Memorial Day 2016

Have A Good Long Weekend

This Will Certainly Encourage Greater Use Of Social Security's Online Systems

     From a report on this week's Congressional hearing on Social Security's information systems:

... During the hearing, [Acting Social Security Commissioner] Colvin announced the agency will, starting this summer, improve security with additional personal information protection: Social Security website users will need to enter a username, password and one-time texted passcode to a Social Security-registered cellphone to access their accounts. ...

Social Security At Cannes Film Festival

     You'd think that the Cannes Film Festival is about the last thing I'd be writing about but there really is a social security connection this year, if a little obliquely. The Cannes grand prize, the Palme d'Or, was awarded to "I, Daniel Blake", a drama about a disabled man in Britain trying to cope with a social security disability process that seems stacked against him. If it were set in the United States, it would be an even more infuriating tale. On this side of the Atlantic, we don't just deny dignity to the disabled; we provide a "system" that leaves a huge proportion of the disabled to fend for themselves without government assistance.

Hearing On Social Security Information Systems

     The House Oversight and Government Reform Committee is holding a hearing today on Information Systems at Social Security. You can watch the hearing below or read the written statements of the witnesses.

Being Prepared

     Here's a short excerpt from a hospital record on one of my clients: "Pt has drill bit set beside bed. When asked why he brought it with him, pt states 'In case I need to cut off my leg.' Dr. ______ notified."

Final Mental Regs Coming

     The Social Security Administration has submitted Revised Medical Criteria for Evaluating Mental Disorders final regulations to the Office of Management and Budget (OMB). These had appeared in the Federal Register as proposed regulations on August 19, 2010.
     Below are some excerpts from the proposed regulations.  I've added comments in brackets:

• The proposed paragraph B3 criterion is the same as the current paragraph B3 criterion, “maintaining concentration, persistence, or pace,” except that we propose to change “or” to “and.” This would not be a substantive change in the paragraph B3 criterion, but only a clarification of the overall requirement. [Going from a requirement of meeting one criteria to a requirement of meeting three criteria is not a substantive change?]
• One of the provisions from §416.926a(e) that we are including in this definition explains that “marked” is the equivalent of functioning we would expect to find on standardized testing with scores that are at least two, but less than three, standard deviations below the mean. ... A person whose functioning is two standard deviations below the mean is in approximately the second percentile of the population; that is, about 98 percent of the population functions at a higher level. [Social Security is trying to put a 2% cap on the percentage of the population that can be found disabled by mental illness? About 1.1% of the population suffers from schizophrenia. About 1-3% of the population suffers from mental retardation. If we are limiting the listings to the bottom 2% of the population in terms of mental functioning, we are talking about a group that is either in long term care or is not far from needing it.]
• Currently, we have an interagency agreement with the Clinical Research Center to explore the possibility of using International Classification of Functioning domains in predicting disability. [Sounds like Social Security is looking for some simple testing instrument to determine disability.]
• ID/MR [Intellectual Disability/Mental Retardation] is often demonstrated by evidence from the period before age 22. However, when we do not have evidence from that period, we will still find that you have ID/MR if we have evidence about your current functioning and the history of your impairment that is consistent with the diagnosis, and there is no evidence to indicate an onset after age 22.
• In 12.05C, the term “severe” has the same meaning as in §§404.1520(c) and 416.920(c). Your additional impairment(s) must cause more than a slight or minimal physical or mental functional limitation(s); it must significantly limit your physical or mental ability to do basic work activities, as we explain in those sections of our regulations and §§404.1521 and 416.921. The limitation(s) must be separate from the limitations caused by your ID/MR; for example, limitation in your ability to respond appropriately to supervision and coworkers that result from another mental disorder or in your physical ability to walk, stand, or sit. If your additional impairment(s) is not "severe" as defined in our regulations, your ID/MR will not meet 12.05C even if your additional impairment(s) prevents you from doing your past work because of the unique features of that work. [Wait a minute! Are we trying to redefine what is meant by the term "severe impairment" so that something can prevent past work but not be severe -- using the mental impairment listings to redefine an important concept that appears elsewhere in the regulations? Please tell me that Social Security does not really want to reopen the non-severe impairment can of worms.]

     There's no way of knowing what modifications Social Security has made before submitting final regulations to OMB. Normally, Social Security makes no more than minor changes in wording. It's always been my impression that absent overwhelming outside pressure Social Security only tries to please its internal audience when it writes regulations.

A Little Update On A DOT Replacement -- Don't Expect It Soon

     The National Association of Disability Examiners (NADE), an organization of the personnel who are involved in making initial and reconsideration determinations on Social Security disability claims, has issued its Spring 2016 newsletter.
     The newsletter includes a summary of a meeting that NADE officials had with Gina Clemons, Social Security's Associate Commissioner for the Office of Disability Policy. Here's an excerpt from NADE's writeup of the meeting:

The new OIS [Occupational Information System] will include many occupational descriptors similar to those adjudicators currently use in the DOT [Dictionary of Occupational Titles]. The DOT contains discrete and well-established descriptions of the physical demands of occupations, but it does not provide information on the mental and cognitive requirements of occupations. The agency hopes to include mental and cognitive data elements in the OIS. However, this would be part of a separate BLS 9Bureau of Labor Statistics] collection, so they are working hard to determine the most useful mental and cognitive elements before BLS performs further testing in this area. The agency’s goal is to have this new tool (without the mental and cognitive data elements) ready for use by 2019.

Appeals Council Seldom Grants An Exception

     The most recent issue of the newsletter of the National Organization of Social Security Claimants Representatives (NOSSCR), which is not available online, has an article prepared by Social Security's Office of Appellate Operations Staff on the exception process at the Appeals Council. Generally, a claimant may not file a new claim for disability benefits while an old claim is pending at the Appeals Council. However, there is an exception process where there is evidence of a new critical or disabling condition. Here's a table from the article showing just how infrequently the agency finds grounds for an exception:

     Does it seem outrageous to you that any claimant could file a new claim while an old one is pending at the Appeals Council? What do you think about the fact that the Appeals Council sits on most cases for well over a year and often over a year and a half yet denies review something like 80% of the time? It almost seems like the delay is intentional, just to make taking a case to the United States District Court less appealing. Whether it's intentional or not, that's the effect. I don't think that's appropriate.

And Yet We Have A Five Month Waiting Period For Social Security Disability Benefits And A 29 Month Waiting Period For Medicare For The Disabled

     From the Associated Press:

Two-thirds of Americans would have difficulty coming up with the money to cover a $1,000 emergency, according to an exclusive poll released Thursday ... 

Seventy-five percent of people in households making less than $50,000 a year would have difficulty coming up with $1,000 to cover an unexpected bill. But when income rose to between $50,000 and $100,000, the difficulty decreased only modestly to 67 percent.

Even for the country's wealthiest 20 percent — households making more than $100,000 a year — 38 percent say they would have at least some difficulty coming up with $1,000.

Social Security To Track Disability Claims Related To Flint Water Contamination

     The Social Security Administration has decided to start tracking disability claims related to the lead contamination in the Flint, MI water supply. They're not going to treat the claims differently; just track them.

About That Priority Processing At The Appeals Council -- No One At The Appeals Council Seems To Know Anything About It

     I posted some information that Social Security had given to the National Organization of Social Security Claimants Representatives (NOSSCR) about a plan for the Appeals Council to give priority in the processing of the cases of certain claimants. The most important category in the plan is claimants 55 and older.

     I've noticed and others in my firm have noticed that despite this plan claimants 55 and older don't seem to be getting any special treatment at the Appeals Council. We're starting to ask questions. Here's a note that one legal assistant at my firm put in our database concerning her inquiry about one client:

05/19/16: TC [Telephone Call] to the AC [Appeals Council] and spoke to ____ who told me the case is pending in branch ____. I told her about the new list that NOSSCR has put out this month for expediting AC cases and this case meets that list since the clt is over 55yo. She didn't know anything about it and transferred me to the supervisor, ______. Spoke to her at length and she pulled it up on the blog [this blog] and said they haven't been told anything about it and she doesn't even know how to flag a case for these reasons.

She's going to speak to the Council Ombudsman, Terry Jensen about this and call me back

Stealing From The Disabled

     From the Tampa Bay Times:

The former chief financial officer of a program for disabled people admits in a court paper that he and others diverted $617,435 in Social Security payments, raiding client personal accounts for a decade to cover operating expenses.

Frank Pannullo, 69, is the third employee of the now-defunct Hillsborough Association for Retarded Citizens to enter into a federal plea agreement. ...

HARC, which had been renamed the Hillsborough Achievement and Resource Centers before it closed in 2013, ran group homes and community programs, caring for people with disabilities such as Down syndrome or Alzheimer's disease. ...

Residents had individual bank accounts. Each month, HARC deducted $637 for expenses, leaving the rest behind.

But if accumulated savings topped $2,000, clients were at risk of losing need-based Supplemental Security Income.

So HARC put away the excess in a separate, pooled account that collected about $617,435 over the course of 10 years. ...

Not long after the account's 2001 creation, Pannullo and the CEO began taking money out of it to feed HARC's operating fund, according to the plea agreement. ...

Hearing On Social Security Information Systems

     The House Committee on Oversight and Government Reform will hold a hearing at 9:00 on May 26 on Social Security's information systems. No further details are available at this point other than that this is a hearing before the whole committee.

Cut Government Until It Bleeds And Then Complain About The Bloodstains

     The Social Security Subcommittee of the House Ways and Means Committee held a hearing yesterday on Protecting Social Security From Waste, Fraud and Abuse. The only witness was Patrick O'Carroll, who will soon be leaving his position as Inspector General at Social Security. I don't see anything particularly new in his prepared remarks.

     The ranking Democrat on the subcommittee, Xavier Becerra, entered an interesting statement in the record. Here is an excerpt:

Congress’ current trend of prioritizing program integrity activities at the expense of service to applicants, beneficiaries, and taxpayers is unsustainable.
Social Security’s budget should not be treated as a zero-sum game. We should not be robbing Peter to pay Paul.

In my six years as Ranking Member of this Subcommittee, not once have we held a hearing on SSA’s operating budget.

There is no question that funding for program integrity is absolutely integral to ensuring that Americans receive benefits in the right amount, and that only those who are eligible receive payments.

But it is equally important to ensure that: SSA has the tools and resources needed to provide quick and timely service to the millions of Americans receiving Social Security, and to the millions more who will – in the coming years – be applying and qualifying for the benefits they and their families have earned.

     Below are some charts from the statement illustrating the problems at Social Security.

 

     By the way, Becerra's name gets mentioned from time to time as a potential Vice-Presidential candidate.

Social Security's Biggest Contractors

     Social Security is required by law to publish an annual list of its largest contractors. Here's the top twenty-five from the list for 2015, although the list may be somewhat misleading since some contractors are listed more than once:

Vendor Name	Amount
LOCKHEED MARTIN CORPORATION	$99,367,423.18
NORTHROP GRUMMAN SYSTEMS CORPORATION	$94,089,718.92
COMPUTER SCIENCES CORPORATION	$48,663,052.74
INTERNATIONAL BUSINESS MACHINE	$40,155,560.67
ACCENTURE NATIONAL SECURITY SERVICES, LLC	$28,811,804.81
M V M, INC.	$23,115,406.92
KONIAG TECHNOLOGY SOLUTIONS, INC	$17,787,707.12
MAXIMUS FEDERAL SERVICES, INC.	$16,385,736.00
AVAYA FEDERAL SOLUTIONS, INC.	$16,149,021.77
OBXTEK INC.	$12,634,046.00
ABT ASSOCIATES INC	$11,667,000.00
INTEGRYS ENERGY SERVICES, INC.	$11,300,000.00
AHTNA ENGINEERING SERVICES	$10,769,172.00
LOCKHEED MARTIN CORPORATION	$10,100,531.54
ACS FEDERAL SOLUTIONS LLC	$9,823,987.24
INTERNATIONAL BUSINESS MACHINE	$7,500,000.00
EPS CORPORATION	$7,269,839.67
OBXTEK INC.	$7,077,128.00
NORTHROP GRUMMAN INFORMATION TECHNOLOGY GLOBAL CORPORATION	$6,904,176.80
NATIONAL CAPITOL CONTRACTING, LLC	$6,840,000.00
NORTHROP GRUMMAN SYSTEMS CORPORATION	$6,549,313.86
HENSEL PHELPS SERVICES LLC	$6,360,948.96
BROOKS RANGE CONTRACT SERVICES, INC.	$6,358,150.68
NORTHROP GRUMMAN SYSTEMS CORPORATION	$6,153,296.70

Priority Processing At The Appeals Council -- What A List!

     This month's issue of the newsletter (not available online) of the National Organization of Social Security Claimants Representatives (NOSSCR) has an article prepared by the Social Security on priority processing at the Appeals Council, which has a huge backlog. Here's an excerpt:

A list of the Appeals Council-level cases with newly submitted evidence is generated several times a week. A group of employees has started screening the listed cases to see if they meet any of the 21 circumstances below. If so, the branch chief receives the case and assigns it for priority processing. The circumstances are:

(1) Age 55
(2) Any indication or report of death
(3) Hospice, nursing care, or claimant cannot care for personal needs
(4) Intensive care unit for more than 3 days
(5) Hospitalization for more than 7 days
(6) Transplant notes (kidney, heart, heart/lung, liver or bone marrow, etc.)
(7) Transplant waiting list
(8) Cancer with poor or no response to treatment
(9) Cancer that has spread to other areas/
(10) Coma
(11) Heart attack or myocardial infarction
(12) Stroke, or cerebral vascular accident
(13) Prescribed use of home oxygen 
(14) Prescribed use of wheelchair
(15) VA disability rating of 70% or more
(16) Letter or notice approving other forms of disability payments
(17) Medical report(s) of a terminal prognosis
(18) Dialysis or End Stage Renal Disease (ESRD)
(19) Blood transfusion(s)
(20) Bed or home confinement
(21) Very rare, unusual, or compassionate allowance diagnoses

Although attaining the age of 55 is on the list, it is not necessary to submit additional evidence of a claimant’s age as SSA also screens for this. If the claimant has died, representative correspondence to that effect is sufficient. NOSSCR is working with SSA to obtain written documentation of this practice.

To verify that the Appeals Council knows a client meets one of the 21 circumstances, call the Congressional and Public Affairs Branch at 1-877-670-2722 or fax Appeals Council Ombudsman Terry Jensen at 703-605-8691.

Cases that meet one of the 21 circumstances still should not be decided in less than 25 days unless the Appeals Council obtains permission from the claimant or representative to make a faster decision. See adjacent article on this page for more information.

     This is a far more extensive list of types of cases to be expedited than is used at the Administrative Law Judge level. Why shouldn't these cases by expedited at all levels?
     I think the existence of these lists of types of cases to be expedited demonstrates the pressures caused by backlogs at Social Security. This isn't about helping people who are hurting. They're trying to expedite the cases that would make for good newspaper or television pieces on the suffering caused by the backlog.

Social Security Subcommittee Schedules Hearing On "Protecting Social Security from Waste, Fraud, and Abuse"

     The House Social Security Subcommittee has scheduled a hearing for 10:00 on May 18 on "Protecting Social Security from Waste, Fraud, and Abuse." No specifics are given at this point. At the Senate Homeland Security and Government Operations Committee hearing last week there was a mention of some fraud case that would be bigger than the allegations against Eric Conn but no specifics were mentioned. Perhaps there will be some indictment or indictments this week.

I Have Some Questions

     I had time over the weekend to watch the hearing held last week by the Senate Committee on Homeland Security and Government Operations on Social Security's plan to bring in some Administrative Appeals Judges (AAJs) to hold some hearings now being held by Administrative Law Judges (ALJs). The Committee members asked thoughtful questions but I have some questions that I wished they had asked:

1. Will AAJ decisions be subject to quality assurance reviews either before or after the decision is issued? 
2. What productivity does Social Security expect from these AAJs, especially considering the travel they will be doing?
3. Will all the AAJs be located in the Falls Church, VA area where the Appeals Council is located or will some be located around the country?
4. Hearing non-disability cases, especially those other than overpayment cases, takes unusual knowledge. Will there be extraordinary training for these AAJs? Do not assume that even experienced Social Security attorneys have this knowledge because they don't.
5. Social Security indicates that geographic limitations imposed by ALJ applicants make it difficult for them to hire. Many applicants may want to work in some offices while few, if any, want to work in other offices. However, a new, much larger register is due out in about a year. Presumably, there will then be multiple candidates for each office with an opening. Why not just hire ALJs now where you can and then hire later for the other offices for which you currently lack candidates? It's not like there's an oversupply of ALJs anywhere.
6. Social Security says that currently 30% of claimants opt out of video hearings. Isn't that still going to require AAJs to do a lot of traveling, doing one hearing at one location, then getting on a plane to another location to do one more hearing?
7. Will the opt out figure stay at 30% if Social Security goes ahead with this plan? Social Security has a history of short-sighted thinking on this issue. They thought that requiring claimants to opt out of video hearings shortly after filing a request for hearing would result in fewer claimants opting out of video hearings but the exact opposite happened. I expect there are many attorneys now who don't bother opting out of video hearings since they think it unlikely that Social Security would try to schedule video hearings for their clients. Go ahead with this plan and attorney behavior may change. Maybe I'm wrong on this but I correctly guessed that requiring claimants to opt out of video hearings shortly after filing a request for hearing would result in more claimants opting out of video hearings.

The Inadequacy Of Online Claims Filing

     Note to anyone who thinks Social Security will soon be able to transact all its business online: You still can't file a claim for Supplemental Security Income Benefits online. You can't even file a claim for Disabled Widows or Widowers Benefits online. Social Security has a long way to go with its online systems and I've seen little, if any, progress in years. To repeat, I've seen little, if any, progress in years in Social Security's online systems in years.

Are White-Collar Workers Susceptible To Age-Related Loss Of Job Skills?

     The Center for Retirement Research at Boston College has issued a brief report on How Do Job Skills That Decline With Age Affect White-Collar Workers? It's far from definitive but the authors' conclusion is that white collar jobs do require skills that decline with age and some white collar jobs are more susceptible to this than others. Two examples would be airline pilot and photographer. 

     The authors try to scale jobs based upon susceptibility to age-related loss of job skills. Here's a couple of charts from the report:

The "Augmentation Strategy"

     From the statement of Teresa Gruber, Social Security's Deputy Commissioner for Disability Adjudication and Review, to the Senate Committee on Homeland Security and Governmental Affairs yesterday:  

The cases targeted for the augmentation strategy represent only 3.6 percent of our hearings pending and the non-disability cases often involve issues that ALJs [Administrative Law Judges] do not typically encounter.

A small number of AAJs [Administrative Appeals Judges] and staff will specialize in adjudicating the non-disability issues, thus freeing up critical ALJ resources to handle disability hearings. But I want to be clear. Although the augmentation strategy is consistent with the Act and our regulations, this is a temporary initiative aimed at addressing a current need – bringing wait times down to 270 days. It allows us to use highly qualified adjudicators, whom we have thoroughly vetted, as we continue with our extraordinary efforts to hire more ALJs. The augmentation strategy is not part of a plan to replace ALJs in our hearings process.

The augmentation strategy is based on longstanding agency regulations. Since the beginning of the Social Security hearings process in 1940, our regulations have authorized the members of the Appeals Council to hold hearings. Under our current regulations, the Appeals Council has the authority to remove a pending hearing request from an ALJ, hold the hearing, and issue the decision. Moreover, nothing in our existing regulations precludes the Appeals Council from holding a hearing in a case that is before it on request for review or on remand from a Federal court.

When a claimant is dissatisfied with an ALJ hearing decision, she can appeal to the Council. Thus the second set of cases are a subset of cases already before the Council – cases where the Council could have completed action on the appeal but have generally remanded back to the ALJ. Under the augmentation strategy, the Council will complete the action on the case and issue the final decision, thus preventing an additional workload from returning to the hearing offices and freeing ALJs to hold hearings on other cases. The sole objective of this strategy is to increase capacity to hold more hearings and issue decisions so that we can, collectively, reduce the time people and their families are waiting for a decision.

     How can hiring AAJs to do non-disability hearings possibly help more than hiring ALJs? The AAJs will have to spend a large part of their time roaming around the country, far more than ALJs who are already located around the country. I would guess that their productivity will be half that of ALJs. I know that Social Security complains that the Office of Personnel Management (OPM) won't give them a bigger roster from which to select ALJs yet there are hundreds of names on the roster now and a new roster is coming. Why take as extreme a step as Social Security is planning? How is this going to look in a few years when a study is done comparing productivity of ALJs and AAJs?

Never Heard Of This Happening Before

     From the St. Louis Post-Dispatch:

The Social Security Administration has taken away the benefits of about 70 police officers at Lambert-St. Louis International Airport after determining they are not eligible due to an agreement the state of Missouri signed 65 years ago.

Sen. Claire McCaskill says the agency is misreading the agreement, but a Social Security spokesman said that the agency determined that the airport officers are St. Louis police as defined by the agreement, and that the state of Missouri “never requested Social Security coverage for this position.”

The airport security workers will be refunded the amount of money they have paid into the system through the years, according to an aide for McCaskill, D-Mo. But because they have been defined as St. Louis police officers by the Social Security Administration, they will also be ineligible for Social Security, and they face a murky fix on how to make up the loss of benefits.

McCaskill, in a letter Tuesday to Acting Commissioner of Social Security Carolyn Colvin, said that she believed the benefits were removed because of an incorrect reading of a “218 agreement” that Missouri and the Social Security Administration signed in 1951.

That agreement defined which local government workers would be covered under Social Security, and which would receive retirement benefits from Missouri. It was signed before airport security was necessary, a spokesman for McCaskill said. ...

     I don't understand how Social Security can correct the earnings records to take down the quarters of coverage. Normally, they can't go back more than 3 years, 3 months and 15 days to correct an earnings record. There are exceptions to that time limit in 42 U.S.C. §405(c)(5) but I don't see one that would apply to this situation.

Who Cares Who The Public Trustees Are?

     The Senate Finance Committee is holding a hearing today on the re-nominations of Charles Blahous and Robert Reischauer to stay on as public trustees of the Social Security Trust Funds. 

     Michael Hiltzik has written a column in opposition to the Blahous nomination on the grounds that Blahous has been consistently hostile to Social Security throughout his public life. Blahous thinks benefits are too high, he opposed extending the Disability Trust Fund, he was a major figure in former President George W. Bush's campaign to partially privatize Social Security, he constantly warns that the Trust Funds are running out of money but opposes any plan for them other than wholesale benefits cut as soon as possible, etc.

     I would agree with Hiltzik's opposition to the Blahous re-nomination except for the facts that the public trustees have no power and Blahous' efforts over the years, maybe decades, to undermine Social Security have been worse than useless. Support for Social Security has never been stronger. If anything former President George W. Bush's politically disastrous plan to partially privatize Social Security which Blahous promoted, helped demonstrate just how popular Social Security is.

     So go ahead, keep Blahous as a public trustee. He can't do any harm. As far as I'm concerned, he can use whatever podium you can get to spout his fear-mongering. Nobody cares what he thinks other than some of his fellow Republicans and probably not even a majority of them.  Even Republican officeholders who agree with him are terrified of actually following through on his ideas.

Inconsistencies In Paying Benefits To Representative Payees

     Many recipients of benefits paid by the Social Security Administration are eligible for more than one type of benefit. One example would be a widow entitled to retirement benefits based upon her own earnings and widows benefits based upon the earnings record of her late husband. If a representative payee is appointed to manage funds for the retirement benefits you'd think that the representative payee would also be managing the widows benefits. Social Security's Office of Inspector General (OIG) did a recent study to determine whether Social Security was being consistent in paying benefits through representative payees in situations where claimants are eligible for more than one type of benefit. They found much inconsistency. Tens of millions of dollars a year are being paid directly to individuals whom the agency has already found to be incapable of handling money.

Proposed Regs On Unsuccessful Work Attempts And Expedited Reinstatement

     From a notice to be published in the Federal Register tomorrow (footnotes omitted):

... Under our current rules , we evaluate the success of a work attempt by its duration. We look at work attempts lasting less than 3 months and those lasting between 3 and 6 months. We consider work of 3 months or less to be a UWA [Unsuccessful Work Attempt] if the claimant or beneficiary stopped working or reduced the work and earnings below the SGA [Substantial Gainful Activity] earnings level because of the claimant or beneficiary’s impairment, or because of the removal of special conditions which took into account the claimant or beneficiary’ s impairment and permitted the claimant or beneficiary to work. In contrast, t o qualify as a UWA, we require the work attempt to last between 3 and 6 months to meet the same conditions for work attempts lasting 3 months or less and to also meet several additional conditions. The claimant or beneficiary must also have : (1) been frequently absent from work because of his or her impairment, (2) performed the work unsatisfactorily because of his or her impairment, (3) worked during a period of temporary remission of his or her impairment, or (4) worked under special conditions essential to his or her performance and those conditions were removed.

We propose to revise 20 CFR 404.1574(c), 404.1575(d), 416.974(c), and 416.975(d) to remove the additional conditions that we use when evaluating a work attempt in employment or self-employment that last s between 3 and 6 months . We propose to use the current 3-month standards for all work attempts that are 6 months or less. This change would apply to Social Security Disability Insurance (SSDI) and SSI claimants and beneficiaries....

Currently, our regulations state that individuals are not eligible for EXR [Expedited Reinstatement] if they perform SGA during the month in which they apply for EXR . ... 

We propose to revise 20 CFR 404.1592c and 416.999a to allow previously entitled individuals to request EXR in the same month they stop performing SGA. ...

     Note that this is only a proposal. The public will be able to comment on it. Social Security must consider the comments. This is unlikely to become final until some time next year.

It's A Mess

     The Louisville Courier-Journal has an article on the 136 volunteer lawyers from 25 states helping Eric Conn's former clients whose Social Security disability benefits are threatened.

Whistleblower Or Crank?

     Ronald Klym, an employee at the Social Security hearing office in Milwaukee, has been placed on administrative leave and told to leave the office after discussing problems and delays at his office with an online media source. So, is this dastardly retaliation against a brave whistleblower who revealed dark secrets? Well, the wrongdoing Klym revealed was that there is a big backlog of cases awaiting hearing at the Milwaukee hearing office and that the office had transferred out some cases to be heard by Administrative Law Judges at other offices. In case you don't know, big backlogs are the rule at Social Security hearing offices and transferring cases to be heard by other offices is nothing unusual. Klym has previously claimed a hostile work environment at Social Security and made a complaint about a union representative. He had previously worked at the IRS and had gotten in trouble there for similar whistleblowing. You have to wonder whether Klym is more of a crank than an heroic whistleblower.

Social Security Plan To Remove Some Cases From ALJs

     From Huffington Post:

The Social Security Administration is quietly changing how it handles some appeals from Americans who’ve sought disability benefits.

The changes are part of an effort to chip away at an unprecedented backlog of unresolved claims, one that’s left some people waiting more than 500 days for a decision.
“With over 1.1 million people waiting for a hearing decision, we are in the midst of a public service crisis,” SSA spokesman Mark Hinkle said in an email. “For some people this results in a wait of over 17 months to receive a hearing decision, which we concede is unacceptable service.” ...

It’s the later stages of appeals where the SSA has made changes. Nearly 30,000 disability claims per year get sent back down, or “remanded,” to the appeals council or to administrative law judges for reconsideration. Now, these remands will instead be heard at the council level by administrative appeals judges who don’t have the same independence from the SSA that administrative law judges do.

Another 10,000 or so cases being taken away from ALJs include situations where people have returned to work after receiving disability benefits and the agency believes they’ve been overpaid. ...

Sen. James Lankford, an Oklahoma Republican who believes the disability program is rife with fraud, will hold a hearing on the new appeals policy next week, his office said.
“These proposed changes break with decades of practice, run contrary to well established interpretation of the Social Security Act, and depart from the SSA’s own regulations,” Lankford said in a letter to the agency last month. “The possibility that such actions could invite large-scale, costly, and protracted litigation from affected claimants is very troubling.”

     The idea that switching these cases to Administrative Appeals Judges (AAJs) could help Social Security's backlog situation is preposterous. It's too few cases to have a significant effect and the Appeals Council has enormous backlogs of its own. At best, you decrease ALJ backlogs slightly by increasing backlogs at the Appeals Council dramatically.
     I would attribute this to three factors:

• Social Security management distrusts ALJs.
• Social Security management prefers centralizing anything it can centralize.
• The number of federal court appeals of Social Security decisions is increasing rapidly. With Democratic appointees filling the federal courts, the rate of remands is only going to increase. You can deter this by making it harder to win on remand which you can do by switching the remands to people who can be made to follow orders.

     I don't understand how this would work as a practical matter unless video hearings are forced on claimants. There would be too few cases to send AAJs roaming around the country.

     By the way, don't expect anything to happen quickly on this. Social Security can't do this without adopting new regulations and they can't do that in less than a year. A new Administration may decide to kill this off. For that matter, this Administration may kill this off. I have my doubts that there has been even an informal OK of this by the White House.

Man Jailed For Threatening Personnel At Social Security Field Office

     From some television station in Cleveland that prefers to hide its call letters on its website:

Charges have now been filed against a man who has been in the Cleveland jail under investigation by Homeland Security. Investigators accuse Ramong Frett of threatening to kill a guard and others at a Social Security office on Shaker Boulevard. Police say he also “threatened four Federal Police Officers…and families of officers…”.

     It's just my personal peeve but why do television stations hide their call letters? "Fox 8" isn't a real name. Undoubtedly, there are a number of Fox affiliates across the country on channel 8.

Two Congressional Hearings Scheduled

     The Senate Finance Committee has scheduled a hearing for May 11 on the renomination of Charles Blahous II and Robert Reischauer to be public trustees of the trust funds. Perhaps the annual report on the trust funds will be released in time for the hearing.

     The Senate Homeland Security and Governmental Affairs has scheduled a hearing for May 12. Here's their blurb on the hearing:

This hearing will focus on the independence of federal agency judges and the due process afforded to individuals appearing before them.  Recently the Social Security Administration (SSA) has proposed removing two classes of adjudicatory hearings from the purview of Administrative Law Judges (ALJ) and transferring them to Administrative Appeals Judges and Attorney Examiners within SSA’s Appeals Council. This change would impact tens of thousands of cases and must be justified. In this hearing, we aim to examine the current ALJ issues at SSA and the broader issues of independence and agency control of officials who conduct administrative hearings throughout the federal government.

     My understanding is that this transfer would affect only non-disability cases. I'm not sure of the point other than, perhaps, a desire to make sure that few overpayments get waived. Some ALJs believe this is a first step towards doing away with independent ALJs. I don't think that's an achievable goal in any political environment I can imagine.

Most Popular Baby Names

     Hot off the presses, here is Social Security's annual list of the most popular baby names for last year:

Most Denied Disability Claimants Don't Go Back To Work -- Many Just Keep Appealing And Reapplying Until They Get Approved

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

We randomly sampled 275 cases from about 190,900 that ALJs [Administrative Law Judges] initially denied in FY [Fiscal Year] 2011. At the time of our review, 79 claimants (29 percent) were receiving benefits, and another 36 (13 percent) were still awaiting a decision on a new application or appeal for disability benefits. Seventy-five claimants (27 percent) reported earnings in Calendar Year 2011 or later, of which about half reported annual earnings between $12,400 and $66,700. In general, these earnings exceeded a threshold used by SSA [Social Security Administration] to determine eligibility for disability benefits. Another 63 claimants (23 percent) were not receiving Agency benefits or reporting earnings. However, some in this category had unsuccessfully appealed or reapplied. The final 22 claimants (8 percent) either were deceased or had unique situations, such as Medicare-only benefits, incomplete records in SSA systems, or children receiving benefits because of a parent’s status.

Proposed Gun Control Regs To Be In Federal Register Tomorrow

     The proposed regulations that will make it impossible for some Social Security disability recipients who have representative payees to purchase firearms will appear in the Federal Register tomorrow. Some points to keep in mind:

• Remember this is just a proposal. Nothing is going into effect at this time. If Donald Trump gets elected President, it is unlikely to go into effect.
• This isn't about seizing anyone's guns. It would only prevent some people with serious psychiatric problems from buying guns.
• It would only apply to people drawing Social Security disability benefits who meet or equal a Listing for psychiatric illness. These are people with very serious mental health problems.
• It wouldn't apply to anyone drawing Social Security retirement benefits.
• Those who would be affected by this proposal will still have an avenue to prove that it's safe for them to buy firearms.
• Don't believe all the nonsense you hear from the NRA. The black helicopters aren't coming to seize your guns and force you into a concentration camp. This proposal isn't the beginning of the apocalypse.

Trite But True: Crime Doesn't Pay

     From a press release:

Sophia Dix, 35, of Newport News, pleaded guilty today [April 25] to charges of wire fraud.

According to a statement of facts filed with the plea agreement, Dix was a service representative for the Social Security Administration (SSA) in its Norfolk office.  In her position, Dix had computer access to SSA beneficiary information, including bank account data for the direct deposit of benefit payments.  From April 2014, through August 2015, Dix rerouted over $56,000 in other persons’ SSA benefits to her own bank account. 

Dix was indicted by a federal grand jury on March 9, and faces a maximum penalty of 20 years in prison when sentenced on July 21. ...

Wi-Fi For Claimant Attorneys?

     I have heard a report that the Raleigh hearing office is installing Wi-Fi for attorneys who represent claimants at the office. Is this something that will be done generally in hearing offices?

Social Security Releases Advance Copy Of Proposed Regulations On Gun Control

     The proposed regulations which would provide a role for the Social Security Administration in determining eligibility to purchase firearms have not yet been published in the Federal Register. However, the agency has posted the proposed regulations on its website. They say that the Acting Commissioner signed them on April 28. I don't understand why they haven't yet been sent over for publication.

     Below are some excerpts from the proposal. Note that this proposal does not provide a right to an evidentiary hearing specifically on the issue of competency to purchase firearms. However, a claimant can appeal a determination that a representative payee should be appointed. Without a representative payee appointment the claimant's name cannot go on the list.  Hearings on representative payee appointments have been extremely rare. I've been representing Social Security claimants for 37 years and I've never done one. I've never heard of another attorney doing one. Also note that this is only a proposal. The public can comment on the proposal. Social Security must consider the comments and then obtain the approval of the Office of Management and Budget (OMB) before publishing this as final regulations. That will likely take many months. If a Republican is elected President in November these proposed regulations will probably die. Finally, note that that the proposal would only apply to some individuals drawing benefits due to disability. A person drawing retirement benefits who needs a representative payee because he or she suffers from severe dementia would not be excluded from purchasing firearms. In fact, it appears to me that an individual excluded from purchasing firearms under this proposal who ages off disability benefits and onto retirement benefits would suddenly be able to purchase firearms again even those his or her mental abilities would not have changed.

Affected individual means an individual:

 (1) Who has been found disabled based on a finding that the individual’s impairment(s) meets or medically equals the requirements of one of the Mental Disorders Listing of Impairments... and

(2) For whom we need to make a capability finding under the rules in part 404, subpart U of this chapter, or under the rules in part 416, subpart F of this chapter, and that finding is the result of marked subnormal intelligence, or mental illness, incompetency, condition or disease ...

If we report an individual to the NICS [database used to exclude certain individuals from purchasing firearms] based on a finding that he or she meets the criteria in § 421.110(b)(1) – (5), the individual may apply for relief from the Federal firearms prohibitions imposed by Federal law as a result of our adjudication...

(a) When we decide whether to grant an application for relief, we will consider:

(1) The circumstances regarding the firearms prohibitions imposed;

(2) The applicant’s record, which must include the applicant’s mental health records and a criminal history report; and

(3) The applicant’s reputation, developed through witness statements or other evidence.

(b) Evidence. The applicant must provide the following evidence to us in support of a request for relief:

(1) A current statement from the applicant’s primary mental health provider assessing the applicant’s current mental health status and mental health status for the 5 years preceding the date of the request for relief ; and

(2) Written statements and any other evidence regarding the applicant’s reputation. ...

An applicant who requests relief under § 421.150 must prove that he or she is not likely to act in a manner dangerous to public safety and that granting relief from the prohibitions imposed by 18 U.S.C. 922(d)(4) and (g)( 4) will not be contrary to the public interest....

Judicial review of our action denying an applicant’s request for review is available according to the standards contained in 18 U.S.C. 925(c). An individual for whom we have denied an application for relief may file a petition for judicial review with the United States district court for the district in which he or she resides .

Proposal To Lengthen UWA From Three To Six Months Advances

     Social Security's proposal for changes in its rules on unsuccessful work attempts and expedited reinstatement, which reportedly include lengthening the time period for an unsuccessful work attempts from three months to six months, has cleared the Office of Management and Budget (OMB). Expect the proposal to be published in the Federal Register this week.  However, don't expect it to go into effect until at least next year. Once it's published in the Federal Register as a Notice of Proposed Rule-Making (NPRM) the public can comment on it and Social Security must consider the comments. Typically this takes quite some time. The gun control NPRM which should also be published this week may really slow down Social Security's regulatory apparatus. That NPRM may draw thousands of comments.

Annual Statistical Supplement Released

     The Social Security Administration has issued its Annual Statistical Supplement, a huge compendium of all the stats the agency keeps and is willing to share with the public. Here's a table from the Supplement that may surprise some.

 Number of SSA employees and percentage with selected characteristics by grade, September 30, 2014

Characteristic	All grade levels	GS 1–4	GS 5–8	GS 9–12	GS 13–15	SES
	Number
Total a	64,838	343	18,151	33,923	10,538	147
	Percentage of total
Women	66.5	59.8	69.0	70.4	56.3	42.9
Minorities	51.7	60.9	60.7	52.6	38.4	35.8
Black	28.9	33.8	36.9	27.4	22.6	23.1
Hispanic	14.9	16.3	16.6	16.6	8.1	6.8
Asian/Pacific Islander	6.3	9.6	5.4	6.9	6.4	4.1
American Indian/Alaska Native	1.3	0.3	1.3	1.4	1.1	1.4
Employees with targeted disabilities	2.0	10.5	3.6	1.5	0.9	0.7