Jump On The Bandwagon

Interesting Tweet

Mike Conrad ‏@mikeconrad1 5h5 hours ago

Social Security projected to hit 100 year mark in good shape. This will also mark 100 years of opponents' constant claims of impending doom.

Is PEBES Worth The Cost?

     The Center for Retirement Research at Boston College has issued a report asking "Does the Social Security 'Statement' Add Value"? The Social Security "Statement" they're talking about is what the agency calls the Personal Earnings and Benefit Estimate Statement (PEBES). 

     Most people say they remember receiving PEBES and found the information helpful. However, there is little evidence that PEBES affects claiming behavior and there's little evidence that people remember the amount they will receive when they retire. See the chart below.

     For what it's worth, my clients often ask how much they'll receive a month if their disability claim is approved. I seldom have easy access to this information until close to the hearing. When I'm asked this question, I ask the client if they remember receiving the PEBES -- describing it in a way such that they'll understand what I'm talking about. They generally remember receiving it and say they have saved it. I tell them that the PEBES tells the approximate amount that their disability benefit will be. They're always surprised to hear this.

The "Testing" Goes On Without End

     Social Security is once again extending the "testing" of the use of a single decision maker and the elimination of reconsideration. This testing has been going on for many years. Everyone knows they both work. However, the single decision maker system results in a really tiny increase in the number of disability claims approved so it can't go forward and eliminating reconsideration funnels more cases to hearings before Administrative Law Judges which would increase backlogs at that level so it can't go forward either. So Social Security just keeps extending the "testing" indefinitely.

Social Security Not Doing Data Match With Federal Workers Comp

     The Government Accountability Office (GAO) has done a study on whether Social Security is properly reducing Disability Insurance Benefits by workers compensation benefits paid to former federal employees and found problems. GAO found that the agency was not detecting 13% of the cases where there should have been an offset and that there were probably more cases but GAO could not say for sure due to limitations in Social Security's data. The underlying cause of this problem is Social Security's failure to do a data match with federal workers compensation records. Social Security has felt that such a match would not be cost effective. I was under the impression that the agency was already doing data matches with state workers compensation records. I don't understand why they wouldn't do the same with the federal workers compensation records.

Just Tell Me What You Want!

     Senator Orrin Hatch went to the Senate floor today to talk about the bills that he has put forward on Social Security disability. It's worth watching the recording of his speech on the issue. Hatch is clearly concerned that any disability proposal that he and other Republicans come up with will be criticized as cutting Social Security. He really, really wants the President and other Democrats to propose cuts in Social Security disability while he sits back and keeps saying, "Not good enough -- give me more." However, Hatch has yet to propose anything that would extend the life of the Disability Insurance Trust Fund. All he and his Republican counterparts in the House come up with are dubious small bore proposals that would do virtually nothing to extend the life of the Disability Insurance Trust Fund. Specifically, they are avoiding putting forward a plan to transfer income or assets from the Retirement Insurance Trust Fund to the Disability Insurance Trust Fund. We have no idea what their price for doing so really is.

     There's no reason for the President to accommodate Hatch and other Republicans on this issue. The President has a plan. Republicans control the Congress. They should come up with their own plan. If they don't want this to be an election issue in 2016 they need to convince Democrats, including the President, to accept their plan. If Hatch and his Republicans can't even say what they want, it's impossible to negotiate with them.

     And, I keep saying, there's a simple solution for this problem. The President can do it without help from Congress. Somehow, I think that Senator Hatch might be privately relieved if the President just took care of the problem.

Small Bore Proposals From Hatch

     A press release:

Senate Finance Committee Chairman Orrin Hatch (R-Utah) today announced another trio of bills designed to improve the Social Security Disability Insurance (SSDI) program.  The bills put beneficiaries first by establishing new methods to prevent fraud, improve accountability, and provide more opportunities to current and future beneficiaries. The trio of bills join other SSDI bills Chairman Hatch introduced earlier this year as part of a broader package to address pending depletion of the SSDI trust fund.

“For some time now, the SSDI program has been in need of adjustments and updates to the services it provides,” Hatch said. “These bills are yet another step in that process and will help modernize SSDI making it more efficient and effective for both beneficiaries and taxpayers.  The SSDI trust fund will be depleted as early as next year and Congress must continue to search for avenues to address the financial challenges facing the program while continuing to improve on how the program works for beneficiaries.” 

The Promoting Opportunity for Disability Benefit Applicants Act, S. 1923, authorizes the Social Security Administration (SSA) to give denied DI applicants information on employment support services, from public and private non-profits, preventing workers from cycling through the application process and allowing them to re-enter the workforce. Additional background available here.

The Improving the Quality of Disability Decisions Act of 2015, S. 1922, requires the SSA to review Administrative Law Judge disability decisions and report the results annually to Congress to ensure judges are following the law and Social Security’s rules and regulations. Additional background available here.

The Disability Fraud Reduction and Unethical Deception (FRAUD) Prevention Act, S. 1929, updates and builds upon tools to deter and punish fraudsters by imposing civil monetary penalties and felony charges to criminals who defraud Social Security.  The bill also requires a regular review of major claimant representatives to ensure compliance. Additional background available here.

Joining Hatch on the bills as cosponsors are Senators Roy Blunt (R-Mo.), Dan Coats (R-Ind.) and James Lankford (R-Okla.).   

GOP Doesn't Know What It Will Do About Disability Trust Fund

     The Fiscal Times is running an article on Republican efforts to come up with a plan for the looming shortfall in Social Security's Disability Insurance Trust Fund. The bottom line is that Republicans don't have a clue what they'll do. While they might love to cut any type of Social Security, they don't want their fingerprints on any plan to cut Social Security in any way so they work on small bore plans that would have virtually no effect on Social Security disability costs. However, it's clear that many Republicans in Congress will oppose any fix because they want to make their "Social Security is broken" mantra come true.

     By the way, the article advances the myth that there is a "growing number" of people seeking Social Security disability benefits. There used to be true but that's certainly not the case now. The number claiming benefits has gone down dramatically. The number actually drawing benefits has declined modestly over the last year. I can't understand why this point isn't being raised more by Social Security's supporters. Maybe some of these supporters have been taken in by the constant Republican repetition of the "Social Security disability is out of control" meme.

     By the way, I intend to keep pointing out that the administration can solve this problem rather simply without Congressional help. I still haven't heard any reason why my plan won't work.

Fewer People Drawing Disability Benefits

     The number of people drawing Disability Insurance Benefits from Social Security declined in July. This number has declined in nine of the last ten months. There has been a decline of 0.3% from the peak in September of last year.

Conference Today

      For what it's worth:

Today, the McCrery-Pomeroy SSDI Solutions Initiative will be hosting an all-day solutions conference. 

The conference will feature 12 policy proposals to improve the Social Security Disability Insurance (SSDI) program, written for the initiative by authors from a variety of backgrounds and perspectives. The conference will also feature opening remarks by Senate Finance Committee Chairman Orrin Hatch (R-UT), mid-day remarks from Bob Greenstein, president of the Center for Budget and Policy Priories, and a wrap-up panel including Congressmen McCrery and Pomeroy alongside Social Security experts Mark Warshawsky and Alan Cohen. 

We invite you to watch the SSDI Solutions Conference live, today from 8:45 am to 5:00 pm on our livestream. You can find a full agenda on our website. 

Also, in case you missed, it please check out Congressmen McCrery and Pomeroy’s op-ed on SSDI in The Hill. 

 To watch the SSDI Solutions conference live, click here.

     This is sponsored by the Committee for a Responsible Federal Budget, which is, at least on this issue, largely a front organization for Pete Peterson's longstanding campaign to cut Social Security. Yes, there are some bipartisan trappings but this is basically a right wing group.

Waiver Disparities

     It's not unusual for a Social Security recipient to become overpaid. Often this happens because of a mistake made by the Social Security Administration. Overpaid claimants who were not at fault AND who don't have the funds to repay can ask for waiver of the overpayment. Also, if the claimant asks, overpayments under $1,000 are waived almost automatically for the sake of administrative convenience, although the field offices aren't supposed to volunteer this information to claimants. Social Security's Office of Inspector General (OIG) has done a study of field office action on overpayment waiver requests. It turns out that a high percentage of waiver requests are granted but that there are major disparities between field offices. See the charts below. I'd hazard a guess that some offices are volunteering information about administrative waivers. Is that really a wrong thing to do? Why should this be hush-hush?

Some Social Security Home Cooking Planned For Eric Conn's Former Clients

     I posted yesterday about the special rules that Social Security has cooked up to try to prevent Eric Conn's former clients from ever seeing the evidence of "fraud or similar fault" that is supposed to justify requiring them to prove all over again that they're disabled. Of course, these special rules also block any hearing on that issue. Let's look now at the special rules that the agency has adopted to make these readjudications easier for the agency. Below are some excerpts from section I-1-3-25 of Social Security's hearing and appeals manual, HALLEX, on Processing Multiple Cases When Fraud or Similar Fault Involved (“Redeterminations”). These were adopted last summer, obviously for Conn's former clients. My bolded and italicized comments are interpolated:

• When redetermining a claim(s), an adjudicator will be directed to consider the claim(s) only through the date of the final and binding determination or decision on the beneficiary's application for benefits (i.e., the original allowance date). But what if the claimant wasn't disabled at the time of the prior decision but has become disabled since then. How does this issue get adjudicated? The statute provides that a Social Security claim stays in effect until a final decision on the claim. 42 U.S.C. §402(j)(2). How can one say that there was a final decision on these cases if the agency is vacating the prior decisions? Shouldn't these cases be treated like remands where everything is up for grabs? Back benefits on a claim for Disability Insurance Benefits can only go back up to one year prior to the date of the claim. Supplemental Security Income benefits can only go back to the beginning of the month after the month in which the claim is filed. Note that in these cases we would be talking about reduction of an overpayment rather than actual benefits to be paid but that's still important to these claimants since the overpayments may be collected out of their future benefits. A new claim filed now can't make a claimant whole yet these claimants couldn't have filed new claims while they were drawing benefits. Unless Social Security comes up with some new process these claimants can't file new claims while these adjudications are proceeding.
• During redeterminations based on fraud or similar fault, SSA will not generally develop evidence beyond the original allowance date. However, an adjudicator may consider evidence submitted by the beneficiary that post-dates the original allowance date if that evidence relates to the period at issue in the redetermination. For example, if a beneficiary submits evidence of an IQ test dated after her original allowance, and that evidence, with the remaining evidence of record, supports her claim that she met Listing 12.05C as of the date of her original allowance, SSA will consider that evidence during a redetermination. How convenient for you! There's a period of years with no medical evidence in the record but you absolve yourself from any obligation to obtain this evidence. Remember, many, perhaps most, of these claimants will be unrepresented.
• If the beneficiary submits evidence of a new impairment unrelated to those alleged in the application being redetermined, and the onset date is after the original allowance date, the adjudicator will usually not consider or develop the evidence of the new impairment during the redetermination, unless objective evidence shows a new critical or disabling condition. In that instance, the ODAR adjudicator will consult with ODAR management to determine the appropriate course of action.  I-1-3-25. What's a "new critical or disabling condition"? Why does the condition have to be new? What's the statutory justification for this? How can you tell what's new and what isn't? If the evidence at the time the claimant was originally found disabled showed that he or she was a diabetic and the evidence now shows that the claimant has lost a leg due to that diabetes, is that a new condition? You've already said that you're not going to adjudicate disability after the date of the original approval. Now you say you might but that "ODAR management" will tell ALJs whether they can. What's the process here? How does the claimant ask for this? Who in ODAR management makes this decision? When do they make it? Can the decision be appealed? It sounds like this section of HALLEX was drafted by a committee and that there was disagreement on this whole issue. This was probably a compromise solution but it just doesn't make sense. These claimants and their attorneys, to the extent they have attorneys, would like to know the rules going into this process. Is that unreasonable?

     If the issue is only whether the claimant was disabled at the time of the prior decision approving the claim let's use round numbers and say that 50% of the claimants will be approved. However, if the issue is whether the claimant was disabled at that time or any subsequent time, I'd guess that 75% or more will be approved with some onset date found. Most Social Security disability claimants keep getting sicker as time goes on. This is a big deal. Sure, maybe they would be approved on a new claim but that may take three years and they won't be able to mitigate their overpayment as much as they should.

Claims Reps Charged With Taking Bribes

     Two Florida women who had been claims representatives for the Social Security Administration have been charged with taking bribes for expediting or somehow modifying the process for obtaining Social Security benefits. Most of my readers know this but claims reps have no ability to approve or disapprove a disability claim and this may not have even involved disability benefits anyway. Claims reps are important in the process but they have little discretion. I don't understand how they could have modified the process for obtaining benefits in any meaningful way. I don't know why anyone would have been tempted to bribe a claims rep.

Social Security Making Up Special Rules For Eric Conn's Former Clients

     Social Security made up some special rules just for Eric Conn's former clients. The main point of the rules is to make sure the agency can decide in its absolute, unreviewable discretion that there has been "fraud or similar fault" without ever having to produce any evidence showing this or having to justify its decision before a neutral adjudicator.

     Take a look at sections I-1-3-15, I-2-2-101, I-2-10-8, I-2-10-10, and I-2-10-14 from the agency's hearings and appeals manual, HALLEX. These provide a process whereby an Administrative Law Judge (ALJ) will give notice of a hearing on the issue of whether there was "fraud or similar fault", hold the hearing, possibly take testimony from a witness from the agency's Office of Inspector General (OIG), and make a decision on the issue on the basis of the preponderance of the evidence. All of these sections other than I-2-2-101 were adopted on June 25, 2014. This is the traditional approach to administrative justice.

     Then take a look at section I-1-3-25, Processing Multiple Cases When Fraud or Similar Fault Involved (“Redeterminations”), also adopted on June 25, 2014. Here are some excerpts with my interpolated comments bolded and in italics.

• The Deputy Commissioner of ODAR [Office of Disability Adjudication and Review] will determine which ODAR component is designated to redetermine the affected case(s). Wait, who adjudicates whether there was "fraud or similar fault" justifying a redetermination in the first place? Does the head of ODAR get to make this decision in her absolute, unreviewable discretion? When does the claimant get to see the evidence upon which this decision is based? When does the claimant get a chance to counter this evidence? It sure looks like the agency is afraid of having to justify what it's doing before a neutral adjudicator.
• ODAR will draft specific processing instructions for any particular batch of cases. Right, you just make it up as you go along.
• When an adverse redetermination is necessary, ODAR will send the claimant an appropriate notice based on the circumstances. The notice may include issues relating to benefit continuation or the opportunity for a supplemental hearing. May include information on benefit continuation? Sounds like you can't make up you mind on this issue. Supplemental hearing on which issues? Additionally, the notice may include the opportunity and time-frame for submitting arguments or rebuttal evidence. I-1-3-25.  But what about the right to a hearing on the issue of "fraud or similar fault? Isn't that required as a matter of administrative law and due process? Does the process you've designed consist of you telling me you've already made up your mind but I can say something which you'll ignore since you've already made up your mind and you can't possibly change your mind because Congressional Republicans will attack you? It sure looks like the agency is afraid of having to justify what it's doing before a neutral adjudicator.
• Based on OIG referrals of information pursuant to section 1129(l) of the Act or information obtained through other criminal, congressional, or administrative investigation, the agency may direct an ODAR adjudicator to disregard certain evidence. The agency can just summarily decide which evidence can be considered in its absolute, unreviewable discretion? How does this square with the right to submit arguments and rebuttal evidence? Sounds like that's no more than window dressing since "the agency" has already made up its mind. It sure looks like the agency is afraid of having to justify what it's doing before a neutral adjudicator.

     Why is it that the agency made up these rules last summer, obviously for Conn's cases, but is only just now getting around to acting on the cases? The statute says there is supposed to be an "immediate" readjudication when there is "fraud or similar fault." It looks like the agency can't make up its mind what it wants to do. Maybe that's because the evidence of "fraud or similar fault" isn't all that strong. Convincing 60 Minutes, which is far more interested in good TV than in justice, is one thing. Convincing a neutral adjudicator is another. They don't trust the ALJs to make the "right decision" -- the one that Congressional Republicans demand -- so they want to take the issue out of their hands.

Those Crazy Socialists!

August 10 Hearing To Try To Prevent Benefit Cutoffs In Kentucky and West Virginia

     Ned Pillersdorf's Facebook page indicates that there will be a telephone hearing on August 10 on his motion to stop Social Security's plan to try to cut off the disability benefits of almost 1,500 of Eric Conn's former clients in Kentucky and West Virginia.

     I keep wondering when each of these folks gets an individual evidentiary hearing on the question of whether they were found disabled as a result of "fraud or similar fault." Social Security seems to be trying to go yada, yada, yada past this issue but it seems to me to be basic administrative law as well as basic due process.
     The evidence of this "fraud or similar fault" is so strong that Social Security wants to summarily cut all these claimants off benefits, yet it wasn't strong enough that:

• A U.S. Attorney would bring criminal charges against Conn;
• The Kentucky Bar would try to take away Conn's law license or discipline him in any way;
• The Social Security Administration would bring changes that would prevent Conn from continuing to practice before the agency.

     If, or perhaps when, these evidentiary hearings start, I'd like to hear the testimony of the person at Social Security who is responsible for bringing actions to bar attorneys from practicing before the agency because of misconduct. Why didn't you bring an action against Conn? Or, maybe, you did and couldn't convince an Administrative Law Judge to discipline Conn? Which is it?

A Debate That Shouldn't Come To The U.S.

     I hope this debate isn't coming to the U.S.

Question About Eric Conn's Former Cases

     Is Social Security planning to continue these claimants on interim benefits after the Appeals Council remands the cases for new hearings? If not, these are fee generating cases. The fees will be meager but there will be fees if the claimants aren't going to be drawing interim benefits. I'm not exactly sure how that changes the equation for attorneys who might want to get involved but it may. Also, if these claimants will be getting interim benefits, from the point of view of the claimant, there's no great rush about getting the cases heard. I fear that the claimants and their attorneys will not have an adequate amount of time to develop the cases if they're all to be heard before the end of the year.
     Overall, this is a difficult situation. I have strong doubts that it will be possible to get enough volunteer attorneys to take the cases. There's just too many cases. They're going to be messy cases covering many years. It's not just the question of whether the claimant was disabled as of the time they were originally put on benefits. There's also the issue of whether they became disabled at a later date. That's also at issue. The cases will require a lot of medical development. It's unlikely that the claimants can pay for all those medical records. Geographically, it's a remote area. If all these cases are going to be heard before the end of the year, the time frames are difficult for everyone, including Social Security.

NOSSCR Seeking Volunteer Attorneys

     A message from the National Organization of Social Security Claimants' Representatives (NOSSCR) to its members:

PRO-BONO REPRESENTATION SOUGHT

Approximately 1500 SSDI beneficiaries in Kentucky and West Virginia have received notices from SSA advising them that they risk benefit suspension. These individuals, who were represented by Eric Conn, had submitted medical evidence from the doctors he worked most closely with, and had their claim adjudicated by ALJ David Daugherty. The SSA notice states that SSA is disregarding the medical evidence from the doctors in question and instructs the beneficiaries to submit additional medical evidence to document their disability. Failure to do so will result in the suspension of benefits. Although the Appeals Council has the authority to continue a claimant in pay status if additional evidence is submitted, we anticipate that the majority of these individuals will have their cases remanded for a hearing. 

Many local attorneys have been working tirelessly to protect these individuals' rights and benefits, through preliminary injunctions, wrongful death actions, motions to freeze Conn's assets, and pro bono representation at the Social Security ALJ hearings. These individuals need representation to assist them in obtaining this evidence, and to represent them before the Appeals Council or at an ALJ hearing, if needed. We expect that there will be no funds available to pay attorneys. To date, approximately 75 attorneys have volunteered to help represent the claimants at hearings or to provide training or other resources to volunteer lawyers. 

NOSSCR has paired with the Appalachian Research and Defense Fund (AppalReD) and other local legal services organizations to provide pro bono representation to these individuals. 

 I am personally calling on NOSSCR members to volunteer their time in one or more of the following ways:

A. Represent one or more clients on a pro bono basis, including evidence gathering and representation at a hearing if needed.

1. Please indicate if

a. you could travel to the Prestonburg or Huntington area to interview clients and/or represent at the hearing.

b. you cannot travel, but are close enough that the client can travel to you.

c. you can represent an individual in a three way video hearing.

 B. Provide training for attorneys with little or no experience in handling Social Security claims. A live training session will be held in Lexington, KY in August. There may also be the possibility of webinar training, with recording done either at a central location or through a provider such as "go to meetings.com." 

C. Be a resource for one or more less experienced local attorney who is representing an individual on a pro bono basis and has received some training. 

Here is what we have learned: 

• Beneficiaries were originally told they had 10 days to submit evidence to the Appeals Council. Everyone who has asked for a 30-day extension of time has received it. If evidence has been submitted that shows the original decision was correct when made, the Appeals Council will close the redetermination case. If the Appeals Council cannot issue a favorable decision, the case is remanded to an ALJ. 

• Up to 1500 hearings will be scheduled between September and December. 

• We have been told that the hearings will be scheduled to be video hearings with ALJs from the St. Louis National Hearing Center. The individual has 30 days from receipt of the ODAR acknowledgement to opt out of a video. If an individual requests an in-person hearing, one of these ALJs will come to Prestonburg, KY for an in person hearing. 

• 3- way video hearings will be available so the attorney and client need not be in the same area. Although this is certainly not an ideal situation, it may be the only way to obtain sufficient representation for this large number of affected individuals. We anticipate that someone from a local legal aid office will be with the claimants during the hearing, though not representing them when the representative is appearing elsewhere by video. 

• The ALJ will be determining whether the individual was eligible for benefits when they were originally awarded. If the ALJ's decision is unfavorable, benefits will cease. All appeal rights are available. 

• These redetermination are, according to the government, required by 42 U.S.C. sec 405(u)(1)(A) and (B). These redeterminations occur "if there is reason to believe that fraud or similar fault was involved in the application of the individual for such benefits." The purpose of the redetermination is to evaluate whether the individual was entitled to disability benefits at the time of the original decision, and adjudicators are instructed to disregard any evidence considered by the original adjudicator where "there is reason to believe that fraud or similar fault was involved in the providing of such evidence." 

• Although the evidence is being disregarded as fraudulent, to the best of our knowledge neither the attorney nor the doctors have been sanctioned for fraudulent behavior in these cases. In a decision issued Monday July 27, the 2011 qui tam complaint was dismissed in part because for many of the claims asserted by the whistleblowers failed to "allege a specific claim submitted by Conn that was false or fraudulent in a manner that was material to the government's decision to pay the claim … they never tie a specific case to a specific false or fraudulent claim." (U.S. ex rel Griffith and Carver v. Conn, ED KY)) 

Your help is desperately needed. The local attorneys anticipate that they can serve fewer than 15% of the affected individuals. Please let me know as soon as possible if you can help in any or all of the 3 ways listed above. You can send an email to nosscr@nosscr.org and I will give your name and contact information to AppalReD legal services who will then be in touch with you directly. 

In addition to helping these individuals, we anticipate that your pro bono representation will be recognized by others and will help to show that the representatives in this field are truly involved in ensuring the integrity of the Social Security disability process and in ensuring full due process for Social Security claimants and beneficiaries. 

 Barbara R. Silverstone Executive Director

     Here's a little information on the St. Louis National Hearing Center. It's reversal rate (excluding dismissals) is about 46%, making it somewhat below average. The office includes two ALJs with extraordinarily low reversal rates and one with an extraordinarily high reversal rate. It has disposed of 5,746 cases in the first nine months of the fiscal year, although 16% of these were dismissals. Probably, there won't be many dismissals in these cases. They had a 4,103 case backlog as of the end of June. Also, it's a good bet that those ALJs REALLY don't want to travel.

Read This If You Think That The ADA Means That More Disabled People Can Work

     From TPM Cafe:

Twenty-five years ago this past Sunday, the Americans with Disabilities Act (ADA) was signed into law. Today, people with disabilities are less likely to be employed than they were before the law was enacted. Workers with disabilities earn, on average, about $14,000 less than similar workers without disabilities. About one in every three disabled Americans lives in poverty.