Sanitizing The File

     Let's say you're an attorney and you have evidence that a particular Administrative Law Judge (ALJ) is prejudiced against a certain group of people. I'm not talking about suspicion or an opinion or belief. I'm talking about specific evidence. I'm not talking about a specific case but let's say you make a Freedom of Information Act request for statistics on the rate at which an ALJ is approving claims depending upon the race of the claimant. You fight the agency for months, if not years, but eventually get the statistics showing a huge disparity. You get a hearing scheduled before this ALJ with a person whose disability claims the agency rarely approves. You file a motion asking for the ALJ to recuse himself or herself attaching the evidence showing the pattern of discrimination. The ALJ refuses. The ALJ goes on to deny the claim but makes sure to remove from the file all the evidence that you submitted showing the pattern of discrimination so the Appeals Council and a federal court can't see it. Can an ALJ do this? Sure, under a recent change to Social Security's HALLEX manual, the ALJ is supposed to remove from the file any evidence you submit concerning the ALJ. If the attorney submits an affidavit to the Appeals Council concerning the ALJ's behavior in the case, that must also be removed from the file.

The Writing Is On The Wall

     From KTNV in Las Vegas:

In a story that's only on 13 action news, a federal crime happening inside a federal facility and no one is doing anything about it.

Contact 13 Chief Investigator Darcy Spears exposes the government agency ignoring the writing on the wall. 

"When I went in, I was actually dumbfounded."

Travis Knapp went to the Social Security office on Buffalo near Charleston because of one crime.

"My son's social got stolen."

But while there, he saw evidence of another. 

The scene? The men's restroom.  

"It was completely covered in graffiti. The mirror just completely etched into. The walls--the stall walls and everything." 

It's a federal offense to deface a federal building. And against state law, too. But the Las Vegas Metropolitan Police Department says no one from the Social Security office has reported the crime. 

Police have a special graffiti investigation unit to tackle what they call the most costly property crime in southern Nevada--with a high success rate of identifying and arresting graffiti vandals. 

In fact, Nevada has the toughest graffiti laws in the nation. 

But Social Security hasn't said a word.

Travis believes there's another crime going on here--apathy.

"If there's something going on in your line of work, be it graffiti or somebody stealing from your company, and you're sitting there watching it and you don't report it to a higher-up to have it taken care of, you're just as much a part of the problem as the person doing so."

      Is there a name for a writing style which glorifies almost every sentence with its own paragraph? Maybe I shouldn't be too critical. It was written for on air delivery.

Eanes Nomination To Be Considered By Senate Finance Committee On April 18

     The Senate Finance Committee has now rescheduled its meeting to consider the nomination of Andrew Lamont Eanes to become Deputy Commissioner of Social Security for April 18.

Social Security To Require That Those Representing Claimants Use Online Systems To Access Files

     From a notice that Social Security will publish in the Federal Register on Monday:

This notice provides advance notification of the requirement that, for claims with certified electronic folders pending at the hearing or Appeals Council levels, an appointed representative must access and obtain a claimant’s folder through Appointed Representative Services (ARS) in matters for which the representative requests direct fee payment. Except under the limited circumstances described in this notice, we will no longer provide compact disc (CD) copies of the electronic folder to appointed representatives who request direct payment of fees. ...

A representative who falls under the terms of this mandate, as described, has an affirmative duty to comply with this requirement. We may investigate to determine if a representative violates this duty or is attempting to circumvent our rules. We may sanction a representative who does not follow these rules, as described in 20 CFR 404.1745-1795 and 416.1545-1595. However, we will not reject or delay a claimant's hearing or process a claim differently if a representative fails to comply with this electronic access requirement. ...

Still No Action On Eanes Nomination

     The Senate Finance Committee scheduled a meeting for March 2 to consider the nomination of Andrew Lamont Eanes to become Deputy Commissioner of Social Security but the meeting was later "postponed." It's never been rescheduled. I'd think that if it were a simple scheduling issue, it would have been rescheduled by now. It sounds like there's a more serious problem. If there is a problem, it may not be with the Eanes nomination. There were three other nominations scheduled for consideration at that time. If there's a problem, it may be with one of the other nominations. Even if the problem is with another nomination, at the least, it's certainly delayed the Eanes nomination.

Conn Out On Bail

     Eric Conn has been released from jail on $1.25 million bail.

Help For 387,000 Disabled People

     From a Treasury Department press release:

The U.S. Department of Education announced today a new process to proactively identify and assist federal student loan borrowers with disabilities who may be eligible for Total and Permanent Disability (TPD) loan discharge. ... The Higher Education Act allows for loan forgiveness for borrowers who are totally and permanently disabled. By proactively identifying and engaging borrowers who may be eligible for TPD loan discharge, the Department is fulfilling its commitment to ensure that borrowers who are totally and permanently disabled have the information needed to take full advantage of the debt relief to which they are entitled....

The Department of Education has been working closely with the Social Security Administration (SSA) to complete a data match to identify federal student loan borrowers who also receive disability payments and have the specific designation of "Medical Improvement Not Expected" (MINE) which, because of a change in Department regulations in 2013, qualifies them for loan forgiveness under the TPD discharge program. This streamlined and more accurate process ensures that eligible borrowers receive loan discharges. Approximately 387,000 borrowers were positively identified in the first set of matches which were conducted in December 2015 and March 2016. In total, these borrowers have a combined loan balance of over $7.7 billion, and roughly 179,000 are currently in default. As required by federal law, over 100,000 of those borrowers with defaulted loans have been certified for the TOP, and are therefore at risk of losing federal tax refunds, and of having their Social Security benefits offset. Today's announcement will ease the process of obtaining forgiveness for these struggling borrowers and ensure they receive this entitlement under the law. Beginning on April 18, 2016, borrowers who were positively identified in the match will receive a customized letter explaining that the borrower is eligible for loan forgiveness and the simple steps needed to receive a discharge. Unlike other borrowers, those identified through the data match will not be required to submit documentation of their eligibility. Instead, they are eligible for a streamlined process by which they simply sign and return the completed application.

     I started calling for this more than a year and a half ago.

Alcoholic ALJ Fights Disciplinary Action

     From The Daily Caller:

A Social Security Administration (SSA) disability judge admitted to routinely being drunk on the job and sexually assaulting a federal security guard, and now claims government employee union precedents bar his being disciplined since he says his superiors knowingly tolerated numerous other employees being inebriated in the office.

Sridhar Boini is also invoking disability on his own behalf, saying his alcoholism is a condition government managers must accommodate, a March 22 filing with the Merit Systems Protection Board (MSPB) shows. He demands the right to try cases over video so he could keep drawing a paycheck without the public being exposed to him. ...

Some of the incidents took place in a public area of the Scranton, Penn., SSA office, and numerous people whose cases Boini adjudicated are now appealing on the basis that the judge may have been drunk when he turned them down. ...

Eric Conn's Former Clients Get Some Help

    The Social Security Administration is trying to cut off the disability benefits of more than 1,500 former  clients of indicted attorney Eric Conn even thought those clients did nothing wrong.  John Rosenberg writes for the Lexington, KY Herald Leader on the work of 135 attorneys who have volunteered to help those who are facing the loss of their income. So far, their efforts have helped more than half of those who have gotten decisions stay on benefits.

Building Closed Due To Water Main Break

     The Security West Building at Social Security's central offices in the Baltimore area is closed today due to a water main break.

New Social Security Ruling On Genetic Testing

     Social Security Ruling 16-4p will appear in the Federal Register tomorrow. It concerns the use of genetic tests in determining disability. The bottom line on the Ruling seems to be that, yes, Social Security will consider genetic testing results but that, no, they won't pay for it. Their reason for not paying for it is that they say genetic testing isn't necessary to establish a finding of disability even though the Ruling itself admits that at least in the case of non-mosaic Down syndrome or Edward's syndrome or cystic fibrosis or chronic myelogenous leukemia such testing may be necessary. Maybe they ought to be more honest and say they don't want to spend the money and they really don't care if a few claims are unjustly denied.

Grim Report On Rep Payees

     The National Disability Rights Network (NDRN) has a contract with the Social Security Administration to review representative payees. Rep payees are appointed to help beneficiaries who are incapable of handling their own money. NDRN recently completed a report on a six month extension to their contract with Social Security which shows that things are bad and getting worse.

Backlogs Growing

     Rick Warshinskey, the President of the National Council of Social Security Management Associations (NCSSMA), an organization of Social Security management personnel, has written a blog piece on Social Security's budget situation. Here's an excerpt detailing some of the reasons the agency desperately needs more operating funds:

The PSCs [Program Service Centers, which compute and authorize payment of Social Security benefits] have nearly 3 million cases pending, of which nearly 50% are over 90 days old. Many of the visitors coming into SSA’s [Social Security Administration's] field offices are asking about cases pending in the PSCs. This is one reason why we have already had 1.34 million more visitors this fiscal year to date, compared to the same period last year.

Meanwhile, in the Office of Disability Adjudication and Review (ODAR) the number of pending cases has gone up 36 months in succession and is now at a record 1.14 million cases. An average hearing is now taking a record setting 535 days for a decision.

SSA is also expected to increase the number of medical Continuing Disability Reviews (CDRs) by 250,000 (pushing the agency up to 1.1 million) next fiscal year and increase the number of SSI Redeterminations the agency completes by 300,000....

Another Expensive Report Destined To Gather Dust

     Several researchers at Mathematica has done a study for Social Security on Employment Experiences of Young Adults and High Earners Who Receive Social Security Disability Benefits: Findings from Semistructed Interviews. The report is 131 pages. It certainly cost Social Security tens of thousands of dollars, maybe hundreds of thousands. There's nothing wrong with the report. I'm sure the researchers did a competent job. It's just that it's worthless. It repeats what everyone who's looked at the situation already knew. In the end, they recommend that Social Security offer case managers or community liaisons to assist claimants who want to return to work and, of course, they recommend more research. I think that new employees of Beltway Bandits like Mathematica must learn on their first day at work that every report they produce must include a self-serving recommendation for more research.
     Social Security doesn't have the money for case managers. The agency does have enough money to waste on this sort of pointless research, however. Even though it's worthless, the research is relatively inexpensive compared to what it would cost to actually do something worthwhile.  Paying Mathematica for a useless report allows Social Security to pretend that it's doing something about returning disability recipients to work. 

     I don't want to be too critical of Social Security. Nothing they would do if they had the money would make that much difference anyway but they don't have the money to do anything other than pay Beltway Bandits for useless reports.

Whistleblowers Allege Lack Of Accountability

     From WSAZ:

A decade after first sounding the alarm about an alleged scheme to defraud the Social Security Administration over disability claims, Jennifer Griffith and Sarah Carver are now speaking out. 

In 2011, Griffith and Carver filed a whistleblower lawsuit against attorney Eric Conn, former Social Security Administrative Judge David Daugherty and Psychologist Dr. Alfred Adkins ...

Despite the arrests, both Griffith and Carver say the current indictments aren't enough. ...

"I do think there should be more people because there were more people within the agency that were allowed to either retire early or were promoted," Sarah Carver said. "Several of the managers that were in management throughout this time that this was all going on, several were still there or have received major promotions. It's the lack of accountability that I feel is an issue." 

After exposing this scheme, Griffith and Carver say they were harassed while still working at the Huntington Social Security office by their superiors and even their own fellow co-workers....

Carver says during the investigation, she was forced to work in a room by herself at the Social Security office eight hours a day for 10 months. She says during that time, Eric Conn and others hired a private investigator to follow her around, in hopes of getting her fired from her job....

How Does SSA Still Get Away With Using Phony Vocational Evidence?

     The Indiana Lawyer has a nice article on the 7th Circuit Court of Appeals' refusal to accept the highly dubious vocational evidence that Social Security uses in deciding on disability claims. It makes you wonder why other circuits aren't following the 7th Circuit's lead.

Why Can't I Download Files?

     When an attorney needs a copy of his or her client's file, the attorney can go online and ask for a copy of the entire electronic file. It's not immediately available. Usually, though, it's available within an hour or two. That system isn't working now and hasn't been working since April 4. In fact, the system seems to have completely or near completely shut down. No files are available for pickup. I am sure that Social Security knows there's a problem but there's been no notification about the problem or when it might get fixed. It would be nice if we could hear something.

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.