Newsflash: There's No Free Lunch

     Social Security's Office of Chief Actuary recently completed a set of estimates on the effects of a wide range of proposals concerning Social Security disability benefits. Here are some estimates that may surprise you:

• Implementing any type of benefit offset scheme would cost money, not save money;
• Changes to the grid regulations would have only a minor effect;
• Changes to evidence submission rules would have a negligible effect;
• Eliminating reconsideration would cost money although not that much
• A change to suspend benefits or offset benefits due to the receipt of unemployment insurance benefits would have a negligible effect;
• Any changes in program integrity would have almost no effect.

     If you want to have a significant effect on the Disability Insurance Trust Fund, you either have to make it much more difficult to get on benefits or reduce benefit payments or raise taxes. You're not going to accomplish much without making a lot of people mad.

Eric Conn Arrested

     From WSAZ:

Disability attorney Eric Conn, who has faced accusations of colluding with a judge to rig Social Security cases, is in custody Monday night in the Pike County Detention Center, according to the jail’s website. 

Conn is being held for U.S. Marshals, the jail reports. 

He was booked at 7:15 p.m. Monday. No bond has been set. 

The charges against Conn are conspiracy to commit mail fraud and wire fraud, conspiracy to retaliate against a witness, destruction of records in a federal investigation, false statements, transactional money laundering, and conspiracy to structure currency transactions.

     Update: Here's a link to the indictment. David Daugherty and Alfred Adkins were also indicted.It's alleged that Conn was giving former ALJ Daugherty $9,000 to $9,500 per month in cash. If that's accurate, both Conn and Daugherty were amazingly stupid but if that's what they did, I don't understand why it took so long to indict.

It's Like Pregnancy

     There have been many complaints about long delays in releasing fees to attorneys who represent Social Security claimants. These fees are withheld from the back benefits of the claimants involved. The Social Security Administration receives a user fee for their costs in withholding and paying these fees. I hear that in a recent telephone call with Social Security management about the problem the National Organization of Social Security Claimant Representatives (NOSSCR) was told that the agency didn't even consider a fee payment to be delayed unless the delay was more than nine months!

     If you were deliberately trying to drive attorneys out of the practice of Social Security law, this would be a good way to do it.

Lies, Damn Lies And Zombie Lies

      Neil Buchanan explores two important question: Why do Republicans keep lying about Social Security and why does mainstream media keep repeating those lies? Paul Krugman calls them "zombie lies" because you just can't kill them.

Social Security Headcount Holds Steady

The Office of Personnel Management (OPM) has posted updated figures for the number of employees at the Social Security Administration as of the end of calendar year 2015:

• December 2015 65,518
• September 2015 65,717
• June 2015 65,666
• March 2015 64,432
• December 2014 65,430
• September 2014 64,684
• June 2014 62,651
• March 2014 60,820
• December 2013 61,957
• September 2013 62,543
• June 2013 62,877
• March 2013 63,777
• December 2012 64,538
• September 2012 65,113
• September 2011 67,136
• December 2010 70,270
• December 2009 67,486
• September 2009 67,632
• December 2008 63,733
• September 2008 63,990

The Real Social Security Disability Fraud?

     Steve Berenson of the Thomas Jefferson School of Law has written for the DePaul Journal for Social Justice about what he considers The Real Social Security Disability Fraud(s).

Treasury Deliberately Delaying Payment Of Social Security Benefits

     Here's a note that a legal assistant at my firm made of a conversation she had with Social Security's Representative Call Center (RCC) in Baltimore about why one of the firm's clients hadn't been paid her back benefits:

TC [Telephone all] RCC (877) 626-6363. It [the client's money] was released to the Treasury Dept. on the 23rd and she said every month the Treasury has a date that they stop processing cks until the 1st of the next month; this month it was 18th. So all the claims they processed will not be released until April 1st.  She said this has been going on for some time and the cut off is usually in the 20s of the month but for some reason this month it was earlier.

     Oddly, one person posted a comment on this blog yesterday saying that they had heard the same thing.
     Let me explain one thing. The Social Security Administration doesn't write checks or initiate direct deposits of Social Security benefits. That's done by the Department of the Treasury. All Social Security does is certify to Treasury that the payments should be made.
     I had long suspected that Treasury was deliberately delaying payments at the end of each month.  Generally, neither my firm nor our clients get paid Title II Social Security benefits in about the last week of each month, then there's a surge in payments early in each month as the money that was held up at the end of the preceding month is released. Payments under Title XVI, Supplemental Security Income, don't seem to be affected. It's only Title II benefits that are affected. What I don't understand is why Treasury is doing this. It seems inappropriate to me.

You Do Know We Can Read This, Don't You?

     From an newly amended section of HALLEX, Social Security's manual for hearings and appeals:

When determining disability, the Social Security Administration (SSA) will use each of the age categories applicable to a claimant during the period for which SSA is determining whether the claimant is disabled. SSA will not apply the age categories mechanically in a borderline age situation. If a claimant is within a few days to a few months of reaching an older age category (hereinafter “higher age category”), and using the higher age category would result in a determination or decision that the claimant is disabled, SSA will consider whether to use the higher age category after evaluating the overall impact of all the factors of the case. ...

If the administrative law judge (ALJ) decision is supported by substantial evidence, including the findings regarding the existence of a borderline age situation and whether to apply a higher age category, and there is no other basis for granting review present, the Appeals Council (AC) will deny review.

When denying review is appropriate but the ALJ did not expressly state in the decision that he or she considered a borderline age situation and whether to apply a higher age category, the AC will add the following language to the “What We Considered” section in the denial notice:

We considered the borderline age situation in this case, and we found that the factors in the record do not support application of the higher age category.

     The first paragraph is standard Social Security policy. There's nothing objectionable about it. The rest is apparently based upon the theory that the only thing that matters isn't what you actually did; it's what you said you did. How can the Appeals Council say that the Administrative Law Judge (ALJ) "considered" an issue when the ALJ said nothing about the issue? How can the Appeals Council say that it "considered" an issue when it tells the world upfront that it isn't really going to "consider" the issue; it's just going to say it "considered" the issue.
     This newly amended section is about checking off boxes. You couldn't have a clearer statement of the agency's cookie cutter approach to justice.
     The ironic thing is that the language quoted above will be cited to the courts as evidence that Social Security's "considered" language is a lie. More cases will be remanded, not fewer.

ALJ Register Open!

     The Office of Personnel Management (OPM) has posted the job announcement for the position of Administrative Law Judge (ALJ) at Social Security. If you are interested in applying, you need to start making your application immediately. The announcement will close on April 8.

Oh The Irony

     The United States Court of Appeals for the Second Circuit has affirmed two District Court decisions that held that Binder and Binder is barred from suing the Social Security Administration because the agency refused to pay attorney fees after the claimants that Binder and Binder had represented had their debts discharged in bankruptcy. The Court ruled that sovereign immunity barred the lawsuits. Of course, the irony here is that Binder and Binder is itself now in bankruptcy.

The Never Ending Disaster Of The Windfall Offset

     I'll explain below but this is just awful. It's no surprise to me but it's still awful. From a recent report by Social Security's Office of Inspector General (OIG):

We continue to find that SSA [Social Security Administration] needs to improve controls to ensure it accurately and timely pays OASDI [Old Age, Survivors and Disability Insurance] benefits withheld pending a windfall offset determination. We estimate that 

• 13,141 beneficiaries’ windfall offset actions were not processed and therefore SSA withheld about $113.2 million in OASDI benefits, of which we estimate approximately $ 71.9 million was payable to these beneficiaries, and
• 19,587 beneficiaries’ windfall offset actions were correctly processed but not in a timely manner; therefore, these beneficiaries did not promptly receive about $195.2 million in OASDI ben efits .

In addition, SSA incorrectly processed the windfall offset determinations for five beneficiaries. As a result, SSA improperly withheld $12,775 in OASDI benefits for these beneficiaries. Finally, SSA did not take corrective actions for 50.6 percent of the beneficiaries we identified during our 2011 audit.

     Let me explain. Supplemental Security Income (SSI) benefits are based, in major part, on how much income you had during a month. What about months in which you are approved after the fact for both SSI and Disability Insurance Benefits (DIB) which are not based upon income? You didn't receive the DIB at the time but the law requires that the SSI benefits be reduced as if you had. That's the Windfall Offset. It may not sound that complicated but it is. It's been an enormous mess for Social Security even since it was enacted. The agency has made two separate efforts to implement software to automate the windfall offset. Both were expensive failures. My recollection is that the cost of the last software failure was over $100 million. The process remains a thorn in Social Security's side. It involves co-ordination between Social Security field offices where SSI benefits are computed and authorized and Social Security payment centers where DIB is computed and authorized. The process is tedious and highly error prone as this report shows. How error prone? So error prone that even after OIG pointed out that the agency had made a mistake, that half the time the agency still failed to correct the mistake! Note that the mistake is always to fail to pay claimants all the money they're due in a timely manner.
     I think that agency management has long since thrown up its hands and decided not to even bother to try to improve the situation. Why bother? It's only the claimants that are being hurt. This Congress won't complain about that. Even past Democratic Congresses didn't complain because they didn't understand the problem.
     If you think this is all way too technical to bother thinking about, look at the charts below. Over half the time, Social Security fouls up the windfall offset. Once they foul it up it's often years before they get it straightened out, if they ever do.

A Forum On Extreme Limitations In The Ability To Focus

     From a post on Social Security Administration Matters, the agency's blog:

Gathering and assessing medical evidence is a key part of how we make our decisions. On Wednesday, March 30, we will host our next National Disability Forum, Developing and Assessing Medical Evidence for Extreme Limitations in the Ability to Focus on Tasks.

     The blog post doesn't say how one can participate in this forum. It does say that one can share ideas on the agency's IdeaScale website or as a comment on the blog itself. A graphic says that the forum will be held at the National Education Association in Washington. 

More Than 60 Million Draw Social Security Benefits

     From CNS News:

The number of people receiving benefits from the Social Security Administration topped 60,000,000 for the first time at the beginning of 2016.

In December 2015, according to data published by the Office of the Chief Actuary of Social Security, the Old-Age and Survivors Insurance and Disability Insurance Trust Funds paid benefits to 59,963,425 beneficiaries. In January 2016, that increased to 60,084,225, and in February 2016 to 60,199,914.

SSAB To SSA: We Don't Know How But You Need To Do Better On Rep Payees

     The Social Security Advisory Board (SSAB) has issued an Issue Brief on representative payees at Social Security. Rep payees are appointed to handle funds for Social Security claimants who can't manage their own money. This is one of those reports that details some problem at Social Security and then tells the agency to do better without identifying any way in which the agency can realistically do better. How quickly do you think this sort of report gets thrown in the trash by Social Security management?

     The report does include the map shown below which is interesting. Click on it to view it full size. I don't know what to make of it. Does it show a correlation with the percentage of the population that's African American? Does it show a correlation with the percentage of the population that has low educational attainments? Is it something else? Is it several things?

If You Want To Be An ALJ, Listen Up! I Said LISTEN UP!

     I'm hearing that the Office of Personnel Management (OMB) will soon start taking applications for Administrative Law Judge positions at Social Security. In the past when this has happened, OMB decided in advance to only hold the application process open until they received a set number of applications. If I remember correctly, it was something like 1,000 the last time. They start receiving applications almost immediately after they announce they're taking applications and often fill up their quota in a day or two. Thereafter, they refuse to accept any more applications. It's usually not long after we receive such an advance warning until OPM starts taking applications. Keep looking at this website. It could happen tomorrow, Good Friday. It could be early next wee. I'll try to post something here but don't count on getting word from me immediately.

Social Security To Hire 27 Administrative Appeals Judges -- Act Quick If You Want A Job, But Only If You Already Work For SSA

     From a job posting by Social Security:

Job Title:  Attorney-Examiner (General) (Administrative Appeals Judge)

SALARY RANGE: $133,515.00 to $170,400.00 / Per Year

OPEN PERIOD: Monday, March 14, 2016 to Friday, March 25, 2016 ...

DUTY LOCATIONS: 27 vacancies ...

WHO MAY APPLY: Agency Employees Only ...

OIG On Compassionate Allowances And Quick Disability Determinations

     The summary of a recent report by Social Security's Office of Inspector General:

Although 25 percent of allowed claimants in our sample [who were granted a Compassionate Allowance or Quick Disability Determination] died within 3 months of submitting their application, SSA’s CAL [Compassionate Allowance] and QDD [Quick Disability Determination] initiatives enabled the Agency to identify and expedite benefits to these disabled claimants before their death.

Based on our review, we estimated that SSA medically allowed about 76,000 and denied about 6,000 cases. As of June 2015, we estimated that, of the cases selected for CAL and QDD processing, about 

• 54,000 claimants were deceased; 
• 15,000 claimants allowed benefits were alive, were in current pay status, and had received approximately $214.1 million in benefits per year;
• 7,000 claimants allowed benefits were alive but did not meet Title XVI non - medical eligibility criteria. SSA stopped the ir Title XVI payments of approximately $34 million per year; 
• 3,000 claimants allowed had benefits ceased because of medical improvement, stopping payments of approximately $46.1 million per year; and 
• 3,000 claimants denied benefits, appealed or reapplied, and were subsequently approved. 

In addition, we estimated that, for about 13,000 claimants previously allowed benefits, SSA assessed approximately $43.9 million in overpayments and recovered approximately $15.9 million. Finally, we estimated that SSA reviewed approximately 22,000 allowance cases by conducting a CDR or redetermination and generally evaluated earnings for disabled individuals whose record contained work activity or income.

OIG On "Vision 2025"

     The Chairman of the House Social Security Subcommittee asked the agency's Office of Inspector General (OIG) to review Social Security's Vision 2025 plan. Here's a summary of the OIG report:

Vision 2025 does not include specific, measurable goals or outline the strategy needed to implement SSA's proposed vision. It presents three priorities: superior customer experience, exceptional employees, and innovative organization. Per SSA, these priorities will guide the development of clear goals, detailed plans, and performance measures, which will be outlined in the Agency’s strategic plans and annual performance reports. With this approach, SSA is using short-term strategic planning documents to support a broadly stated “aspirational vision.” We believe SSA’s long-term strategic vision should include specific, measurable goals that clearly outline the service delivery model SSA envisions in 2025 and beyond. This would allow SSA to use its shorter- term planning documents to outline the steps needed to achieve a larger and clearly defined objective.

Also, while Vision 2025 describes its future environmental drivers, it does not explain how the environmental factors will affect its ability to provide services in the future. Additionally, Vision 2025 addresses many of the issues outlined in NAPA’s [National Academy of Public Administration's] long-range strategic plan for SSA, but NAPA’s plan is more specific than Vision 2025. Most importantly, NAPA concluded that SSA needs to develop a more cost- effective service delivery system that is primarily virtual. Vision 2025 does not choose one service delivery method over another and promises a service delivery system that will meet each customer’s desire.

     Let me try to make this easier to understand. Republicans in Congress (and some Democrats) as well as NAPA are frustrated with Social Security. In their view, the current service delivery model, which includes field offices around the country, is inefficient, wasteful and delivers poor service. They don't understand why the agency doesn't move all of its operations online, eliminate its field offices and lay off most of its staff.  That's the "vision" they want from the agency. In Social Security's view, this criticism comes from people who have only the most simplistic idea of what the agency does. These critics envision Social Security as dealing mostly with simple retirement claims and mostly with capable people who can do business online. In reality, while retirement claims involve lots of money and lots of claims, they are only a small part of what the agency does. Most of what the agency does has to do with disability claims, Supplemental Security Income (SSI) claims and survivor claims. These cases are inherently complicated and the claimants are often seriously impaired. There's no realistic way to put this workload online. There's no realistic way to eliminate field offices.
     Let my give a simple example of the problems that Social Security must cope with. The daughter of an 85 year old woman who is drawing Social Security retirement benefits contacts the agency to say that she believes that her mother is no longer mentally capable of handling her money and needs a representative payee. Someone at the agency contacts the mother who says that she certainly is still capable of handling her money and that the daughter is a drug addict who just wants to steal the Social Security benefits. The person talking with the mother and daughter isn't sure what to do. The mother sounds a little addled but is her condition so bad that she can't handle money? Is the daughter a drug addict? Even if she isn't, is she the best representative payee since it's obvious that the mother and daughter aren't getting along? Is there someone else in the family who could be a representative payee? How is the agency going to deal with this situation only through an online process? Are you really comfortable with someone who is 3,000 miles away investigating this situation and making a decision about what to do? How would you feel about this if this situation was happening in your family?

But What About The Role Of Congress?

     From the summary of a report by the Government Accountability Office (GAO):

The Social Security Administration (SSA) selects cases for continuing disability reviews (CDR) using several inputs, but it does not do so in a manner that maximizes potential savings. SSA first prioritizes CDRs required by law or agency policy such as those for children under 1 year old who are receiving benefits due in part to low birth weight. Then SSA uses statistical models to identify the remaining CDRs to be conducted each year. The models also determine which cases will receive an in-depth review of medical records by the Disability Determination Services—the state agencies that conduct CDRs—versus a lower-cost questionnaire sent directly to the beneficiary. As shown in the figure below, a growing number of cases have been set aside for future review (backlogged) over the last 10 years. Although SSA somewhat considers potential cost savings when selecting cases for in-depth reviews, its approach does not maximize potential savings for the government. For example, estimated average savings from conducting CDRs are higher for some groups of Disability Insurance (DI) beneficiaries than others, but SSA's selection process does not differentiate among these groups. As a result, it may be missing opportunities to efficiently and effectively use federal resources.

     I would characterize Social Security's response as being "GAO, to the extent it's practical, we're already doing everything you're recommending."

     My response is "GAO, you're picking at nits. The real problem is that the agency has been so badly underfunded that it's unable to work down its backlogs."

Proposed Change To Unsuccessful Work Attempt Rules

     The Social Security Administration has asked the Office of Management and Budget (OMB) to approve a set of amendments to its regulations concerning unsuccessful work attempts and expedited reinstatement. Social Security does not have to release the proposal at this point. However, it does have to post a regulatory agenda in the Federal Register twice a year. Here's how the agency described this proposal last fall:

We propose to remove the additional requirements for evaluation of a Unsuccessful Work Attempt (UWA) in employment or self-employment that last between 3 and 6 months and use the current 3 month standards for all work attempts that are 6 months or less. We also propose to change the calculation for determining the amount adjusted for national wage growth for both employees and the self-employed from $530 to $700, the amount currently being used to calculate Substantial Gainful Activity (SGA). In order to avoid any unintended consequences for Ticket to Work (Ticket) holders as a result of our change to the calculation of the Trial Work Period (TWP) service month amount, we propose to change how we calculate timely progress toward self-supporting employment for the Ticket program to earnings equal to or greater than the amount representing 72 percent of SGA. Finally, we propose to allow beneficiaries to apply for Expedited Reinstatement (EXR) Eligibility in the same month they stop performing SGA. These changes would align our policies, make them easier for the public to understand, and simplify our processing procedures, thereby allowing for faster determinations.

     This proposal isn't going to be official for a long time. OMB must approve it. The proposal is then posted in the Federal Register for comments. Social Security must consider the comments. The agency may modify the proposal. If it still wants to go ahead with the proposal, it submits the final version to OMB again. If OMB approves the proposal, it is again published in the Federal Register and becomes official. The normal time frame for something like this is one to two years.