When Will We See The Trustees Report?

     When will we see the report of the Social Security Trustees? Last year it was released on July 28. In 2013, it was released on May 31. In 2012, it was released on April 23. When will it be this year? August?

     This is ridiculous. I'm sure that the main part of the report, the projections of Social Security's Chief Actuary, was ready months ago. Last year, there were rumors of wrangling behind the scenes. The Republican trustees were pushing some obscure agenda on exactly what the report would say. I never understood what the Republican Trustees were trying to achieve. What little I could understand seemed to amount to nothing anyway. Is there another controversy this year as Republicans push some language that would make the Trust Funds look like they're a little worse off than the language the Democratic Trustees would prefer? If so, it's silly. Virtually no one pay attention to anything other than the bottom line and few people pay attention to that. This isn't legislation where every word can make a difference.

Busted!

     I have written before to warn that some comments on this blog appear to have been authored by a person or person who pretends to be a current or former Social Security employee with actual knowledge of conditions at Social Security. There are a fair number of these posts which ring false to me but I only call out those that go beyond implausible. Here's one:

One case I remember was a mother receiving SSI benefits for a year and a half for a child she had given up for adoption at birth. Benefits were ceased for failure to cooperate. I had the case at the recon level (of course Mom asked for benefit continuation) and discovered this to be the case when I wrote to the hospital where the baby was born and the pediatrician they sent records to. Not only was there fraud on her part but her parents and other relatives withheld information.

     Let me list the problems here:

• How does the birth mother get SSI benefits for a child she gave up at birth? The child would have to be quite sick. How would the birth mother know what was wrong with the child? How would she know where the child was being treated? Without this information, the birth mother can't get benefits. I can imagine the possibility of an open adoption where the birth mother would have some of this information so I'll just call this improbable.
• Doesn't the disability examiner notice the adoption when reviewing the medical records at the time the claim is filed? I have seen medical records on sick children. Pediatricians pay attention to the parents of sick children and mention facts like adoption in the medical records. In the case of a very sick child, I'm expect that adoption would be prominently mentioned in the medical records. Maybe the disability examiner missed this but it's improbable.
• Why would benefits be ceased for failure to cooperate a year and a half into benefit payments? Normally, a denial for failure to cooperate is something that happens when a case is first being adjudicated. This could happen but it's another improbability.
• The person writing this is posing as a current or former Social Security field office employee but says that he or she wrote to the hospital where the baby was born. That's not something that field office employees do. It's hard to imagine why the field office employee would even want to do this. This one is highly improbable. It sounds like it was written by a person lacking a firm grasp of the role of the field office versus the role of disability determination.
• Most important, there's no benefit continuation for a failure to cooperate cessation. This one is beyond improbable. It's impossible. Even if benefit continuation did exist for this circumstance if the birth mother could ask for benefit continuation she could certainly avoid cessation for failure to cooperate. Again, this sounds like it was written by someone who lacks a firm grasp of basic Social Security law and procedure.

     Be careful when reading comments to this blog. Some commentators are pretending to have knowledge they lack. This seems to happen every time I write about anything relating to the incidence of fraud at Social Security. The poseurs could be Congressional staffers. They could be "think tank" employees. They could simply be paid shills and, yes, people are paid to write comments like this on blogs and newspaper articles. Posing as a government employee with inside knowledge is a common tactic.

Many Allegations But Little Substance

Here's a table from a recent report filed with Congress by Social Security's Office of Inspector General (OIG). Notice the huge disparity between the number of allegations received and the number of actual investigations much less criminal convictions. No, I don't think that disparity is because OIG fails to aggressively pursue cases of fraud. I think it's because there's little substance to most allegations of fraud. Republicans can spin it all they want but given Social Security's size, the amount of verifiable fraud at the agency is tiny.

Misleading AP Story On Overpayments

     Here's the lead sentence from the AP article on the Office of Inspector General (OIG) report on overpayments in Social Security's Disability Insurance Benefits program "Social Security overpaid nearly half the people receiving disability benefits over the past decade, according to a government watchdog, raising questions about the management of the cash-strapped program."

     This could have been the AP lead sentence "Only 3% of Social Security disability benefits are paid incorrectly and the Social Security Administration is able to recoup 85% of the benefits paid incorrectly." That's also what the OIG report showed. Of course, that wouldn't have been the lead sentence because it's boring. It also wouldn't have been the lead sentence because the AP writer was clued into the OIG report by some Republican operative who heavily emphasized the "nearly half" part even though it's misleading. 

     Let's say there was a study showing that over a 10 year time period 22% of drivers were caught driving drunk at some time. There isn't such a study as far as I know but let's say there was. Would it be fair and reasonable to have the lead sentence on an article about that study that reads "Nearly a quarter of all people who drove over the last ten years were found to be driving drunk, raising questions about law enforcement on our dangerous highways." I would say no. First, 22% isn't nearly a quarter, any more than 44% is nearly half. More important, if 22% of drivers have been caught driving drunk, law enforcement is doing its job in catching people driving drunk. There's no reason to question what law enforcement is doing. For the same reason, there's no reason to question the Social Security Administration's efforts to detect and prevent overpayments. Most important, the hypothetical lead sentence is misleading since it suggests that at any given time that nearly one quarter of drivers are drunk and that's not what the hypothetical study showed. By the same token, the OIG didn't show that at any given time 44% of benefits recipients are being overpaid as the AP story implies. The AP story is misleading.

OIG Report On Overpayments

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

Our review of 1,532 beneficiaries in current pay status as of October 2003 found that over a 10-year period (from October 2003 through February 2014), SSA [Social Security Administration] assessed overpayments for 44.5 percent of sampled beneficiaries. Based on the sample, we estimated

• SSA assessed overpayments totaling about $16.8 billion between October 2003 and February 2014 for approximately 4 million beneficiaries who were in current payment status in October 2003 ;

• SSA recovered about $8 .1 billion of the $16.8 billion in overpayments it assessed ; and

• SSA prevented about $8 billion in overpayments between October 2003 and February 2014 to approximately 1 million beneficiaries in current pay status in October 2003 by suspending monthly payments.

Additionally, the overpayment rate in Fiscal Year 2004 was 3.1 percent of all benefits paid that year.

     The report goes on to note that although it can take time, after ten years Social Security had been able to recover 85% of the overpayments made in 2003. Many of the overpayments were, as the report puts it, unavoidable because the individuals received interim benefits while they appealed benefit terminations.

I Think I Know Why Eric Conn Hasn't Been Prosecuted -- He's A Doofus

     I can't remember much from my law school class on criminal law but I do remember that prosecuting someone for fraud is awfully difficult. You have to prove that the defendant intended to deceive, did deceive and that the deception caused harm. That's a lot to prove beyond a reasonable doubt. Let's look at some of the problems involved in prosecuting Eric Conn for fraud.

     Was Social Security really deceived? Social Security's Administrative Law Judges (ALJs) aren't stupid. When they see the same type of odd-looking evidence submitted repeatedly they ask questions. They also tend to come to conclusions about that evidence. In my book, I advise against attorneys sending all their clients to one physician for medical examinations. Even if everything is above board, this looks bad to ALJs. They heavily discount the evidence. In Conn's case, I would hazard a guess that the ALJs who were receiving the medical "reports" that Conn is alleged to have submitted would testify that they knew the reports were bogus and paid no attention to them. If you wonder why Social Security couldn't recognize that Conn was acting fraudulently, maybe the answer is that they did realize it but thought what Conn was doing was a farce. Conn wasn't winning because of the allegedly phony reports but despite them.

     Can what Conn is alleged to have done be considered deceptive when it is little different than what Social Security does routinely? Most Social Security disability claim files at the hearing level contain "opinions" offered by physicians at the initial and reconsideration levels. These physicians never see the claimants. The opinion forms are usually filled out by a non-physician disability examiner and then routinely signed off on by the physician. Workloads are such that it is impossible for the physicians to actually review the medical evidence in most cases. The physicians or, more accurately, the disability examiners rely upon Social Security RFC (Residual Functional Capacity) guidelines in filling out the forms. In theory, the RFC guidelines don't exist. Social Security denies that they exist. Yeah, right. Does Social Security want some of these physicians on the stand testifying under oath about the RFC guidelines? Not only do the opinions of Social Security's physicians appear in the files but Social Security has told ALJs that these physicians are "experts" whose opinions must be considered and that their opinions may be entitled to more weight than that given to the opinions of treating physicians. How is what Social Security does any different than what Conn is alleged to have done, other than the fact that Conn, unlike Social Security, was in no position to demand that ALJs treat the opinions with more respect than they deserved?

     Would the decisions have been any different if Conn had not submitted the questionable opinions? Much attention has been paid to the fact that ALJ David Daugherty was approving essentially all of Conn's clients. Little attention has been paid to the fact that Daugherty was approving essentially all of every other attorney's clients as well. No one is alleging that the other attorneys were submitting the same sort of medical reports that Conn is alleged to have submitted. I think a jury would probably conclude that the questionable opinions were of no consequence; Daugherty would have approved the cases without the opinions Conn submitted.

     To me, Conn doesn't look like a criminal. He looks like a doofus whose only real skill is self-promotion. He couldn't figure out that his silly scheme was ineffective and would look criminal to a many people.

Social Security Folds

     WYMT-TV reports that "Social Security Administration officials announced Thursday disability benefits for hundreds of Appalachian residents will be restored."

Television Coverage For Kentucky Fiasco

     The local television station is covering the fiasco in Kentucky.

But We've Really Been Pressed By Republicans In Congress To Do Something!

     From the Lexington Herald-Dispatch:

The Social Security Administration has until 5 p.m. Thursday to respond to attorneys who seek an injunction to block the immediate suspension of disability benefits to more than 900 people, according to a court order entered Wednesday. ...

U.S. District Judge Amul R. Thapar scheduled a telephonic hearing on the injunction for 3 p.m. Friday.

[The attorney's] motion, filed late Tuesday, linked as many as three suicides to the suspension notices. He first learned of an Ivel, Ky., man's death, whose widow he cited in saying the client shot himself Monday. ...

U.S. Rep. Evan Jenkins, R-W.Va., and U.S. Rep. Hal Rogers, R-Ky., called upon Social Security to give each person more time to provide medical records to support their original claim, according to letters sent to Social Security's Acting Commissioner Carolyn Colvin. ...

I Have A Feeling

     Why do I have a feeling that Social Security management expects the U.S. District Court to enter a preliminary injunction preventing the agency from summarily cutting off disability benefits to 900 of Eric Conn's former clients and that agency management will be relieved when that happens?

Today's Congressional Hearing

     Here's the witness list for the hearing at 10:00 EDT before the Human Resources Subcommittee of the House Ways and Means Committee:

Panel 1

• Rep. Sam Johnson (R-TX)
  Rep. Kevin Brady (R-TX)
  Rep. Dave Reichert (R-WA)
  Rep. Xavier Becerra (D-CA)
  Rep. Tom Reed (R-NY)
  Rep. Jim Renacci (R-OH)
  Rep. Rosa DeLauro (D-CT)

Panel 2

• Patrick P. O’Carroll, Jr., Inspector General, Social Security Administration
• Dan Bertoni, Director, Education, Workforce, and Income Security Issues, Government Accountability Office
• Curt Eysink, Executive Director, Louisiana Workforce Commission
• Debra Rohlman, Vice President of Government Sales, Equifax Workforce Solutions
• Rebecca Vallas, Director of Policy for Poverty to Prosperity Program, Center for American Progress

     Let me explain one thing. The Human Resources Subcommittee of the House Ways and Means Committee has jurisdiction over Supplemental Security Income but not Social Security which has its own Subcommittee. Occasionally the two Subcommittees hold joint hearings but this isn't a joint hearing. There may be testimony today touching on Social Security but this Subcommittee can't advance legislation dealing with Social Security.

Take It Up With The Department Of Justice

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

Between February 1962 and January 2015, SSA paid $20.2 million in benefits to 133 individuals alleged, or found, to have participated in Nazi persecution. This occurred because the Social Security Act did not prohibit the payment of most of these benefits when they were paid. The $20.2 million in payments included $14.5 million paid to 95 beneficiaries who were not deported and $5.7 million paid to 38 beneficiaries who were deported. 

Ways And Means Schedules Hearing For Wednesday

     From a press release:

Today, Ways and Means Human Resources Subcommittee Chairman Charles Boustany (R-LA) announced that the subcommittee will hold a hearing titled, “Protecting the Safety Net from Waste, Fraud, and Abuse.” The hearing will take place at 10:00 a.m. on Wednesday, June 3 ...  

In view of the limited time available, oral testimony at this hearing will be from invited witnesses only. Witnesses will include Members of Congress with reform proposals as well as experts on the operation of the Supplemental Security Income (SSI) and Unemployment Insurance (UI) programs. ... 

In announcing the hearing, Chairman Boustany stated, “The SSI and UI programs annually waste billions of dollars due to improper payment rates that average around 10 percent year after year. It’s long past time that we identify the causes and start implementing real reforms to improve the integrity of these programs. That will benefit taxpayers, but especially those who most need this assistance.”

Class Action Lawsuit Over Terminations Of Benefits

     A class action lawsuit has been brought against the Social Security Administration over the termination of benefits which had been going to approximately 900 firmer clients of Eric Conn. 

     Meanwhile the Lexington Herald-Leader has run an editorial criticizing Social Security for cutting off these benefits but not prosecuting Conn. It's not just me who finds it peculiar that the evidence exists to justify summarily cutting 900 people off benefits but the evidence doesn't exist to suspend Conn from practicing before Social Security, a civil matter which would only require proof by a preponderance of the evidence, much less to bring criminal charges against him. Social Security can yell "It's fraud! It's fraud!" all they want but this doesn't make sense.

A Recruiting Poster

Legal Action Under Way In Eric Conn's Cases

     Some of Eric Conn's clients are suing him. There's also talk of seeking a court order to prevent Social Security from summarily cutting off benefit payments to 900 of Conn's former clients.

Exactly How Is Social Security Trying To Cut 900 Former Clients Of Eric Conn Off Disability Benefits?

     I'm curious about exactly how the Social Security Administration is approaching the 900 or so cases in Kentucky and West Virginia in which it is trying to take away disability benefits from claimants who had been represented by Eric Conn. I wonder if some reader knows how, procedurally, the agency is doing this.

     Here are the possibilities that come to my mind and the problems associated with those possibilities:

• Reopening under 20 C.F.R. §§404.988(b) and 404.989 due to new and material evidence that some medical reports submitted by Conn were phony. This would be limited to cases where the initial determination (not the ALJ decision) was issued in the last four years. The argument could be made that Social Security already knew that the medical reports were phony. I don't know for sure but I suspect that the local ALJs would testify that everybody already knew, at least in rough terms, what was going on. Of course, if the ALJ decision relied upon the allegedly phony report, this might not matter. I suppose this is the most likely route. The claimants could still prove they were disabled anyway and most probably would.
• Reopening under 20 C.F.R. §404.988(c)(1) on the grounds that the favorable decisions were obtained by "fraud or similar fault." If Social Security has proof of "fraud or similar fault" how is Eric Conn still practicing before the agency?
• Termination of benefits under 20 C.F.R. §404.1579(d)(3) based upon a determination that the original decision putting the claimant on benefits was "in error." The problems here are that benefits could not be terminated retroactively without meeting the criteria specified above for reopening, the claimants would be eligible for interim benefits while they appealed their terminations and the agency would bear the burden of proving the "error."

     I know that all this may sound like a bunch of legalese but Social Security has to follow its own rules. You'll notice from what I've posted earlier and from many of the comments on my post that most lawyers think that cutting these folks off benefits is no slam dunk. There are reasons that Social Security is just now getting trying to do this. And remember, Social Security won't have an attorney present at any ALJ hearings on these issues and the attorneys representing these claimants will keep asking again and again why Social Security is going after the claimants but not going after Eric Conn directly.

     Update: This newspaper article suggests that Social Security is taking the third route, termination, since the 10 day window to get interim benefits applies only to terminations.

Claimants Caught In The Crossfire

     From the Lexington Herald-Dispatch:

The Social Security Administration confirmed Wednesday its review of disability benefits for approximately 1,500 cases, all tied to Kentucky attorney Eric C. Conn and former Social Security administrative judge David B. Daugherty.

The action suspends Social Security Disability Income (SSDI) benefits to more than 900 individuals and their auxiliaries, while payment to others receiving Supplemental Security Income (SSI) or a combination of both will continue as the review proceeds.

     Let me explain why Social Security's action is problematic. Eric Conn isn't guilty because 60 Minutes and a Congressional committee say he's guilty. The Social Security Administration has to bring charges against him, either to indict him for a crime and then convict him or to bring an action to suspend him from practicing before the agency and succeed in getting him suspended. Conn hasn't been indicted. So far, he hasn't been suspended from practicing before the agency. Social Security doesn't have the evidence to go after Eric Conn. However, the agency does have the evidence to summarily cut 900 people off benefits?
     Even if we assume that Conn is guilty as sin, that doesn't mean that his clients are guilty of anything or that they weren't disabled. What is alleged is that Conn got phony reports from doctors. Probably, his clients were unaware that Conn was doing anything wrong. More important, even if they were aware that Conn was doing something wrong, they may still be disabled. The allegation is that Conn was routinely obtaining and submitting phony medical reports on his clients. Adding a phony medical report to a file doesn't negate all the other evidence in the file. In most cases Conn would have been gilding the lily.
     From the point of view of an experienced Social Security attorney, what Conn is alleged to have done was just stupid. He was going to win most of the cases anyway. Obviously phony evidence might have impressed an Administrative Law Judge (ALJ) or two but it would have antagonized many other ALJs. His alleged scheme would have cost a lot of money, been of dubious utility and subjected him to a big criminal risk. Instead of trying to make a living representing Social Security claimants, Conn is alleged to have used illegal means to try to make a killing. Bad career move.
     I worry that the claimants whose benefits are being cut off are being caught in a crossfire. Social Security wants to destroy Conn. Cutting many of his former clients off benefits will probably destroy Conn's ability to get new clients. Social Security can also demand back the attorney fees that Conn has received in those cases, destroying Conn financially. Conn may have it coming but I doubt that his former clients deserve this treatment.

Hatch Introduces Bill To Force Social Security To "Modernize" Grid Rules

     From what appears to be a press release:

Senate Finance Committee Chairman Orrin Hatch (R-UT) introduced three bills on Wednesday, each aimed at improving the administration and integrity of the Social Security Disability Insurance (SSDI) program. Essentially, Hatch’s legislation modernizes the antiquated “grid rules,” which have been used for many years to determine the level of disability and eligibility for the program. The bills also simplify the benefit process and create a medical-evaluation standard on par with Medicare.

“For far too long, the SSDI program has failed to keep up with the rapid changes in medicine, technology and education,” Hatch said. “These bills are the first step in modernizing the SSDI program to make it more effective and efficient for both beneficiaries and taxpayers.”

The Guiding Responsible and Improved Disability Decisions (GRIDD) Act would require the Social Security Administration (SSA) to update the medical and vocational grids that are used by disability decision makers. (The “grid rules” take a number of quality-of-life issues into account to determine whether an individual is or is not disabled, but the rules were originally written in 1979 and have never been updated to today’s standards).

The Promoting Opportunity Through Informed Choice Act would create a support system for disability beneficiaries who want to return to work by mandating that the SSA develop public online tools to assist beneficiaries.

The Disability Evidence Integrity Act would discourage the SSA from making determinations on whether disabled individuals should receive Disability Insurance benefits based on any evidence provided by those who have been convicted of a felony or are otherwise disqualified from participating in a federal health care program.

     Notice what's going on here. Hatch and other Republicans are afraid to say they want to cut Social Security disability. No, they use the euphemism "modernize" but, trust me, this is about making it significantly harder to get on disability benefits. And it's not just the use of a euphemism; they want to keep their fingerprints off the unpleasantness that results from the "modernizing." They want to force the executive branch to do the "modernizing." They'll then blame the executive branch for the resulting public anger. Nice jujitsu move if they're allowed to get away with it. Also notice how it appears that they're timing the introduction of this bill to coincide with what's going on in Kentucky. I don't think that's coincidental.

There's Not Enough Evidence To Charge Eric Conn With Any Wrongdoing But There Is Enough Evidence To Throw More Than 800 Of His Clients Off Benefits?

     From the Lexington Herald-Leader:

The federal government has moved to suspend disability payments to some people in Eastern Kentucky whose cases were handled by Floyd County attorney Eric C. Conn, citing suspected fraud by Conn and doctors whom his clients often consulted.

Attorneys familiar with the issue said it was possible that several hundred people received suspension notices from the Social Security Administration. ...

Conn's attorney, J. Kent Wicker, said Tuesday that a multiyear investigation of Conn's practice had concluded "without any finding of fraud or other misconduct."

Wicker said the Social Security Administration has directed that some cases should be returned to an administrative law judge for review, which he called an "unfortunate and unnecessary move." ...

The Social Security Administration, or SSA, did not respond to requests from the Herald-Leader for information about the suspension letters Friday or Tuesday. However, the newspaper obtained a copy of one of the letters with the name and claim number of the recipient redacted.

The letter, dated May 18, said "we are suspending your disability benefits and the benefits of anyone entitled under your Social Security record."

The letter said the Office of Inspector General had notified SSA that there was reason to believe fraud was involved in certain cases that used evidence Conn submitted on behalf of clients from four doctors: Frederic Huffnagle, who died in 2010; David Herr; Bradley Adkins; and Srinivas Ammisetty. ...

The letter that went out last week said that under the law, SSA must make a new determination of whether someone is eligible for benefits when there is reason to believe there was fraud in the earlier application. In doing the review, the agency must disregard information from the four doctors, the letter said.

The letter said the agency would not be able to consider evidence produced by Huffnagle from January 2007 to May 2011; from Adkins from July 2007 to May 2011; from Ammisetty any time after July 2007; and from Herr from December 2009 to April 2011. ...

Many people formerly represented by Conn will have trouble finding another attorney to represent them in the process of redetermining their eligibility, said Ray S. Jones, a Pikeville attorney and state senator who was contacted by three people who got letters.
"Prestonsburg attorney Ned Pillersdorf said his information is that more than 800 suspension letters went out last week.

Read more here: http://www.kentucky.com/2015/05/26/3870407_government-moves-to-suspend-disability.html?rh=1#storylink=cpy

There's going to be a lot of innocent people hurt by this," Jones said. ...

Read more here: http://www.kentucky.com/2015/05/26/3870407_government-moves-to-suspend-disability.html?rh=1#storylink=cpy

Read more here: http://www.kentucky.com/2015/05/26/3870407_government-moves-to-suspend-disability.html?rh=1#storylink=cpy

Read more here: http://www.kentucky.com/2015/05/26/3870407_government-moves-to-suspend-disability.html?rh=1#storylink=cpy

Read more here: http://www.kentucky.com/2015/05/26/3870407_government-moves-to-suspend-disability.html?rh=1#storylink=cpy

Read more here: http://www.kentucky.com/2015/05/26/3870407_government-moves-to-suspend-disability.html?rh=1#storylink=cpyConn's attorney, J. Kent Wicker, said Tuesday that a multiyear investigation of Conn's practice had concluded "without any finding of fraud or other misconduct."
Wicker said the Social Security Administration has directed that some cases should be returned to an administrative law judge for review, which he called an "unfortunate and unnecessary move."

Read more here: http://www.kentucky.com/2015/05/26/3870407_government-moves-to-suspend-disability.html?rh=1#storylink=cpyConn's attorney, J. Kent Wicker, said Tuesday that a multiyear investigation of Conn's practice had concluded "without any finding of fraud or other misconduct."
Wicker said the Social Security Administration has directed that some cases should be returned to an administrative law judge for review, which he called an "unfortunate and unnecessary move."

Read more here: http://www.kentucky.com/2015/05/26/3870407_government-moves-to-suspend-disability.html?rh=1#storylink=cpy