Upcoming Meetings and CLE

• August 1, 2006, Massachusetts Legal Services CLE, Boston, MA
  
• August 4-5, Philadelphia Regional Management Association Annual Meeting, Williamsburg, VA
• August 9-11, 2006 8th Circuit Social Security CLE, Omaha, NE
• August 10-11, 2006 Retirement Research Consortium, Washington, DC
• August 16-18, 2006 Ticket to Work and Work Incentives Advisory Panel, Arlington, VA
  
• September 8, 2006 Louisiana State Bar CLE, New Orleans, LA
• September 8, 2006 SSI Coalitition Meeting, Boston, MA
  
• September 11-13, 2006 NADE Regional Training Conference, Jefferson City, MO
  
• September 16-21, 2006 National Association of Disability Examiners NADE), San Diego, CA
• September 21, 2006, Social Security Advisory Board Meeting, Washington, DC
  
• October 6-7, National Council of Social Security Management Associations (NCSSMA) Regional Meeting, Atlanta, GA
  
• October 11-14, 2006 National Organization of Social Security Claimants Representatives (NOSSCR) CLE, Phoenix, AZ
• October 16-19, 2006 NCSSMA National Meeting, Milwaukee, WI
• November 2-4 2006, NCSSMA Regional Meeting, San Juan, PR
  
• November 17, 2006 SSI Coalition Meeting, Boston, MA
• April 18-20 2007, NADE Regional Conference, Albuquerque, NM
  
• April 18-21 2007, NOSSCR CLE, Baltimore, MD
• May 7-10 2007, NADE Regional Conference, Atlanta, GA
  
• May 20-23, 2007, National Association of Disability Examiners Meeting, Stowe, VE
• October 17-20, 2007, NOSSCR CLE, St. Louis, MO
• April 8-11, 2008 NADE Regional Conference, Austin, TX
  

Judicial Inconsistency Not Just An SSA Problem

Social Security Administrative Law Judges (ALJs) have frequently been criticized for inconsistency. Some Social Security ALJs approve 90% or more of the disability claims they hear. Others approve less than 20%. A report on the Cox News Service shows that this sort of inconsistency is not just a Social Security problem. Immigration judges making decisions on applications for asylum show a similar pattern of inconsistency, with one immigration judge approving 90% of asylum applications while another approves only 3%. One interesting aspect of this report is that the Office of Immigration Review released the data in a manner which shows what each judge did, by name. Social Security has released similar data, but refused to identify ALJs by name.

Social Security Disability 50 Years Old This Month

Social Security has put out a news release marking the 50th anniversary of disability insurance benefits this month. The Herald Star Online has published the news release.

Republican Plans To Get Serious On Social Security Privatization In January

From a Washington Times interview with House Majority Leader John Boehner:

Q: Where does Social Security reform stand?

A: I just met with Congressman [Frank R. Wolf, Virginia Republican], a few minutes ago with his SAFE Commission [formed to fix the entitlement programs]. In 1990 when I first ran for Congress, I talked about the need to reform these big entitlement programs because the sooner we began the process, the easier it would be to make the necessary changes so that these programs were sustainable for the long term. … If I’m around in a leadership role come January, we’re going to get serious about this.

Empire Justice Center Newsletter

The Empire Justice Center of New York has published the July issue of Disability Law News, its quarterly newletter on Social Security and SSI disability issues.

Pilot Program To Allow Representatives To Appear At Video Hearings Using Their Own Video Equipment

Social Security has published a notice in the Federal Register that it "is now preparing to pilot a program wherein private representatives and their clients may appear at ALJ hearings using privately owned video equipment." This would dramatically simplify matters for Binder and Binder and others who seek to represent Social Security claimants on a national basis. No one has or is likely to have a truly national network of attorneys or other representatives who can easily appear at Social Security hearings anywhere in the country. Currently such firms must fly in attorneys for many hearings at considerable cost. Allowing the attorneys to participate via their own video equipment would be much cheaper. It would allow law firms who wish to represent Social Security claimants nationally to do so without ever having face to face contact with most of their clients.

New Rules On Replacement Social Security Cards

The Social Security Administration has published interim final rules on replacement Social Security cards. In general, the rules limit an individual to three replacement cards in one year and ten in a lifetime.

Backlogs in Nevada

The Reno Gazette-Journal reports on growing backlogs in processing Social Security claims in Nevada. Because of workload pressures Nevada has stopped processing reconsideration appeals of Social Security disability benefits denials, with serious consequences for disability benefits applicants. The same thing is happening in many states. Other states have not stopped doing reconsiderations, but have merely slowed down.

Stopping or slowing reconsiderations is a short term way for Social Security to deal with a shortage of personnel. This is not something that can be continued for more than a few months before there are articles in newspapers all over the country. So what is the long term fix for the problem? At the moment there is none. Social Security's staff is projected to shrink by another 2,000 in fiscal year 2007, which begins in a little over two months. The number of disability claims being filed is increasing and will continue to increase for a decade or more as baby boomers age. The workload pressures can only get worse. The Disability Service Improvement (DSI) plan that will substitute Reviewing Officers (RO) for reconsideration will only make the problem worse, at least in the short run and probably the long run, since it will almost certainly take more staff for RO review than for reconsideration, and few outside the immediate circle of the Commissioner of Social Security really believe that the introduction of ROs will significantly cut the number of people requesting hearings before Administrative Law Judges (ALJs). Even if the RO program does somehow cut the number of people requesting ALJ hearings, the staff cutbacks and increased claim load already coming will completely overwhelm any increased efficiency.

Without significant budget increases, including increased staff, Social Security is heading towards massive problems. The only question is whether this will come to the public's attention as a sudden trainwreck or whether it can be managed so that the public only becomes aware slowly that the Social Security Administration has largely stopped processing appeals of disability claims. The answer to this question may depend upon which party is in control of Congress after this fall's election.

LTD Settlement in California

There is a important interplay between long term disability (LTD) benefits under insurance policies and employer pension plans and Social Security disability benefits because LTD plans almost always offset their benefits by Social Security disabisity benefits. In December 2005 the California Insurance Commissioner issued an order that would have dramatically altered LTD benefits in the nation's largest state. The order would have forbidden LTD plans from reducing their benefits by the amount of Social Security disability benefits, among other things. The LTD industry sued. The Insurance Journal reports that there is now a partial settlement in the case. Apparently, the California Insurance Commissioner has dropped the ban on offsetting Social Security disability benefits, while the insurers have agreed that they cannot include a "discretionary" clause which gave them an almost unlimited ability to deny LTD claims at their discretion. The insurers also agreed to a standard definition of disability and pre-existing conditions.

The Unknown Hero and Pariah Has Something To Say

Ron Cooley, the subject of An Unknown Hero And A Pariah posted on this blog has asked me to post the following on his behalf:

"The contents of this message are mine personally and do not reflect any position of the Government or SSA."

The July 16 LA Times article -- He Wants No Good Deed to Go Unpaid -- quotes me as follows:

"When I bring up new groups of severely underpaid — and in some cases severely overpaid — beneficiaries, they ignore or dismiss my information. I have definitely been frozen out."

Indeed I have a list of “groups of severely overpaid” beneficiaries, each a multi-million dollar group, that SSA is ignoring. But for the present I wish to elaborate a bit on the two underpaid groups specifically referred to in the article.

The last few lines of the LA Times article state:

And Cooley is busy uncovering other cases of alleged injustice. For instance, he said, he has found 11,034 elderly and disabled widows and widowers who have been underpaid $120 million in pension benefits.

"We've been trying for over a year just to get the agency to recognize that one," he said, "and 1,372 of them have died in the meantime."

Allow me to describe that situation just a bit further. In 2004, we identified 11,034 disabled widows and widowers (97% are women), all over age 65, who are owed $120 million in back pay -- an average of about $10,900 each, from a minimum of a few dollars to a maximum of about $50,000. They are also owed an ongoing additional benefit averaging $103 monthly.

Unlike the Special Disability Workload group described at length in the article, for which resolution of the underpayments involves “mind numbingly complex” policy (and medical) issues, this group’s underpayments are simply the result of miscalculation at the time the individuals turned age 65. Whether by omission or commission, SSA did not calculate the benefit correctly. Correcting the benefits requires no more than a relatively simple recalculation. But so far, SSA has refused to do it. I have notified numerous top officials, including SSA’s Commissioner, to no avail.

A simple review of these individuals’ benefit levels (and that of their deceased spouses) shows that this group is far from affluent. The vast majority are struggling to get by. They need every penny to which they are entitled. Further, they are dying -- about 1,400 have died so far since the identification. Eventually SSA will be forced to pay the benefits, but how much of the money will go to estates -- rather than to the individuals who should get it?

One would think Commissioner Barnhart would order the correction of this problem. See her 2002 testimony: http://www.ssa.gov/legislation/testimony_022802.html.

At any rate, I am going to keep pressing to get these underpayments corrected.

Regarding the other underpaid group -- the group featured in the article -- I have taken an SSA press release from 2001 on the Special Disability Workload (before it had that name), and updated or commented on it to reflect today’s situation:

Mistakes Cut Social Security Benefits
Retroactive Payments To Average $2,000 [$6,000]

Associated Press
Friday, July 6, 2001; Page A23 [Updates in brackets are as of July 27, 2006]

About 130,000 [500,000] disabled Americans may have been shortchanged on government benefits, but officials said yesterday that they have fixed the problem and will settle up now [as of July 2006, the problem is still not fixed; the software has been deficient since the 1970s].

Those disabled Americans could begin receiving up to $20 [the average is $71] more a month and retroactive payments averaging $2,000 [$6,000], the Social Security Administration said. [The retroactive payments range from a few dollars to over $200,000].

The 130,000 [500,000] had been getting money through a supplemental security program for the needy and were not notified they could be eligible for traditional Social Security, the administration said. [Unfortunately 200,000 are dead, and about 4,000 additional are dying each year, nearly all of whom died never having seen the money owed them.] In some cases, people could be owed benefits for several years [average retroactivity is 12 years, back to 1994].

Larry G. Massanari, the Social Security Administration's acting commissioner, said a review caught the mistake [I caught the mistake -- actually it was many mistakes.], and the administration would ensure people get money they are owed [only after my campaign and not without immense amounts of pressure from me]. Those people will be contacted about the benefits.

[Yes, the living ones will be contacted over the next 10 years, through about 2015. Because a large number of these people will be receiving SSI over the next few years, but should be receiving traditional Social Security only, SSA is spending a net amount of about $16 million per year on needless SSI "maintenance" and overpayment costs.]

[Another 100,000 living SSI recipients should be added to this group, as well as another 50,000 mostly deceased former SSI recipients.]

[Complicating the problem yet further, most states could be owed large sums of Medicare dollars because these individuals received only Medicaid during those years.]

[In a smaller, separate development, over 11,000 widows and widowers, all of whom are over 65 and disabled, have been identified as owed an average of about $10,900 each in back pay (totaling $120 million) and an additional average $103 per month in current benefits. They were identified in 2004 but SSA has yet to attempt to pay them.]

……………………[unrelated material removed]…………………

Cheezum said 99.7 percent of the 52 million people who receive traditional Social Security or supplemental benefits get accurate monthly checks.

[original release] © 2001 The Washington Post Company

--Ron Cooley