Aug 16, 2018

R-E-S-P-E-C-T

Aretha Franklin 1942-2018

House Budget Chairman Wants To Raise Medicare Age And Make Social Security Change

     From the Times Record which may be in Fort Smith Arkansas, although that's hard to tell from the newspaper's website (emphasis added):
A new congressional budget proposal dubbed Brighter American Future would not privatize Social Security or Medicare, but it would raise the age of eligibility for Medicare up to two years and provide alternatives that could help drive Medicare costs down, U.S. Rep. Steve Womack, told a group of citizens Tuesday at a town hall meeting in Fort Smith.
Womack, the 3rd District congressman from Rogers and new chairman of the House Budget Committee, addressed the concerns over Social Security and Medicare presented by Mona Harper of Fort Smith and a group of five others at the University of Arkansas  ... 
The only recommended change to Social Security the budget proposal would make is “closing a loophole with disability insurance” that “allows someone to collect unemployment,” Claire Burghoff, communications director for the House Budget Committee, wrote in an email Wednesday. ...

Anybody Want A Big Abe Lincoln Statue?

     From WKYT:
They’ve become somewhat synonymous with Eric Conn. Some of the eye-catching billboards and large statues outside of the attorney’s former office are now looking for a new home.
Conn’s is a story that’s been ongoing for years , complete with some surprising twists and turns. Months ago, Conn admitted to defrauding the social security administration out of millions of dollars. ...
A new court order entered yesterday now allows for the sale of those assets, including the property where his once booming law compound sits. The property plays home to a giant Abraham Lincoln statue, a now toppled Statue of Liberty replica and a few Conn look-alike mannequins that once topped billboards. ...

Aug 15, 2018

Attorney Advisor Program Made Permanent

     The Social Security Administration published a notice in the Federal Register today that it is making the attorney advisor program permanent. As the notice says "The attorney advisor initiative permits some attorney advisors to develop claims, including holding prehearing conferences, and, in cases in which the documentary record clearly establishes that a fully favorable decision is warranted, issue fully favorable decisions before a hearing is conducted." 
     The problem with the attorney advisor program is that they are issuing few decisions. This is because the agency has imposed many limits and restrictions on what the attorney advisors can do. If Democrats win control of the House of Representatives in November I expect that Social Security will remove some of the limitations on attorney advisor productivity.
     By the way, if they're issuing decisions, shouldn't attorney advisors be appointed by the Commissioner?

Aug 14, 2018

Social Security Obstructing Legal Representation For Eric Conn's Former Clients

     Social Security has threatened or is threatening termination of disability benefits to thousands of Eric Conn's former clients. These cases have come in two waves. We're in the second wave now. 
     The need for pro bono legal representation in the Conn cases far exceeds what can be provided locally. Attorneys all over the country have stepped up to help these sick people who were unaware of Conn's illegal behavior. In the last wave of cases, attorneys from other parts of the country appeared by video. It wasn't perfect but it did provide legal representation which couldn't have been provided otherwise.
     Cases are now being scheduled for this second wave of Conn hearings. This time attorneys are receiving the letter shown below. We're being told that "Your office was made aware of the location of the hearing when it was scheduled and is in not in the best interest of the claimant for you to appear at another location ..." I was made aware of the location of the hearing when it was scheduled but I told the people scheduling the hearing that I would need to appear by video. I was told to send in my request so I did so, expecting to have my appearance by video. The idea that allowing me to appear by video would "not be in the best interest of the claimant" is almost Orwellian. There are already so many reasons why denials by Administrative Law Judges in the Conn cases may get remanded, it's hard for me to comprehend why anyone at Social Security would think this is a good idea.

Happy Birthday, Social Security!


Slow Progress On DCPS

     From a report by Social Security's Office of Inspector General:
SSA is developing DCPS [Disability Case Processing System] as a common system for all DDSs [Disability Determination Services]. The Agency expects DCPS will simplify system support and maintenance, improve the speed and quality of the disability process, and reduce the overall growth rate of infrastructure costs.
SSA is using an incremental approach to develop and deploy DCPS. In December 2016, the Agency released its first working software to three DDSs, enabling them to process certain types of disability claims. Since then, the Agency has developed and implemented new releases that have provided additional functionality and has made the system available to users in 10 DDSs.
In November 2017, SSA postponed rolling DCPS out to additional DDSs and focused its resources on development. The Agency also concentrated on increasing the numbers of DCPS users at participating DDSs and cases they process in the system. ...
We asked users to respond to the statement, “Overall, I am satisfied with DCPS.” Of the 120 users who responded, 
  • 69 (58 percent ) either agreed or strongly agreed;
  • 28 (23 percent) either disagreed or strongly disagreed;
  • 17 (14 percent) neither agreed nor disagreed; and
  • 6 (5 percent) did not respond to the statement. 
In general, users liked the modern interface, DCPS’ ease of use, and their ability to work on multiple cases simultaneously. Administrators and users also indicated they would like more functionality. For example, because DCPS lacked certain functionality, users had to employ workarounds to process certain cases. In addition, users had to follow up on evidence requests outside the system. Further, users commented about their inability to effectively manage their caseload s in DCPS . ...
In December 2017, the 10 participating DDSs completed 797 cases in DCPS (about 2 percent of their workload). In May 2018, they completed 1,543 cases (about 4 percent of their workload).
SSA recognized that its inability to convince DDS users of the value and advantage of DCPS may negatively affect DDS adoption rates. To address this, the Agency planned to continue working with users to develop and demonstrate working software. ...
     A year and a half into the project and we're only up to a handful of DDS units processing 4% of their workload using DCPS? At that rate, DCPS might be fully implemented in another 50-75 years.

Aug 13, 2018

You Can Blame The Hearing Backlog On A Lot Of Things But Staffing Level Cuts Really Stand Out

     From Workload Review of the Office of Hearings Operations' Atlanta and New York Regions, a report by Social Security's Office of Inspector General:
The hearing offices in both regions with high average processing times (APT) had below-average staffing levels, low morale, and issues with telework, claimant representatives, and the quality of the support staff’s work. Other factors, such as administrative law judge performance issues, difficulty scheduling expert witnesses, and a large number of supplemental hearings/postponements also contributed to high APT.
In the New York Region, local office management issues and State filing requirements were also negative factors. In the Atlanta Region, an insufficient number of decision writers and information technology problems were negative factors. In the New York Region, several interviewees cited their Regional Office as a negative factor that contributed to higher APT and lower productivity. The issues that interviewees cited included Regional Office micromanagement, excessive time and oversight devoted to minor issues, goals not agreeing with real capabilities, negative messaging/tone, and frequent changes implemented with little notice or input.

      No doubt the Inspector General's Office was trying to do a thorough report but, come on, staffing levels are the story here. Work on the other stuff too but don't expect much improvement without doing something about the staffing levels.
     By the way, don't expect any improvement in performance by those who represent Social Security claimants without an increase in the fee cap. Inflation has cut the value of fee payments at the same time the workload has been increased by burgeoning Social Security files and new regulations making new demands. You get what you pay for on, in this case, what you allow claimants to pay for. The agency can adopt all the coercive regulations it wants but things will just get worse until something is done about compensation. If you work at Social Security and think that those who represent Social Security claimants make lots of money, why don't you just leave the agency and get on that gravy train you think you see out there? Almost no one is doing that, however, which should tell you something.

Aug 11, 2018

Panhandling While Waiting On Social Security

     From a television station in Indianapolis:
An Indianapolis man says he’s taken to the streets to panhandle because his application for disability requires him to wait almost two years for help.Richard Frizzle underwent heart surgery in April 2017 and applied for disability that August. Ten months later, Frizzle is still awaiting approval. With no income and no idea whether he’ll get disability, Frizzle has turned to panhandling. ...
Call 6 Investigates confirmed that Richard Frizzle filled out his paperwork for federal disability benefits on August 8, 2017. But the Chicago office of Social Security Administration says the average wait time for a hearing in Indianapolis is 19 months. ...

Aug 10, 2018

New ALJ Hiring?

     It's been less than a month since the President ordered that Administrative Law Judges (ALJs) would henceforth be hired as "excepted service" employees. Now we hear rumors that the Social Security Administration hopes to begin hiring new ALJs in the near future. If this is true, drawing up a plan to evaluate ALJ candidates and getting everyone at the agency on board so quickly is surprising. 
     There are essentially no limits on how "excepted service" hiring is done. The agency can get away with almost anything without breaking any law. 
     Haste combined with a lack of legal limits makes me worry.
     I hope everyone involved realizes that if Democrats get control of the House of Representatives after the November election, as now appears likely, the House Social Security Subcommittee will be holding a hearing on ALJ hiring early next year where Social Security officials will have to explain what process they have used or will be using. Here's some things that probably wouldn't go over too well if that hearing happens:
  • A secretive process with no announced selection criteria
  • A lack of public notice of job openings
  • Political influence on the hiring process, such as candidates being hired because of recommendations from the White House or members of Congress
  • ALJ jobs used to give a soft landing to Congressional staffers who lose their jobs if Democrats win control of the House of Representatives
  • Ideological bias in the hiring process
  • Job candidates being vetted by outside groups who are not otherwise involved with Social Security ALJs, such as the Federalist Society
  • Personal favoritism in the hiring process
  • A lack of diversity among those hired
  • Hiring only from within the agency
  • Lots of hiring of agency employees nearing retirement who only want to work as ALJs for a short time in order to increase their retirement benefits
  • Using ALJ jobs to clear deadwood out of Social Security's Office of General Counsel or other parts of Social Security

Acting Commissioner Message On Wildfires


From: ^Commissioner Broadcast
Sent: Friday, August 10, 2018 8:27 AM
Subject: Wildfires in California

A Message to All SSA Employees 
Subject: Wildfires in California
You may have heard the news about wildfires in the northern California area.  These wildfires have burned more than 500,000 acres.  This natural disaster continues to devastate surrounding areas, affecting a number of our offices and employees.  The region has accounted for all employees and we are thankful that they are all safe. 
The Federal Emergency Management Agency and Department of Homeland Security continue coordinating efforts with local officials to provide much needed assistance.  Area fire and police departments are working to contain the spreading wildfires that forced closures, evacuation orders, and damage to the Ferguson, Carr, Crestline, Highland, Ranch, and River areas.  Our offices in Lakeport, Redding, Sonora, Merced, and Ukiah are all at different stages of recovery. 
Many Redding employees are providing staff support at the Local Assistance Center at the Shasta High School and continue to serve the public.  Our employees are processing replacement Social Security card applications, providing benefit verifications, changing addresses, and answering benefit questions.
I want to give a special ‘thank you’ to all of the brave men and women who are working tirelessly to contain the fires.  Let us also remember and honor those that lost their lives in the line of duty for the safety and protection of others.
I want to commend our personnel from the San Francisco Regional office and those who are on site assisting employees in recovery efforts.  Please keep all of those affected by these wildfires in your thoughts.

Nancy A. Berryhill
Acting Commissioner

Sentence Affirmed For A Conn Co-Defendant

     The United States Court of Appeals for the Sixth Circuit has affirmed the sentencing of Alfred Bradley Adkins, one of Eric Conn's co-defendants.

Eviction Of Unions Causes Problems For Social Security Employees

     Ailsa Change of National Public Radio reports on the problems caused by Social Security's evictions of unions from its premises.

Aug 9, 2018

SSA Wants To Remove Inability To Communicate In English As Factor In Disability Determination

     The Social Security Administration has asked the Office of Management and Budget to authorize the publication of proposed regulations on Removing Inability to Communicate in English as an Education Category. If approved by OMB, the proposed changes would be published in the Federal Register and the public could comment. Social Security could then consider the comments before asking OMB to authorize the publication of final regulations. Here's Social Security's summary of the proposal:
We propose to revise existing disability evaluation rules relating to the ability to communicate in English.  Specifically, we will clarify that an inability to communicate in English is not tantamount to illiteracy or inadequate verbal communication.  Rather, an inability to communicate adequately verbally or in writing in any language will be the effective standard.   The proposed revisions will reflect current research, analysis of our disability program data, Federal agency data about workforce participation, and comments we received from the public in response to an Advance Notice of Proposed Rulemaking.
     If you think this proposal is based upon "research" instead of rampant Republican racism and nativism, you're naive. Inability to communicate in English remains a serious obstacle to work particularly when added to other obstacles caused by illness.
     This is one of several proposals that may not advance if Democrats gain control of the House of Representatives in November.

Aug 8, 2018

They Need Help

Widow of a Conn client who committed suicide
     The struggle continues for many of Eric Conn's former clients. Social Security has expanded its target list. They're now going after more of his former clients. The hearings are starting up again.
     Kentucky attorneys have stepped up and are representing many of these unfortunate folks but the need is far beyond what Kentucky attorneys can handle.
     Don't think that if you volunteer that you'll be working with criminals (not that there's anything wrong with that). No one is accusing Conn's clients of being in on his scheme. Many of Conn's clients never met Conn. I represent several of Conn's former clients and can tell you that they're ordinary Social Security disability claimants.
     These cases can't be done on a fee generating basis because the claimants continue to receive benefits as they await new hearings and decisions from new Administrative Law Judges.
     You don't have to travel to Kentucky to represent one of Conn's former clients. You can participate in the hearing by video from your nearest hearing office.
     To volunteer, please contact Mary Going at AppalRed Legal Aid. Her e-mail address is mary[at]ardfky.org. Her phone number is 606-886-9876. There's a listserver where you can ask for and receive advice on representing Conn's former clients.

Aug 7, 2018

Mass AC Remands On Lucia Grounds Coming?

If a claimant or representative files a timely Appointments Clause challenge and timely requests Appeals Council review, the AC will consider the challenge in the context of the facts of the case (including, but not limited to, the date of the ALJ decision and the date the challenge was raised) in determining whether there is a basis to grant review. The AC will determine whether granting review is appropriate under 20 CFR 404.970 or 416.1470, or both, when considering both the decision on the merits and any potentially unresolved Appointments Clause issues.
In those matters where a timely Appointments Clause challenge to an ALJ decision issued prior to July 16, 2018 is raised to the Appeals Council in a proper request for review, the AC will grant review and issue a decision or order remand, as appropriate.

Aug 5, 2018

I'm Not A Medicare Expert; I Just Play One On TV

     From Philip Moeller writing for PBS News Hour:
Sharilyn – Ind.: My daughter has cancer. She is on disability and Medicare. She is getting married in two months. Can she stay on Medicare or will she have to get on her new husband’s insurance?
Phil Moeller: If she is receiving Medicare through her Social Security disability, it will be her choice whether to continue it or, if available, choose to be covered by her husband’s health plan. She could even keep both, using one as primary and the other as supplemental, depending on which has the best benefits.
     How many ways can you mislead someone in two sentences? First, Moeller fails to mention the very real possibility that the daughter is on Disabled Adult Child benefits. If so (apart from a very unusual circumstance) marriage will end not just the Medicare but the cash benefits as well. That's more than a theoretical possibility since the question probably concerns a young woman. It is important to warn people who may be at risk about this trap. Second, no, you don't get to choose between Medicare and private healthcare insurance. If you're Medicare eligible, any private healthcare insurance is a secondary payer even if you decline Medicare Part B coverage. In other words, you better have Medicare Part B because your healthcare insurance won't pay for anything Medicare Part B would have paid for. You can't decline Medicare Part A. You don't have to pay a premium for Part A. The young woman needs to be told to ask her new husband's insurer about any options they would offer her but what they offer will only supplement Medicare, not substitute for it.

Aug 4, 2018

Don't Do That!

     From NJ.com:
Between December 2014 and July 2018, the government says, Nicholas Pao collected almost $100,000 in Social Security benefits.
The problem? The government alleges not only were they not his benefits, but that Pao, 37, abused his job with the Social Security Administration to get them. ...
Prosecutors said Pao, a technical claims expert at the agency's local office, used his credentials to access at least five individual accounts and make changes that caused them to be issued additional benefits.
Pao would change the beneficiaries' mailing addresses to that of a residence near him, from which he collected the Direct Express benefit debit cards mailed out by SSA, an investigator wrote in a criminal complaint. ...

Aug 3, 2018

Proposal To Require That VEs Not Be Present In Person At Hearings

     Social Security has sent proposed new regulations on Setting the Manner for the Appearance of Parties and Witnesses at a Hearing to the Office of Management and Budget (OMB) for approval. If approved, the proposed regulations will be published in the Federal Register for public comment. Social Security will have to consider the comments before adopting final regulations. Here's Social Security's summary of the proposal:
We propose to revise 20 CFR parts 404 and 416 to establish a preference for the manner in which parties and expert witnesses appear at a hearing, including by video teleconference (VTC) or by telephone.  We also propose to require non-parties, including medical and vocational experts, to appear by telephone or VTC, unless circumstances in the case warrant a different manner of appearance. We would specify that although the adjudicator may identify facts that may impact an individual’s manner of appearance, it is ultimately the Agency’s responsibility to schedule the hearing and determine the manner in which individuals will appear.

Aug 2, 2018

Could Social Security ALJs Be Appointed Based On Their Politics?

     Because of President Trump's Executive Order, Administrative Law Judges (ALJs) will no longer be appointed through a process controlled by the federal Office of Personnel Management (OPM). Agency heads will be able to appoint the ALJs pretty much however they want to appoint them.
     Social Security and other agencies would never appoint ALJs on political criteria, would they? We'll see but take a look at what happened with Immigration Judges during the George W. Bush Administriation. Of course, the Trump Administration is too high minded to do anything like that.

Aug 1, 2018

CA6 Opinion On When Lucia Argument Must Be Raised

     After the Supreme Court found in Lucia v. SEC that the Administrative Law Judge (ALJ) appointment process was unconstitutional, the Solicitor General, who represents the federal government before the Supreme Court, told agencies that the Department of Justice would only defend ALJ decisions issued before the date that the ALJs were constitutionally appointed on the grounds that no objection was made while the case was pending before the agency.
     We've just gotten the first decision of a Court of Appeals on this issue and the Court wasn't buying that argument. In the case before the Sixth Circuit, Jones Brothers v. Secretary of Labor, the objection was filed before the Federal Mine Safety and Health Review Commission but not before the ALJ. Here's some language from the opinion:
... This administrative agency, like all administrative agencies, has no authority to entertain a facial constitutional challenge to the validity of a law. An administrative agency may not invalidate the statute from which it derives its existence and that it is charged with implementing. See Mathews v. Diaz , 426 U.S. 67, 76 (1976); Weinberger v. Salfi , 422 U.S. 749, 765 (1975); Johnson v. Robison, 415 U.S. 361, 368 (1974); Pub. Util. Comm’n v. United States, 355 U.S . 534, 539–40 (1958). 
Each of the three branches of the federal government, it is true, has an independent obligation to interpret the Constitution. But only the Judiciary enjoys the power to invalidate statutes inconsistent with the Constitution. See Marbury v. Madison, 5 U.S. (1 Cranch) 137, 177–78 (1803). 
We thus could not fault a petitioner for failing to a raise a facial constitutional challenge in front of an administrative body that could not entertain it. See McCarthy v. Madigan , 503 U.S. 140, 147 – 48 (1992). To hold otherwise would be to stretch forfeiture beyond its breaking point. We must read the statute in light of its constitutional setting: The Mine Act establishes an agency dispute - resolution scheme of limited scope. In that context, “questions of law” include only those legal claims the Commission is fit to decide and fix. See Plaquemines Port, Harbor & Terminal Dist. v. Fed. Mar. Comm’n , 838 F.2d 536, 544 (D.C. Cir. 1988) (Bork, J.); Motor & Equip. Mfrs. Ass’n v. EPA, 627 F.2d 10 95, 1114–15 (D.C. Cir. 1979). ...
     The Court went on to the more  complicated question of whether the petitioner forfeited the Lucia argument for not raising "as applied" constitutional challenge earlier but eventually concluded that the petitioner had not forfeited the argument. I see nothing in the opinion that would not apply to Social Security with at least as much force.

71% Overpayment Rate

     From Work-Related Overpayments of Social Security Disability Insurance Beneficiaries: Prevalence And Descriptive Statistics, a study by several researchers for the Mathematica Center for Studying Disability Policy:
Work-related overpayments occur when the Social Security Administration (SSA) issues a monthly benefit to which an individual is not entitled because of engagement in substantial gainful activity. ... 
We found that: 
  • 1.9 percent of all DI [Disability Insurance] beneficiaries in our sample were overpaid due to work in one or more months during the three-year study period. 
  • Among DI beneficiaries with sufficient earnings to put them at risk of a work-related overpayment, 71 percent were overpaid. 
  • Work-related overpayments lasted for a median of nine months. 
  • Work-related overpayments accrued to a median of over $9,000.
      71% of the time that a Social Security Disability Insurance Benefits recipient returns to work for long enough at enough pay that his or her benefits should be reduced those benefits aren't actually reduced and there's an overpayment of benefits? That's terrible. It's obvious that there are systemic problems. You can't just blame claimants for this high a rate of overpayments. There are undoubtedly many reasons for this situation but the incredible complexity of the rules applied in cases where beneficiaries return to work have to be a major part. I also think it's too difficult to report return to work.
     I'll make one simple suggestion which would probably help and it could be implemented without changing any laws. Send a yearly mailer to each person drawing disability benefits each January asking whether they have earned money in the preceding year. If they reply that they have, follow up with them to get the details. If they have worked but remain eligible for benefits at the time, send them quarterly mailers for at least the next couple of years and follow up on the responses. I'll admit that there's one huge problem with my suggestion. Social Security lacks the manpower to deal with the responses they would receive. I'll admit that it's also possible that it wouldn't be cost efficient since only 1.9% o benefits recipients are affected. Got any better ideas?