If You Really Think They Can Work, Why Don't You Hire Them?

     The Equal Employment Opportunities Commission (EEOC) has proposed that federal agencies do a better job of hiring individuals with what they refer to as "disabilities", which I would call medical impairments. The EEOC wants to increase the goal for federal agencies from 7% of the workforce to 12% of the workforce having a "disability."  

     Claimants for Social Security disability benefits are usually incredulous when told that Social Security believes there is some work they can still do. They often ask the question "If Social Security thinks I can work, why don't they give me a job?" I'd like to see Social Security offering jobs to some of the people whose disability claims they turn down despite the fact that the claimants are in and out of psychiatric hospitals. Plenty of them have a history of doing office work. Some are former government employees. If you really think they can work why don't you hire them? You can't hire them all but you can hire some.

New Instructions For Conn Cases

     Social Security just updated its HALLEX manual section pertaining to cases involving alleged "fraud or similar fault." Here are some excerpts with my comments in brackets:

• Except in unusual circumstances where individual case instruction is more appropriate, ODAR will draft specific processing instructions for any group of cases involving the same source(s) believed to have committed fraud or similar fault. [Did I miss the specific processing instructions for the Eric Conn cases or did SSA not release them? Are there secret instructions for these cases?]
• If SSA determined that fraud or similar fault was involved in the individual's application, SSA will provide detailed information regarding relevant criminal, civil, congressional, or administrative investigative findings and how they relate to the individual's application for benefits. SSA will associate copies of any relevant material(s) with the notice and in the claim(s) file. [I don’t remember seeing this “detailed information” in the Conn cases.]
• Under sections 205(u) and 1631(e)(7) of the Act, adjudicators do not have discretion to reconsider the issue of whether the identified evidence should be disregarded when based on an OIG referral of information or a referral based on information obtained during a criminal or other law enforcement investigation.
• However, when the redetermination is based solely on an SSA finding of fraud or similar fault, an adjudicator can consider a beneficiary's or recipient's objection to the disregarding of certain evidence. If the adjudicator is satisfied that fraud or similar fault was not involved in providing the evidence, he or she will consider the evidence. However, if the adjudicator disregards the evidence because a preponderance of the evidence shows that fraud or similar fault was involved in providing the evidence, he or she will address the beneficiary's or recipient's objection in his or her decision. [What? This sounds contradictory.]
• If the beneficiary or recipient submits evidence of an impairment that existed at the time of the original allowance date, but was not alleged on his or her application, SSA will generally consider that evidence. However, if the particular circumstances involved require that a certain type of evidence be disregarded, SSA may also disregard any newly submitted evidence involving that type of evidence. [What’s the standard here? What “particular circumstances” are you talking about?]

Of Course This Can't Be Extended Because It Would Put More People On Disability Benefits And That's Always A Bad Thing

     From the Social Security Bulletin, the agency's scholarly periodical publication:

Many homeless individuals with a serious mental illness are potentially eligible for Supplemental Security Income (SSI) payments, but the nature of their impairment poses obstacles to completing the SSI application process. In this article, we evaluate the Homeless with Schizophrenia Presumptive Disability (HSPD) pilot that tested whether providing support during the application process improves SSI application outcomes—such as increasing the allowance rate and shortening the time to award—in selected communities in California. Importantly, the HSPD pilot included a presumptive disability determination that provided up to 6 months of SSI payments before an award. Relative to the comparison groups chosen in the surrounding geographic areas, in an earlier period, and in the same locations, we found that the pilot intervention led to higher allowance rates at the initial adjudicative level, fewer requests for consultative examinations, and reduced time to award. ...

The allowance rate for the entire treatment group was 94 percent, ranging from 87 percent in Northern California to 97 percent in Los Angeles ...

CCD Opposes President's Gun Control Plan

     The Coalition for Citizens with Disabilities (CCD), the major umbrella organization of disability-related organizations in the United States, has released a letter it sent to Valerie Jarrett, senior advisor to the President, after a meeting concerning the White House plan to have the Social Security Administration relay information about some individuals who have been appointed representative payees so that they might be prevented from buying guns. CCD opposes the plan because they believe that it would stigmatize those disabled by mental illness.

     I am aghast at the CCD position. Do they have any idea how difficult it is to be approved for Social Security disability benefits due to mental illness? Maybe they just accepted without question the talking points of the National Rifle Association (NRA). The NRA wants people to think that you get a representative payee if you're suffering from any mental illness. False. Only a small minority of those suffering from mental illness get a representative payee. The NRA wants you to think you get a representative payee if you're illiterate. False. No one at Social Security is going to even think about going to the trouble of appointing a representative payee merely because a person is illiterate. The NRA wants you to think that you get a representative payee if you're not good at math. False. It takes far more than that to get a representative payee. Those who are appointed representative payees are really, really sick people. I'd guess that most schizophrenics don't end up with a representative payee. People who end up with a representative payee are generally people who are very severely impaired by mental illness. We're talking about people who shouldn't be driving a car much less owning a firearm.

     I've got an idea, CCD. Why don't we abolish involuntary commitment? The existence of a process which can take away a person's liberty due to mental illness creates a much greater stigma than reducing access to guns. How about it, CCD? If you're not worried about paranoid schizophrenics buying guns, why should you worry about paranoid schizophrenics who threaten to kill themselves or others? Most of those who threaten to kill themselves or others won't do it. Why do we need to stigmatize them by locking them up?

What A Heartwarming Story

     At least two of Eric Conn's former clients committed suicide after being informed that their Social Security disability benefits were being cut off. Because of the suicides, Social Security agreed to keep benefits going for each individual involved until there was an Administrative Law Judge decision on their case. Even for those who committed suicide the process continued to determine whether benefits should have been cut off. Survivors can face huge overpayments if Social Security doesn't decide that benefits should have been continued. We now have word that the widow of one of those who committed suicide has received a favorable decision. Her husband's disability benefits shouldn't have been cut off. He shouldn't have been subjected to the threat of financial ruin.

Guarding The Northern Frontier

     If you are an Alaska resident and have the misfortune of becoming disabled, you'd better hope your Social Security disability claim is approved at the initial or reconsideration level, because if it's not, you probably won't be approved on appeal. Alaska has two Administrative Law Judges (ALJs), both of whom have extremely low allowance rates, around 20%. Their productivity is also low. As a result, backlogs are extremely high at the Alaska hearing office. It's so hard to win there that there are no Social Security attorneys left to represent claimants there. They could no longer make a living after these two ALJs came in. A local newspaper is reporting on the situation but don't expect anything to come of it. I have no doubt that there would be Congressional hearings if there was some other hearing office with only two ALJs who each approved 80% of the cases they heard but 20%? No problem.

NADE Newsletter

     The National Association of Disability Examiners (NADE), an organization of the personnel who make initial and reconsideration determinations on Social Security disability claims,  has issued its Winter 2016 newsletter.

Their Only Real Interest Is Selling Insurance

     From Daniel Marans writing for the Huffington Post:

The largest seniors group in the country has launched a campaign to get presidential candidates to discuss their plans for Social Security -- only it won’t say which Social Security reforms it prefers, and progressive retirement policy leaders are none too happy about it.

 AARP, a nonprofit with 37 million members all over the age of 50, announced its “Take A Stand” initiative last November. The organization is asking presidential candidates to present their detailed plans for shoring up Social Security’s finances and ensuring that its benefits are adequate now and in the future. ...

The campaign includes a multi-million-dollar TV advertising blitz in early primary states. In one of the spots, a donkey and an elephant stand by as a phone with “Social Security” on the caller ID continues to ring.

“You can’t deal with something by ignoring it,” the narrator says. “But that’s how some candidates seem to be dealing with Social Security.” ...

[T]he campaign refrains from passing judgment on the merit of the candidates’ Social Security plans. As long as they propose ways to close the program’s long-term funding gap and maintain adequate benefits, AARP gives the candidates credit for “taking a stand.” ...

AARP’s neutrality about the substance of the candidates’ plans rankles progressive advocates, who have taken a strong stance against benefit cuts and believe that the country’s largest and most-recognized senior organization should as well. ...

A Different Route That Doesn't Involve Social Security?

     In early January the President announced that the Social Security Administration would begin a rulemaking process to allow the agency to notify, in some cases, the National Instant Criminal Background Check System about the appointment of a representative payee for a Social Security recipient. The idea is that if a person is mentally incompetent to handle money, he or she is probably not competent to buy a firearm. The first step in the rulemaking process is for an agency to send a draft proposal to the Office of Management and Budget (OMB) for approval. It was already almost too late for Social Security to finish action on a rulemaking on this subject when the President made the announcement but Social Security still hasn't sent over a proposal to OMB. If they were going to do this while Obama was still President they should be rushing but they're not. I've been wondering what's going on. Then, I see a link to this article in Modern Healthcare, of all places:

Senators on Wednesday expressed strong bipartisan support for bills that would improve the interactions of the mentally ill and the police, but clashed on how to pay for the reform and how it might affect gun ownership. ... 

Sen. John Cornyn (R-Texas) last summer introduced a bill that encourages states to share more mental health records for use in the National Instant Criminal Background Check System.  

Sen. Chuck Schumer (D-N.Y.) said he thinks Cornyn's bill, which is approved by the National Rifle Association, would make it easier, not harder, for people with severe mental illness to acquire firearms.  

“I'd like to make clear while there's broad bipartisan consensus for provisions that include how we treat mental illness, that consensus does not exist for provisions that make it easier for mentally ill individuals to get guns,” Schumer said.

Cornyn vehemently denied that. He has said his bill improves the background check system without expanding it. ... 

The mental health reform bills discussed during Wednesday's hearing aren't the only ones on the table. A bipartisan bill co-sponsored by Sens. Bill Cassidy (R-La.) and Chris Murphy (D-Conn.), which does not include language on guns, is expected to move through the Senate Health, Education, Labor and Pensions Committee soon. ... 

Cornyn has said he has talked with HELP Committee Chairman Lamar Alexander (R-Tenn.) about eventually combining the bills. But Democrats have pushed back on that suggestion, because of the provisions on gun control.

     I'm suspecting that the White House is holding off on a Social Security rulemaking in hopes that there is some legislative action on this issue.
     Honestly, does anyone, including the NRA, want to demand access to firearms for paranoid schizophrenics who have had repeated involuntary commitments because they have become a danger to themselves or others? I hope that even the NRA can't be that crazy. Ted Nugent, yes, but the entire organization?

Keeping Secrets

     Those of us on the outside learned recently about Social Security's secret repository of precedents used in deciding some cases. We only learned about this because it came up in the context of the agency's arcane policies on pooled trusts. I'm hearing that this repository covers more than pooled trusts. How much more I don't know, since Social Security employees aren't supposed to be telling anyone but I hear that the agency put out some instructions on the handling of the cases of the former clients of Eric Conn using this secret repository and that the agency made sure than at least some Administrative Law Judges (ALJs) were made aware of these instructions. I'm also hearing that the agency's Office of General Counsel was giving ALJs some suggestions on how to deal with objections that attorneys were filing in those cases -- specific language to use in decisions. I don't know how these recommendations were conveyed to the ALJs. This sounds a lot like ex parte contacts to me.

Ironic, Isn't It?

     Social Security recently let slip the fact that they have a secret repository of precedents they use in deciding cases. Now, this comes out:

From: ^Internal Communications
Sent: Tuesday, February 16, 2016 1:01 PM
Subject: Help US Build SSA's Next Open Government Plan!
Importance: High

A Message To All SSA and DDS Employees

Subject: Help US Build SSA's Next Open Government Plan!

Since President Obama issued his Memorandum on Transparency and Open Government on his first day in office in 2009, Social Security has been steadfastly committed to ensuring that the work we do on behalf of the public is done openly and transparently. 

To achieve the goal of making our agency more open, we have published Open Government Plans every two years since 2010. We published our most recent Open Government Plan in June 2014. These plans lay out our strategies and commitments towards breaking down the barriers between our agency and the people we serve. To enrich and inform the actions of these past plans, we actively engaged employees, as well as stakeholders in the public and private sectors about their ideas and suggestions for strengthening our Open Government efforts. These engagements have been critical in creating our past plans, and will be even more critical as we craft the next one.

This June, SSA will be publishing our fourth Open Government Plan, and we encourage you to share your ideas on how we can improve our transparency, participation, and collaboration through our Open Government Plan 4.0 Feedback Process. Once there, you can review our last Open Government Plan and participate in the conversation.

Your input will be vital as we prepare this updated plan. By advancing efforts to operate more transparently, encourage internal and external collaboration, and engage the public in the work we do, we are will advance our mission of delivering Social Security services that meet the changing needs of the public.

Ruby Burrell

Chief Strategic Officer

Performance Improvement Officer

Appeals Council Has To Work An Extra Hour

     Due to inclement weather, Social Security's offices in the Baltimore area are opening four hours late today. However, the Appeals Council, which is in Falls Church, VA, is supposed to follow the guidance of the Office of Personnel Management, which has decided upon opening federal offices in the D.C. area three hours late.

Secret Law

     From Emergency Message EM-16006, issued by Social Security on February 12: 

To ensure consistent pooled trust reviews and pooled trust precedents across regions, we are providing further guidance to field office (FO) technicians, regional trust reviewer teams (RTRT), and regional trust leads (RTL) on reviewing pooled trusts and establishing pooled trust precedents in the Supplemental Security Income Trust Monitoring System SharePoint Repository for Precedents (SSITMS SharePoint). ...

IMPORTANT: Do not share copies of trust precedents, Regional Chief Counsel (RCC) opinions and other materials in the SSITMS SharePoint precedent file with the public, attorneys, or non-SSA personnel. The only publicly available precedents are available in the PS section of Program Operations Manual System (POMS) on our website. ...

     The agency has established a repository of precedents that it refuses to share with the public. Does anybody else find this inappropriate? Is this consistent with the principle of open government?

Is Disability A Sign That One Has Not Been Blessed By God?

     Last month I wrote about the common view that having the "right mental attitude" would allow one to conquer all obstacles in life. In my experience, this view causes many to believe that having the "right mental attitude" will prevent disability. Those who are disabled aren't so much sick as they are lacking in the "right mental attitude." Many disabled people wrongly blame themselves for lacking the courage to overcome illness.

     Kate Bowler writes elegantly in today's New York Times about the religious foundation for the notion than the "right mental attitude" can overcome all. The prosperity gospel, which preaches the idea that bad thoughts and a lack of faith in God cause sickness and poverty, has spread far and wide in our society from its beginnings around the turn of the 20th century. This gospel is now expressed in the single word, blessed. Those who are blessed will prosper while those who are not blessed will suffer. To obtain such blessing, one must have faith and work hard. As Bowler writes, blessed "is a perfect word for an American society that says it believes the American dream is based on hard work, not luck."

     Bowler, as a scholar, writes knowingly of the prosperity gospel that she has been studying for years but her words have a deeper poignancy. She is a 35 year old wife and mother who has recently been diagnosed with Stage 4 cancer. 

     Here's some of what Bowler writes:

The prosperity gospel tries to solve the riddle of human suffering. It is an explanation for the problem of evil. It provides an answer to the question: Why me?...

The prosperity gospel popularized a Christian explanation for why some people make it and some do not. They revolutionized prayer as an instrument for getting God always to say “yes.” It offers people a guarantee: Follow these rules, and God will reward you, heal you, restore you. ...

The prosperity gospel holds to this illusion of control until the very end. If a believer gets sick and dies, shame compounds the grief. Those who are loved and lost are just that — those who have lost the test of faith. In my work, I have heard countless stories of refusing to acknowledge that the end had finally come. An emaciated man was pushed about a megachurch in a wheelchair as churchgoers declared that he was already healed. A woman danced around her sister’s deathbed shouting to horrified family members that the body can yet live. There is no graceful death, no ars moriendi, in the prosperity gospel. There are only jarring disappointments after fevered attempts to deny its inevitability.

The prosperity gospel has taken a religion based on the contemplation of a dying man and stripped it of its call to surrender all. Perhaps worse, it has replaced Christian faith with the most painful forms of certainty. The movement has perfected a rarefied form of America’s addiction to self-rule, which denies much of our humanity: our fragile bodies, our finitude, our need to stare down our deaths (at least once in a while) and be filled with dread and wonder. At some point, we must say to ourselves, I’m going to need to let go. ...

When Will They Ever Learn?

     From a "Policy Futures" paper by Kathleen Romig for the Center on Budget and Policy Priorities (CBPP):

The October 2015 budget agreement extended the solvency of the Social Security Disability Insurance (DI) trust fund into 2022 and renewed the Social Security Administration’s (SSA’s) authority to conduct demonstration projects, allowing the agency to test ideas to encourage work among DI beneficiaries and applicants.  This creates an opportunity to build further evidence on the efficacy of various ideas to encourage work among this population. 

New demonstrations will likely produce only limited results, however.  SSA has conducted many work-incentive experiments over the past 25 years, and none has led to a significant number of beneficiaries earning enough to support themselves and leave DI.  This result should not come as a surprise.  DI’s eligibility criteria are strict.  Few DI beneficiaries are able to work.  Still fewer are likely to be able to return to self-supporting work on a sustained basis. ...

TABLE 1

SSA Work-Incentive Experiments Have Shown Only Limited Results
Demonstration	Years	Description	Effects
Benefit Offset National Demonstration (BOND)	2009-2017	Testing a $1-for-$2 benefit offset for earnings above SGA level, with additional work supports for “Phase 2” beneficiaries	Small effects on earnings (Phase 2 only) Increased benefit payments
Accelerated Benefits Demonstration	2004-2011	Provided health care to DI beneficiaries during 24-month waiting period for Medicare, with additional medical and work supports for “AB Plus” beneficiaries	Improved health outcomes Negligible effect on employment For AB Plus, greater use of return-to-work services, but some evidence employment effects are temporary
Mental Health Treatment Study	2003-2011	Provided medical and employment supports to beneficiaries with schizophrenia or affective disorders	Improved employment and earnings Improved mental health status No impact on earnings above SGA No impact on benefits
Benefit Offset: Four-State Pilot	2003-2009	Replaced “cash cliff” with a $1-for-$2 offset for earnings above SGA level, with additional work supports	Small increase in earnings above SGA No effect on mean earnings No effect on employment Effects varied by participant subgroup
Youth Transition Demonstration	2001-2014	Waived SSI income and asset rules, provided state-designed employment and education supports for young DI and SSI beneficiaries	Little to no effect on employment and earnings SSA periodically revisiting outcomes
Ticket to Work	1999-present	Provides vocational rehabilitation and work support from employment networks (Ticket to Work is a change in law, not a demonstration)	Increased use of return-to-work services Little effect on employment Little effect on benefits
State Partnership Initiative	1998-2006	Tested variety of state-designed interventions, including Medicaid waivers and employment services for DI and SSI beneficiaries	Small and mixed effects on employment No effect — or negative effect — on earnings
Project NetWork	1991-1999	Offered intensive outreach, work-incentive waivers, and case management services to DI and SSI applicants and recipients	Small short-term effect on earnings No effect on benefits

Attorneys Needed For Fee-Generating Federal Court Cases

     Claimants caught up in the Eric Conn mess in Kentucky and West Virginia are now receiving decisions from Administrative Law Judges (ALJs). About half are winning. The early signs are that the Appeals Council is fast-tracking appeals from those who were denied. Claimant are receiving decisions from the Appeals Council in less than a month. If things continue on the current track there will be hundreds of claimants needing an attorney for the federal court cases in the next three or four months.

     These are fee-generating cases. Once the ALJ denies the claim, the interim benefits stop. There's also the possibility of fees under the Equal Access to Justice Act (EAJA).

     There are attorneys available to serve as local counsel.

   Social Security is not suggesting that any of these claimants participated in Eric Conn's questionable behavior. They've done nothing wrong. Taking on one of these cases doesn't involve an attorney in a complicated criminal matter.

     There are good arguments that can and should be made on the merits of individual cases but there are extremely strong arguments that can be made in all cases concerning Social Security's methods. Social Security is simply assuming that there is fraud or similar fault in all of these cases. The claimant cannot see the evidence upon which this determination was made. They are not allowed to contest the determination of fraud or similar fault. ALJs hearing these cases are forbidden from considering this issue. The claimants are compelled to prove all over again that they were disabled. Important medical evidence is excluded from consideration and the claimant cannot contest this. The process is completely different than what Social Security has done in the past in cases involving allegations of fraud or similar fault. For that matter, it's completely different than what Social Security is doing right now in other cases. Also, claimants are not allowed to prove that they became disabled at a date later than the prior ALJ decision approving their claim. Most of the claimants caught up in this became sicker as time went on. Even if an ALJ holding a hearing now doesn't think the claimant was disabled at the time he or she went on benefits originally, the ALJ might want to approve the claim as of a later date. I've looked at the statute involved and I can't even figure out what argument that Social Security could make on this issue. It seems clear cut to me that Social Security can't do this.

     If you're interested in getting involved in these fee-generating cases in federal court, contact Mary Going at Appalachian Research and Defense Fund (AppalRed) at mary[@]ardfky.org. Of course, there aren't any brackets in her real e-mail address. I just put them in there so she doesn't get so much spam.

The Social Security Disability Waterfall Chart 2015

Hard Numbers On Hearings And Decisions For Eric Conn's Former Clients

     From WSAZ:

Information released Tuesday reveals a clearer picture on the number of people in Eastern Kentucky and the surrounding area fighting to keep their social security benefits, who are actually winning their cases.

Rep. Hal Rogers released the numbers to our sister-station, WYMT. The data shows about half of the disability recipients who have gone through a hearing to re-determine their eligibility have lost their benefits.

In May 2015, 1,770 people received letters stating their benefits were suspended. 246 of those individuals were able to provide sufficient medical evidence to avoid the hearing process altogether.

The remaining 1,484 people must have a hearing before an administrative law judge.
Hearings have be held for 356 of those people. 173, received a favorable judgment. 107 of those individuals were represented by an attorney during the hearing .

The other half, 183, received an unfavorable judgment. 83 of those people were represented by an attorney.

SSA officials were not able to tell Rogers how many of these people "defaulted" by not responding in any meaningful way or show up to their scheduled hearing.

Government Wants Into Lawsuit Against Conn

     From the Associated Press:

The federal government wants to get involved in a whistleblower lawsuit against Eastern Kentucky disability lawyer Eric C. Conn.

Media outlets report attorneys with the U.S. Department of Justice Civil Division filed a motion Tuesday in federal court asking to "partially intervene for a good cause." ...

According to Tuesday's motion, government involvement is warranted in the whistleblower lawsuit because the public needs to be assured a taxpayer-funded program is administered with transparency. ..

Social Security Seeks Ticket To Work Input

     From today's Federal Register:

We are soliciting public input on whether and how we might revise the current Ticket to Work program rules. The Ticket to Work and Work Incentives Improvement Act of 1999 established the Ticket to Work program to allow individuals with disabilities to seek services to obtain and retain employment in order to reduce dependency on cash benefit programs. In creating the program, Congress found that eliminating barriers to work and providing individuals with real choice in obtaining services and technology to find, enter, and maintain employment can greatly improve the short and long-term financial independence and personal well-being of our beneficiaries. We want to explore improving our Ticket to Work program as part of our ongoing effort to help our beneficiaries find and maintain employment that leads to increased independence and enhanced productivity. If we propose specific revisions to our regulations, we will publish a notice of proposed rulemaking (NPRM) in the Federal Register.