Veterans Day 2023

 

Another Golden Oldie — Many Vets With 100% VA Ratings Get Turned Down When They Apply For Social Security Disability

     A post on this blog on August 7, 2014:

Below is a chart labeled "Allowance rates for first DI applications filed by veterans after receiving VA disability ratings of 100% or IU during fiscal years 2000–2006, by VA rating and SSA primary diagnosis body system and selected diagnostic categories." This appears in Veterans Who Apply for Social Security Disabled-Worker Benefits After Receiving a Department of Veterans Affairs Rating of “Total Disability” for Service-Connected Impairments: Characteristics and Outcomes by L. Scott Muller, Nancy Early, and Justin Ronca published in the Social Security Bulletin, the agency's research journal. DI refers to Social Security Disability Insurance Benefits. IU refers to Individual Unemployability. Veterans may be approved for 100% VA disability benefits either with or without consideration of IU.

          Overall, Social Security is denying about 31% of disability claims filed by veterans with a 100% VA rating. Social Security approves only 43.5% of these 100% disabled veterans claims at the initial level and 13.8% at reconsideration but 70.8% at the Administrative Law Judge level. Social Security is turning down 25.3% of the claims filed by veterans determined 100% disabled by VA due to traumatic brain injury and 34.8% of those found 100% disabled by VA due to dementia associated with brain trauma.

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Social Security Treated Employee Worse Because He Was A Vet

     From Bloomberg Law:

A former attorney adviser with the Social Security Administration convinced the Federal Circuit Nov. 7 that his veteran status was a substantially motivating factor in the agency’s 2011 decision to fire him.

As a qualifying veteran hired by a government agency, Clarence McGuffin was entitled to a shorter probationary period than other non-veteran new hires before the full suite of Civil Service Reform Act rights vested. Those rights include the right to appeal adverse employment actions to the Merit Systems Protection Board....

 “We want to terminate him so that he does not acquire MSPB rights,” read one intra-agency email quoted in the opinion. Another email stated that McGuffin was a “vet” who “has to be terminated in his first year.” ...

McGuffin was let go from his attorney adviser position in SSA’s Office of Disability Adjudication and Review in part because he allegedly wasn’t producing his “fair share” of work, a monthly quantity determined by dividing the office’s caseload across all of the attorney advisers charged with authoring benefits appeals decisions. But SSA isn’t supposed to use an attorney adviser’s “fair share” production as a performance metric until their second year with the agency, Reyna said. ...

“The record is clear that SSA closed the door on Mr. McGuffin well before the end of his first year to avoid the inconvenience of defending itself should Mr. McGuffin assert his procedural safeguards afforded under the CSRA,” Reyna said. The court reversed the contrary decision from the MPSB and remanded the case for further proceedings. ...

The case is McGuffin v. SSA, Fed. Cir., No. 17-2433, 11/7/19. ...

Inconsistent Handling Of Veterans' Disability Claims

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

SSA [Social Security Administration] policy provides for disability claims filed by current and former military service members to be expedited. SSA identifies these claims as Military Casualty/Wounded Warrior (MC/WW) and Veteran 100 Percent Permanent and Total (VAPT) disability claims. ... VAPT classifications do not guarantee an allowance for SSA disability benefits. VAPT recipients must meet SSA’s disability medical eligibility and entitlement requirements. ... 

SSA does not define “expeditious” for processing MC/WW and VAPT claims, have processing time goals, or perform regular analysis of the MC/WW and VAPT claims to identify trends. Therefore, to assess the MC/WW and VAPT processing times, we compared them to the average processing time for all disability claims at the various stages of review nationally and by State. We found the following.

• At the initial claims level, SSA processed MC/WW and VAPT claims only 1 day faster than it processed all disability claims.

• SSA processed MC/WW and VAPT claims from 37 to 315 days more quickly than all disability claims at the reconsideration, hearing office, and Appeals Council levels.

• Average processing times varied across States.

There were processing delays attributable to SSA as well as delays outside SSA’s control.

Finally, SSA designed and implemented internal controls to identify and flag MC/WW and VAPT claims to prioritize the processing of those claims. However, SSA could not provide us evidence that it followed its policies and procedures to ensure staff and management properly tracked or monitored MC/WW and VAPT claims.

     By the way, I've seen the same sort of thing with other categories where Social Security is supposed to speed review, such as homeless claimants. A "critical case" designation seems to mean nothing at the initial and reconsideration levels but usually a lot at the hearing or Appeals Council levels.

Waiting In Atlanta

     From WGCL:

An Atlanta veteran who once served in the Navy is now living in and out of homeless shelters.

George Hocker reached out to CBS46 reporter Natalie Rubino after he'd been waiting two years for social security.

After his service, Hocker worked for decades as an executive assistant. But in 2009, he had his first heart attack.

"Recovered from that, went back to shortly after I went back to work I had a second heart attack," said Hocker.

He recovered from that too but he had a third heart attack. So in 2013, Hocker applied for disability with social security. At 55 years old he was denied.and couldn't find a job in his field.

Hocker then worked retail for three years until it became too painful to stand for long periods of time.

"I went to the doctor and found out I had peripheral artery disease on top of my coronary artery disease," he said.

His VA doctor told the SSA that Hocker couldn't work. Still he was once again denied disability benefits. So he went to the VA to for help.

"They said you have to actually become homeless before we can do anything for you," said Hocker.

But the head of the Social Services Department for the VA tells CBS46 they did provide Hocker with other resources.

"We provided all of those resources but it's the veterans choice whether they follow up or go with a or b."

Hocker says after he became homeless the VA placed him at the Salvation Army's shelter. Now he's desperately waiting for an appeal date with social security. ...

A spokesperson for social security also tells Natalie Rubino after hearing about Hocker's case, they've requested that his appeal court date be scheduled immediately.

One Vet's Struggle

     An Atlanta television station is reporting on one vet's struggle to get Social Security disability benefits. You must multiply this story by a million to begin to get a picture of what goes on at Social Security.

Hearing On Social Security Service For Vets

     From a press release:

House Ways and Means Social Security Subcommittee Chairman Sam Johnson (R-TX) announced today that the Subcommittee will hold a hearing entitled “Ensuring Social Security Serves America’s Veterans” on Wednesday, February 7, at 9:00 AM in room 2253 of the Rayburn House Office Building. At the hearing, Members will examine the effectiveness of the Social Security Administration’s (SSA) initiatives to reduce processing times and expedite claims for certain veterans, as well as efforts by the agency to hire veterans.

     Our vets deserve a lot but do they deserve special treatment by the Social Security Administration? Shouldn't the goal be to provide good service to everyone?

Vet Cut Off Disability Benefits

     From the Rapid City Journal:

For 31-year-old Wayne Swier, a U.S. Army combat veteran who suffered devastating injuries from an improvised explosive device seven years ago in Afghanistan, this summer should have been a season of solace and celebration. 

But fate and a federal agency seemed to have conspired to turn it into a nightmare. 

Swier is set to marry his sweetheart in a week, and the couple plans to move into a new home near Johnson Siding built by the nonprofit Homes for Our Troops later in August. ... 

Instead, in May the Social Security Administration deemed him no longer disabled and cut off his monthly disability checks, in a manner as harsh as the way that IED blew off his leg in a small Afghan village in November 2010. 

Today, Swier is essentially broke, behind on his rent, his credit cards are maxed out, and just last week, power was cut off to his Box Elder rental home due to nonpayment, meaning he couldn’t even recharge his robotic prosthetic leg. Although his electricity has since been restored thanks to Black Hills Energy, the man’s problems have not been resolved. ...

     No, the article doesn't explain what his VA benefits situation is or why he's not drawing interim benefits from Social Security.

I'm Expecting To See Lots Of Remands On This Issue

     The Department of Veterans Affairs found a vet disabled. Social Security doesn't think they need to give any explanation why they disagreed and found him not disabled. In fact, to my ears, they sound a bit arrogant about it.  This may sound reasonable to some at Social Security. Those of us who represent claimants think the agency has picked a fight it probably won't win in federal court. If you think it's clear that the agency will win on this issue, I'd suggest you take a step back and try to look at this from the perspective of a federal judge. And saying that federal judges just don't understand Social Security doesn't get you anywhere.

     By the way, yes, I know, this guy probably got some bad advice. Overestimating the strength of one's hand can be a problem for both sides.

Why Is It Harder To Win With Newer ALJs?

     It's a matter of common knowledge among attorneys who represent Social Security disability claimants that it's harder to win with Administrative Law Judges (ALJs) hired in the last five years or so. 

     Theories on why this is so range from they've found some way to hire more conservative ALJs to they've found some way to train them to be more conservative to they're somehow encouraging them to deny more claims or they're  hiring agency employees who they know will deny claims. I've had doubts about each of these theories.

     Let me propose the theory that it has to do with the veterans preference and the end of the military draft. The federal government gives a heavy preference to hiring veterans. This preference has led to far higher percentage of ALJs who are military veterans than in the population of lawyers in general. This didn't matter much when the veterans being hired were mostly of the Viet Nam era as was the case until not that long ago. The draft assured that those who served during that era were not that far from being a microcosm of the male population. The draft ended as the Viet Nam war ended. Military veterans being hired now chose to serve in the military, usually as a career. This cohort is different from their Viet Nam era predecessors. On average -- and, of course, there's plenty of individual variation -- they're considerably more conservative politically and socially, making them more likely to turn a jaundiced eye to disability claims.

     That's my theory. What do you think?

This Is Wrong

     From EM-15034, just issued by Social Security:

Beginning September 25, 2015, the Social Security Administration (SSA) and VA initiated a weekly information exchange agreement in which the VA provides SSA with information concerning veterans who received the VA 100% P&T [Permanent and Total] disability compensation rating. With this release, when an individual contacts SSA, and their social security number is on our database as having the 100% P&T rating, our users will receive an immediate alert that we must expedite the case.

Additionally, when an alert identifies the individual as having this VA rating, no additional proof of the 100% P&T rating is necessary to expedite the case. ...

     We owe our veterans a lot but we don't owe veterans who have 100% VA ratings expediting on their Social Security disability claims. These vets aren't in great financial distress. They have their VA benefits. Other disabled people hurtle towards homelessness while vets who don't really need it get expediting. This is wrong.

Texas ALJ Draws Fire For Belittling Vet's Claim Of PTSD

     A Social Security Administrative Law Judge (ALJ) in Texas is drawing scrutiny after laughing at a veteran's story of developing Post Traumatic Stress Disorder (PTSD) as a result of service on an aircraft carrier during the Iraq war.

     Let me give a hint to ALJs based upon a lot of experience.Whether an individual develops PTSD after being exposed to stress has more to do with the individual's psychological makeup than to the nature of the stress. Some people don't develop PTSD even though they are subjected to incredible stress. Others develop PTSD after exposure to what most people would regard as only moderate or even mild stress. People who suffer from bipolar disorder are six times more likely to develop PTSD, which suggests to me that there is a genetic propensity to develop PTSD.

     In any case, the individual who is the subject of this newspaper article was certainly subjected to considerable stress.

VA Policy On Charging For Medical Records?

     I request lots of records on my Social Security disability clients. It's a major part of what I do. I'm curious. What's the policy or practice of the Department of Veterans Affairs on charging for copies of medical records on their patients? The VA hospital in Durham, NC charges for records but is very slow in responding to requests for those records. The VA hospital in Fayetteville, NC doesn't charge and is fairly prompt in responding to requests for records. What's going on elsewhere?

Triple Dippers?

     Apparently at the request of Republican Senator Tom Coburn, the Government Accountability Office has done a study of the concurrent receipt of Social Security disability benefits, Veterans benefits and military retirement. Here is an excerpt:

Out of the 1.9 million DOD [Department of Defense] nondisability and disability retirees, we identified 59,251 individuals who received concurrent payments in fiscal year 2013 from DOD retirement, VA disability compensation, and SSDI.  The payments totaled over $3.5 billion.  From our population of individuals receiving concurrent payments, we also selected a random sample of seven individuals to provide illustrative examples.  These seven examples individually received from $19,210 to $152,719 in concurrent benefits.

Social Security Turns Down Lots Of 100% Disabled Vets

     Below is a chart labeled "Allowance rates for first DI applications filed by veterans after receiving VA disability ratings of 100% or IU during fiscal years 2000–2006, by VA rating and SSA primary diagnosis body system and selected diagnostic categories." This appears in Veterans Who Apply for Social Security Disabled-Worker Benefits After Receiving a Department of Veterans Affairs Rating of “Total Disability” for Service-Connected Impairments: Characteristics and Outcomes by L. Scott Muller, Nancy Early, and Justin Ronca published in the Social Security Bulletin, the agency's research journal. DI refers to Social Security Disability Insurance Benefits. IU refers to Individual Unemployability. Veterans may be approved for 100% VA disability benefits either with or without consideration of IU.
     Overall, Social Security is denying about 31% of disability claims filed by veterans with a 100% VA rating. Social Security approves only 43.5% of these 100% disabled veterans claims at the initial level and 13.8% at reconsideration but 70.8% at the Administrative Law Judge level. Social Security is turning down 25.3% of the claims filed by veterans determined 100% disabled by VA due to traumatic brain injury and 34.8% of those found 100% disabled by VA due to dementia associated with brain trauma.

Social Security To Do Data Match With VA To Identify 100% Disabled Vets

     From EM-14034, released by the Social Security Administration yesterday:

This is to alert all operational components that Systems will perform a one-time data match. The purpose of this data match is to identify, flag, and message all pending SSA disability claims filed by Veterans who possess a VA compensation rating of 100% P&T as of February 28, 2014.
B. Background On March 17, 2014, SSA implemented a new policy to expedite disability claims of all Veterans rated 100% P&T [Permanent & Total[ by the VA, who subsequently filed for SSA disability benefits (see EM-14013). 

To receive expedited processing, these Veterans must self-identify and provide verification of their VA rating of 100% P&T.
On May 2, 2014, the VA signed an agreement with SSA to provide a one-time data match file to allow SSA to identify and flag for expedited processing all Veterans rated 100% P&T as of February 28, 2014 with a disability claim pending with SSA at all levels of adjudication. This is part of the ACOSS initiative to treat 100% P&T Veterans’ applications as high priority and issue expedited decisions. ...

E. DDS [Disability Determination Services] actions Upon receipt of Systems alert, the DDS should follow the terminal illness (TERI) case procedures in DI 23020.045. Do not designate these cases as TERI unless they meet the TERI criteria (i.e., there is evidence of a terminal illness). ...
G. ODAR 0Office of Disability Adjudication and Review] actions Upon receipt of Systems alert, ODAR offices should follow the critical case procedures in HALLEX 1-3-1-51. ...

     I don't understand the DDS instructions. They seem self-contradictory.

Staff Instructions On Priority To 100% Disabled Vets

     Social Security has released staff instructions on its plan to give priority in processing to the disability claims of veterans who have been awarded 100% permanent and total compensation by the Department of Veterans Affairs (VA). Am I reading this right that since it refers to "compensation" that it does not apply to veterans receiving non-service connected veterans "pensions" from VA? Those vets have also been found totally and permanently disabled by VA yet I think they are excluded under these instructions. The instructions could be clearer on this point.

Expediting For 100% Service Connected Vets -- A Bad Idea

     Yesterday, Social Security announced a plan to expedite Social Security disability claims for veterans who have been found 100% disabled by the Department of Veterans Affairs (VA). Let me explain why that was a bad decision. 

• This is NOT about expediting disability claims for wounded warriors. Social Security was already doing that. This announcement expedites disability claims for veterans whose disabilities are NOT the result of combat. You ask how that can be. Easy. A veteran gets VA service connected benefits for virtually ANY disability incurred while in military service. Heart attacks, cancer, off base automobile accidents, rheumatoid arthritis, kidney failure, etc. The only things excluded are disabilities which are the result of the veteran's own willful misconduct or abuse of alcohol or drugs 
• To expedite disability claims for one group of people is to delay them for everyone else, which is no minor matter when we consider the severity of the backlogs at Social Security. Vets receiving 100% service connected VA benefits for non-combat related disabilities are undeserving of this special attention because they already have substantial incomes of more than $2,800 per month. They can be hurting somewhat financially but most Social Security disability claimants are hurting much worse because they do not have any disability benefit from their former employer. If anyone gets expediting, it should be those who are in serious financial distress, not vets already receiving 100% service connected benefits. 
• This new policy makes it NO more likely that vets drawing 100% service connected benefits will be approved for disability benefits by Social Security. It's only expediting. I strongly suspect that this was a cynical attempt to head off legislative proposals that would automatically grant Social Security disability benefits to those who had been approved for 100% service connected VA benefits.

     Vets deserve our respect. We owe them a lot. They certainly deserve compensation for their service connected disabilities. Those who are disabled by combat related injuries deserve special treatment at Social Security. However, vets with non-combat disabilities don't deserve to have their disability claims expedited at Social Security.

Speed Up For 100% Disabled Vets

     From the Baltimore Sun:

The Social Security Administration plans to streamline its review of disability claims for veterans starting next month, shaving weeks off the process by which it determines benefits, officials are set to announce Wednesday. ...

Under the new policy, applicants who have been deemed 100 percent disabled by the VA are to be put on a "fast track" at virtually every step of the process. ...

The change won't make it any more likely veterans will receive benefits, officials say — just that they'll get a decision more quickly. ...

     Update: And, here's the announcement but it's brief and a bit vague. If there are staff instructions, they haven't been released to the public yet.

I Wish I Could Be Optimistic That This Will Work

Acting Commissioner Colvin is in a green top at the far end on the near side

     From a press release issued by the Senate Appropriations Committee:

Chairwoman Barbara A. Mikulski (D-Md.), joined by Senator Tim Johnson (D. S.D.), Chairman of the Military Construction and Veterans Affairs Subcommittee, today announced the initial results of a roundtable discussion with senior Administration officials, including Secretary of Defense Chuck Hagel, Veterans Affairs Secretary Eric Shinseki, Social Security Administration Acting Commissioner Carolyn Colvin, and Internal Revenue Service Deputy Commissioner for Operations Support Beth Tucker, to seek to finally put an end to the claims backlog that has troubled the Department of Veterans Affairs for years.

The Department of Veterans Affairs (VA), the Department of Defense, the Internal Revenue Service, and the Social Security Administration agreed to work together to break down the barriers between the Departments in order to end the gridlock. Specifically, the participants agreed:

1. Each agency will identify a single high level person whose sole focus is fixing problems, and who reports directly to the Secretary or Administrator.

2. Secretaries Hagel and Shinseki agreed to meet every 60 days as we progress toward ending the claims backlog.

3. A method of accountability to the Chairwoman and to the Committee, including a coordinated progress report to the Committee every 60 days.