Sep 14, 2012

ALJ Financial Disclosure Forms To Be Posted

     Federal Administrative Law Judges (ALJs) have long been required to file financial disclosure forms. I suppose one could make a Freedom of Information Act (FOIA) for one but it never occurred to me to request them. I am now hearing that Social Security intends to post online next year the financial disclosure forms filed by its ALJs. I hope this isn't coming to pass.
     I don't see the point of this. It's hard for me to imagine finding anything on one of these forms that would display a conflict of interest for a Social Security ALJ. This looks like an unwarranted invasion of privacy which could deter good people from becoming ALJs. When told of this plan one attorney I know  responded "Oh HELL no! I would never, ever want that information made public. Are they serious!!? If I ever had even slight aspirations of being an ALJ in my old age…I don’t anymore…."
     I hope this receives more consideration.

     Update: This is not the doing of the Social Security Administration. It is required by the Stop Trading on Congressional Knowledge (STOCK) Act. I do not understand why a scandal over members of Congress trading on inside information would require posting on the internet the financial disclosure forms filed by civil servants. That just punishes innocent people and makes it harder for the government to recruit talent. Just yesterday, a federal judge temporarily blocked implementation of the STOCK Act.

Sep 13, 2012

Senator Coburn Finds The Gold Standard For Determining Disability

     I thought that Senator Coburn had Social Security's Office of Inspector General (OIG) make a study a Social Security Administrative Law Judge (ALJ) decisions on disability claims. How wrong I was! He had the subcommittee's Republican staff make the determination of whether the ALJ decisions were good or bad. I always wondered what the gold standard was in determining disability. Now, I know. It's untrained Congressional staffers but not just any Congressional staffers. Those staffers must be Republicans working for a Senator with a right wing agenda.
     Here's an example of the sort of thing that Coburn's staff found outrageous:
This 59 year-old claimant sustained a crush injury to his foot at work in January 2006, underwent a partial foot amputation, and received a prosthesis that should enable him to walk. The medical record documented that his wounds were healing well when the agency awarded benefits at the reconsideration level. By law, disability benefits may only be awarded to individuals with an impairment “which has lasted or can be expected to last for a continuous period of at least 12 months.” In this case, an award was made on October 26, 2006 – only ten months after the injury. Nothing in the record suggested that the claimant would suffer from permanent restrictions.
     At ten months out  from the date of a very severe injury one cannot possibly predict that a claimant will be disabled for a year or more? I got news for you, Senator Coburn. This one should have been approved almost immediately. It was a crush injury. Only part of the foot was amputated. Crush injuries heal very slowly. The claimant was 59. Healing happens even more slowly at age 59 than it does for someone in their 20s. The problem here is not that the claim was approved but that it took so long to approve it.
     Time and again, Coburn's staff is outraged that a claimant is approved when the medical evidence of disability is contradictory. There's usually contradictory evidence. The adjudicative process exists to weigh the evidence and resolve the contradictions. Coburn's staff appears to believe that any evidence that would justify a denial must be followed and any contradictory evidence must be ignored. Any other result is outrageous.
     Time and again, Coburn's staff is outraged that an ALJ approved a claim even though it had been denied at the initial and reconsideration levels. His staff appears to believe that ALJs should exist only to rubberstamp prior denials.
     The report talks of a "flood" or Social Security disability claims and increasing backlogs at Social Security but does not recommend additional funding for the agency, except for more funding for government representation at hearings. Here are the recommendations made (footnotes omitted):
  1. Require Government Representative at ALJ Hearings. To ensure key evidence and issues are properly presented, reduce instances in which SSA ALJs overlook evidence indicating a claimant is not disabled, and increase consistency and accountability in ALJ decision-making, a representative of the agency should participate in all ALJ disability hearings and decisions. Including a government representative at the ALJ Level has long been a recommendation of both the Association of Administrative Law Judges and the Social Security Advisory Board. Congress should specifically designate funds for such a program.
  2. Strengthen Quality Review Process. The new ALJ review process initiated by the Quality Division of the Office of Appellate Operations should be expanded and strengthened by conducting more reviews during the year and developing metrics to measure the quality of disability decisions. Such information should be made available to Congress.
  3. Close the Evidentiary Record. To eliminate the confusion, inefficiencies, and abuses associated with the current practice of allowing medical evidence to be submitted at any point in a disability case, the evidentiary record should close one week prior to an ALJ hearing, with exceptions allowed only for significant new evidence for which exclusion would be contrary to the public interest.
  4. Strengthen Use of Medical Listings. SAA should provide additional training to ALJs on the use of SSA Medical Listings, and direct ALJ decisions to identify how a claimant meets each required element of a listing, citing objective medical evidence and not just conclusory statements by an expert.
  5. Expedite Updated Job List. SSA should move more quickly to ensure the Occupational Information System can serve as a usable replacement for the Dictionary of Occupational Titles to identify jobs that claimants with limited disabilities can perform in the national economy.
  6. Focused Training for ALJs. The Office of Appellate Operations, Quality Division, should provide training to all ALJs regarding adequate articulation in opinions of determinations that involve both obesity and drug and alcohol abuse. This training should emphasize the proper way to analyze and address these issues as required by law, regulation and agency guidance.
  7. Strengthen Consultative Examinations. Because many disability claimants do not have sufficient funds to obtain detailed medical evidence of their conditions, SSA should determine, with input from ALJs, how to improve the usefulness of agency-funded Consultative Examinations (CEs), including by requiring an explanation of any significant disparity between the CE’s analysis and other evidence in the case file.
  8. Reform the Medical-Vocational Guidelines. The medical-vocational guidelines should be reviewed to determine if reforms are needed. Additional study should be conducted to evaluate whether the current guidelines utilize the proper factors and if they appropriately reflect a person’s ability to work.
     Coburn doesn't want to put a thumb on the scales of justice. He wants to stomp on them.

Congress Demands Better Service But Isn't Willing To Pay For It

     The House of Representatives has passed a bill to improve customer service at federal agencies. The bill provides that:
The Director of the Office of Management and Budget shall develop—
(A) performance measures to determine whether agencies are providing high-quality,timely customer service and improving service delivery to customers of the agencies; and 
(B) standards to be met by agencies in order to provide high-quality customer service and improve service delivery to customers of the agencies, including—
     (i) specific milestones and performance targets for continuous service improvements and efforts to modernize service delivery; and
      (ii) where appropriate, target response times for telephone calls, electronic mail, mail, benefit processing, and payments.
     However, the bill also provides that "It is the sense of Congress that no additional funds should be appropriated to carry out this Act." The problem is that without additional funds, Social Security isn't going to provide better service to the public. In fact, lack of adequate funding is placing the agency on a trajectory that leads to much worse customer service.

Senator Coburn Says ALJs Could Be Replaced With A Coin Flip

     Senator Tom Coburn's (R-OK) office has leaked the report to be given today to the Senate Homeland Security and Government Operations Permanent Subcommittee on Investigations on disability determinations at Social Security, which is supposed to reveal that "In more than a quarter of the cases, decisions to award benefits 'failed to properly address insufficient, contradictory, or incomplete evidence.'" Senater Coburn's response says that "I think you could flip a coin for anybody that came before the Social Security commission for disability and get it right just as often as the (judges) do." However, the report, apparently done by Social Security's Office of Inspector General (OIG) only " reviewed the cases to see if officials used proper procedures in making their decisions", did not talk to any of the claimants involved and did not "make any determinations about whether people got benefits they did not deserve."
     Here is the witness list for the hearing:

PANEL 1

  • JUDGE  PATRICIA A. JONAS
    Appellate Operations Executive Director, Deputy Chair, Appeals Council,
    Office of Disability Adjudication and Review, Social Security Administration
    Falls Church, VA
  • JUDGE  DEBRA BICE
    Chief Administrative Law Judge
    Office of Disability Adjudication and Review, Social Security Administration
    Falls Church, VA

PANEL 2

  • JUDGE   DOUGLAS S. STULTS
    Hearing Office Chief Administrative Law Judge
    Office of Disability Adjudication and Review, Social Security Administration
    Oklahoma City, OK
  • JUDGE   THOMAS W. ERWIN
    Hearing Office Chief Administrative Law Judge
    Office of Disability Adjudication and Review, Social Security Administration
    Roanoke, VA
  • JUDGE   OLLIE L. GARMON, III
    Regional Chief Administrative Law Judge (Region IV)
    Office of Disability Adjudication and Review, Social Security Administration
    Atlanta, VA

Sep 12, 2012

Witness List For Social Security Subcommittee Hearing

      Here is the witness list for the September 14 hearing before the House Social Security Subcommittee, with a little information about each witness:
     I suppose we can take it that the Subcommittee will hear extensively of the wonders of Ticket to Work despite the overwhelming evidence that Ticket to Work is a waste of money. Our representatives in Congress desperately want to hear from people who tell them that large numbers of people drawing Social Security disability benefits can be rehabilitated and returned to work. They are willing to spend great gobs of money pursuing this pipe dream so, of course, people appear who are willing to tell them what they want to hear can be found.

It's A Valid Policy Choice And We've Already Made It

     Charles Blahous, a Republican member of the pro forma Board of Trustees of Social Security, is out with a gloom and doom commentary. Here are some excerpts:
Social Security’s future, at least in the form it has existed dating back to FDR, is now greatly imperiled. The last few years of legislative neglect -- due to a failure of national policy leadership coming just as the baby boomers have begun to retire -- have drastically harmed the program’s future financial prospects. Individuals now planning their financial futures, whether as taxpayers or as beneficiaries, should be pricing in a substantial risk that the federal government will not be able to maintain Social Security as a self-financing, stand-alone program over the long term. If Social Security financing corrections are not enacted in 2013, or at the very latest by 2015, it becomes fairly likely that they will not be enacted at all. ...
A solution enacted today would require left and right to cede roughly twice as much ground as they did in the 1983 reforms, or one side must cede still more. Each year that passes, influential players must retreat still further from their preferred policies. At some point (which we may well be past already), one side, the other, or both will reach the limit of how much they are willing to swallow. ...
As another illustration of the growing difficulty of solution, let’s look at the competing approaches of containing cost growth and raising taxes. One longstanding proposal has been to slow future benefit growth to the rate of price inflation for high earners, while allowing low-income earners the higher growth rate of wage inflation, and leaving previous beneficiaries unaffected. But already now, even if we slowed everyone’s benefit growth – from the poorest to the richest – to price inflation, we could no longer maintain solvency while holding harmless those over the age of 55. ...
Advocates on the left sometimes argue to increase the amount of Social Security wages subject to the payroll tax. The most extreme version of this proposal would be to raise the amount of wages subject to the full 12.4% payroll tax -- $110,100 today – up to infinity. Yet even this drastic measure would now fail to keep Social Security in long-term balance as well. ...
If a financing solution cannot be reached, then Social Security’s self-financing construct would need to be abandoned. Assuming the program continues to pay benefits, it would have to permanently rely on subsidies from the general fund as Medicare now does. This would be a valid policy choice, but it carries unavoidable consequences. It would mean an end to one of the program’s foundational principles: the requirement that Social Security pay its own way through a separate trust fund. It would also mean an end to FDR’s conception of an “earned benefit” program in which workers were seen to have paid for their own benefits.
      Even though I think that Blahous is mostly expressing the traditional Republican wishful thinking that Social Security will eventually fail, I agree with him on most of what he has to say.  It would have been better if Social Security had continued to be funded by payroll taxes. I would prefer that additional layer of protection even though I don't think it's crucial.
     Blahous does not give any data to support his proposition that removing the cap on earnings will not close the long term gap. I have seen no study supporting this proposition. If true, it is probably only true in the sense that recent economic difficulties mean that removing the cap would only solve the problem for, let's say, 65 years instead of 75 years. The Office of Chief Actuary is good but the validity of projections that far out is limited since they are based in good part on guesswork about how the economy will go over long periods of time.
     My real disagreement with Blahous is that he is ignoring the fact that general revenue funding of Social Security, which he calls a "valid policy choice", is already a fact.  The F.I.C.A. tax has been reduced by 2% for almost two years with the difference made up out of general revenues.I see no sign that this is ever going away.
     I am reminded of the story of how Social Security's headquarters came to be in the Baltimore area rather than in Washington. A new Social Security headquarters building was under construction in Washington when World War II began. Because of the emergency, the building intended for Social Security was taken over by the War Department. Social Security was forced to stay in a temporary location in Baltimore. By the time the war was over, Social Security had become so settled in the Baltimore area that it has ended up staying for the last 67 years. With the "temporary" 2% reduction in the F.I.C.A. tax we have already moved to general revenue funding of Social Security. I don't expect that 2% to ever be restored. In fact, I expect general revenue funding to increase to make up any deficiencies in the Retirement and Survivor's trust fund. I don't like this any more than Blahous but I don't see what will keep it from happening.
     The argument that Social Security is just "welfare" grows stronger with general revenue funding but the core of the Republican party has never regarded Social Security in any other light. I don't expect that there will ever be the political will to cut benefits significantly or to restore that 2%, much less increase the F.I.C.A. tax or cut benefits significantly. Republican notions of privatizing Social Security are fantasies. We've already crossed the Rubicon with the 2% reduction in the F.I.C.A. tax. It was supposed to be temporary but it's rapidly becoming permanent. Increasing the general revenue funding is but a short additional step.
     As I have said before, the whole concept of Social Security comes from Otto von Bismarck in Germany. Social Security has survived in Germany since 1881 despite the devastating loss in World War I, the Great Depression which hit Germany as least as badly as the U.S., incredible hyperinflation, the rise of National Socialism, the devastating loss in World War II, the division of the Germany after the war, communism in the Eastern part of Germany and the eventual reunification of Germany. Yes, Germany's history, language and geography are different than ours but the two countries aren't as different as one might think. I can remember my father relating to me his experience as a G.I. in World War II. His service took him to England, France, the Netherlands and Germany. To his surprise, even though they had been his enemies and he could not speak their language, he found the Germans to be more like Americans than the people in any of the other countries he passed through. He felt more at home in Germany than in England. Social Security is just as secure in the U.S. as it has been in Germany for 131 years, regardless of the exact details of how it is financed.

Sep 11, 2012

Senate Subcommittee Schedules Hearing

     The Senate Homeland Security and Government Operations Permanent Subcommittee on Investigations has scheduled a hearing for September 13 to "examine issues related to the quality of disability benefit awards involving 300 case files of claimants under the Social Security Disability Insurance (SSDI) and Supplement Security Income (SSI) programs involving initial applications and subsequent levels of appeal." The Subcommittee is chaired by Senator Carl Levin of Michigan.

Continuing Resolution Introduced In House

     A Continuing Resolution (CR) has been introduced in the House of Representatives to fund government operations, including the Social Security Administration, through March 27, 2013. The House Appropriations Committee summary indicates that the operating budget of almost all federal agencies, including Social Security, will be reduced by 0.6% from the current Fiscal Year (FY) which ends on September 30, 2012.
     The CR itself in § 115(b) says that:
Of the amount made available by section 101 for ‘‘Social Security Administration—Limitation on Administrative Expenses’’, $483,484,000 is additional new budget authority specified for purposes of subsection 251(b)(2)(B) of the Balanced Budget and Emergency Deficit Control Act of 1985.
     I don't know what this means.

Sep 10, 2012

Watch Out For Pete Peterson's Astroturf Attacks On Social Security Disability

     R.J. Eskow writing in the Huffington Post outlines the progress made by Pete Peterson who is spending a billion dollars on a campaign aimed in large part at cutting Social Security and Medicare. Peterson's favorite tactic is "astroturfing", that is giving his effort the appearance of being a popular grass roots organization even though it is little more than one man's well-funded obsession. Even the President's convention speech was influenced by Peterson's effort. 
     It looks as if Peterson has recently turned his attention to the Social Security disability programs. At least, there is every sign of a well-funded public relations attack on the Social Security disability programs and Peterson is far and away the most likely person behind it. The problem for those who support Social Security is that action is required by 2016 to avoid the disability trust fund running out of money. The fix is easy but Peterson will try to use this deadline as an opportunity to force cuts in Social Security.

Sep 9, 2012

Updated Fee Payment Numbers

     Below are the numbers on payments of fees to attorneys and others for representing Social Security claimants. These fees come out of the back benefits of the claimants involved. A fee is paid at about the same time as the back benefits are paid to a claimant who has been approved so this is an indication of how fast or slow that Social Security is processing claimants onto benefits after approval.

Fee Payments

Month/Year Volume Amount
Jan-12
29,926
89,749,312.99
Feb-12
43,946
134,207,416.10
Mar-12
47,376
139,571,577.57
Apr-12
38,239
113,225,483.07
May-12
37,648
112,446,283.39
June-12
43,816
128,559,225.66
July-12
33,342
97,458,955.82
Aug-12
41,441
119,484,061.59