It's Back

     Early in Michael Astrue's term as Commissioner, Social Security proposed a number of changes to its rules concerning the Appeals Council. The most controversial of these was a proposal to limit appeals to closed periods only, that is, if a claimant received a remand after making an appeal, the remand would only concern benefits up to the point of the original decision. A favorable decision on remand would only give the claimant a lump sum of benefits up to the date of the original denial. The proposal would also have limited the ability of claimants to submit additional medical evidence after the date of a hearing to five days but would have given claimants 75 days notice of hearings. Astrue backed off the more controversial portions of the proposal but never withdrew the whole thing. It hung fire. It's back now. As Astrue is leaving office, he's sending that proposal over to the Office of Management and Budget (OMB), presumably with some amendments. With OMB's approval, the rule can be published in the Federal Register as a final rule. There's no way to know what ended up in the final rule.

     OMB is not going to act on this until after Astrue has left office. The new Commissioner, whoever he or she may be, will have a chance to withdraw this proposal for further study or to kill it.

Former SSA Employee Sentenced For Defrauding Agency

     From KMOV.com:

A former attorney for the Social Security Administration is now in deep trouble for defrauding the agency out of benefits.

37-year-old Robert Brauker’s punishment was handed down on Tuesday. Brauker was sentenced five years probation, lost his law license in Missouri, and he must pay back the government $9,244.

Brauker worked for Social Security at the North St Louis office on Goodfellow for about a year until March 2011. During that time, he was collecting disability benefits from Social Security.

Disability Recipients Concealing Self-Employment Income

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

Our objective was to identify individuals receiving Disability Insurance (DI) benefits who participated in self-employment activities and concealed the income by reporting it under another person’s Social Security number (SSN). ...

We reviewed a sample of 50 beneficiaries who reported SEI [Self Employment Income] before they were approved for DI benefits and had a spouse or child who reported SEI after the beneficiary was approved. Our review did not find any instances where beneficiaries concealed SEI by reporting it under a child’s SSN. However, our review found that 5 (10 percent) of the 50 beneficiaries were engaged in self-employment activities and concealed their income by reporting it under their spouse’s SSN. Of these five, we determined that three beneficiaries received improper payments of $348,000, and their auxiliaries received an additional $77,000. ...

The analysis we undertook for a sample of beneficiaries was labor-intensive and yielded a small number of beneficiaries who were actually concealing SEI. Therefore, we cannot recommend that the Agency integrate such a process into its procedures. However, we would be willing to work with SSA to develop a more sophisticated method for profiling cases where individuals are concealing SEI while receiving DI benefits.

Should Social Security Have A Role In Preventing Gun Violence?

     There seems to be widespread agreement that it would be best to keep guns out of the hands of those who are severely mentally ill. The problem is identifying those who are severely mentally ill. If only there were some government agency that had a database of people suffering from severe mental illness. I think I know of such a government agency. Social Security has a database of those who are drawing disability benefits and they are further identified in that database by primary diagnosis. I don't think that current Social Security policies allow data sharing for the purposes of keeping firearms out of the hands of those who are severely mentally ill but the Privacy Act has an exception that allows release of information for "law enforcement" purposes. Could that be interpreted to include gun background checks? I have heard nothing to suggest that the White House is considering the idea of using Social Security records to identify individuals who should not be allowed to buy guns. The idea may never be considered. It probably has drawbacks but I really don't like the idea of guns in the hands of schizophrenics.

Chicago Regional Office Loses Daycare

     Social Security's Regional Office in Chicago is losing its on-site daycare center. (Social Security provided the space to the provider. Parents pay the daycare charges.) Citing the agency's budget problems, Social Security is refusing to continue to give the daycare provider space in the building.
     In one sense, I understand; the agency's budget is ridiculously tight. In another sense, I don't understand. What is Social Security going to do with the space? It's not like the agency needs the space for a growing workforce. Its workforce is declining. I'm sure many of the building's employees are already upset over the closure of this daycare center. How are they going to feel if that space sits vacant for years after the daycare center closes? Is Social Security planning to lease out space in the building?
     I wonder whether this is a decision that might get reversed after Michael Astrue leaves office.

Debt Ceiling Threatens Payment Of Benefits

     President Obama warned today that if the debt ceiling is not raised, Social Security checks will be delayed. We will probably be at the debt ceiling by February 15, 2013. The first payment after that date is February 20 but it's not clear that payments would go out on February 13, the last payment date before the 15th, since that money may be needed for debt servicing due on February 15. The bond holders have to come before Social Security recipients because the 14th Amendment provides that the public debt cannot be questioned.

Astrue Timeline

     Below is a timeline I have compiled on Michael Astrue's term as Commissioner of Social Security. Perhaps more important than any of the items on the timeline is Social Security's budget situation but that does not lend itself to a timeline. The budget situation during Astrue's term can be broken down into three two-year time periods:

• 2007-2008 -- George W. Bush is President and resurgent Democrats control Congress. Despite serious funding needs and despite the fact that his agency has officially asked for more money than the amount the White House is asking for, Astrue tells a somewhat skeptical Congress that he only wants for his agency what the White House is asking for. This is still far better than what Social Security had been receiving before the 2006 Congressional elections when Republicans controlled both the White House and Congress and were unwilling to give the agency what President Bush had asked for.
• 2009-2010 -- Barack Obama is President and Democrats control Congress. Social Security receives far better appropriations than it has received in many, many years. Social Security hires some employees but relies heavily upon overtime to dramatically work down backlogs. Astrue makes spending on information technology an extremely high priority. This includes construction of a new National Computing Center, which seems to be Astrue's highest priority.
• 2011-2012 -- Barack Obama is President. Democrats have a majority in the Senate. Highly confrontational tea party Republicans control the House of Representatives. Appropriations become the primary focus of a running battle between the President and House Republicans. Social Security's appropriations suffer badly. How hard Astrue fights for appropriations is hard to gauge. Certainly, he could have been more public about the fight. The agency's workforce, which had never increased that much even between 2009 and 2010, begins to dwindle. Overtime becomes scarce. Backlogs begin to creep up. As Astrue prepares to leave office, overtime has almost disappeared and backlogs are worsening dramatically.

     And here's the more traditional sort of timeline for Astrue's term as Commissioner:

• September 14, 2006 -- Astrue nominated to become Social Security Commissioner by President George W. Bush.
• January 24, 2007 -- Hearing on Astrue nomination. Astrue promises to reduce the hearing backlog. Astrue testifies that he believes that "brute force" in the form of additional manpower will be needed to deal with backlogs. Astrue promises to meet with employee union leaders. Astrue promises to meet with employee union leaders.
• February 2, 2007 -- Astrue confirmed as Commissioner.
• March 2007 (not sure of exact date) -- Astrue fires Martin Gerry, a key aide to former Commissioner Barnhart, who had tried to hang onto his job. Astrue has Gerry escorted out of the building by a security guard.
• May 29, 2007 -- Astrue announces plan to reduce hearing backlog.
• July 18, 2007 -- Astrue appoints Dr. David Gray as Deputy Commissioner for Disability and Income Security Programs. 
• July 31, 2007 -- Social Security announces compassionate allowance program.
• August 2, 2007 -- Dr. Gray resigns.
• August 2007 -- AFGE, the union that represents most Social Security employees, is already complaining that Astrue's staff is refusing to meet with union leaders.
• August 15, 2007 -- Astrue suspends new cases going to former Commissioner Barnhart's Disability Service Improvement plan.
• October 10, 2007 -- Astrue has a very unfriendly meeting with the head of the Association of Administrative Law Judges.
• October 29, 2007 -- Astrue has proposed regulations published that would limit Appeals Council remands in Social Security disability cases to a closed period only.
• November 29, 2007 -- Astrue's staff sends out "high priority" e-mails to staff telling them to never use "impact" as a verb regarding people. 
• January 22, 2008 -- Social Security releases report calling for an ALJ quality assurance program.
• January 29, 2008 -- Bowing to Congressional pressure, Astrue suspends the proposed regulations that would limit Appeals Council remands to a closed period only.
• July 9, 2008 -- Office of Management and Budget clears proposed mental impairment listings for Social Security. The proposal is never published in the Federal Register. No doubt they would have been published had McCain been elected President and no doubt they would have been very unfavorable to claimants with mental illness.
• September 8, 2008 -- Social Security publishes proposed regulations on the recognition of law firms and other entities as representing Social Security claimants. The proposal is incomprehensible and clearly unworkable.
• October 11-13, 2008 -- Social Security online systems shut down for maintenance, hindering voter registration efforts shortly before the election. Democrats are upset. Astrue refuses to delay the maintenance.
• November 4, 2008 -- Barack Obama elected President.
• December 11, 2008 -- Astrue says he's staying as Commissioner despite the election of Barack Obama as President. Most had expected him to leave. Obama had wanted him to leave. 
• February 5, 2009 -- AFGE, frustrated that Astrue is hanging on as Commissioner, runs full page ad in the Baltimore Sun calling on Astrue to resign.
• March 24, 2009 -- Members appointed to Occupational Information Development Advisory Panel (OIDAP) which is supposed to work on creating an occupational information system to replace the Dictionary of Occupational Titles (DOT), a key element in disability determination. 
• July 16, 2009 -- ABC runs story on lavish Social Security management conference in Phoenix. 
• August 12, 2009 -- Class action on fugitive felons settled. $500 million in back benefits paid to 80,000 recipients.
• September 14, 2009 -- Astrue criticizes the "callous Kumbaya attitude" behind states having financial problems furloughing personnel making disability determinations for Social Security even though all salaries and costs for these employees are borne by Social Security.
• October 15, 2009 -- Astrue issues statement supporting President Obama's plan for $250 payments to Social Security beneficiaries.
• March 17, 2010 -- Astrue revealed to be a poet who has published under the pen name of A.M. Juster, an anagram of M.J. Astrue.
• July 11, 2010 -- New York Times reports on rift between Commissioner and Chief Actuary Stephen Goss.
• August 19, 2010 -- Social Security publishes proposed revisions to its mental impairment Listings. In the proposal, the word "or" in “Maintaining concentration, persistence, or pace" are changed to "and" making the listing far harder to meet. Social Security tries to maintain that no substantive difference was intended. No one believes this. The proposal is harshly criticized in many quarters. The proposal remains pending as Astrue leaves office.
• November 2, 2010 -- Republicans win big in midterm elections, retaking control of the House of Representatives.
• May 19, 2011 -- ALJ in West Virginia who rarely denies disability claims featured in Wall Street Journal article.
• May 28, 2011 -- Astrue says that his agency's budget situation is enough to induce "sheer panic."
• June 5, 2011 -- Astrue refers to critics of the agency's child SSI disability policies as “old-line left-wingers’’ with “a ’60s mentality.’’
• July 19, 2011 -- Social Security's Chief Information Officer abruptly resigns after Astrue removes most of his responsibilities in a major shakeup of information technology at Social Security.
• December 14, 2011 -- Astrue decides to begin withholding the identity of the ALJ scheduled to hold a hearing.
• May 15, 2012 -- Astrue revealed to be a big fan of Elvis.
• May 17, 2012 -- Astrue testifies before Senate Finance Committee that attorneys representing Social Security claimants have no legal obligation to submit adverse evidence on their clients.
• June 6, 2012 -- OIDAP ends.
• August 8, 2012 -- OIDAP issues final report that repeatedly calls for transparency, something that critics have said has been sorely lacking with OIDAP itself and generally with Social Security's project to create an occupational information system.
• September 28, 2012 -- Social Security signs agreement with the Department of Labor (DOL) to begin a process for the DOL to produce an updated occupational information system for Social Security, marking the end of the Commissioner's go it alone plan.
• October 31, 2012 -- The ARC [formerly Association for Retarded Citizens] awards Astrue its President's Award. This award amazes those familiar with Social Security's policies on mental retardation during Astrue's term as Commissioner.
• December 18, 2012 -- Astrue's "secret ALJ" policy crumbling as agency is forced to settle a Freedom of Information Act lawsuit on the issue.

NY Times Argues Against Chained CPI

     From today's NY Times editorial page:

At the end of last year, just shy of the 11th hour in the fiscal cliff negotiations, President Obama made an offer that included a Republican-backed idea to cut spending by lowering the cost-of-living adjustment for Social Security benefits. The move shocked Congressional Democrats and dismayed Mr. Obama’s liberal base. 

The offer, however, was rejected by House Republicans who could not stomach the tax increases and other concessions that Mr. Obama demanded as part of the deal. The talks moved on, and when all was said and done, Republicans did not get the lower cost-of-living adjustments (known as COLAs) and Mr. Obama did not get the concessions he had sought.  

But that is not the end of the story. As the next round of deficit reduction talks gets under way, the administration seems determined to include the COLA cut in any new package of spending reductions. Rather than using the issue as a bargaining ploy, the administration appears to have embraced it as a worthy end in itself.

Is it? In a word, no.

That is not to say that Social Security should be off the table. There are reforms that are eminently sensible, if only the political will could be found to enact them. But reducing the COLA is not a sound idea now and may never be....

The administration and other proponents of switching to a chained C.P.I. contend that it is a technical fix in the interest of greater accuracy, not a benefit cut per se.

But that claim does not stand up to scrutiny. The chained index is in many ways a better method of tracking price changes for the broad working population, but there is no compelling evidence that it is better for computing the Social Security COLA.

What is known is that elderly households tend to have lower incomes and lower expenditures than younger households, and that more of their purchases are for needs that cannot be met by switching to products and services in unrelated categories. That indicates that they do not have the same flexibility as younger households to respond to price changes while still maintaining their standards of living. ... 

Social Security Settles Class Action On Low Approving ALJs

     From the New York Times:

Thousands of poor Queens residents with debilitating conditions who were denied federal disability benefits would have their cases reconsidered, under a settlement proposal in a class-action lawsuit that accused judges of bias. 

The lawsuit claimed that five administrative law judges with the Queens office that reviews claims for Social Security benefits had presided over hearings that trivialized the applicants’ physical and mental impairments and subjected them to harsh questioning that often brought them to tears. Now, in a settlement accepted by the plaintiffs and the Social Security Administration, the agency has agreed to remove the judges from those cases, allowing applicants — many of whom have been unable to work for years — to appear before new judges. As part of the settlement, the administration would enact new policies against bias and establish a special unit to monitor disability claims for the next 30 months.  ...

However, one of the judges named in the lawsuit, David Z. Nisnewitz, was replaced as the chief of the Queens review board after the lawsuit was filed. As part of the agreement, he and the other four judges named — Michael D. Cofresi, Seymour Fier, Marilyn P. Hoppenfeld and Hazel C. Strauss — would be retrained....

Lawyers with the firm Gibson, Dunn & Crutcher, which handled the suit pro bono, and the Urban Justice Center, a nonprofit group, estimated that more than 4,000 cases — applicants who were denied benefits between January 2008 and the date of the settlement — would be reconsidered. ...

[T]he Queens board is already changing its ways. Before the suit, Judges Cofresi and Fier denied over 60 percent of the applications before them; those rates have dropped by more than half. The denial rates of Judge Nisnewitz and Judge Hoppenfeld also declined. Only the rate of Judge Strauss, who denied more than 80 percent of claims before the lawsuit, increased: In the most recent quarter, she denied 90 percent.

      I first posted about this class action lawsuit at the time it was filed in April 2011. I didn't say so at the time but I thought it quixotic. Hats off to Gibson, Dunn & Crutcher and the Urban Justice Center.
     Here are the denial rates -- not allowance rates but denial rates -- of the individual ALJs involved at the time the class action was brought:

• Strauss 81%
• Fier 63%
• Cofresi 63%
• Nisnewitz 62%
• Hoppenfeld 48%

Another Crisis Averted

     From the Washington Post:

Turn up your noses if you must, but this is one of those tales that can only occur in that vortex of life, work and bureaucracy.

The Social Security Administration reprimanded an employee last month for allegedly creating a “hostile work environment” by regularly passing gas at the office, according to an official letter sanctioning the worker.

The Smoking Gun Web site published the document online. The agency said it withdrew its action against the employee before the letter was publicized, but officials did not respond to requests for a date of the rescinding action.

“When senior management became aware of the reprimand it was immediately rescinded,” agency spokeswoman Dorothy J. Clark said in an e-mail.