The Dark Underside Of Social Security Representation

My firm is getting more calls ofy a certain type from out of state law firms. The out of state firm tells us that they have a client in our area. The client did not move here. What happened is that the out of state firm attracted the claimant with advertising, sometimes television advertising, but more often internet advertising. There is now a hearing scheduled. The out of state firm does not want to send someone to North Carolina to actually represent the claimant at the hearing. They want us to do that and they will pay us a fee of around $750, which is not bad money if all you do is show up for the hearing to meet the claimant for the first time and do not bother to review the file in any detail or try to obtain additional medical evidence, which seems to be what is expected.

The out of state firm has not obtained medical evidence themselves or done any real lawyer work. All they have done is to sign up the client, accept the fee if the client gets approved without a hearing and take most of the fee if the claimant happens to win after a hearing. The out of state firm do es almost nothing to help the claimant win. Inevitably, claimants with this sort of representation have a lower chance of success than claimants with an attorney who gives them active representation, but what does the out of state firm really care? It's easy money for them.

My firm is not cooperating with this sort of thing. Is there anything that state bars or Social Security could do about this? One thing I can suggest is to allow claimants to switch attorneys freely. The fee agreement process impedes this. Claimants who wish to switch attorneys have a hard time finding anyone to represent them, since current rules mean that the case becomes a fee petition case once a claimant switches attorneys unless the first attorney waives a fee. Attorneys do not like to fool with fee petition cases, so they do not want to get involved with claimants who want to switch attorneys. Clients of these out of state firms are often unhappy and want to switch attorneys, but find it almost impossible to do so.

With Friends Like These ...

From the abstract for Disability Rights, Disability Discrimination, and Social Insurance by Mark Weber of the DePaul University College of Law, published in the Georgia State University Law Review:

This paper asks whether statutory social insurance programs, which provide contributory tax-based income support to people with disabilities, are compatible with the disability rights movement's ideas. Central to the movement that led to the Americans with Disabilities Act is the insight that physical or mental conditions do not disable; barriers created by the environment or by social attitudes keep persons with physical or mental differences from participating in society as equals. ...

But the civil rights approach to disability posits that disability is not a risk, not tragedy, and not a damage or defect. Instead it is a maladaptation of society to human variation. ...

This paper argues that a justification remains for social insurance under the civil rights approach to disability, and further suggests that expansion of social insurance for disability is both compatible with disability rights principles and supported by wise public policy.

Note that Professor Weber is arguing against the nutty position that there is no one who is unable to work due to illness, that in every case the supposed inability to work is due to discrimination.

One Week To Go

The deadline to send in comments on the proposed new rules on representation of Social Security claimants is a week from today, November 7. Thus far, there have been few comments and most of the comments that have been filed have little weight.

If you represent Social Security claimants, I urge you to study this proposal and submit comments. Comments may be submitted online, by fax to 410-966-2830 or by letter to the Commissioner of Social Security, P.O. Box 17703, Baltimore, MD 21235-7703.

By the way, I notice that there are also outstanding proposed regulations regarding representation before the Patent and Trademark Office and the Executive Office for Immigration Review. This must be coincidental.

Happy Halloween!

Opening A Can Of Worms

I posted earlier about the problems I see with Commissioner Astrue's Compassionate Allowance program. One of the issues I raised was why this did not include other diseases, such as metastatic prostate cancer.

Here it comes. David E of Overland Park Kansas is already agitating in his "The Big C" blog over the omission of advanced prostate cancer, in a post he labels "Outraged!!"

Frequently Asked Questions

Many thanks to everyone who commented on my draft list of Frequently Asked Questions (FAQs) about Social Security disability. Those comments helped me make these FAQs better. I have finalized the FAQs and posted them on the separate Social Security Perspectives blog.

You are free to link to these FAQs. You need not ask my permission to link. You may not simply copy the FAQs and use them elsewhere, with or without attribution, unless you get my permission. Copying them and using them elsewhere, whether online or offline, is copyright infringement. which is illegal

AALJ Letter On Staffing

From the Association of Administrative Law Judges (AALJ), a union that represents many of Social Security's Administrative Law Judges:

October 27, 2008

An open letter to:

Hon. Michael J. Astrue
Commissioner, Social Security Administration
6401 Security Boulevard, Altmeyer Building
Baltimore MD 21235

Dear Commissioner Astrue,

In the large volume of materials published by the Agency on its efforts to reduce the disability claims backlog, there has been no statement yet of any expectation regarding support staff levels. Of course we all understand that the Agency cannot publish any projection of staff levels without knowing what the budget will be. It would be unreasonable to expect any projection.

Nonetheless in most of those materials there are repeated reports that the administrative law judges have been asked to produce 500-700 decisions per year. Some of these have been quotations of you, Associate Commissioner deSoto or Chief Administrative Law Judge Cristaudo.

In recent reports the GAO and SSA’s OIG have confirmed what we have all known for years: there is a clear relationship between the level of support staff in hearing offices and the productivity of the judges.

We believe it is misleading to repeatedly state that the judges are being asked to produce some fixed number of decisions without any projection of the level of support staff or any acknowledgement that judges’ productivity is dependent upon the level of support staff and other resources. We are very concerned that readers of the Agency’s materials, including members of Congress, may come away with the impression that the unqualified request being made of the judges is a reasonable one.

We are also concerned that reiterating the request to produce 500-700 decisions per year with no acknowledgement that the future level of support is an unknown, sets up the corps of judges for failure. If we do not produce still more decisions as requested we will be perceived to have failed, never mind that we will almost certainly have fewer actual support staff per judge than we had last year.

We therefore specifically request, whenever the Agency states that the judges are being asked to produce some given number of decisions, it acknowledges the relationship between judge productivity and adequate resources.

We told you when you first took office that the AALJ wants to do all we can to assist the Agency in meeting our common goals, providing full and fair hearings and issuing legally defensible decisions. We are still committed to that principle.

We would be irresponsible to ask the judges to commit to try to achieve any specific numerical goal without tying it to the level of quantity and quality of future support staff and other resources such as shortages of vocational experts and medical experts, judges not receiving enough worked case files to fill their schedules, trying to work with unorganized so called “streamlined cases”, working with efiles which are still slower to review and shortages of decision writers.

Commissioner, we cannot tell you whether or not our judges will be able to achieve the Agency’s goals. We can tell you they will do what they have always done; they will do their best.

Sincerely,



Ronald G. Bernoski
President
Association of Administrative Law Judges

All The COLAs

Earlier I had posted the Cost Of Living Adjustments (COLAs) for Social Security benefit payments and the user fee charged to those who represent Social Security claimants. Here are Social Security's tables showing all of the major adjustments (and a lot of things that should be adjusted for inflation, but are not, most notably the SSI resource limits which have never been adjusted for inflation since the SSI program was created more than 30 years ago):

Tax Rate	2008	2009
Employee	7.65%	7.65%
Self-Employed	15.30%	15.30%
NOTE: The 7.65% tax rate is the combined rate for Social Security and Medicare. The Social Security portion (OASDI) is 6.20% on earnings up to the applicable taxable maximum amount (see below). The Medicare portion (HI) is 1.45% on all earnings.

Maximum Taxable Earnings:	2008	2009
Social Security (OASDI only)	$102,000	$106,800
Medicare (HI only)	No Limit

Quarter of Coverage:	2008	2009
Earnings needed to earn one Social Security credit	$1,050	$1,090

Retirement Earnings Test Exempt Amounts:	2008	2009
Under full retirement age NOTE: One dollar in benefits will be withheld for every $2 in earnings above the limit.	$13,560/yr. ($1,130/mo.)	$14,160/yr. ($1,180/mo.)
The year an individual reaches full retirement age NOTE: Applies only to earnings for months prior to attaining full retirement age. One dollar in benefits will be withheld for every $3 in earnings above the limit.	$36,120/yr. ($3,010/mo.)	$37,680/yr. ($3,140/mo.)
There is no limit on earnings beginning the month an individual attains full retirement age.

Social Security Disability Thresholds:		2008	2009
Substantial Gainful Activity (SGA)	Non-Blind	$ 940/mo.	$ 980/mo.
	Blind	$1,570/mo.	$1,640/mo.
Trial Work Period (TWP)		$ 670/mo.	$ 700/mo.

Maximum Social Security Benefit: Worker Retiring at Full Retirement Age	2008	2009
	$2,185/mo.	$2,323/mo.

SSI Federal Payment Standard:	2008	2009
Individual	$ 637/mo.	$ 674/mo.
Couple	$ 956/mo.	$1,011/mo.

SSI Resources Limits:	2008	2009
Individual	$2,000	$2,000
Couple	$3,000	$3,000

SSI Student Exclusion:	2008	2009
Monthly Limit	$1,550	$1,640
Annual Limit	$6,240	$6,600

Estimated Average Monthly Social Security Benefits Payable in January 2009:	Before 5.8% COLA	After 5.8% COLA
All Retired Workers	$1,090	$1,153
Aged Couple, Both Receiving Benefits	$1,773	$1,876
Widowed Mother and Two Children	$2,268	$2,399
Aged Widow(er) Alone	$1,051	$1,112
Disabled Worker, Spouse and One or More Children	$1,695	$1,793
All Disabled Workers	$1,006	$1,064

"Emergency and Expedited Procedures Related to Military Service Casualty Cases (MSCC)"

The Social Security Administration has transmitted a new Program Operations Manual Series (POMS) issuance entitled: Emergency and Expedited Procedures Related to Military Service Casualty Cases (MSCC). Here are a few excerpts:

The procedures to expedite disability claims apply to any military service personnel injured October 1, 2001 or later regardless of how or where the disability occurred, whether in the United States or on foreign soil, provided that the individual was on active duty when the injury occurred. ...

The Department of Defense (DoD) identifies Military Casualties and provides us with their Social Security Numbers (SSNs). We verify the SSNs, and store them until the claimant contact us.

If the SSN of the individual matches the DoD list:

• An alert appears in the Visitor Intake Program (VIP), Customer Service Record (CSR), and/or Customer Help & Information Program (CHIP) when we enter the claimant’s SSN; and

• The Electronic Disability Collect System (EDCS) automatically sets the MSCC flag when we establish the case at the initial or appeal level.

NOTE: If the claimant alleges that their disability was the result of a Military Casualty since October 1, 2001, and the SSN does not match DoD records (i.e., no alert is present in VIP, CSR, or CHIP), manually set the MSCC flag in EDCS. If the case is a paper Modular Disability Folder (MDF), the Field Office (FO) attaches a paper flag to the MDF. An exhibit of the paper flag is available in DI 11005.003H (in this section) for EDCS exclusions.

D. Teleservice center (TSC) action to expedite MSCC

The interviewer should be alert to the possibility of disability claims resulting from military service casualties. When a person contacts the 800 number to file a disability claim, identify if the claimant is alleging his or her disability is a result of a military service casualty.

1. If an appointment is available within 3 working days

• Schedule the appointment.

• In the remarks section of Leads/Protective Filings and Proofs (LPFP) screen, enter “Military Service Casualty Case.”

• Transmit the referral to the FO.

2. If an appointment is not available within 3 working days

• Advise the caller that the FO will call back within 2 days to schedule an appointment.

• Determine the best time for the FO contact.

• In the remarks section of LPFP, enter “Military Service Casualty Case, APPT NEEDED ASAP/BEST TIME FOR CONTACT” (time within the FO's business hours).

• Transmit the referral to the FO.

• Complete and transmit separate claims referrals for any auxiliaries, if applicable. ...

If an appeal is received in the FO for an MSCC, FO management will ensure that the case receives top priority handling.

Will combat veterans suffering from Post-Traumatic Stress Disorder (PTSD) get this "emergency and expedited" treatment? Why should a soldier who has a heart attack stateside or who gets injured in an off-duty automobile accident get special treatment? The soldier may be in a medical holding company and still receiving his or her full pay. Even if already processed out of the service, he or she is likely to have military retirement or VA benefits. Why is it urgent to help the soldier who is in no financial distress, but not urgent to help a person with the same medical problem who is destitute?

Final Rules On Age

From today's Federal Register:

We are modifying the rules we use to determine disability under titles II and XVI of the Social Security Act (``Act'') to revise the definition of persons ``closely approaching retirement age'' from``60-64'' to ``60 or older.'' These changes acknowledge that we make disability determinations for persons over age 64. We are also making minor technical changes that will not have any effect on how we determine your eligibility for benefits.