Treasury Deliberately Delaying Payment Of Social Security Benefits

     Here's a note that a legal assistant at my firm made of a conversation she had with Social Security's Representative Call Center (RCC) in Baltimore about why one of the firm's clients hadn't been paid her back benefits:

TC [Telephone all] RCC (877) 626-6363. It [the client's money] was released to the Treasury Dept. on the 23rd and she said every month the Treasury has a date that they stop processing cks until the 1st of the next month; this month it was 18th. So all the claims they processed will not be released until April 1st.  She said this has been going on for some time and the cut off is usually in the 20s of the month but for some reason this month it was earlier.

     Oddly, one person posted a comment on this blog yesterday saying that they had heard the same thing.
     Let me explain one thing. The Social Security Administration doesn't write checks or initiate direct deposits of Social Security benefits. That's done by the Department of the Treasury. All Social Security does is certify to Treasury that the payments should be made.
     I had long suspected that Treasury was deliberately delaying payments at the end of each month.  Generally, neither my firm nor our clients get paid Title II Social Security benefits in about the last week of each month, then there's a surge in payments early in each month as the money that was held up at the end of the preceding month is released. Payments under Title XVI, Supplemental Security Income, don't seem to be affected. It's only Title II benefits that are affected. What I don't understand is why Treasury is doing this. It seems inappropriate to me.

You Do Know We Can Read This, Don't You?

     From an newly amended section of HALLEX, Social Security's manual for hearings and appeals:

When determining disability, the Social Security Administration (SSA) will use each of the age categories applicable to a claimant during the period for which SSA is determining whether the claimant is disabled. SSA will not apply the age categories mechanically in a borderline age situation. If a claimant is within a few days to a few months of reaching an older age category (hereinafter “higher age category”), and using the higher age category would result in a determination or decision that the claimant is disabled, SSA will consider whether to use the higher age category after evaluating the overall impact of all the factors of the case. ...

If the administrative law judge (ALJ) decision is supported by substantial evidence, including the findings regarding the existence of a borderline age situation and whether to apply a higher age category, and there is no other basis for granting review present, the Appeals Council (AC) will deny review.

When denying review is appropriate but the ALJ did not expressly state in the decision that he or she considered a borderline age situation and whether to apply a higher age category, the AC will add the following language to the “What We Considered” section in the denial notice:

We considered the borderline age situation in this case, and we found that the factors in the record do not support application of the higher age category.

     The first paragraph is standard Social Security policy. There's nothing objectionable about it. The rest is apparently based upon the theory that the only thing that matters isn't what you actually did; it's what you said you did. How can the Appeals Council say that the Administrative Law Judge (ALJ) "considered" an issue when the ALJ said nothing about the issue? How can the Appeals Council say that it "considered" an issue when it tells the world upfront that it isn't really going to "consider" the issue; it's just going to say it "considered" the issue.
     This newly amended section is about checking off boxes. You couldn't have a clearer statement of the agency's cookie cutter approach to justice.
     The ironic thing is that the language quoted above will be cited to the courts as evidence that Social Security's "considered" language is a lie. More cases will be remanded, not fewer.

ALJ Register Open!

     The Office of Personnel Management (OPM) has posted the job announcement for the position of Administrative Law Judge (ALJ) at Social Security. If you are interested in applying, you need to start making your application immediately. The announcement will close on April 8.

Oh The Irony

     The United States Court of Appeals for the Second Circuit has affirmed two District Court decisions that held that Binder and Binder is barred from suing the Social Security Administration because the agency refused to pay attorney fees after the claimants that Binder and Binder had represented had their debts discharged in bankruptcy. The Court ruled that sovereign immunity barred the lawsuits. Of course, the irony here is that Binder and Binder is itself now in bankruptcy.

The Never Ending Disaster Of The Windfall Offset

     I'll explain below but this is just awful. It's no surprise to me but it's still awful. From a recent report by Social Security's Office of Inspector General (OIG):

We continue to find that SSA [Social Security Administration] needs to improve controls to ensure it accurately and timely pays OASDI [Old Age, Survivors and Disability Insurance] benefits withheld pending a windfall offset determination. We estimate that 

• 13,141 beneficiaries’ windfall offset actions were not processed and therefore SSA withheld about $113.2 million in OASDI benefits, of which we estimate approximately $ 71.9 million was payable to these beneficiaries, and
• 19,587 beneficiaries’ windfall offset actions were correctly processed but not in a timely manner; therefore, these beneficiaries did not promptly receive about $195.2 million in OASDI ben efits .

In addition, SSA incorrectly processed the windfall offset determinations for five beneficiaries. As a result, SSA improperly withheld $12,775 in OASDI benefits for these beneficiaries. Finally, SSA did not take corrective actions for 50.6 percent of the beneficiaries we identified during our 2011 audit.

     Let me explain. Supplemental Security Income (SSI) benefits are based, in major part, on how much income you had during a month. What about months in which you are approved after the fact for both SSI and Disability Insurance Benefits (DIB) which are not based upon income? You didn't receive the DIB at the time but the law requires that the SSI benefits be reduced as if you had. That's the Windfall Offset. It may not sound that complicated but it is. It's been an enormous mess for Social Security even since it was enacted. The agency has made two separate efforts to implement software to automate the windfall offset. Both were expensive failures. My recollection is that the cost of the last software failure was over $100 million. The process remains a thorn in Social Security's side. It involves co-ordination between Social Security field offices where SSI benefits are computed and authorized and Social Security payment centers where DIB is computed and authorized. The process is tedious and highly error prone as this report shows. How error prone? So error prone that even after OIG pointed out that the agency had made a mistake, that half the time the agency still failed to correct the mistake! Note that the mistake is always to fail to pay claimants all the money they're due in a timely manner.
     I think that agency management has long since thrown up its hands and decided not to even bother to try to improve the situation. Why bother? It's only the claimants that are being hurt. This Congress won't complain about that. Even past Democratic Congresses didn't complain because they didn't understand the problem.
     If you think this is all way too technical to bother thinking about, look at the charts below. Over half the time, Social Security fouls up the windfall offset. Once they foul it up it's often years before they get it straightened out, if they ever do.

A Forum On Extreme Limitations In The Ability To Focus

     From a post on Social Security Administration Matters, the agency's blog:

Gathering and assessing medical evidence is a key part of how we make our decisions. On Wednesday, March 30, we will host our next National Disability Forum, Developing and Assessing Medical Evidence for Extreme Limitations in the Ability to Focus on Tasks.

     The blog post doesn't say how one can participate in this forum. It does say that one can share ideas on the agency's IdeaScale website or as a comment on the blog itself. A graphic says that the forum will be held at the National Education Association in Washington. 

More Than 60 Million Draw Social Security Benefits

     From CNS News:

The number of people receiving benefits from the Social Security Administration topped 60,000,000 for the first time at the beginning of 2016.

In December 2015, according to data published by the Office of the Chief Actuary of Social Security, the Old-Age and Survivors Insurance and Disability Insurance Trust Funds paid benefits to 59,963,425 beneficiaries. In January 2016, that increased to 60,084,225, and in February 2016 to 60,199,914.

SSAB To SSA: We Don't Know How But You Need To Do Better On Rep Payees

     The Social Security Advisory Board (SSAB) has issued an Issue Brief on representative payees at Social Security. Rep payees are appointed to handle funds for Social Security claimants who can't manage their own money. This is one of those reports that details some problem at Social Security and then tells the agency to do better without identifying any way in which the agency can realistically do better. How quickly do you think this sort of report gets thrown in the trash by Social Security management?

     The report does include the map shown below which is interesting. Click on it to view it full size. I don't know what to make of it. Does it show a correlation with the percentage of the population that's African American? Does it show a correlation with the percentage of the population that has low educational attainments? Is it something else? Is it several things?

If You Want To Be An ALJ, Listen Up! I Said LISTEN UP!

     I'm hearing that the Office of Personnel Management (OMB) will soon start taking applications for Administrative Law Judge positions at Social Security. In the past when this has happened, OMB decided in advance to only hold the application process open until they received a set number of applications. If I remember correctly, it was something like 1,000 the last time. They start receiving applications almost immediately after they announce they're taking applications and often fill up their quota in a day or two. Thereafter, they refuse to accept any more applications. It's usually not long after we receive such an advance warning until OPM starts taking applications. Keep looking at this website. It could happen tomorrow, Good Friday. It could be early next wee. I'll try to post something here but don't count on getting word from me immediately.

Social Security To Hire 27 Administrative Appeals Judges -- Act Quick If You Want A Job, But Only If You Already Work For SSA

     From a job posting by Social Security:

Job Title:  Attorney-Examiner (General) (Administrative Appeals Judge)

SALARY RANGE: $133,515.00 to $170,400.00 / Per Year

OPEN PERIOD: Monday, March 14, 2016 to Friday, March 25, 2016 ...

DUTY LOCATIONS: 27 vacancies ...

WHO MAY APPLY: Agency Employees Only ...

OIG On Compassionate Allowances And Quick Disability Determinations

     The summary of a recent report by Social Security's Office of Inspector General:

Although 25 percent of allowed claimants in our sample [who were granted a Compassionate Allowance or Quick Disability Determination] died within 3 months of submitting their application, SSA’s CAL [Compassionate Allowance] and QDD [Quick Disability Determination] initiatives enabled the Agency to identify and expedite benefits to these disabled claimants before their death.

Based on our review, we estimated that SSA medically allowed about 76,000 and denied about 6,000 cases. As of June 2015, we estimated that, of the cases selected for CAL and QDD processing, about 

• 54,000 claimants were deceased; 
• 15,000 claimants allowed benefits were alive, were in current pay status, and had received approximately $214.1 million in benefits per year;
• 7,000 claimants allowed benefits were alive but did not meet Title XVI non - medical eligibility criteria. SSA stopped the ir Title XVI payments of approximately $34 million per year; 
• 3,000 claimants allowed had benefits ceased because of medical improvement, stopping payments of approximately $46.1 million per year; and 
• 3,000 claimants denied benefits, appealed or reapplied, and were subsequently approved. 

In addition, we estimated that, for about 13,000 claimants previously allowed benefits, SSA assessed approximately $43.9 million in overpayments and recovered approximately $15.9 million. Finally, we estimated that SSA reviewed approximately 22,000 allowance cases by conducting a CDR or redetermination and generally evaluated earnings for disabled individuals whose record contained work activity or income.

OIG On "Vision 2025"

     The Chairman of the House Social Security Subcommittee asked the agency's Office of Inspector General (OIG) to review Social Security's Vision 2025 plan. Here's a summary of the OIG report:

Vision 2025 does not include specific, measurable goals or outline the strategy needed to implement SSA's proposed vision. It presents three priorities: superior customer experience, exceptional employees, and innovative organization. Per SSA, these priorities will guide the development of clear goals, detailed plans, and performance measures, which will be outlined in the Agency’s strategic plans and annual performance reports. With this approach, SSA is using short-term strategic planning documents to support a broadly stated “aspirational vision.” We believe SSA’s long-term strategic vision should include specific, measurable goals that clearly outline the service delivery model SSA envisions in 2025 and beyond. This would allow SSA to use its shorter- term planning documents to outline the steps needed to achieve a larger and clearly defined objective.

Also, while Vision 2025 describes its future environmental drivers, it does not explain how the environmental factors will affect its ability to provide services in the future. Additionally, Vision 2025 addresses many of the issues outlined in NAPA’s [National Academy of Public Administration's] long-range strategic plan for SSA, but NAPA’s plan is more specific than Vision 2025. Most importantly, NAPA concluded that SSA needs to develop a more cost- effective service delivery system that is primarily virtual. Vision 2025 does not choose one service delivery method over another and promises a service delivery system that will meet each customer’s desire.

     Let me try to make this easier to understand. Republicans in Congress (and some Democrats) as well as NAPA are frustrated with Social Security. In their view, the current service delivery model, which includes field offices around the country, is inefficient, wasteful and delivers poor service. They don't understand why the agency doesn't move all of its operations online, eliminate its field offices and lay off most of its staff.  That's the "vision" they want from the agency. In Social Security's view, this criticism comes from people who have only the most simplistic idea of what the agency does. These critics envision Social Security as dealing mostly with simple retirement claims and mostly with capable people who can do business online. In reality, while retirement claims involve lots of money and lots of claims, they are only a small part of what the agency does. Most of what the agency does has to do with disability claims, Supplemental Security Income (SSI) claims and survivor claims. These cases are inherently complicated and the claimants are often seriously impaired. There's no realistic way to put this workload online. There's no realistic way to eliminate field offices.
     Let my give a simple example of the problems that Social Security must cope with. The daughter of an 85 year old woman who is drawing Social Security retirement benefits contacts the agency to say that she believes that her mother is no longer mentally capable of handling her money and needs a representative payee. Someone at the agency contacts the mother who says that she certainly is still capable of handling her money and that the daughter is a drug addict who just wants to steal the Social Security benefits. The person talking with the mother and daughter isn't sure what to do. The mother sounds a little addled but is her condition so bad that she can't handle money? Is the daughter a drug addict? Even if she isn't, is she the best representative payee since it's obvious that the mother and daughter aren't getting along? Is there someone else in the family who could be a representative payee? How is the agency going to deal with this situation only through an online process? Are you really comfortable with someone who is 3,000 miles away investigating this situation and making a decision about what to do? How would you feel about this if this situation was happening in your family?

But What About The Role Of Congress?

     From the summary of a report by the Government Accountability Office (GAO):

The Social Security Administration (SSA) selects cases for continuing disability reviews (CDR) using several inputs, but it does not do so in a manner that maximizes potential savings. SSA first prioritizes CDRs required by law or agency policy such as those for children under 1 year old who are receiving benefits due in part to low birth weight. Then SSA uses statistical models to identify the remaining CDRs to be conducted each year. The models also determine which cases will receive an in-depth review of medical records by the Disability Determination Services—the state agencies that conduct CDRs—versus a lower-cost questionnaire sent directly to the beneficiary. As shown in the figure below, a growing number of cases have been set aside for future review (backlogged) over the last 10 years. Although SSA somewhat considers potential cost savings when selecting cases for in-depth reviews, its approach does not maximize potential savings for the government. For example, estimated average savings from conducting CDRs are higher for some groups of Disability Insurance (DI) beneficiaries than others, but SSA's selection process does not differentiate among these groups. As a result, it may be missing opportunities to efficiently and effectively use federal resources.

     I would characterize Social Security's response as being "GAO, to the extent it's practical, we're already doing everything you're recommending."

     My response is "GAO, you're picking at nits. The real problem is that the agency has been so badly underfunded that it's unable to work down its backlogs."

Proposed Change To Unsuccessful Work Attempt Rules

     The Social Security Administration has asked the Office of Management and Budget (OMB) to approve a set of amendments to its regulations concerning unsuccessful work attempts and expedited reinstatement. Social Security does not have to release the proposal at this point. However, it does have to post a regulatory agenda in the Federal Register twice a year. Here's how the agency described this proposal last fall:

We propose to remove the additional requirements for evaluation of a Unsuccessful Work Attempt (UWA) in employment or self-employment that last between 3 and 6 months and use the current 3 month standards for all work attempts that are 6 months or less. We also propose to change the calculation for determining the amount adjusted for national wage growth for both employees and the self-employed from $530 to $700, the amount currently being used to calculate Substantial Gainful Activity (SGA). In order to avoid any unintended consequences for Ticket to Work (Ticket) holders as a result of our change to the calculation of the Trial Work Period (TWP) service month amount, we propose to change how we calculate timely progress toward self-supporting employment for the Ticket program to earnings equal to or greater than the amount representing 72 percent of SGA. Finally, we propose to allow beneficiaries to apply for Expedited Reinstatement (EXR) Eligibility in the same month they stop performing SGA. These changes would align our policies, make them easier for the public to understand, and simplify our processing procedures, thereby allowing for faster determinations.

     This proposal isn't going to be official for a long time. OMB must approve it. The proposal is then posted in the Federal Register for comments. Social Security must consider the comments. The agency may modify the proposal. If it still wants to go ahead with the proposal, it submits the final version to OMB again. If OMB approves the proposal, it is again published in the Federal Register and becomes official. The normal time frame for something like this is one to two years.

Will The Time Ever Come When Recon Is Eliminated?

     Professor Jon C. Dubin of Rutgers School of Law -- Newark Center for Law and Justice has written an article for the Georgetown Journal on Poverty Law and Policy on ending the reconsideration level of review for Social Security disability claims. That article itself isn't available online at this time but an earlier draft of the piece is available at the Committee for a Responsible Federal Budget website.

     There are excellent reasons why "recon" should be eliminated. The problems with doing away with reconsideration, in the view of Social Security and Congress, are:

• If reconsideration is eliminated, more claimants will request hearings. At this time, both Social Security and Congress view hearings as inherently a bad thing.
• If more hearings are to be held, more Administrative Law Judges would have to be hired. At this time, both Social Security and Congress view Administrative Law Judges as sources of error.
• If more hearings are to be held, more claimants will be approved. The goal of both Social Security and Congress is to hold down the number of disability claims approved.
• More Administrative Law Judges would cost more money, far more than would be saved by doing away with reconsideration.

     I first became involved with Social Security disability in 1978. Doing away with reconsideration wasn't a new idea at the time. It's never come close to happening since that time. I regard it as a nice idea that stands no chance of happening in the foreseeable future.

Florida Man Alkeged To Have Stolen $2.2 Milllion In Social Security Checks

     From the Tampa Tribune:

A Tampa postal employee has been charged in a scheme involving more than $2.2 million in stolen Social Security checks, the U.S. Attorney’s Office said today.  

If convicted on the charges of theft of government property and theft of mail. Stacy Darnell Mitchell, 48, faces up to 15 years in prison, the office said.

Appeals Council Slides Further Into Worthlessness

     David Paletta has put together an interesting chart showing what's been happening at Social Security's Appeals Council in recent years. What's mostly been happening is that the rate at which the Appeals Council is giving relief to the claimant, either by remand or reversal, has plummeted. Click on the chart below to view it at full size. Also, though not shown on the chart below, productivity has declined from 138,262 decisions in 2013 to 116,078 in 2015.

Waiver For SSI Overpayments Resulting From Legal Acceptance Of Same Sex Marriage

     Social Security has issued Emergency Message (EM) 16013 to give its staff instructions on overpayment issues resulting from legal acceptance of same sex marriage. Some readers are now thinking "Wait, what? I thought legal acceptance of same sex marriage would result in more money being paid." Overall, yes, somewhat more money will be paid. That's almost always the case for Title II benefits, those based upon someone's earnings record. (For sticklers, I said almost always. I know marriage could eliminate entitlement to widows benefits in some cases, for instance.) However, in Supplemental Security Income (SSI), which is a needs-based benefit, marriage usually causes reduction or elimination of entitlement to benefits. There are two ways that same sex marriage can hurt SSI recipients. The first and less common way is if both partners to a same sex marriage are on SSI. The rate for a married couple where both are eligible for SSI is less than the total of what the two would receive if they were not married. The second and more common way that same sex marriage can reduce SSI benefits is that if you're married the income and resources of the person you're married to are attributed to you for purposes of computing your SSI benefit. If, for instance, a disabled person is living with and being supported by a healthy person who is working and has a good income, if they're not married, the disabled person will suffer, at worst, a one-third reduction in his or her SSI benefits for "living in the household of another" whereas if they're married, the disabled person will lose his or her SSI benefits altogether.

     Now that I've explained the problem, what's Social Security going to do about the SSI overpayments resulting from legal acceptance of same sex marriage? Social Security will assume that the claimant is requesting waiver of the overpayment and will waive the overpayment. The claimant need not even file the form normally required to obtain consideration of waiver of an overpayment. The agency is saying it would be "against equity and good conscience" to try to collect these overpayments.

House Social Security Subcommittee Hearing Announced

     A press release:

House Ways and Means Social Security Subcommittee Chairman Sam Johnson (R-TX) announced today that the Subcommittee will hold a hearing on “Social Security and Public Servants: Ensuring Equal Treatment.” The hearing will focus on Social Security provisions that affect certain public employees, as well as proposals for calculating public employees’ benefits in a proportional manner. The hearing will take place on Tuesday, March 22, 2016 in B-318 Rayburn House Building, beginning at 10:00 AM.

     There has been substantial agitation in Johnson's home state of Texas over the application of the Windfall Elimination Provision which reduces Social Security benefits because of the receipt of pension benefits from wages not covered by Social Security. Apparently, the wages of teachers in Texas  are not covered by Social Security. 

     I'm mildly surprised that Johnson cares. In my state, North Carolina, the Republican Party is openly, bitterly, angrily hostile towards teachers. I think it's the same in many other states. 

Social Security Ruling 16-3p: A Disability Claimant's Honesty Doesn't Matter

     The Social Security Administration will be issuing Ruling 16-3p on Evaluation of Symptoms In Disability Claims tomorrow. Here's some excerpts:

...[W]e are eliminating the use of the term “credibility” from our sub - regulatory policy, as our regulations do not use this term. In doing so, we clarify that subjective symptom evalua tion is not an examination of an individual’s character. Instead, we will more closely follow our regulatory language regarding symptom evaluation . ...

In evaluating an individual’s symptoms, it is not sufficient for our adjudicators to make a single, conclusory statement that "the individual's statements about his or her symptoms have been considered" or that "the statements about the individual’s symptoms are (or are not) supported or consistent." It is also not enough for our adjudicators simply to recite the factors described in the regulations for evaluating symptoms. The determination or decision must contain specific reasons for the weight given to the individual’s symptoms, be consistent with and supported by the evidence, and be clearly articulated so the individual and any subsequent reviewer can assess how the adjudicator evaluated the individual’s symptoms. ... 

In evaluating an individual’s symptoms, our adjudicators will not assess an individual’s overall character or truthfulness in the manner typically used during an adversarial court litigation. The focus of the evaluation of an individual’s symptoms should not be to determine whether he or she is a truthful person. ...

New Acquiescence Ruling

     The Social Security Administration has released Acquiescence Ruling 16-1(7) concerning Boley v. Colvin, 761 F.3d 803 (7th Cir. 2014). I had written earlier about that 7th Circuit's decision.  It took an unusual degree of foolishness and arrogance at Social Security for this case to have reached the court of appeals.

Two New Rulings Coming Monday

     Even though it's in the middle of adjudicating about 1,500 cases of alleged fraud or similar fault, the Social Security Administration is issuing two new rulings on Monday, one dealing just with  the issue of similar fault and the other dealing both with fraud and similar fault.
     I don't know how much good it does to so conclusively demonstrate that you're changing the rules for one specific group of cases. It's like they're trying to bootstrap a weak case.

Patent Applied For

     A summary of a patent application filed by Jeffrey A. Killian of Grove City, OH:

A computerized system and method for determining eligibility for social security disability insurance benefits (SSDI) through a computer network who have been placed on a waiting list for medical treatment. The network provides access to State waiting list databases containing information relating to persons wanting to receive treatment for developmental disabilities and/or mental illness from a State licensed care facility and Federal Social Security records containing information relating to person's status of SSDI benefits and parental/marital information relating to person's eligibility of SSDI benefits. The system and method is programmed to automatically determine who is potentially eligible for SSDI benefits and determine those who are eligible for SSDI benefits based on the information identified within the State and Federal databases. Moreover, the computerized system and method may also automatically identify lump sum payments paid out on behalf of at least one person who want to receive treatment for disabilities and/or mental illness from a State licensed care facility, yet have been placed on a waiting list.

Hearing Backlog May Get Better In Buffalo, But Nationally?

     A local TV station reports that the Social Security Administration is working on the hearing backlog at one of the worst hit offices, Buffalo, but can we expect improvement nationally? Social Security says it will hire 200 more Administrative Law Judges (ALJs) this year and 250 in each of the next two years, which sounds like a lot, but is that enough to even take care of ordinary turnover as ALJs retire, quit and die, much less enough to improve the situation nationally?

OIG Report On Rep Payees

     Social Security's Office of Inspector General (OIG) has issued a report on the agency's efforts to police organizational and volume representative payees. Representative payees handle funds for claimants who are judged to be incapable of handling funds. The report talks about abuses by some of these larger rep payees. Social Security does not always obtain reimbursement from abusive rep payees. Sometimes, the agency allows a rep payee who has misused funds to continue to be a rep payee. This is sometimes appropriate if the misuse was minor and unintentional. The agency is supposed to reimburse claimants who are the victims of rep payee abuse but sometimes fails to. 

     On the whole, I'm sure the agency could do better but rep payees have always been and will always be a problem area for Social Security. It's hard to get people to be rep payees. There's only so much the agency can do. The problems identified are, in my opinion, minor.

Claims Rep Accused Of Fraud

     From the Reading, Pennsylvania Eagle:

Federal investigators have charged a Bernville man working for the Social Security Administration of allegedly defrauding the agency of more than $6,000.
Miguel Gutierrez, 42, was charged Friday by the Eastern District of the U.S. Attorney's Office in Philadelphia with three counts of wire fraud for the incidents that began in October. - See more at: http://www.readingeagle.com/news/article/bernville-man-charged-with-defrauding-social-security-administration#sthash.ObpE4ebl.dpuf

 Federal investigators have charged a Bernville man working for the Social Security Administration of allegedly defrauding the agency of more than $6,000.

Miguel Gutierrez, 42, was charged Friday by the Eastern District of the U.S. Attorney's Office in Philadelphia with three counts of wire fraud for the incidents that began in October. ...

Gutierrez was employed as a claims representative in the Social Security Field Office in Reading when he allegedly used access to the agency's computer system to redirect benefit payments intended for third-party individuals into his own bank account. He allegedly received three stolen benefit payments totaling approximately $6,166.66 from October to December. ...

Gutierrez was employed as a claims representative in the Social Security Field Office in Reading when he allegedly used access to the agency's computer system to redirect benefit payments intended for third-party individuals into his own bank account. He allegedly received three stolen benefit payments totaling approximately $6,166.66 from October to December. - See more at: http://www.readingeagle.com/news/article/bernville-man-charged-with-defrauding-social-security-administration#sthash.ObpE4ebl.dpuf

Federal investigators have charged a Bernville man working for the Social Security Administration of allegedly defrauding the agency of more than $6,000.
Miguel Gutierrez, 42, was charged Friday by the Eastern District of the U.S. Attorney's Office in Philadelphia with three counts of wire fraud for the incidents that began in October. - See more at: http://www.readingeagle.com/news/article/bernville-man-charged-with-defrauding-social-security-administration#sthash.ObpE4ebl.dpuf

Federal investigators have charged a Bernville man working for the Social Security Administration of allegedly defrauding the agency of more than $6,000.
Miguel Gutierrez, 42, was charged Friday by the Eastern District of the U.S. Attorney's Office in Philadelphia with three counts of wire fraud for the incidents that began in October. - See more at: http://www.readingeagle.com/news/article/bernville-man-charged-with-defrauding-social-security-administration#sthash.ObpE4ebl.dpuf

Social Security Disability Claim Files Getting Longer And Longer

     The Springfield, Ohio News-Sun is running a piece on Social Security's horrendous hearing backlog. It's always good to see these pieces but they seldom contain any information that's not already well known to regular readers of this blog. Here's a few nuggets of news from this piece:

Judge Marilyn Zahm, the [Administrative Law Judge] association’s president, said each case is a very labor intensive process ...

Zahm said the size of the case files has exploded in recent years, particularly as new regulations have been added. As a result, up to 30 percent of the files now contain more than 1,000 pages of medical evidence, she said.

“Do you have any idea how long it takes to review 1,000 pages of medical evidence?” said Zahm. “We are the only adjudicatory body that I’m aware of that allows such loose requirements for representatives.”

A work analysis study commissioned by the Association of Administrative Law Judges in 2014 found it would take a judge more than seven hours to process and render a legally sufficient decision on a case containing 652 pages, the national average for that year.

But with an expected quota of at least 500 dispositions a year, a judge would have available only 2.5 hours per case, the study found. ...

     I doubt that the rapid increase in the size of Social Security disability claim files registers with Social Security management. They never look at these files. It's all very abstract to them. The increasing file size matters. It takes more Administrative Law Judge (ALJ) time and it takes more time for those of us who represent Social Security disability claimants. ALJ productivity standards need to be adjusted. The fees paid to those who represent Social Security disability claimants need to be adjusted.

I'm Guessing That Ms. Hyde Isn't Obese And Doesn't Have Much Time For Those Who Are

     Jody Schimmel Hyde of the Mathematica Center for Studying Disability Policy has issued a report on the prelevance of obesity among applicants for Social Security disability benefits. Not surprisingly, the study shows an increasing rate of obesity among Social Security disability applicants. I say not surprisingly because the incidence of obesity in the population in general has been increasing.

     The interrelationship between obesity and disability is complex. Take a construction worker who becomes disabled by orthopaedic problems. It's a near certainty that he or she will gain weight, probably a fair amount of weight. This happens because he or she will probably continue to eat about the same amount of food even though he or she is no longer nearly as active. It may also happen because he or she is trying to deal with a good deal of stress because of the sudden change in their life and financial problems. Stress often leads to weight gain.

     Hyde makes the suggestion that people shouldn't be found disabled if obesity is a material factor in causing their disability. That would be a great way of institutionalizing prejudice against the disabled.

Zahm Elected To Head AALJ

     From the Buffalo Law Journal:

A judge from Buffalo has become the first woman to head the union of federal judges that hear Social Security disability cases.

The Hon. Marilyn Zahm was elected president of the Association of Administrative Law Judges. AALJ said that she will serve a three-year term.

Zahm is the first woman to head the AALJ, which represents 1,200 federal judges across the nation involved in Social Security disability cases. ...

Zahm defeated Miami-based AALJ member Thomas Snook in a runoff election, 335-296. She succeeds Judge Randall Frye, an administrative law judge based in Charlotte.

OIG Report On Households With Multiple Children Receiving SSI Due To Mental Impairments

     The Social Security Administration's Office of Inspector General (OIG) has recently completed a report on Households with Multiple Children Receiving Supplemental Security Income Payments Because of Mental Impairments. If you're expecting it to be a big expose of rampant fraud or, indeed, of any fraud you're going to be disappointed. It's mostly about efforts the agency has taken and can take to make sure there isn't fraud. 

     Please don't make the assumption that there's fraud just because a family exists which has multiple children with mental impairments. That's not a justified assumption. To give a couple of examples where this might occur, consider a couple who adopts multiple children whom they know have mental impairments or consider a family where one child is born with a congenital mental impairment who then have another child who happens to have the same congenital mental impairment. I've seen these cases.

A Novel Idea

     Henry Aaron and Lanhee Chen have a novel idea for how to deal with the terrible hearing backlog at Social Security. Turn over the process for vetting applicants to become Administrative Law Judges (ALJ) to some other agency, perhaps the Administrative Conference of the United States (ACUS). 
     This assumes that Social Security has really been wanting to hire more ALJs for years but has been held up by the Office of Personnel Management (OPM) that persistently fails to provide the agency with an adequate number of ALJ candidates and the only solution is to take it out of OPM's hands. The first problem with this theory is that Congress recently passed legislation providing:

Notwithstanding any other provision of law, the Office of Personnel Management shall, upon request of the Commissioner of Social Security, expeditiously administer a sufficient number of competitive examinations, as determined by the Commissioner, for the purpose of identifying an adequate number of candidates to be appointed as Administrative Law Judges ... The first such examination shall take place not later than April 1, 2016 and other examinations shall take place at such time or times requested by the Commissioner ...

     Why isn't that enough? Are we already assuming that OPM will fail to do what it has been explicitly ordered to do? Wouldn't transferring this responsibility to ACUS just cause more delay as ACUS struggles to get up to speed?
     The second problem is that there is reason to question how much delay OPM has caused. If you look around the Social Security Administration there are backlogs everywhere. Has Social Security really, really wanted to hire far more ALJs only to be held up by the dastardly OPM or is the bigger part of the problem lack of budget and lack of will at Social Security? Take a look at the Appeals Council. There's a huge backlog there. OPM is no obstacle to hiring there. Why haven't they hired more?

     The third problem is that anyone who thinks that ACUS can take on this job must not know much about ACUS. ACUS arranges for studies of administrative issues and holds conferences on these issues. I'm not aware of them ever taking on any line responsibility for anything. It's hard to imagine these academics wanting to take on such a responsibility or being able to do so effectively. It would be like turning over the responsibility for running a publishing company to the English department of some university. Yes, publishers and English professors are both interested in the written word but that's about the extent of the overlap.

Social Security Proceeding On Gun Control

     The Social Security Administration has sent proposed regulations to the Office of Management and Budget (OMB) on "Implementation of the NICS Improvement Amendments Act of 2007." NICS is the National Instant Criminal Background Check System. The NICS Improvement Amendments Act of 2007 was passed in the wake of the mass shooting at Virginia Tech. That Act was designed to allow NICS to better obtain information about individuals who have a history of severe psychiatric problems which might make them dangerous.

     Before anyone gets too excited about this, let me give a brief sketch about what happens next in the process which must be followed if these proposed regulations are to come into effect. First, OMB must approve them. Ordinarily, this takes at least a few weeks. Second, Social Security must publish the proposed regulations in the Federal Register in what's called a Notice of Proposed Rule-Making (NPRM). The public is allowed comment on the NPRM. Generally, the public is given 60 days to comment but this time period is usually extended for an NPRM that attracts much public attention. Social Security must then review the comments, perhaps alter the proposed regulations to some extent, and them publish them in the Federal Register again so that they may go into effect. This process normally takes a year or more even for regulations that attract only a few comments. This NPRM will attract thousands of comments. They'll be repetitive but employees still have to catalog them. I have no idea how long it will take Social Security to deal with the comments but it will be a big job. Without truly extraordinary efforts there is no way this proposal will go into effect while Barack Obama is still President.

Hearings Proceeding Rapidly For Eric Conn's Prior Clients

     Ned Pillersdorf, the lead counsel for the class action lawsuit to halt Social Security's attempt to cut off the disability benefits of about 1,500 former clients of Eric Conn, has obtained some numbers on the ongoing Administrative Law Judge hearings in those cases. So far about two-thirds of the hearings have been held. About 49% of the claimants who have had gotten decisions have won. About 57% of those who have an attorney have won.

     It's not in Pillersdorf's Facebook posting but the early signs are that the Appeals Council is rushing out denials of review in the cases of those who are denied by ALJs. They're coming out within a month after the request for review.
     The United States District Court for the District of Kentucky is about to be hit by an avalanche of cases. The judge who has been sitting on the motion for preliminary injunction may wonder why he didn't take care of these cases en masse instead of one by one.

Colvin Can Continue As Acting Commissioner Even If Eanes Is Confirmed

     The "Open Executive Session" of the Senate Finance Committee to consider the nomination of Andrew Lamont Eanes to become Deputy Commissioner of Social Security, as well as some other nominations, which had been scheduled for today, has been postponed. No new date has been announced.

     I have been saying that if confirmed that Eanes will become Acting Commissioner of Social Security replacing the current Acting Commissioner, Carolyn Colvin. That's exactly right as things stand now. If Eanes is confirmed, Colvin is out of a job and Eanes as Deputy Commissioner automatically becomes Acting Commissioner. However, it appears that there is a plan to change that. The plan is to create some other position at Social Security, I assume in the Senior Executive Service (SES), for Colvin. The President could then alter the order of succession to make the person holding that position the Acting Commissioner. There are no formalities to this. All that's needed is a simple memorandum from the President. While the Social Security Act provides that the Deputy Commissioner becomes the Acting Commissioner, it also provides that the President can designate someone else.

     I find this weird. The job of Deputy Commissioner at Social Security has only one defined duty -- to become Acting Commissioner if the Commissioner's job is vacant -- and the President would be taking away that duty. What's the point of having a Deputy Commissioner if you take away the only duty of the office? I don't mean to suggest that Eanes won't have anything to do if confirmed. I'm sure he'll be given something to do but if he can't be Acting Commissioner he really seems like a fifth wheel. It also seems weird to me because a person holding a statutory position where he had to be confirmed by the Senate will be reporting to a person holding an SES position which doesn't require Senate confirmation. I wonder how often that happens in the federal government.

     Whose idea was it to confirm Eanes but to retain Colvin as Acting Commissioner? Why would you do this? Why bother nominating or confirming Eanes if you have such a low regard for him that you want to make sure he has no power, at least for now?

Senate Finance Committee To Vote On Eanes Nomination

     The Senate Finance Committee has scheduled a vote for March 2 on the nomination of Andrew Lamont Eanes to become Deputy Commissioner of Social Security. Barring any last minute problem, Eanes is likely to be confirmed by the Senate in the near future.

     If confirmed, Eanes will immediately replace Carolyn Colvin as Acting Commissioner of Social Security. Let me explain why that is. Social Security's Commissioner and Deputy Commissioner do not serve at the pleasure of the President. They serve set six year terms. Colvin's term as Deputy Commissioner ended about three years ago if I remember correctly. She has stayed in office only because the statute allows a Commissioner or Deputy Commissioner to stay in office until a successor is confirmed. The last Commissioner of Social Security, Michael Astrue, resigned some time ago. If Eanes is confirmed, Colvin is immediately out of a job. Eanes will immediately succeed her as Acting Commissioner. There is no pending nomination for Commissioner. Colvin had been nominated in the last Congress but President Obama did not re-nominate her after the 2014 Congressional election.