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NADE Newsletter

     The National Association of Disability Examiners (NADE), a voluntary organization of personnel involved in making initial and reconsideration determinations on Social Security disability claims, has released its most recent newsletter. One thing I noticed is that it says that the Disability Case Processing System (DCPS), a set of software programs, is now "official" even though it has not yet been rolled out at every Disability Determination Service. DCPS has been controversial. I hope   they've got the bugs out of the system.

Guilty Plea In White Powder Case

      From a press release:

Jason Pantone, age 34, of Hyde Park, New York, pled guilty today to conveying false information and hoax letters in connection with envelopes containing white powder he mailed to federal offices throughout Upstate and Central New York, and the Southern Tier. ...

As part of his guilty plea, Pantone admitted that beginning on February 21, 2019 and until his arrest on February 27, 2019, he mailed envelopes containing white power to Social Security Administration offices in Binghamton, Plattsburgh and Utica, New York.  He also mailed white powder letters addressed to the United States District Court in Syracuse, Binghamton, Albany, Plattsburgh, and Utica.  Each of the envelopes contained a typed note, which read “ANTHRAX.”  Some of the letters included a smiley face with X’s in place of the eyes.  All samples of the white powder were tested and yielded negative results for anthrax or other hazardous material. ...

Appellate Decision On Application Of Windfall Offset To Canadian Social Security Benefits

      From the Indiana Lawyer:

A split 7th Circuit Court of Appeals panel affirmed a grant of summary judgment to the Social Security Administration on Monday in a class-action suit brought by a Canadian woman with dual citizenship who alleged her U.S. Social Security benefits were wrongly reduced based on similar benefits she receives from Canada.

Lorraine Beeler, a dual citizen of Canada and the United States, has established nearly 20-year careers in both countries and receives monthly retirement benefits from the Canada Pension Plan, that country’s equivalent to U.S. Social Security. She also worked at jobs on which she paid Social Security taxes in the United States.

Beeler’s earnings in Canada were not subject to Social Security taxes, and her earnings in the United States were not subject to Canada Pension Plan taxes. But Beeler ran into a problem after she alleges her Social Security benefits were wrongly withheld. She then sued the Social Security Administration in the U.S. District Court for the Southern District of Indiana in the class action case of Lorraine Beeler v. Andrew M. Saul, 19-2099. 

There, Beeler asserted that the reduction of her U.S. benefits is a violation of two Social Security provisions: The Windfall Elimination Provision and the U.S.-Canada totalization agreement. The class claims that both the statutory language of the WEP and the terms of the agreement prohibit the reduction of Beeler’s benefits. ...

The 7th Circuit Court of Appeals split in affirming the district court’s decision, with the majority concluding the agency correctly ruled that plaintiffs’ Canadian employment was noncovered under the Social Security Act, and thus the provision applied to reduce their Social Security benefits. ...

But Circuit Judge Amy St. Eve dissented from the majority’s opinion, finding that its analysis “rests on an unsupported premise to exclude Beeler’s work from the definition of employment. ...

     I'm a little surprised that we're just now getting litigation on this issue. I suppose the reason there hasn't been litigation is that most of the time the U.S. Social Security Administration cannot apply the offset because it has no knowledge that a claimant is receiving foreign social security benefits.

     By the way, I think it would have been better if this case had not been brought as a class action. When there were more class actions against Social Security than there are now, the practice was to win an individual case and THEN bring the class action in another case with a different named plaintiff so that Social Security could raise nothing other than procedural defenses. Don't put all your eggs in one basket until you have to.

Guilty Plea In $500,000 Telephone Scams

      From a press release:

Husband and wife Mehulkumar Manubhai Patel and Chaitali Dave have pleaded guilty to laundering over $500,000 on behalf of India-based phone scammers.  ...

According to [the U.S. attorney], the charges, and other information presented in court: Criminal India-based call centers defraud U.S. residents, including the elderly, by misleading victims over the telephone utilizing scams such as Social Security and tech support scams.

As part of their Social Security scam, India-based callers pose as federal agents in order to mislead victims into believing their Social Security numbers were involved in crimes.  Callers threatened arrest and the loss of the victims’ assets if the victims did not send money.  The callers directed victims to mail cash to aliases used by other members of the fraud network, including Patel and Dave. ...

That's A Lot Of EEO Complaints

      From a Request for Information recently posted by Social Security:

... The Social Security Administration (SSA) is seeking a commercial off-the-shelf (COTS) software and modules in support of the agency’s existing Equal Employment Opportunity (EEO) enterprise case management solution. ...

Social Security Administration with its 65,000 employees currently processes approximately 1,000 EEO counseling, 500 formal complaints of discrimination, 550 hearings and 300 appeals per year.  A Case Management Information System is required for collection of information on nationwide performance of SSA in counseling, Alternative Dispute Resolution (ADR), investigation, hearings, final agency decisions, appeals and compliance. ...

SSA Employee Sentenced For Taking Bribe

      From a press release:

... Kurt Walter was sentenced in the Northern District of Illinois for accepting a bribe in the course of his official duties as an SSA employee. Walter, who worked as a service representative in the Elgin, Illinois SSA office, received a total of $8,400 to access SSA databases and provide individuals’ earnings information to another defendant in the case, Joshua Hughes, without the individuals’ authorization. Hughes, who operated a process server company and a company providing consumer installment loans, then used the earnings information in wage garnishment actions against those individuals. 

On Wednesday, September 30, Walter was sentenced for his role in the bribery scheme, receiving 2 years of probation. ...

Almost A Caricature Of Republican Priorities

      A press release:

The Inspector General for the Social Security Administration, Gail S. Ennis, announces the addition of four new investigative units to the Cooperative Disability Investigations (CDI) program. CDI is a nationwide joint effort between the Social Security Administration and its Office of the Inspector General (OIG) to fight disability fraud and save money for taxpayers. The four investigative units recently opened offices in Omaha, Nebraska; Las Vegas, Nevada; Manchester, New Hampshire; and Cheyenne, Wyoming. ...

     Just how much fraud are you expecting to find in New Hampshire and Wyoming? Do they really need their own dedicated offices? And why are you saying this is directed at "disability fraud"? I think that most fraud cases detected at Social Security involve retirement benefits.

     Social Security is closing down field offices which provide service to the public while opening new offices to hunt for fraud even in low population areas. What does that tell us about the priorities contained in Social Security's operating budget?

Requirement To Submit Medical Records Electronically To Go Into Effect Next Month

      The Social Security Administration has posted a notice in the Federal Register that the requirement to submit medical records electronically officially goes into effect on November 4.

A Real Charmer

 

    A Texas man has pleaded guilty to communicating threats after saying he would kill “every black person at the Social Security office” if he didn’t get his benefits. And that’s not all he said. Not by a long shot! 

Four Years For $700,000 Identify Theft

 

    From the Daily Herald of Chicago:

A 42-year-old woman who used to work in the Social Security Administration's Aurora office was sentenced to four years in prison for stealing more than $700,000 in fake benefits.

Federal prosecutors said Anne Aroste, 42, of Montgomery, worked in the federal agency's Aurora field office between 2013 and 2018 and pleaded guilty last year to wire fraud and aggravated identity theft.

She admitted that she used the identities of dead workers to create new applications for Social Security benefits and used her credentials to approve the applications and funnel the benefits to bank accounts she controlled. ... 

Allsup Got Almost $4.5 Million In Ticket To Work Money In 2019

      Social Security has made a proactive disclosure of recipients of money under the Ticket To Work (TTW) program, which pays for rehabilitation to enables Social Security disability recipients to return to work. A rehabilitation provider gets paid based upon claimants returning to work. 

     Ranked in third place on the list of largest recipients of TTW money in 2019, at $4,467,810, is Allsup Employment Services, LLC. Yep, that's part of the Allsup non-attorney group that represents Social Security disability claimants before the agency.

     Doing this actually occurred to me years ago. Sometimes you help a claimant get on benefits but you know from their medical records that they're getting better and have a realistic chance of returning to work. It doesn't happen much but it does happen. Since you already have their medical records, you're in a great place to spot these cases and to profit from providing "rehabilitation" to people who need little help anyway. I never did it because it seemed like a conflict of interest or at least it didn't seem to smell quite right. It's not illegal, though, as far as I know. Of course, I don’t know how Allsup is coming by its TTW cases.

     I wonder if there are other affiliates of entities representing Social Security claimants on the TTW list, perhaps with names that can't be so easily connected.

More On The New 1696

Memo

     To: Social Security:

     From: Charles T. Hall

     Would you please quit encrypting the damned SSA-1696! You don't need to do it. To simplify matters, attorneys representing claimants typically combine the forms to be signed by new clients into one PDF. We want to make it so that we only have to enter the claimant's name, address, telephone number and Social Security number once and the data propagates to all the documents in the PDF. When you encrypt the SSA-1696, we have no choice but to print out the 1696, scan it and then laboriously re-enter the fields so they'll line up with the fields in the rest of the packet of forms. This is pointless and should be unnecessary. The encryption serves no legitimate purpose. If you don't understand what I'm talking about, just forward this to the people who design forms for you. I assure you that they'll understand what I'm talking about.

     Thank you!

New 1696

      The Social Security Administration has issued a new version of the SSA-1696 form used to appoint an attorney or other representative. I wish they'd give us some advance notice before they do this.

Would Amy Coney Barrett's Confirmation Endanger Social Security?

      From Kim Phillips-Fein writing for the New York Times:

Much of the public anxiety about Amy Coney Barrett — judge on the U.S. Court of Appeals for the Seventh Circuit, Notre Dame law professor and Donald Trump’s nominee for the Supreme Court — has focused on the question of abortion, and whether as a believer in originalism and a practicing Catholic she would be likely to vote to reverse Roe v. Wade.

At least as consequential might be her position on the Social Security Administration: She has suggested that an originalist — whose view of the law is rooted in the idea that the duty of judges is to ascertain whether laws reflect the original meaning of the Constitution — might say that it is not clearly permissible given a strict reading of the Constitution. This isn’t to say that she thinks it should or even could be repealed. “Some decisions,” she wrote, “thought inconsistent with the Constitution’s original public meaning are so well baked into government that reversing them would wreak havoc.” But it does indicate that in the area of judicial philosophy, there are many ways to be extreme. ...

Those who share Judge Barrett’s belief in the legal philosophy of originalism are not ideologically monolithic, but most originalist judges are united in a deep skepticism toward the idea of a powerful federal government....

During the 1930s, similar issues brought Franklin D. Roosevelt’s administration into conflict with the Supreme Court. Many of the early initiatives of the New Deal were rejected as unconstitutional  ...

After his re-election in 1936, with the Social Security Act and the National Labor Relations Act facing constitutional review and the country mired in economic depression, Roosevelt did not want to see his entire program jeopardized by the court. Instead, in February 1937 he proposed a mandatory retirement age of 70 — the “court-packing” plan, as it became known — with any judge who refused to step down to be supplemented by an additional justice with full voting rights. ...

Will the Supreme Court become once more what it was in the early 20th century? Will it insist on a circumscribed national government and a rigid vision of individual economic rights — in the midst of a second Gilded Age?...

     Phillips-Fein isn't the only one thinking that even Social Security could be at risk. Laurence Tribe is saying the same thing. 

     Do not underestimate the extent to which the right wing still wants to re-litigate the New Deal or how radical the Supreme Court will be with Coney Barrett on the bench.

     I think that what worries me the most about Coney Barrett is that she has virtually no experience practicing law. She went from law school to a Supreme Court clerkship to a short time drafting Supreme Court briefs for a law firm to being a law school prof to the Court of Appeals. I don’t think that background should qualify anyone for the Supreme Court. If she had been nominated to a District Court judgeship would she have been considered qualified? Not in my opinion. In fact, I think she would have had enough sense to decline such a nomination.

Updated Fee Schedule

    From a notice posted by Social Security in the Federal Register:

On August 22, 2012, we announced in the Federal Register a schedule of standard administrative fees we charge to the public. We charge these fees to recover our full costs when we provide information and related services for non-program purposes. We are announcing an update to the previously published schedule of standard administrative fees. The updated standard fee schedule is part of our continued effort to standardize fees for non-program information requests. ...  

Based on the most recent cost analysis, the following table provides the new schedule of standard administrative fees per request:  

• Copying an Electronic Folder: $41.  
• Copying a Paper Folder: $83. 
•  Regional Office Certification7: $64.  
• Record Extract: $34.  
• Third Party Manual SSN Verification: $36.  
• Office of Central Operations Certification: $30.  
• W–2/W–3 Requests: $90.  
• Form SSA–7050, Request for Social Security Earning Information: $92.  
• Requests for Copy of Original Form SS–5, Application for a Social Security Card: $21.
  
• Requests for Copy of Numident Record (Computer Extract of the SS–5): $20...

     If they can update this, why can't they update the cap on how much attorneys can charge claimants for representation before the agency?

Who Won The Debate?

 

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Some Video Hearing Information

     I had a telephone call yesterday with Sheila Lowther, the Regional Chief Administrative Law Judge for the Social Security’s Region IV, concerning video hearings. She agreed for me to post what she was saying on this blog. I hope this information is also going out through internal channels, I'm happy to provide the information but Social Security employees shouldn't have to hear it from me.

    Social Security is starting to roll out video hearings on a limited basis. They’re looking for critical need cases where the claimant has declined a telephone hearing. They're starting with Hearing Office Chief Administrative Law Judges. I told her that in critical cases I’ve been strongly advising my clients to accept telephone hearings so there would be no delay. That means that I won’t have any cases for video hearings unless I start declining telephone hearings for critical cases which I'm reluctant to do because I have no guarantee of a video hearing in the near future. I expect that most Social Security attorneys would be in the same boat. She said they will use the Microsoft Teams platform and that it will work from any device. I was assured that they will have enough bandwidth for this. This has been a concern for me and others. There's a noticeable decline in audio quality when additional callers are added to the telephone hearings they’re doing now suggesting to me that even this old technology might strain Social Security's systems. I hope that that issue has nothing to do with bandwidth. Judge Lowther indicated that they want to fully roll this out as soon as possible but she didn’t predict when that might be. 

     By the way, it seemed important to Judge Lowther that Administrative Law Judges will appear against an artificially generated backdrop approximating one of the agency’s hearing rooms. I suppose that may be important to ALJs but it really doesn’t matter to me. My job is to pay no attention to such things and to concentrate on the substance of what’s happening.

Presidential Debate Poll

 

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Suspending Benefits With No Explanation Other Than "Miscellaneous" For An Average Of 36 Months With No Controls In Place

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

... When SSA employees suspend benefits, they identify the issue that needs to be resolved by inputting one of dozens of situation-specific suspense codes to the beneficiary’s record. Employees can also use the generic “miscellaneous suspense” code if they do not identify the issue that requires resolution.  

To resolve benefit suspensions, employees complete follow-up actions, which include contacting beneficiaries, employers, or other agencies to obtain information. Once the employee obtains the necessary information, he/she must determine whether to pay the benefits withheld for prior months and whether to resume monthly benefits.From 1 segment of the Master Beneficiary Record, we identified 2,525 beneficiaries for whom SSA suspended OASDI benefits between January 2015 and December 2018 using the miscellaneous suspense code.We reviewed records for 100 randomly selected beneficiaries.

As of February 2020, SSA had not completed follow-up actions to resolve issues that caused it to withhold benefits using the miscellaneous suspense code for 41 of the 100 beneficiaries. As a result, SSA withheld almost $748,000 from these beneficiaries. ...

We project SSA withheld approximately $378 million from almost 21,000 beneficiaries without resolving the issues that caused the benefit suspensions.

SSA does not have controls to monitor beneficiaries in miscellaneous suspense status or an oversight process to ensure employees use the miscellaneous suspense code appropriately. SSA relies on the employee who suspended benefits to create his/her own reminder to take future resolution actions. For these 41 beneficiaries, this process did not ensure SSA completed necessary actions to resolve outstanding issues. ...

On average, SSA withheld benefits for 36 months and will continue withholding benefits from these beneficiaries until it resolves the suspensions. ...

The high rate of unresolved benefit suspension cases we identified is evidence that SSA’s current system of manual reminders is not a reliable control to ensure it resolves miscellaneous benefit suspensions. SSA needs controls, such as systems alerts and management reports, to identify beneficiaries in miscellaneous suspense status and ensure employees take corrective actions timely. ... 

     I've had plenty of clients in this situation. It seems to take a dozen complaints over several months before anyone does something. Social Security agreed with OIG that they need to do something about this situation. Let's hope that doing something doesn't go in their "miscellaneous" file.