Oct 23, 2018

Remember That Anyone Approved For SSI Is Desperately Poor

     Below is a note in my firm's database concerning a telephone conversation with a client whose claim for Supplemental Security Income (SSI) was recently approved. We had told him to contact the District Office (DO) since it had been a couple of weeks since he had been approved and the DO had not yet contacted him to begin processing him onto benefits, as would be normal:
DO told him it would be 60 days from when he received his decision before he hears from them - So not to expect to hear from them until ~ Nov 20th.

Oct 19, 2018

All Part Of The Plan

     From Paul Krugman’s column in the New York Times:
When the Trump tax cut was on the verge of being enacted, I called it “the biggest tax scam in history,” and made a prediction: deficits would soar, and when they did, Republicans would once again pretend to care about debt and demand cuts in Medicare, Medicaid and Social Security. 
Sure enough, the deficit is soaring. And this week Mitch McConnell, the Senate majority leader, after declaring the surge in red ink “very disturbing,” called for, you guessed it, cuts in “Medicare, Social Security and Medicaid.” He also suggested that Republicans might repeal the Affordable Care Act — taking away health care from tens of millions — if they do well in the midterm elections. 
Any political analyst who didn’t see this coming should find a different profession. After all, “starve the beast” — cut taxes on the rich, then use the resulting deficits as an excuse to hack away at the safety net — has been G.O.P. strategy for decades. ...

Oct 18, 2018

DOT Replacement Coming Soon?

     The National Association of Disability Examiners (NADE) has posted its most recent newsletter. NADE members make determinations on disability claims for Social Security at the initial and reconsideration level. Here’s an excerpt from a write up on a talk by Gina Clemons, Social Security’s Associate Commissioner for Disability Policy:
... Gina also updated the NADE audience on work underway in the agency’s Vocational Regulations Modernization (VRM) and Occupational Information Systems (OIS) projects. These companion projects have been ongoing for several years. Key to the OIS project is an ongoing effort (since 2012) with the Bureau of Labor Statistics (BLS) to collect updated occupational information through the Occupational Requirements Survey (ORS) that we will use in adjudication. The good news here is that, after three years of testing and three years of data collection, BLS will publish a complete data set documenting requirements of work in the U.S. economy sometime this winter. BLS is committed to regularly updating occupational information moving forward on a 5-year refresh cycle and has already started collecting updated occupational data to refresh the ORS data set by 2024. BLS will document some of the basic mental demands of jobs in the 2024 ORS refreshed data.
The ORS data set will replace the Dictionary of Occupational Titles in adjudication. SSA has adopted an evidence-based, data-driven approach to modernizing the vocational regulations. The scope of the VRM project includes policy considerations in step 4 and 5 of the sequential evaluation process. Gina explained that several internal teams involving representatives from across SSA have been working on policy development for VRM.


Oct 17, 2018

Positions Of The Two Parties On Social Security

     The New York Times summarizes the positions of the two major parties on Social Security as we approach an election. Simply put, Democrats want to enhance Social Security and Republicans want to cut it. Given the extent to which Americans rely upon Social Security, it’s hard to comprehend why voters haven’t emphatically rejected the Republican Party.

Oct 16, 2018

Received Appointed For Conn Files

     A receiver has finally been appointed to handle the thousands of case files left behind by Eric Conn. No one knows how long it will be before his former clients get access to their files. Hearings are ongoing in these cases. From what I've seen and heard, Administrative Law Judges have been told to barge forward and wait for almost nothing, including these files which may contain medical evidence. Of course, there are hundreds of Conn's clients who have already lost benefits who never knew that these files still existed.

Oct 15, 2018

Going Backwards

     Below is a summary of the 2019 Fiscal Year (FY) appropriation for Social Security recently signed into law. FY 2019 began on October 1 of this year. This was obtained by the National Organization of Social Security Claimants Representatives (NOSSCR) and published in their newsletter (which isn't available to the public online). Click on the image to view full size.
     Remember that because of inflation a flat appropriation means the agency is losing ground.

Oct 14, 2018

When Will The Appeals Council Act?

     The Securities and Exchange Commission is remanding all cases pending before the full Commission for new hearings before different Administrative Law Judges, without regard to whether the Lucia issue was raised before ALJ or even before the full Commission. When will Social Security follow suit? Tens of thousands of cases are pending at Appeals Council. My firm has a considerable number of cases pending at the Appeals Council. We’ve raised the Lucia issue in each one. We’re not getting remands. We’re not getting denials of review. The cases are just sitting there.  What are they waiting on? Come on, Mr. Lucia himself didn’t raise the issue of ALJ appointment before the ALJ.

Oct 13, 2018

Departmental Appeals Board At Social Security? OIG A Party Appealing ALJ Decisions?

     Can someone explain to me the process discussed in the Second Circuit decision in Capetta v. Commissioner of Social Security? Was the Court just confused in its description of the administrative process?

Oct 12, 2018

Full COLA Announcement

     Below is the full Cost Of Living Adjustment (COLA) announcement from Social Social. It includes Maximum Taxable Earnings, income required for a Quarter of Coverage, Retirement Earnings Test (for those under Full Retirement Age), and the new Supplemental Security Income payment amounts, among other things. Note that they include the SSI Resource Limits and Income Exclusions even those have NEVER been adjusted for inflation and are absurdly out of date.
     Click on the image to view full size.

Oct 11, 2018

2.8% COLA

     As predicted Social Security's Cost of Living Adjustment (COLA) for this year is 2.8%.

Proposed Regs On Rep Payees

     The Social Security Administration has published proposed regulations to implement legislation passed in August that prohibits persons convicted of certain criminal offenses from serving as a representative payee in certain circumstances. I hope there's enough discretion remaining in this proposal. Certainly, there are rep payees who rip off Social Security beneficiaries but the biggest problem I've seen has been a lack of anyone willing or able to be a rep payee. Blanket disqualifications may exclude trustworthy people. It's possible to commit a crime, be convicted, serve your time and then get out and live an honorable life.

Oct 10, 2018

Waiting In Topeka

     From the Topeka Capital-Journal:
The average time to process a claim for Kansans with disabilities jumped this fiscal year, despite millions of dollars invested into the Social Security system to address an issue one official called “inhumane” and “unacceptable.”
Mike Stein, assistant vice president of operations strategy and planning for TrueHelp, said he has “a lot of words” about what people face who are unable to work and whose lives may be destroyed as they await a decision from Social Security on whether they deserve disability benefits. An average disability check is $1,197 per month, he said.
“Every month that goes by when that person who is simply asking for a benefit that they paid for during their working years doesn’t seem fair,” he said. “All that while, they might not be able to afford their medications or regular treatment on top of the other financial stresses. Their condition probably is going to get worse because of their financial strain. They were prescribed one pill a day, and they take a half a pill a day because of cost.” ...
"A lot of damage gets done when someone can no longer work,” he said. “We see the physical ailment turn into a mental ailment at times. The depression from losing a big part of one’s identity. Neighbors looking at you. A lot of pressure, all the way you’re waiting on Social Security. We hear the stories of them taking out loans, losing the house, the spouse has to get another job. These are not outlier stories.”

Oct 9, 2018

Fraud Alert

     From Social Security's Office of Inspector General (OIG):

October 9, 2018
The Acting Inspector General of Social Security, Gale Stallworth Stone, is warning citizens about an ongoing Office of the Inspector General (OIG) impersonation scheme.  The OIG has recently received reports from citizens about suspicious phone calls claiming to be from the Acting Inspector General.
The reports indicate the caller identifies as “Gale Stone” and states the person’s Social Security number (SSN) is at risk of being deactivated or deleted.  The caller then asks the person to call a provided phone number to resolve the issue.  Citizens should be aware that the scheme’s details may vary; however, citizens should avoid engaging with the caller or calling the number provided, as the caller might attempt to acquire personal information.
The Acting Inspector General urges citizens to be cautious, and to avoid providing information such as your SSN or bank account numbers to unknown persons over the phone or internet unless you are certain of who is receiving it.  If you receive a suspicious call from someone alleging to be the Acting Inspector General or from the OIG, you should report that information to the OIG at 1-800-269-0271 or online via https://oig.ssa.gov/report.
See the full advisory at the OIG website.

Those Still Working Have A Lot Of Illusions About Retirement

     From the 2018 Retirement Confidence Survey (click on each image to view full size):
      Note in the first chart that 68% of those who haven't yet retired think that they will do some work in retirement but only 26% of retirees report that they are working. Note in the second chart the divergence between the age that people expect to retire -- 65 -- and the age at which they actually do retire -- 63.

Oct 8, 2018

OIG Report On Social Security's Nonwork Alien File

     From a recent report by Social Security's Office of Inspector General:    
The Social Security Administration (SSA ) issues nonwork SSNs to noncitizens who lack Department of Homeland Security (DHS) work authorization but have valid nonwork reasons for the SSNs [Social Security Numbers], such as to obtain a federally funded benefit that requires an SSN.
Section 414 of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 requires that SSA provide DHS an electronic file, known as the Nonwork Alien File (NWALIEN ) that includes the SSNs, names, and addresses of noncitizens working with nonwork SSNs; the employer reporting the wages; and the earnings amount. Additionally, each year SSA is required to send a report to the Congress on the aggregate quantity of nonwork SSNs used to earn wages.
For Tax Years (TY) 2014 to 2016, SSA’s NWALIEN File included about 422,000 individuals who were assigned nonwork SSNs but earn ed about $50 billion in wages
In TY 1996, there were about 607,000 individuals working under nonwork SSNs. In TY 2016, that number decreased about 43 percent to 343,000 individuals. Further, about 80 percent of the employers in the NWALIEN files for TYs 2014 to 2016 may not have been aware their employees were not authorized to work because they had not registered to use E-Verify to confirm their employees’ employment eligibility. Moreover, since 2007, SSA was unable to provide the NWALIEN file to DHS because the data exchange agreement had expired and had not been renewed in 12 years.
Finally, based on our review of SSA’s records for two sample populations of individuals assigned nonwork SSNs with wages posted to the NWALIEN File for TYs 2014 to 2016, we estimate SSA
  • erroneously placed 6,000 individuals on the NWALIEN file because staff did not update their work authorization status on the Numident when they provided the Agency with supporting evidence during the benefit claims process, and
  • incorrectly assigned nonwork SSNs to 2,700 individuals who were U.S.-born citizens. ...
     This shows problems at Social Security but the bigger problem is employers not verifying authorization to work. If you're serious about reducing illegal immigration, you get serious about putting the burden on employers. Republicans want to build walls and punish immigrants but the more effective course, as well as the cheaper and more humane course, would be to concentrate on the employer side but Republicans don't want to restrict the supply of cheap labor or put additional burdens on employers. By the way, it may have sounded stupid when Mitt Romney talked about illegal immigrants self-deporting but he had a point. Make it nearly impossible for them to work in the U.S. and they go home.

Oct 7, 2018

A Professor Theorizes

     There’s a podcast out of the Wharton School of Business at the University of Pennsylvania about one professor’s theorizing about ways to convince people to work longer and delay starting their Social Security benefits. She wonders whether some lump sum bribe would work. 
     With fewer than 10% of people now waiting to age 67 to start drawing Social Security, I’m doubting this scheme would work. Health issues drive many, perhaps most, retirement decisions. People are much more into sufficing rather than maximizing income and wealth than this professor realizes. 
     Governments incentivize people to do some things and avoid doing others. This is an area where additional incentives seem over the top to me. Elderly poverty is certainly a problem but I don’t think this would be an appropriate or effective way of addressing the problem.

Oct 6, 2018

Minor But Interesting Development

     I'm noticing that some United States District Courts are now issuing opinions in adult Social Security cases which identify the plaintiff only by first name and last initial. It seems to be more than one Judge or District doing this. It’s being done to protect privacy. I'm sure that anyone who really wanted to could look in the Court's records and discover the real name. This would just protect privacy on Westlaw, the major online database of Court opinions. I just noticed it. I can't think it's been around long. It's not being done in any of the North Carolina Districts. Does anyone know where this started?

Oct 5, 2018

That's A Lot Of Payment Mistakes

     From a recent report by Social Security's Office of Inspector General:
When beneficiaries receive both DI [Disability Insurance] and WC/PDB [Workers Compensation/Public Disability Benefit], SSA [Social Security Administration] must reduce, or offset, their DI payments to ensure the combined amount of DI and WC/PDB does not exceed whichever is greater of (1) 80 percent of their average current earnings or (2) the total family benefits.
During DI claims processing, SSA staff should obtain WC/PDB information, verify WC/PDB payments, retain WC/PDB documents, and remind beneficiaries of their responsibility to report WC/PDB payments to SSA. SSA systems calculate DI payments based on WC/PDB information entered by SSA staff. Incomplete and inaccurate WC/PDB information can cause improper payments.
From 1 segment of the Master Beneficiary Record, we identified 4,558 beneficiaries awarded DI benefits in Calendar Year 2014 who indicated they had filed, or intended to file , for WC/PDB. From this population, we reviewed a random sample of 200 cases. ...
SSA did not always accurately determine WC/PDB offset during DI claims processing. Of the 200 cases in our review, SSA
  • did not obtain sufficient information for 60 beneficiaries’ WC/PDB claims and/or payments before it processed their DI claims ;
  • obtained sufficient WC/PDB information for 43 beneficiaries but did not accurately enter it into SSA’ s records ; and
  • did not retain the documents that supported the WC/PDB information entered for 6 beneficiaries.
Additionally, SSA did not always provide required printed reminders to beneficiaries of their responsibility to report changes to their WC/PDB payments to SSA.
The insufficient information and inaccurate records caused SSA to improperly pay 25 beneficiaries $26 6,929—$207,941 in underpayments and $58,988 in overpayments. Based on these results, we estimate 11,400 beneficiaries were under- and overpaid $121.7 million because SSA did not properly offset their DI benefits when it processed their DI claims.
SSA subsequently detected the improper payments in 15 of the 25 cases after it processed the DI claim. In one additional case, SSA detected some, but not all, of the improper payments. For the remaining nine cases, SSA did not detect the improper payments. Although SSA found many of the improper payments, the errors that occurred when it processed the D I claims still had negative effects, including SSA’ s inability to recover some of the resulting overpayments. ...
     I don't know what the solution is. The workers comp offset is too complicated but I don't know how to simplify it without increasing unfairness. More staff would help. If there was some way of making state workers comp agencies report workers comp payments in a standardized way that would help but I fear that would just shift the mistakes to the state agencies. Things get complicated when cases get settled.
     By the way, I doubt that OIG was even looking at subrogation cases. Subrogation is where a claimant gets workers comp but later settles a third party claim. Let's say the claimant was in an on the job automobile accident. They get workers comp but sue the driver of the other vehicle. If they get a settlement or jury award, they have to pay back their workers comp. That means they should be treated as if they never received workers comp. The problem is that frequently the subrogation isn't reported to Social Security. I'm betting that claimants are underpaid in most subrogation cases, usually by tens of thousands of dollars and sometimes by hundreds of thousands of dollars.

Oct 4, 2018

COLA Estimated To Be 2.8%

Click on image to view full size
     The Senior Citizens League estimates that this year's Social Security cost of living adjustment (COLA) will be 2.8%, which would be the highest since 2012.

Oct 3, 2018

Report On Confirmation Hearing

     Federal News Radio is reporting on yesterday's confirmation hearing on Andrew Saul's nomination to become Commissioner of Social Security. It's a more complete summary than what I gave yesterday.
     The Federal News Radio piece doesn't go into it but don't think that if Andrew Saul is confirmed that he'll have to vacate his office on January 20, 2019. Although the term the Senate is considering at this point only goes through January 19, 2019, the Social Security Act allows a Commissioner to stay in office after his or her term ends until a new Commissioner is confirmed. Even if the Senate is controlled by Democrats next year and refuses to confirm Saul for a full term, he would be able to stay in office for the rest of Trump's term as President. By the way, if Saul is confirmed for a full term, he'll be 78 years old by the time he finishes his term. Maybe he'll be able to do it but that's not the sort of thing you can count on.

Oct 2, 2018

Saul Confirmation Hearing

     The Andrew Saul confirmation hearing has ended. There was no obvious opposition nor even any difficult questions. Saul promised to stay out of issues like privatizing Social Security. He couldn't be confirmed otherwise. Saul tried to downplay his association with the Manhattan Institute that has called for privatizing Social Security.
     One thing that concerns me is that Saul seemed to believe that his management abilities might improve backlogs at Social Security. It's understandable that he might think that. Usually, new Social Security Commissioners think the same thing. However, those backlogs, can't be managed away. They're caused by lack of operating budget. Believing that backlogs can be managed away got previous Commissioners in trouble. They came up with schemes that they thought would work wonders but which only made the problems worse. I may have to dig up some old posts describing what happened before but I think those who have been around a while know implicitly that the backlogs can't be managed away.
     In his opening remarks, the chairman of the Committee, Senator Hatch spoke about why only the nomination for the term ending January 19, 2019 was being considered. He said it was to avoid setting a precedent about confirming someone for a term that only begins in another Congress. The ranking member, Senator Wyden, however, promised that the Saul nomination for a full term would be taken up in the next Congress. I have no idea why he would make such a promise. I hope he got something in return. However, if Wyden is Chairman of the Committee next year, the nomination could still be derailed in other ways. At least I hope it would be. I don't see why Democrats would want Saul in that position until January 2025.

Saul Nomination Hearing Starts At 10:30 Today

     The Senate Finance Committee nomination hearing for Andrew Saul to become Commissioner of Social Security begins at 10:30 today. You can watch online.
     There may be fireworks. Social Security Works has put out a press release strongly opposing the nomination.
     Social Security Commissioners have fixed six year terms. The nomination being considered today is only for a term ending in a little more than three months. Why bother confirming him? The Social Security Act says that once confirmed a Commissioner can stay in office after his or her term has ended until a successor is confirmed. Confirm Saul now and he can stay in office as long as President Trump stays in office. Perhaps they'll try later to confirm him for the full six year term beginning in January 2019. Perhaps not.

Oct 1, 2018

Three New Rulings

     The Social Security Administration will publish in the Federal Register tomorrow three new Social Security Rulings. On cursory examination, Social Security Rulings 18-01p Determining the Established Onset Date (EOD) in Disability Claims and 18-02p Determining the Established Onset Date (EOD) in Blindness Claims are of little consequence. 
     The third may matter a little although it is an issue that rarely arises. From Social Security Ruling 18-3p, Failure to Follow Prescribed Treatment:
... We will not determine whether the individual failed to follow prescribed treatment if the treatment was prescribed only by a consultative examiner (CE), medical consultant (MC), psychological consultant (PC), medical expert (ME), or by a medical source during an evaluation conducted solely to determine eligibility to any State or Federal benefit. ...
Prescribed treatment does not include lifestyle modifications, such as dieting, exercise, or smoking cessation. ...
The following are examples of acceptable good cause reasons for not following prescribed treatment: ...
The individual’s fear of surgery is so intense that it is a contraindication to having the surgery. We require a written statement from an individual’s own medical source affirming that the individual’s intense fear of surgery is in fact a contraindication to having the surgery. We will not consider an individual’s refusal of surgery as good cause for failing to follow prescribed treatment if it is based on the individual’s assertion that success is not guaranteed or that the individual knows of someone else for whom the treatment was not successful. ...
     I don't see the point of asking  a medical source to give information about their patient's fear about having surgery. Wouldn't it make more sense to rely directly upon the patient's own testimony about those fears? Isn't this an inherently subjective matter? Why rely upon statements from a physician who regards their patient's objections as ridiculous? This seems like it's searching for a way to hurt fearful people.