they remember receiving PEBES and found the information helpful. However, there is little evidence that PEBES affects claiming behavior and there's little evidence that people remember the amount they will receive when they retire. See the chart below.

     For what it's worth, my clients often ask how much they'll receive a month if their disability claim is approved. I seldom have easy access to this information until close to the hearing. When I'm asked this question, I ask the client if they remember receiving the PEBES -- describing it in a way such that they'll understand what I'm talking about. They generally remember receiving it and say they have saved it. I tell them that the PEBES tells the approximate amount that their disability benefit will be. They're always surprised to hear this.

The "Testing" Goes On Without End

     Social Security is once again extending the "testing" of the use of a single decision maker and the elimination of reconsideration. This testing has been going on for many years. Everyone knows they both work. However, the single decision maker system results in a really tiny increase in the number of disability claims approved so it can't go forward and eliminating reconsideration funnels more cases to hearings before Administrative Law Judges which would increase backlogs at that level so it can't go forward either. So Social Security just keeps extending the "testing" indefinitely.

Social Security Not Doing Data Match With Federal Workers Comp

     The Government Accountability Office (GAO) has done a study on whether Social Security is properly reducing Disability Insurance Benefits by workers compensation benefits paid to former federal employees and found problems. GAO found that the agency was not detecting 13% of the cases where there should have been an offset and that there were probably more cases but GAO could not say for sure due to limitations in Social Security's data. The underlying cause of this problem is Social Security's failure to do a data match with federal workers compensation records. Social Security has felt that such a match would not be cost effective. I was under the impression that the agency was already doing data matches with state workers compensation records. I don't understand why they wouldn't do the same with the federal workers compensation records.

Just Tell Me What You Want!

     Senator Orrin Hatch went to the Senate floor today to talk about the bills that he has put forward on Social Security disability. It's worth watching the recording of his speech on the issue. Hatch is clearly concerned that any disability proposal that he and other Republicans come up with will be criticized as cutting Social Security. He really, really wants the President and other Democrats to propose cuts in Social Security disability while he sits back and keeps saying, "Not good enough -- give me more." However, Hatch has yet to propose anything that would extend the life of the Disability Insurance Trust Fund. All he and his Republican counterparts in the House come up with are dubious small bore proposals that would do virtually nothing to extend the life of the Disability Insurance Trust Fund. Specifically, they are avoiding putting forward a plan to transfer income or assets from the Retirement Insurance Trust Fund to the Disability Insurance Trust Fund. We have no idea what their price for doing so really is.

     There's no reason for the President to accommodate Hatch and other Republicans on this issue. The President has a plan. Republicans control the Congress. They should come up with their own plan. If they don't want this to be an election issue in 2016 they need to convince Democrats, including the President, to accept their plan. If Hatch and his Republicans can't even say what they want, it's impossible to negotiate with them.

     And, I keep saying, there's a simple solution for this problem. The President can do it without help from Congress. Somehow, I think that Senator Hatch might be privately relieved if the President just took care of the problem.

Small Bore Proposals From Hatch

     A press release:

Senate Finance Committee Chairman Orrin Hatch (R-Utah) today announced another trio of bills designed to improve the Social Security Disability Insurance (SSDI) program.  The bills put beneficiaries first by establishing new methods to prevent fraud, improve accountability, and provide more opportunities to current and future beneficiaries. The trio of bills join other SSDI bills Chairman Hatch introduced earlier this year as part of a broader package to address pending depletion of the SSDI trust fund.

“For some time now, the SSDI program has been in need of adjustments and updates to the services it provides,” Hatch said. “These bills are yet another step in that process and will help modernize SSDI making it more efficient and effective for both beneficiaries and taxpayers.  The SSDI trust fund will be depleted as early as next year and Congress must continue to search for avenues to address the financial challenges facing the program while continuing to improve on how the program works for beneficiaries.” 

The Promoting Opportunity for Disability Benefit Applicants Act, S. 1923, authorizes the Social Security Administration (SSA) to give denied DI applicants information on employment support services, from public and private non-profits, preventing workers from cycling through the application process and allowing them to re-enter the workforce. Additional background available here.

The Improving the Quality of Disability Decisions Act of 2015, S. 1922, requires the SSA to review Administrative Law Judge disability decisions and report the results annually to Congress to ensure judges are following the law and Social Security’s rules and regulations. Additional background available here.

The Disability Fraud Reduction and Unethical Deception (FRAUD) Prevention Act, S. 1929, updates and builds upon tools to deter and punish fraudsters by imposing civil monetary penalties and felony charges to criminals who defraud Social Security.  The bill also requires a regular review of major claimant representatives to ensure compliance. Additional background available here.

Joining Hatch on the bills as cosponsors are Senators Roy Blunt (R-Mo.), Dan Coats (R-Ind.) and James Lankford (R-Okla.).   

GOP Doesn't Know What It Will Do About Disability Trust Fund

     The Fiscal Times is running an article on Republican efforts to come up with a plan for the looming shortfall in Social Security's Disability Insurance Trust Fund. The bottom line is that Republicans don't have a clue what they'll do. While they might love to cut any type of Social Security, they don't want their fingerprints on any plan to cut Social Security in any way so they work on small bore plans that would have virtually no effect on Social Security disability costs. However, it's clear that many Republicans in Congress will oppose any fix because they want to make their "Social Security is broken" mantra come true.

     By the way, the article advances the myth that there is a "growing number" of people seeking Social Security disability benefits. There used to be true but that's certainly not the case now. The number claiming benefits has gone down dramatically. The number actually drawing benefits has declined modestly over the last year. I can't understand why this point isn't being raised more by Social Security's supporters. Maybe some of these supporters have been taken in by the constant Republican repetition of the "Social Security disability is out of control" meme.

     By the way, I intend to keep pointing out that the administration can solve this problem rather simply without Congressional help. I still haven't heard any reason why my plan won't work.

Fewer People Drawing Disability Benefits

     The number of people drawing Disability Insurance Benefits from Social Security declined in July. This number has declined in nine of the last ten months. There has been a decline of 0.3% from the peak in September of last year.

Conference Today

      For what it's worth:

Today, the McCrery-Pomeroy SSDI Solutions Initiative will be hosting an all-day solutions conference. 

The conference will feature 12 policy proposals to improve the Social Security Disability Insurance (SSDI) program, written for the initiative by authors from a variety of backgrounds and perspectives. The conference will also feature opening remarks by Senate Finance Committee Chairman Orrin Hatch (R-UT), mid-day remarks from Bob Greenstein, president of the Center for Budget and Policy Priories, and a wrap-up panel including Congressmen McCrery and Pomeroy alongside Social Security experts Mark Warshawsky and Alan Cohen. 

We invite you to watch the SSDI Solutions Conference live, today from 8:45 am to 5:00 pm on our livestream. You can find a full agenda on our website. 

Also, in case you missed, it please check out Congressmen McCrery and Pomeroy’s op-ed on SSDI in The Hill. 

 To watch the SSDI Solutions conference live, click here.

     This is sponsored by the Committee for a Responsible Federal Budget, which is, at least on this issue, largely a front organization for Pete Peterson's longstanding campaign to cut Social Security. Yes, there are some bipartisan trappings but this is basically a right wing group.

Waiver Disparities

     It's not unusual for a Social Security recipient to become overpaid. Often this happens because of a mistake made by the Social Security Administration. Overpaid claimants who were not at fault AND who don't have the funds to repay can ask for waiver of the overpayment. Also, if the claimant asks, overpayments under $1,000 are waived almost automatically for the sake of administrative convenience, although the field offices aren't supposed to volunteer this information to claimants. Social Security's Office of Inspector General (OIG) has done a study of field office action on overpayment waiver requests. It turns out that a high percentage of waiver requests are granted but that there are major disparities between field offices. See the charts below. I'd hazard a guess that some offices are volunteering information about administrative waivers. Is that really a wrong thing to do? Why should this be hush-hush?

Some Social Security Home Cooking Planned For Eric Conn's Former Clients

     I posted yesterday about the special rules that Social Security has cooked up to try to prevent Eric Conn's former clients from ever seeing the evidence of "fraud or similar fault" that is supposed to justify requiring them to prove all over again that they're disabled. Of course, these special rules also block any hearing on that issue. Let's look now at the special rules that the agency has adopted to make these readjudications easier for the agency. Below are some excerpts from section I-1-3-25 of Social Security's hearing and appeals manual, HALLEX, on Processing Multiple Cases When Fraud or Similar Fault Involved (“Redeterminations”). These were adopted last summer, obviously for Conn's former clients. My bolded and italicized comments are interpolated:

• When redetermining a claim(s), an adjudicator will be directed to consider the claim(s) only through the date of the final and binding determination or decision on the beneficiary's application for benefits (i.e., the original allowance date). But what if the claimant wasn't disabled at the time of the prior decision but has become disabled since then. How does this issue get adjudicated? The statute provides that a Social Security claim stays in effect until a final decision on the claim. 42 U.S.C. §402(j)(2). How can one say that there was a final decision on these cases if the agency is vacating the prior decisions? Shouldn't these cases be treated like remands where everything is up for grabs? Back benefits on a claim for Disability Insurance Benefits can only go back up to one year prior to the date of the claim. Supplemental Security Income benefits can only go back to the beginning of the month after the month in which the claim is filed. Note that in these cases we would be talking about reduction of an overpayment rather than actual benefits to be paid but that's still important to these claimants since the overpayments may be collected out of their future benefits. A new claim filed now can't make a claimant whole yet these claimants couldn't have filed new claims while they were drawing benefits. Unless Social Security comes up with some new process these claimants can't file new claims while these adjudications are proceeding.
• During redeterminations based on fraud or similar fault, SSA will not generally develop evidence beyond the original allowance date. However, an adjudicator may consider evidence submitted by the beneficiary that post-dates the original allowance date if that evidence relates to the period at issue in the redetermination. For example, if a beneficiary submits evidence of an IQ test dated after her original allowance, and that evidence, with the remaining evidence of record, supports her claim that she met Listing 12.05C as of the date of her original allowance, SSA will consider that evidence during a redetermination. How convenient for you! There's a period of years with no medical evidence in the record but you absolve yourself from any obligation to obtain this evidence. Remember, many, perhaps most, of these claimants will be unrepresented.
• If the beneficiary submits evidence of a new impairment unrelated to those alleged in the application being redetermined, and the onset date is after the original allowance date, the adjudicator will usually not consider or develop the evidence of the new impairment during the redetermination, unless objective evidence shows a new critical or disabling condition. In that instance, the ODAR adjudicator will consult with ODAR management to determine the appropriate course of action.  I-1-3-25. What's a "new critical or disabling condition"? Why does the condition have to be new? What's the statutory justification for this? How can you tell what's new and what isn't? If the evidence at the time the claimant was originally found disabled showed that he or she was a diabetic and the evidence now shows that the claimant has lost a leg due to that diabetes, is that a new condition? You've already said that you're not going to adjudicate disability after the date of the original approval. Now you say you might but that "ODAR management" will tell ALJs whether they can. What's the process here? How does the claimant ask for this? Who in ODAR management makes this decision? When do they make it? Can the decision be appealed? It sounds like this section of HALLEX was drafted by a committee and that there was disagreement on this whole issue. This was probably a compromise solution but it just doesn't make sense. These claimants and their attorneys, to the extent they have attorneys, would like to know the rules going into this process. Is that unreasonable?

     If the issue is only whether the claimant was disabled at the time of the prior decision approving the claim let's use round numbers and say that 50% of the claimants will be approved. However, if the issue is whether the claimant was disabled at that time or any subsequent time, I'd guess that 75% or more will be approved with some onset date found. Most Social Security disability claimants keep getting sicker as time goes on. This is a big deal. Sure, maybe they would be approved on a new claim but that may take three years and they won't be able to mitigate their overpayment as much as they should.

Claims Reps Charged With Taking Bribes

     Two Florida women who had been claims representatives for the Social Security Administration have been charged with taking bribes for expediting or somehow modifying the process for obtaining Social Security benefits. Most of my readers know this but claims reps have no ability to approve or disapprove a disability claim and this may not have even involved disability benefits anyway. Claims reps are important in the process but they have little discretion. I don't understand how they could have modified the process for obtaining benefits in any meaningful way. I don't know why anyone would have been tempted to bribe a claims rep.

Social Security Making Up Special Rules For Eric Conn's Former Clients

     Social Security made up some special rules just for Eric Conn's former clients. The main point of the rules is to make sure the agency can decide in its absolute, unreviewable discretion that there has been "fraud or similar fault" without ever having to produce any evidence showing this or having to justify its decision before a neutral adjudicator.

     Take a look at sections I-1-3-15, I-2-2-101, I-2-10-8, I-2-10-10, and I-2-10-14 from the agency's hearings and appeals manual, HALLEX. These provide a process whereby an Administrative Law Judge (ALJ) will give notice of a hearing on the issue of whether there was "fraud or similar fault", hold the hearing, possibly take testimony from a witness from the agency's Office of Inspector General (OIG), and make a decision on the issue on the basis of the preponderance of the evidence. All of these sections other than I-2-2-101 were adopted on June 25, 2014. This is the traditional approach to administrative justice.

     Then take a look at section I-1-3-25, Processing Multiple Cases When Fraud or Similar Fault Involved (“Redeterminations”), also adopted on June 25, 2014. Here are some excerpts with my interpolated comments bolded and in italics.

• The Deputy Commissioner of ODAR [Office of Disability Adjudication and Review] will determine which ODAR component is designated to redetermine the affected case(s). Wait, who adjudicates whether there was "fraud or similar fault" justifying a redetermination in the first place? Does the head of ODAR get to make this decision in her absolute, unreviewable discretion? When does the claimant get to see the evidence upon which this decision is based? When does the claimant get a chance to counter this evidence? It sure looks like the agency is afraid of having to justify what it's doing before a neutral adjudicator.
• ODAR will draft specific processing instructions for any particular batch of cases. Right, you just make it up as you go along.
• When an adverse redetermination is necessary, ODAR will send the claimant an appropriate notice based on the circumstances. The notice may include issues relating to benefit continuation or the opportunity for a supplemental hearing. May include information on benefit continuation? Sounds like you can't make up you mind on this issue. Supplemental hearing on which issues? Additionally, the notice may include the opportunity and time-frame for submitting arguments or rebuttal evidence. I-1-3-25.  But what about the right to a hearing on the issue of "fraud or similar fault? Isn't that required as a matter of administrative law and due process? Does the process you've designed consist of you telling me you've already made up your mind but I can say something which you'll ignore since you've already made up your mind and you can't possibly change your mind because Congressional Republicans will attack you? It sure looks like the agency is afraid of having to justify what it's doing before a neutral adjudicator.
• Based on OIG referrals of information pursuant to section 1129(l) of the Act or information obtained through other criminal, congressional, or administrative investigation, the agency may direct an ODAR adjudicator to disregard certain evidence. The agency can just summarily decide which evidence can be considered in its absolute, unreviewable discretion? How does this square with the right to submit arguments and rebuttal evidence? Sounds like that's no more than window dressing since "the agency" has already made up its mind. It sure looks like the agency is afraid of having to justify what it's doing before a neutral adjudicator.

     Why is it that the agency made up these rules last summer, obviously for Conn's cases, but is only just now getting around to acting on the cases? The statute says there is supposed to be an "immediate" readjudication when there is "fraud or similar fault." It looks like the agency can't make up its mind what it wants to do. Maybe that's because the evidence of "fraud or similar fault" isn't all that strong. Convincing 60 Minutes, which is far more interested in good TV than in justice, is one thing. Convincing a neutral adjudicator is another. They don't trust the ALJs to make the "right decision" -- the one that Congressional Republicans demand -- so they want to take the issue out of their hands.

Those Crazy Socialists!

August 10 Hearing To Try To Prevent Benefit Cutoffs In Kentucky and West Virginia

     Ned Pillersdorf's Facebook page indicates that there will be a telephone hearing on August 10 on his motion to stop Social Security's plan to try to cut off the disability benefits of almost 1,500 of Eric Conn's former clients in Kentucky and West Virginia.

     I keep wondering when each of these folks gets an individual evidentiary hearing on the question of whether they were found disabled as a result of "fraud or similar fault." Social Security seems to be trying to go yada, yada, yada past this issue but it seems to me to be basic administrative law as well as basic due process.
     The evidence of this "fraud or similar fault" is so strong that Social Security wants to summarily cut all these claimants off benefits, yet it wasn't strong enough that:

• A U.S. Attorney would bring criminal charges against Conn;
• The Kentucky Bar would try to take away Conn's law license or discipline him in any way;
• The Social Security Administration would bring changes that would prevent Conn from continuing to practice before the agency.

     If, or perhaps when, these evidentiary hearings start, I'd like to hear the testimony of the person at Social Security who is responsible for bringing actions to bar attorneys from practicing before the agency because of misconduct. Why didn't you bring an action against Conn? Or, maybe, you did and couldn't convince an Administrative Law Judge to discipline Conn? Which is it?

A Debate That Shouldn't Come To The U.S.

     I hope this debate isn't coming to the U.S.