New Conditions Added To Compassionate Allowance List

    Social Security is adding some new conditions to its compassionate allowance list of conditions that are supposed to result in having disability claims approved quickly. I think the least uncommon one on the adult list would be "Adult Heart Transplant Wait List – Status Levels 1-4."  Here's a description of what those status levels mean:

• 1 - 3: Most often hospitalized in ICU to support their heart.
• 4: This group is often at home but may need IV medications or VAD [Ventricular Assistive Device] to support their heart.
• 6: This group includes all others who are stable enough to remain home while they wait for a heart.
  

    I think anyone in status level 1-4 would easily meet a Listing anyway so I can't say this means much.

    Also, I've had clients who were on a heart transplant list and I don't recall any mention of a Status Level in their medical records.

Adverse Public Relations Potential No Longer A Hardship -- They Say

    From a recent update to Social Security's POMS (Program Operations Manual Series) manual:

To promote homogeneity between the Dire Need POMS and the Dire Need HALLEX instructions, we have revised the language in the Dire Need POMS. ...

We revised and clarified the definition of dire need. We also deleted language which suggested claimants with adverse public relations potential as hardship situations qualifying as dire need condition.

    I'd be amazed if they don't still scurry to resolve cases which get press attention.

Social Security Finally Acknowledges That Phony Mailing Dates Are A Problem

    The dates that Social Security places on its outgoing mail are mostly fictitious. Most outgoing mail is printed and mailed from a central printing operation that serves the entire agency.  This correspondence bears the date upon which some agency employee sent it to be printed but the date printed and mailed is actually several days later. 

    There are time limits to file appeals. If these time limits are based upon a date that is several days prior to the date that the correspondence was actually mailed, the claimant is being cheated out of those days to file an appeal. Appeals can be dismissed -- and have been dismissed -- based upon these phony dates.

    Social Security has finally acknowledged the problem. The agency's HALLEX manual for hearings and appeals has been amended. Now, notices sent out centrally will be presumed to have been sent out three days later than the date they bear.  This is in addition to the five days given for the mail itself.

    I have not seen this changed in the POMS manual that serves the whole agency but maybe I've missed it. It's needed there since appeals also get dismissed at field offices and payment centers. 

    Wouldn't it be simpler to put accurate dates on these notices to begin with? This doesn't seem to be a problem beyond the limits of human ingenuity. 

Now They Make It Public

     I can't say whether this is related to the recent publicity concerning overpayments to Social Security claimants but the agency has decided to make public its longstanding policy of waiving overpayments of less than $1,000 in most cases. The policy has been around for a long time, at least for SSI cases, but it was previously labeled "sensitive" in Social Security's manual and withheld from the public. Now it's out there for everyone to see. The exception to these administrative waivers is cases where the claimant is at fault. My experience is that they only refuse to waive these small overpayments when it's obvious that the claimant is a bad actor.

    Now, how about let's raise that amount from $1,000 to $5,000? How long has it been at $1,000? Also, how about waiving these without demanding that the claimant file a request for waiver? These waivers may be nearly automatic but the big catch is that you have to file a request for waiver. Most of these small overpayments aren't waived because the claimant doesn't know to request waiver or can't figure out how to complete a waiver request form or, perhaps more important, can't get through to a Social Security office to ask what to do.

Catch 22

     Let's say you're developmentally disabled, meaning you've been disabled from birth. You start drawing SSI as a child due to your disability. You become 18 and Social Security does a review to see whether you're disabled under the adult standard and they decide you are. Then, a parent dies or goes on Social Security benefits when you're 21. That potentially entitles you to Disabled Adult Child (DAC) benefits on your parent's Social Security number since you became disabled before age 22. Shouldn't Social Security just put you on the DAC automatically? You've already been found disabled under the same standard. Under a new addition to Social Security's POMS manual, the answer is not so fast. They first want to make sure they can't find a way to cut you off the SSI benefits you're already drawing. So, if you're the claimant aren't you a little afraid you're going to lose your sole means of support if you file that DAC claim? But, if you don't file the DAC claim, you may lose your SSI because you refused to avail yourself of means of support other than SSI. Nice Catch 22 they've set up for you. That's what all this fancy talk about collateral estoppel is about, finding ways to cut claimants off benefits, or, really, finding ways to avoid collateral estoppel since that doctrine should help the claimant in this situation.

Change In Workers Comp Offset Computation -- This Is The Sort Of Arcane Stuff That Can Make A Difference Of Tens Of Thousands Of Dollars To A Claimant

    From a newly added changes to POMS (Program Operations Manual Series) §DI 52150:

... A lump sum award may specify a payment amount based on the number holder’s (NH) life expectancy determined by insurance life expectancy tables. The life expectancy of the NH is often given in weeks, months, or years. These awards usually specify a life expectancy (LE) rate. ...

If the award indicates it should be prorated over the claimant's lifetime but does not specify a rate or time period, and the development proves unsuccessful, following is a link to a table provided by SSA's Office of the Chief Actuary to assist in determining the life expectancy:

https//www.ssa.gov/OACT/HistEst/CohLifeTablesHome.html ...

    This doesn't help if the workers compensation settlement agreement says nothing about proration but it helps in cases where there has been a simpler mistake in settling a workers compensation case, a failure to include specific language giving the proration formula. They're continuing with the no amendment provision. That needs to be changed. Don't punish claimants for failing to have an experienced workers comp attorney.

    This is also an example for ALJs. If this seems incomprehensible, it's because there's a lot more going on with Social Security disability cases than you're aware of. I have seen former ALJs struggle to represent claimants because they didn't realize that they would face a significant learning curve.

Social Security Changed One Of Its Listings But Kept It Secret

     From a new issuance in Social Security's POMS manual:

The Office of Disability Policy (ODP) is updating its instructions in DI 24555.005 for genitourinary disorders listing 6.05,Chronic kidney disease, with impairment of kidney function. The revised POMS advises adjudicators to stop using the African American estimated glomerular filtration rate (eGFR) and use the unadjusted eGFR for all claimants regardless of race. This conforms with the National Kidney Foundation (NKF) and American Society of Nephrology’s (ASN) recent recommendation to exclude race in eGFR calculation and reporting. It also aligns with the agency’s initiative to promote consistent and equitable disability determinations for African American claimants whose impairments would satisfy the criteria in listing 6.05A3 if adjudicators use the unadjusted eGFR to evaluate their claims.

DI 24555.005 includes the same instructions provided in EM-22012 SEN, Guidance on Using the Estimated Glomerular Filtration Rate (eGFR) in Cases Involving Genitourinary Disorders. Upon publication of the POMS, we will archive EM-22012 SEN.

    Note that the link to EM-22012-SEN doesn't work if you're not on Social Security's network. The SEN part may be there because this was deemed "Sensitive." In any case, it was not divulged to the public at the time these new instructions were issued to agency staff. I don't even know when the staff was told about this.

    This is basic stuff. It determines who wins and who loses. Why was this kept secret from claimants and their attorneys? We have an obvious need to know.

    And what about African-Americans who were denied in the past under an arguably racist policy?

Something Coming?

     There have been rumors that an increase in the cap on fees that attorneys can charge for representing Social Security claimants is coming. That hasn’t happened yet but Social Security just saw fit to update its POMS manual section on increases in the fee cap. 

     I will say, though, that I look at these POMS updates generally and a lot of the time I wonder why they bothered with the update.

Don't Think We'd Have Seen This While Trump Was In Office

      From a new update to Social Security's main operating manual (POMS):

Transgender individuals contact us for all of the same reasons other people do. ... During and after any interaction with a transgender individual, be mindful to:

• Protect the confidentiality of each individual;
• Always treat the individual with dignity and respect;
• Ask only questions that are necessary to complete the transaction;
• When speaking to or calling a person, use the name and pronouns appropriate to the individual’s self-identified gender, even if the person has not changed his or her name or updated his or her records; and
• Be aware that the individual’s gender transition is a personal matter. Questions or comments regarding a person’s medical treatment and appearance are inappropriate.

Video CEs

     Social Security has now issued new instructions to allow for video consultative examinations of disability claimants but only by psychiatrists and psychologists. 

     I'm not seeing any physical consultative examinations locally. Are any going on elsewhere? Is there a plan for this other than to hold cases indefinitely?

Interesting

     Social Security is updating the section of its POMS manual dealing with the economic stimulus payments it last made in 2011 during the Great Recession. Why would you be updating a section of the manual dealing with a defunct program? Perhaps because you thought you might soon be doing the same thing once again?

Major New POMS Section On Representation Of Claimants

     Social Security has added a new section to its POMS manual on representation of claimants. I'm not sure how much is new. Here are a few things I noticed on a quick read through:

... [A]n appointed representative may not: 

• sign an application on behalf of the claimant. ...

An appointed representative cannot delegate to an associate the performance of tasks that require taking legally significant actions about the claimant's case such as: 

• appearing at a hearing and presenting the claimant's case in proceedings before us ...

A claimant must sign a written notice of appointment.

The claimant's signature must be in ink. We do not accept signatures generated from electronic software programs (e.g., DocuSign or HelloSign) or rubber-stamped signatures from claimants on written notices of appointment. [Problematic at this time]

Return a notice of appointment if the claimant's signature is electronic. ...

The following individuals cannot appoint or revoke a representative on behalf of a claimant:

the representative payee ...

If a claimant dies before we complete action in a pending claim, matter, or issue, the representative's appointment continues until it is ended by one of the events listed in GN 03910.060B.

About Time

     I was under the impression that Social Security had long since processed all of the claims based upon same sex marriages that had been held up pending policy decisions. It looks like I was wrong. The agency has just released a batch of cases that had been held up. I don't know what issues there might have been in these cases. I suspect that it could not have been many cases or I would have been aware of them. Perhaps this is just housekeeping, telling staff to check to make sure that they don't have any more cases on hold awaiting policy decisions that were made some time ago.

Military Criminal Offenses No Longer Excluded From Benefit Suspension

     From a recent change in Social Security's Program Operations Manual Series (POMS):

We are removing the NOTE in GN 02607.001.B,2, based on an Office of General Counsel (OGC) review that determined that the agency only looks to the United States Code and State penal laws for identifying and codifying a civilian’s criminal act. The plain language of the Social Security Act does not carve out an exception for military personnel or suggest that criminal offenses in the Uniform Code of Military Justice are not considered criminal offenses when applying the suspension provisions. Likewise, 20 C.F.R. § 404.468 does not include an exception for military tribunal decisions.

     I was not aware that they had been excluding those imprisoned due to military criminal offenses from having their benefits suspended.

Useful Compendium

     A recent addition to Social Security's Program Operations Manual Series (POMS) contains this useful summary of citations from the agency's Social Security Rulings (SSRs) on the effects of various sorts of limitations upon the ability to perform ranges of work.

1. Standing/Walking

SSR	Issue	Statement from SSR
83-10	Lifting and carrying—light work Standing/walking—sedentary and light work	“Even though the weight lifted in a particular light job may be very little, a job is in this category when it requires a good deal of walking or standing—the primary difference between sedentary and most light jobs.”
83-10	Standing/walking—light work	“Many unskilled light jobs are performed primarily in one location, with the ability to stand being more critical than the ability to walk.”
96-9p	Standing/walking—sedentary work	“If an individual can stand and walk for a total of slightly less than 2 hours per 8-hour workday, this, by itself, would not cause the occupational base to be significantly eroded.”
96-9p	Alternate sitting and standing	“An individual may need to alternate the required sitting of sedentary work by standing (and, possibly, walking) periodically. Where this need cannot be accommodated by scheduled breaks and a lunch period, the occupational base for a full range of unskilled sedentary work will be eroded.” (This suggests that if scheduled breaks and a lunch can accommodate the need to alternate positions, the full range of unskilled sedentary work is intact.)
96-9p	Medically required hand-held assistive device—sedentary work	“For example, if a medically required hand-held assistive device is needed only for prolonged ambulation, walking on uneven terrain, or ascending or descending slopes, the unskilled sedentary occupational base will not ordinarily be significantly eroded.” “Since most unskilled sedentary work requires only occasional lifting and carrying of light objects such as ledgers and files and a maximum lifting capacity for only 10 pounds, an individual who uses a medically required hand-held assistive device in one hand may still have the ability to perform the minimal lifting and carrying requirements of many sedentary unskilled occupations with the other hand.”

2. Lifting/carrying/pushing/pulling

SSR	Issue	Statement from SSR
83-10	Lifting/carrying—medium work	“Being able to do frequent lifting or carrying of objects weighing up to 25 pounds is often more critical than being able to lift up to 50 pounds at a time.”
96-9p	Lifting/carrying—sedentary work	“For example, if it can be determined that the individual has an ability to lift or carry slightly less than 10 pounds, with no other limitations or restrictions in the ability to perform the requirements of sedentary work, the unskilled sedentary occupational base would not be significantly eroded.”
96-9p	Pushing/pulling—sedentary work	“Limitations or restrictions on the ability to push or pull will generally have little effect on the unskilled sedentary occupational base.”

3. Postural limitations

SSR	Issue	Statement from SSR
83-10	Stooping—sedentary work	“By its very nature, work performed primarily in a seated position entails no significant stooping.”
83-10	Stooping—light work	“The lifting requirement for the majority of light jobs can be accomplished with occasional, rather than frequent, stooping.”
83-14	Stooping and crouching—light and sedentary work	“However, to perform substantially all of the exertional requirements of most sedentary and light jobs, a person would not need to crouch and would need to stoop only occasionally.”
83-14	Climbing, kneeling and crawling—medium work	“In jobs at the medium level of exertion, there is more likelihood than in light work that such factors as the ability to ascend or descend ladders and scaffolding, kneel, and crawl will be a part of the work requirement. However, limitations of these activities would not significantly affect the medium occupational base.”
83-14	Climbing, kneeling, and crawling—light work	“On the other hand, there are nonexertional limitations or restrictions which have very little or no effect on the unskilled light occupational base. Examples are inability to ascend or descend scaffolding, poles, and ropes, inability to crawl on hands and knees; and inability to use the fingertips to sense the temperature or texture of an object.”
85-15	Climbing and balancing	“Where a person has some limitation in climbing and balancing and it is the only limitation, it would not ordinarily have a significant impact on the broad world of work.”
85-15	Stooping and crouching— sedentary and light work	“If a person can stoop occasionally (from very little up to one-third of the time) in order to lift objects, the sedentary and light occupational base is virtually intact.” “This is also true for crouching.”
85-15	Crawling and kneeling	“However, crawling on hands and knees and feet is a relatively rare activity even in arduous work, and limitations on the ability to crawl would be of little significance in the broad world of work.” “This is also true of kneeling.”
96-9p	Postural limitations—sedentary work	“Postural limitations or restrictions related to such activities as climbing ladders, ropes, or scaffolds, balancing, kneeling, crouching, or crawling would not usually erode the occupational base for a full range of unskilled sedentary work significantly because those activities are not usually required in sedentary work.”
96-9p	Stooping—sedentary work	“A complete inability to stoop would significantly erode the unskilled sedentary occupational base and a finding that the individual is disabled would usually apply, but restriction to occasional stooping should, by itself, only minimally erode the unskilled occupational base of sedentary work.”

4. Manipulative limitations

SSR	Issue	Statement from SSR
83-10	Reaching, Handling, Fingering—light work	“They require use of arms and hands to grasp and to hold and to turn objects, and they generally do not require use of the fingers for fine activities to the extent required in much sedentary work.” (“They” refers to many unskilled light jobs.)
83-10	Reaching, Handling, Fingering—medium and sedentary work	(The quote refers to manipulative activities common in medium work as opposed to sedentary.) “Use of the arms and hands is necessary to grasp, hold, and turn objects, as opposed to the finer activities in much sedentary work, which require precision use of the fingers as well as use of the hands and arms.”
85-15	Fingering	“As a general rule, limitations of fine manual dexterity have greater adjudicative significance—in terms of relative number of jobs in which the function is required—as the person’s exertional RFC decreases.”
85-15	Feeling	“However, a VS would not ordinarily be required where a person has a loss of ability to feel the size, shape temperature, or texture of an object by the fingertips, since this is a function required in very few jobs.”
96-9p	Feeling—sedentary work	“The ability to feel the size, shape, temperature, or texture of an object by the fingertips is a function required in very few jobs and impairment of this ability would not, by itself, significantly erode the unskilled sedentary occupational base.”

5. Special senses limitations

SSR	Issue	Statement from SSR
85-15	Vision	“As a general rule, even if a person’s visual impairment(s) were to eliminate all jobs that involve very good vision (such as working with small objects or reading small print), as long as he or she retains sufficient visual acuity to be able to handle and work with rather large objects (and has the visual fields to avoid ordinary hazards in the workplace), there would be a substantial number of jobs remaining across all exertional levels.”
96-9p	Hearing and speaking	“Basic communication is all that is needed to do unskilled work. The ability to hear and understand simple oral instructions or to communicate simple information is sufficient. If the individual retains these basic communication abilities, the unskilled sedentary occupational base would not be significantly eroded in these areas.”

6. Environmental limitations

85-15	Hazards	“A person with a seizure disorder who is restricted only from being on unprotected elevations and near dangerous moving machinery is an example of someone whose environmental restriction does not have a significant effect on work that exists at all exertional levels.”
96-9p	Cold, heat, wetness, humidity, vibration, unusual hazards—sedentary work	“In general, few occupations in the unskilled sedentary occupational base require work in environments with extreme cold, extreme heat, wetness, humidity, vibration, or unusual hazards…. Even a need to avoid all exposure to these conditions would not, by itself, result in a significant erosion of the occupational base.”

7. Mental limitations

SSR	Issue	Statement from SSR
85-15	Mental	“Where there is no exertional impairment, unskilled jobs at all levels of exertion constitute the potential occupational base for persons who can meet the mental demands of unskilled work. These jobs ordinarily involve dealing primarily with objects, rather than with data or people, and they generally provide substantial vocational opportunity for persons with solely mental impairments who retain the capacity to meet the intellectual and emotional demand of such jobs on a sustained basis.”1

Safer To Keep It Confidential

     From a recent Emergency Message issued by the Social Security Administration:

On May 5, 2018, the Division of PolicyNet Management (DPM) will implement PPS Release 1.0. PPS is the Agency application for authoring, editing, approving, and publishing policy and instructional documents to PolicyNet. ...

     Is PolicyNet available to the public? Of course, not. If you tell the public what the policy is, they're going to complain when the agency doesn't follow its own policy or they might complain that some of the policies are illegal or stupid. Besides, most of PolicyNet is really boring and the public won't be interested in most of it. A small amount of PolicyNet would be things Social Security really does have to keep secret, like how it spots identity theft. It's safer to keep it all confidential. 
     Come on, this is the public's business the agency is doing. Keeping policy secret if you don't have to is wrong. You could say the same things about POMS, the agency's general manual, but somehow the agency has survived just fine with POMS being available to the public.

New ABLE Account Instructions

     The Social Security Administration has updated the staff instructions in its POMS manual for Achieving a Better Life Experience (ABLE) accounts. These accounts allow the sheltering of money which would otherwise render a person ineligible for Supplement Security Income (SSI). 

     I cannot evaluate the significance of these new instructions since I haven't been involved in ABLE issues. 

     I'm glad the ABLE accounts exist but they're a sop to people who have money and want to help their disabled relatives get around the ridiculously stringent SSI resource limits. Most disabled people don't have relatives who can help them in this way. What's urgently needed are updated resource and income limitations for everyone on SSI. The SSI resource and income limitations contain no cost of living adjustment and haven't been updated since they were created in the 1970s. They're brutal. I know those who supported ABLE accounts also supported income and resource updates. I can't fault their decision that it was better to take ABLE than to get nothing but ABLE isn't nearly enough. When the time finally comes again when Democrats control Congress, an SSI update has to be very near the top of the entire Democratic agenda. There is no other issue in the Social Security world, apart from the agency's operating budget, that's anywhere near as important as an SSI update.

EDPNAs

     I spotted a new Social Security acronym recently, EDPNA. At least, it was new to me. It stands for Eligible for Direct Pay Non-Attorney.

An Undying Husband

     From Ann Brenoff writing for Huffpost:

For the past 12 months, your tax dollars have been going to pay Social Security benefits to a dead man. I know this because that dead man is my late husband.

No, I am not engaging in any sort of attempt to defraud the Social Security fund. Quite the contrary, I reported his death to the Social Security Administration immediately after it occurred and have been reporting it repeatedly ever since.

None of my two dozen or so calls ― or the day I took off work to visit my local Social Security office and paid $13 to park ― has changed the fact that, as of this writing, the SSA continues to deposit a monthly payment into the checking account I shared with my dead husband. In fact, they also continue to pay his Medicare premium out of his benefit payment. ...

I reached out to my congressman, who was miraculously able to move a few mountains. We are still ironing out the errors that have compounded over the months and working on mitigating the longer-term impacts: For instance, why should I have to wait months for a corrected 1099 form on benefits that were paid in error and that the agency now wants back? ...

     By the way, has anyone ever received a corrected SSA-1099? Is that even theoretically possible? Also, by the way, in her piece Brenhoff eventually veered off into somehow blaming the agency's POMS manual for her problem, which, I guess, helps demonstrate a point that she was trying to make -- that few people understand how Social Security works.

This Is Interesting

     Not too long ago someone told me that this example had been added to Social Security's Program Operations Manual Series (POMS):

A 50-year-old claimant with a high school education and unskilled past relevant work has an RFC [Residual Functional Capacity] for standing/walking 2 hours of an 8-hour day and sitting approximately 6 hours of an 8-hour day. He is able to lift/carry/push/pull 20 pounds occasionally and 10 pounds frequently. This RFC falls between rule 201.12, which has a decision of disabled, and 202.13, which has a decision of not disabled. In this case, use rule 201.12 as a framework for a decision of disabled because the definitions in DI 25001.001 (Medical-Vocational Quick Reference Guide) indicate light work usually requires walking or standing for approximately 6 hours of an 8-hour day. Since the claimant can only walk or stand for 2 hours, he has a significantly reduced capacity to perform light work and a sedentary medical-vocational rule applies as a framework for a determination.

     I posted about this. Not long after I posted about it, without any announcement of a change, the example disappeared from the POMS section to which I cited. However, you can still see the example on the transmittal sheet, which is available online, which notified the various components of the agency about this and other changes. As long as it's there, it's going to be cited to courts and Administrative Law Judges. So, now, the question is whether the example will disappear from the transmittal sheet? Will the agency pretend that none of this ever happened? I've heard of the concept of a non-person. Can there be a non-thing? Can Social Security permanently erase this from the memory bank?