We Need To Make Sure This Works For Everyone

      I posted yesterday that the Microsoft Teams app that Social Security plans to use to hold Administrative Law Judge hearings wasn't available for my desktop and therefore probably wasn't available for laptops either. I received responses saying that it certainly was available to desktops. Take a look at this screenshot and tell me that it's available to everyone at the moment:

     Perhaps it's included in recent versions of the Microsoft Office Suite but I don't think people should have to buy that to participate in these hearings. Maybe there's some other explanation but the page shown above says what it says and the fact that you haven't gotten such a message doesn't make what I'm seeing an illusion. We need to make sure this works for everyone.

Social Security Planning To Use Platform For Video Hearings That Doesn't Currently Work With Most Laptops

     Beginning in November Social Security is planning to use the Microsoft Teams app for Administrative Law Judge video hearings during the pandemic but I see this message when I go to the Microsoft Teams website "Teams for your personal life is only available for iOS and Android. Desktop and web coming soon." This would rule out Windows laptops, which is most of them. You can do these hearings with handheld cellphones but that's not going to give you a stable image. Also, while they’re not heavy, holding up a cell phone for an hour could become tiring. I hope they get this sorted out by November.

Social Security Relies On The U.S. Mail

      From the New York Times:

Top Democrats are warning that the problems afflicting the United States Postal Service pose a threat to more than voting rights — a slowdown in services, they say, will also hurt seniors who rely on letter carriers for Social Security checks, medications and other critical mail. ...

Over the past two decades, the Social Security Administration has shifted to electronic payment for most beneficiaries, but that doesn’t mean the agency’s operations are not vulnerable to delays in mail service.

The agency currently pays 99 percent of Social Security beneficiaries via direct deposit to a checking or savings account, or a government-issued debit card. But nearly 850,000 paper checks still are mailed each month to recipients of retirement, disability and Supplemental Security Income benefits. Social Security also sends and receives millions of pieces of mail every year, including notifications, requests for information, Medicare enrollment forms and replacement Social Security cards. More isolated, rural parts of the country are particularly vulnerable to problems within the postal system.

Moreover, the shutdown since March of Social Security’s national network of field offices because of the pandemic means that more business is being transacted through the Postal Service that normally would be handled through in-person visits. ...

Nowadays, Social Security sends 350 million pieces of mail annually to support its programs, according to an agency report last year. ...

Sounds Bad But I’d Like To Hear The Other Side Of This

      From Government Executive:

Less than 24 hours before Hurricane Laura made along along the Gulf Coast as a Category 4 storm, officials at the Social Security Administration told employees at its Lake Charles, La., field office that they would not be eligible for weather and safety leave.

Instead, employees forced to evacuate ahead of the hurricane were expected to work remotely from their hotel rooms on unsecured public Wi-Fi connections or take annual or sick leave, just three hours after the storm had left the area.  

Joel Smith, president of the American Federation of Government Employees Local 3184, which represents Social Security workers in Louisiana, said management informed employees they would not be able to take weather and safety leave in a teleconference meeting Wednesday morning. .Although there is no written record of the leave denial, an IT employee sent all employees in the office instructions on how to connect to the agency’s virtual private network over public wireless Internet connections. ...

Major Downturn In SSI Awards

      From David Weaver, writing for The Hill:

... In May, June, and July of this year, SSA awarded 5,038, 4,572, and 5,122 elderly individuals SSI benefits, respectively. The June award figure is the smallest number of monthly awards for the elderly in the last 20 years. The May and July figures are the second and third smallest in the last 20 years. Further, the total number of awards in these three months is 42 percent lower than the number of awards to the elderly for the comparable 3-month period in 2019.

Problems have now materialized for the disabled groups as well. In July of this year, SSA awarded SSI benefits to 25,200 disabled adults ages 18 to 64. That is the lowest monthly award figure in the last 20 years for this group. It is also 40 percent lower than the figure for this group for July of 2019. ...

     Weaver is blaming the downturn on lack of outreach. Maybe, but I'm pretty sure that having the field offices closed to walk-in traffic is a bigger factor. You certainly can't blame this downturn on disability determination since this includes a major downturn in people qualifying on account of age alone. Those claims don't go through disability determination.

New List For Service Of Process

      The Social Security Administration has announced a new list of addresses for service of process. 

     For non-attorney readers, I'll explain. Social Security gets sued a lot -- something like eight or ten thousand times a year, if I remember correctly. Mostly, these are denied claimants appealing. When you sue someone, you have to tell them they've been sued. That's called service of process. Generally, this isn't that difficult. You deliver it to the person's residence or to the headquarters of a business or other entity. However, Social Security gets sued enough that their attorneys who respond to these lawsuits are broken down into Offices of Regional Counsel as well as the Office of General Counsel in Baltimore. They want service of process to the office that will be responding to the lawsuit. The assignments to these components change from time to time so they have to put out new lists to tell you where to serve process on them.

Regs On Overpayment Waivers During Pandemic Coming Tomorrow

      The Office of Management and Budget (OMB) has already approved Interim Final Regulations on "Waiver of recovery of certain overpayments accruing during the COVID-19 pandemic period." They are being published in the Federal Register tomorrow. Read them today.

     The weird thing about these regulations is that they apply to overpayments that occur between March 1 and September 30, 2020 and which are identified by December 31, 2020. Does Social Security seriously think it will be able to fully process its workloads by the end of September? Why would the agency automatically waive an overpayment based upon when the overpayment is identified rather than when it occurred. From the point of view of the claimant, that makes no sense. I don't see how it makes any sense even from Social Security's point of view.

     The regulations fail to identify which overpayments they apply to. They merely refer to overpayments occurring "because of the actions that we took in response to the COVID-19 national public health emergency, including the suspension of certain of our manual workloads that would have processed actions identifying and stopping certain overpayments." Could you be a little more specific? As an attorney representing claimants I don't like a standard that sounds like "We'll waive 'em if we want to and if we don't, you can't complain about it because we never promised you anything."

     Even under the circumstances I think the agency should have thought these regulations through a bit better. I'd call this sloppy. At least the public can comment on them. My guess is that there will be comments and that the agency will have to modify them before we're done with this issue.

Don't Let Anybody Tell You Social Security Is Getting All Its Work Done During Covid-19

      I was having a discussion -- via e-mail -- with several legal assistants at my law firm recently about their experiences over the last few months trying to communicate with PC3, that is, Social Security's Third Payment Center, the one in Birmingham, AL, which handles much of the business of computing and authorizing benefits in the Southeastern United States. Here's what they had to say:

• Horrible, 19 out of 20 times no one answers.  Actually, even that stat is high.
• They never answer for me.  I have been asking for help from DO [District Office] to send Mgr [manager] to mgr messages.
• I haven’t been able to get through to anyone there since March. I have the DO send mgr to mgr messages to them and still don’t get any results.
• It is terrible.  I have called repeatedly and I can never reach anyone.  It does not allow you to leave a voice mail.  The only time I have seen action is if the DO requests that they do something or if I send a fax.  Sometimes I have aggravated people at other PCs that have contacted PC3.  
•  PC 3 is horrible

I'll Have To Put On A Suit!

      I understand from the National Organization of Social Security Claimants Representatives (NOSSCR) that Social Security is hoping to offer video hearings to claimants from their homes or their attorneys' offices starting as early as November.

TV Show Tonight On Eric Conn Case

      A press release:

Eric Conn, the convicted mastermind of the largest U.S. Social Security fraud in history vanishes and is apprehended, but leaves thousands of his former clients struggling to survive…until a whistleblower uncovers startling new evidence that could help them regain their disability benefits. Catch new facts, new updates, and new reporting on "American Greed: Biggest Cons" Monday at 10P ET on CNBC.

     From what I’ve heard they may be overselling the “startling new evidence.” I think this is an update of something that CNBC did in 2018.

     This may not be the only show coming on the Conn fiasco.

Proposed Amendments To Federal Rules Of Civil Procedure To Specifically Address Social Security Cases

      The Committee on Rules of Practice and Procedure of the Judicial Conference of the United States has produced a lengthy set of amendments to the Federal Rules of Appellate, Bankruptcy, Civil and Criminal Procedure. These include amendments to the Federal Rules of Civil Procedure to specifically address Social Security cases. The proposed changes concerning Social Security begin at page 231 of this 280 page document. 

     At first reading, these do not seem concerning to me but as lawyers know, any procedural rules have the potential to be outcome determinative.

     The public has until February 16, 2021 to file written comments on the proposed changes. There will be public hearings on the proposed amendments to the civil rules on November 10 and January 22. After this process, the Committee on Rules of Practice and Procedure, the Judicial Conference and the Supreme Court must all agree before these proposals come into effect.

"Reposturing" Plan

      I don't think it's realistic to expect that the Social Security Administration would have a reopening plan at this time. There are too many unknowns. Will there be a vaccine? If so, when will it become available? If it becomes available, how quickly will it become available to the entire population? How effective will a vaccine be? How many people are willing to be vaccinated? However, Social Security management is thinking about the subject of reopening. They've come up with a "Reposturing Plan." I don't think this plan gets them very far but I expect they know this. You have to start somewhere. At least it's a sign that there's nothing devious in the works at this time.

Is Wet Ink Requirement Just Pointless Red Tape?

      From a press release:

 United Spinal Association recently filed a complaint with the U.S. District Court for the District of Columbia for the alleged unlawful "wet ink" signature requirements imposed on persons with disabilities in connection with applications for certain disability benefits of the Social Security Administration (SSA).

The complaint, which requests judicial review and declaratory and injunctive relief, states that the wet ink signature requirements, "unlawfully, irrationally and unnecessarily interfere with persons with disabilities' ability to pursue their rights to federal disability benefits—making an already cumbersome application process for persons with disabilities even more difficult."

"The SSA has chosen to selectively comply with or ignore the laws related to electronic signatures and documents and the right to representation. It has created and reinforced unnecessary barriers for those who legitimately need and seek assistance from third parties in obtaining disability benefits," said James Weisman, United Spinal's president and CEO. ...

Biden Plan For Social Security Disability

      From Joe Biden's plan for people with disabilities:

PROTECT AND STRENGTHEN ECONOMIC SECURITY FOR PEOPLE WITH DISABILITIES

The Trump Administration has systematically attacked the Social Security disability programs—from proposing monitoring people with disabilities through social media in order to cancel their benefits, including their health care, to tightening eligibility through a proposal to  redefine the number of hours in a work week so some applicants do not receive benefits. The National Council on Disability found that “people with disabilities live in poverty at more than twice the rate of people without disabilities.” To protect the economic security of people with disabilities and increase employment opportunities, Biden will take a holistic approach to Supplemental Security Income (SSI), Social Security Disability Insurance (SSDI), Medicaid, and other programs to support people with disabilities. He will: 

• Increase the benefit level for people receiving SSI. Biden will set a federal benefit rate of at least 100% of the poverty level. 
• Eliminate the five-month waiting period for SSDI and two-year waiting period for Medicare. Biden will work to pass legislation to ensure working people who develop a condition or disability are able to get their Social Security support as well as their Medicare benefits as soon as they qualify. 
• Eliminate the “benefit cliff” for SSDI. Earnings limits under SSDI can discourage people with disabilities from engaging in employment or internship opportunities when they depend on SSDI funds. Biden will increase this limit and phase out this benefit gradually so people with disabilities don’t have to choose between employment and health care. 
• Reform the SSI program so that it doesn’t limit beneficiaries’ freedom to marry, save, or live where they choose. Biden will work with Congress and the disability community to eliminate the SSI marriage penalty and “in-kind support and maintenance” provision and raise the asset limits associated with SSI that have not been increased since 1984. 
• Expand access to tax-advantaged savings accounts, ABLE accounts, which provide people with disabilities a way to pay for “qualified disability-related expenses, such as education, housing and transportation.” Biden will work to pass the ABLE Age Adjustment Act, which will make ABLE accounts available to 6 million additional adults with disabilities, including 1 million veterans. 
• Reverse damage done to Social Security rules by the Trump Administration. President Trump announced that he wants to change the Social Security rules for people who get disability benefits, including SSI and SSDI. His proposed change would require many to re-verify their disability every two years, a tough enough process to get through once, targeting adults with disabilities who are close to retirement, children with disabilities, and people with certain medical conditions including cancer and behavioral disorders. If approved by the Trump Administration, Biden will rescind this harmful proposal.
• Strengthen the Social Security Administration. Ensuring that Social Security benefits are easy to access and that field offices and teleservice centers are fully funded is key to our bedrock commitment to seniors and people with disabilities. Cutting Social Security services will only hurt the most vulnerable in our communities. Biden will provide sufficient resources for staffing needs to meet the needs of beneficiaries today and into the future.

ALJ Ordered CEs?

      In North Carolina, where I practice, Disability Determination Services, has recently resumed in-person consultative examinations (CEs) yet I've been told by an Administrative Law Judge that they are still under orders not to order CEs. Is that accurate?

Does This Even Mean Anything?

      From a final rule that Social Security is publishing tomorrow:

This final rule explains our process for issuing guidance documents under Executive Order (E.O.) 13891, “Promoting the Rule of Law Through Improved Agency Guidance Documents.” We will follow this process when we issue future guidance documents ...

The documents that we issue include Program Operations Manual System (POMS) instructions; the Hearings, Appeals and Litigation Law (HALLEX) manual; Social Security Rulings (SSR); and Acquiescence Rulings. Most of the documents that we issue do not qualify as guidance documents under E.O. 13891; however, some may. We will use the process in this final rule for the documents we issue, as appropriate. 

 As required by E.O. 13891, this final rule includes:

• A requirement that each guidance document clearly state that it does not bind the public, except as authorized by law or as incorporated into a contract.
• Procedures for the public to petition for withdrawal or modification of a particular guidance document, including a designation of the official to whom the public should direct petitions.
• Specific requirements for a guidance document that qualifies as “significant,” unless an exemption applies. ... 

    I don't know what this means. I doubt that Social Security knows either. In fact, I doubt that anyone does. It seems mostly intended to gum up the works at other purely regulatory agencies like the EPA. I expect that Social Security will decide that nothing or almost nothing they issue is really a "Guidance Document." This policy will probably be rescinded if Biden is elected President.

     By the way, note that Social Security didn't even include Emergency Messages on the list of possible "Guidance Documents." At the moment, Social Security is keeping almost all of the Emergency Messages a secret even though they're more likely to contain guidance than anything else they issue.

Endless Labor-Management Disputes At SSA

      From Federal News Network:

At least one of the unions representing employees at the Social Security Administration said it’s still in the dark about the agency’s plans to reopen its offices to the public and the workforce.

The American Federation of Government Employees filed an unfair labor practice complaint with the Federal Labor Relations Authority on Monday, which charges SSA with failing to bargain over the agency’s reopening plans and for withholding information from the union. ...

Though the agency’s field and local offices are still closed, members of the public can call and schedule an appointment to handle “dire need” situations.

And as Federal News Network previously reported, SSA managers had called small numbers of employees back to the field and local offices to help with those “dire need” situations. ...

But the union doesn’t know how many of its members are returning to SSA offices — either on a regular basis or occasionally throughout the week — nor does it know what the conditions are like when employees arrive back to their local facilities.

“We don’t know if the areas have been cleaned and sanitized,” de Juliis said. “We have no idea if the people who are working there are allowed to work credit hours or overtime.”

AFGE later submitted a demand to bargain over SSA’s reopening plans on July 10. It also requested information on the number of employees who have returned to their field offices, the offices where employees are working and details on the work they’re performing. The union also sought details on the number of SSA employees who have returned to their offices and since contracted coronavirus. ...

“Your request fails to meet particularized need,” Jim Julian, SSA’s associate administrator for labor management and employee relations, wrote in an Aug. 7 response to AFGE. “The union did not articulate with any specificity how the information is necessary or how it will help you in fulfilling your representational responsibilities under the [labor-management relations] statute. According to the Federal Labor Relations Authority, the union must come forward with an explanation offering more than mere conclusions. The union cannot use an information request as a general audit approach.”

SSA did not respond to multiple requests for further comment. ...

To the union’s knowledge, the vast majority of SSA employees are continuing to telework. The agency has not called employees back to their offices en masse, nor has it provided a date for when all or some of the workforce might return.

But the gradual reentry of SSA employees has concerned AFGE. The union worries the slow recall of employees is by design, even though the relative silence on reopening means their members can continue teleworking.

     You can say that it's unlikely that Social Security would recall many of its employees to the office prior to a Covid-19 vaccine so the union shouldn't be so worried but why wouldn't Social Security management just tell union officials that it doesn't plan to force agency employees back to the office until there's a vaccine? Is it unreasonable for Social Security employees to expect to be told what the plan is?

More Time To Qualify For Stimulus Checks

      From CNN:

The Internal Revenue Service is giving some Social Security recipients more time to register for the $500 per child they may be due as part of their full stimulus payment.  

Those eligible will have until September 30 to enter their information online. They can expect the payments to be issued by mid-October, the IRS said Friday.

Reg Proposed On Waiver Of Some Overpayments During Pandemic

 

     Yesterday, the Social Security Administration has asked for Office of Management and Budget approval to publish an interim final rule on "Waiver of recovery of certain overpayments accruing during the COVID-19 pandemic period." The text of the proposal is not available to the public at this time.

     Update: Also yesterday, the Chairman of the House Ways and Means Committee issued a press release calling on Social Security to give relief to Social Security recipients overpaid during the pandemic.

Deaths And Bankruptcies While Awaiting Action On Disability Claims

      From a press release:

... Senate Budget Committee Ranking Member Bernie Sanders (I-Vermont) and House Ways and Means Social Security Subcommittee Chairman John B Larson (D-CT) responded to new findings from a Government Accountability Office (GAO) study they commissioned which found that thousands of American die or go bankrupt waiting to receive their disability benefits each year. ...

The study, “Social Security Disability: Information on Wait Times, Bankruptcies, and Deaths among Applicants Who Appealed Benefit Denials,” looked at people who appealed an initial denial of their application for Social Security or Supplemental Security Income (SSI) benefits. It found:

• More than 100,000 people died without receiving a final decision on their appeal for Social Security or SSI disability benefits, out of approximately 9 million who filed an appeal from Fiscal Year (FY) 2008 to FY 2019.
• Approximately 50,000 people filed for bankruptcy while appealing for Social Security or SSI disability benefits, out of approximately 3.6 million who filed an appeal from FY 2014 to FY 2019.
• From FY 2008 to FY 2019, most disability applicants who appealed an initial denial waited more than a year for a final decision. Median wait times reached a peak of 839 days – more than 2 years – for claims filed in FY 2015.  ...

 

Living Longer But Not Working Longer

    The argument is commonly made that Social Security's full retirement age should be increased because people live longer now than they used to. Actually, life expectancy has declined recently but it is still higher than it was in past decades.

     I doubt anyone's mind will be changed but there's a new study showing that increased life expectancy has only minimal effects on labor force participation.

     I submit that the main reason older people are less likely to work than young people is that their health has declined and they're no longer able to do the work they've done in the past. How many people do you see working in construction who are in their 60s or even 50s? Even those who work in offices usually have health problems that keep them out of work more frequently as they get older. People live longer but we have no way of preventing aging from having effects on health and ability to work. Younger people like to visualize themselves remaining vigorous until they suddenly get sick and die but that's not the way it works for most people.

Working From Home Poll

bike trails

What Clued You In That There Might Be A Problem?

     From the Herald-News:

A Klamath Falls man is facing federal charges for cashing more than $458,000 worth of social security checks issued in the name of his deceased aunt.

George Doumar, 76, has been charged with theft of public funds and mail theft.

According to court documents, in February 2020 the Social Security Administration identified a 114-year-old supercentenarian who appeared to be the second-oldest living person in the U.S. receiving Social Security retirement benefits.

SSA systems indicated that no updates had been made to the person’s benefit record in more than 30 years, leading staff to believe that the person may be deceased. ...

     The might also want to take a look at the oldest supposedly living person receiving Social Security benefits; maybe the top 10 or even 100.

 

Happy 85th Birthday!

OHO Receipts Down 17% From 1st Quarter to 2d Quarter Of 2020

      This was obtained from Social Security by the National Organization of Social Security Claimants Representatives (NOSSCR) and published in its newsletter, which is not available online to non-members. It is basic operating statistics for Social Security's Office of Hearings Operations. Click on the image to view full size.

More Tension Between SSA Management And ALJ Union

      From Government Executive:

The Association of Administrative Law Judges accused the Social Security Administration of breaking federal labor law when it implemented a partial union contract on Monday.

Union representatives said that the agency’s move flies in the face of the ground rules the parties reached earlier in the negotiation process, and that a decision by management to unilaterally rewrite one provision to implement a new rule on how it will withhold union dues is flatly illegal.

Negotiations over a new collective bargaining agreement between Social Security and the administrative law judges date back over a year. During discussions last year, the parties reached agreement on 20 of 29 proposed contract articles, but went to impasse over the final nine. The Federal Service Impasses Panel issued a largely pro-management decision in April, prompting the union to sue the panel, arguing that the manner in which members were appointed violates the Appointments Clause of the Constitution.

In April, the agency indicated that it would implement a partial contract, arguing that provisions decided by the impasses panel are not subject to ratification. But it relented and indicated it would delay implementation pending the lawsuit after the Federal Labor Relations Authority took the rare step to stay the panel’s order. ...

But not even the impasses panel agrees with Social Security’s claim that panel orders are not subject to ratification. Last year, the panel removed language from a contract proposal offered by the Defense Department Education Activity in its dispute with the Federal Education Association seeking to exempt panel-imposed articles from the ratification process. ...

     This happened on Monday. Note that also on Monday, Social Security requested OMB approval for proposed final regulations to substitute Appeals Council Judges for ALJs. These two events might be connected.

Regs On AAJ Hearings Advance

      Yesterday, the Social Security Administration sent over to the Office of Management and Budget (OMB) proposed final regulations on Hearings Held by Administrative Appeals Judges of the Appeals Council. If approved by OMB, these will be published in the Federal Register and go into effect.

     Under the Congressional Review Act, the incoming Congress could overturn these regulations by a simple majority vote in each House of Congress. In the alternative, should Joe Biden become President, his Administration could refuse to implement the regulations and go through the longer process to undo them administratively.

Work Is Changing -- More Cognitive Demands For Low-Skill Jobs Which Remain Just As Physically Demanding

     From The Changing Nature of Work by Italo Lopez-Garcia (RAND Corporation),Nicole Maestas (Harvard Medical School and NBER), and Kathleen Mullen (RAND Corporation):

... [F]rom 2003-2018, cognitive job demands increased from an average level of 2.63 to 2.90 (+9.3 percent), psychomotor demands decreased from 1.75 to 1.59 (-9.1 percent), physical demands decreased from 1.37 to 1.18 (-13.8 percent) and sensory demands increased from 1.72 to 1.88 (+8.5 percent). .

The increase in cognitive job demands ... is mostly concentrated among low-skill jobs, or those prevalent among individuals with less than a college degree. In contrast, the decrease in physical job demands is concentrated among high-skill jobs, or those prevalent among individuals with at least a college degree. These results suggest low-education workers have been penalized as their jobs have become more cognitively demanding without any alleviation of the physical burden of performing these jobs. ...

     Like I've been saying, it's nuts to talk about increasing the age categories in the grid regulations. It's become harder for individuals with low educational levels who have exertional limitations to find jobs they can do. What had been low skill jobs have remained just as strenuous while becoming more skilled. It's the high skill jobs that have become physically easier, not low skill jobs.

     In all likelihood, this is why Social Security keeps delaying introduction of a new occupational information system. They can't find a way to massage the data to come up with unskilled sedentary jobs. Their should be an Inspector General investigation of why Social Security's occupational information system keeps getting delayed.