27 Questions

With Democrats taking over control of the House of Representatives and the Senate there are many Social Security questions. I wish I had answers for this long list of questions.

1. Senators Max Baucus, who will become chairman of the Senate Finance Committee and Harry Reid, who will become the Senate Majority Leader, sent Michael Astrue, the nominee to become the next Social Security Commissioner, a letter on October 31 asking some tough questions. They said in their letter that they wanted a response by November 3. What did Astrue say in his response?
2. What committments will Democratic Senators ask of Astrue?
   
3. What committments is Astue prepared to make to Democratic Senators to get confirmation?
   
4. Regardless of Astrue's answers and committments, can he be confirmed?
   
5. If there is trouble getting Astrue confirmed as Commissioner, it would normally be possible for the President to give him a recess appointment, which would let Astrue be Commissioner until January 2008, when the next Congress ends, but the President can give a recess appointment only if the Senate is in recess. The Senate can prevent recess appointments by never officially recessing. Will Senator Reid, who will become the Senate Majority leader, avoid Senate recesses to avoid giving President Bush the opportunity to make recess appointments?
6. It seems obvious that there will be an Acting Commissioner of Social Security in a couple of months, or maybe sooner, if Commissioner Barnhart does not want to hang around until the bitter end. Who will be Acting Commissioner?
7. How well will Social Security operate under an Acting Commisioner?
8. Will Social Security be operating under an Acting Commissioner until there is another President?
9. Who will be the new Chairman of the House Social Security Subcommittee? Sander Levin is currently the ranking Democrat on the Subcommittee, but that means little once the Democrats take over the Committee. Levin may end up as Chairman of some other House Ways and Means Subcommittee. There is already speculation that Richard Neal of Massachusetts or John Lewis of Georgia will become the new Chairman of the Subcommittee.
   
10. There have been rumors that the proposed regulations that would increase the age categories of the grid regulations by two years will not be adopted. Will these proposed regulations be officially withdrawn before the current Commissioner of Social Security leaves office? If not ficially withdrawn the proposed regulations could be revived at any time and quickly adopted.
    
11. No budget has been passed for Social Security for fiscal year 2007, which began on October 1. The agency is operating on a continuining funding resolution. Will the lame duck Congress which will reconvene soon be able to pass a budget or will this issue be held over for the next Congress?
    
12. Will Democrats in the Senate try to block passage of a budget in this Congress so they can redo the budget after taking over in January 2007?
13. Regardless of when a budget is passed, will Social Security get adequate operating funds so that the agency can avoid furloughing employees in the current fiscal year?
14. There are rumors that Social Security intends to furlough employees for two days before the end of this calendar year. Will this still happen if there is no budget before the end of the year but Democrats are promising that once they take over that they will pass a sufficient budget so that furloughs can be avoided?
15. Social Security has terrible budget problems. Congressional Democrats will surely be sympathetic, but what can they do? They have also promised fiscal responsibility. Tax cuts and the costs of the war in Iraq leaves little money for the Democrats to work with.
16. Will there be an effort to pass a supplemental funding bill for Social Security in 2007?
    
17. Newly empowered Democrats will surely demand that Social Security do something rapidly about the enormous backlogs in holding hearings on Social Security disability claims. What, if anything, will Social Security do to meet these demands?
    
18. Can Democrats in Congress pass legislation that will force action on the backlogs?
19. What kind of legislation could Congress pass to force action on the backlogs?
    
20. Would the President sign such legislation?
21. Will be President be foolish enough to continue his plan to push Social Security privatization in 2007? The answer to this question seems obvious -- a resounding "NO" -- but that would have been the obvious answer to the question even before the election and, yet, Bush made it quite clear before the election that he was strongly committed to pushing privatization in 2007.
22. What effect will change in control of Congress have on the regulation of fees charged by attorneys and others for representing Social Security claimants?
    
23. At the moment, both withholding of fees in SSI cases and withholding of fees for certain non-attorney representatives of claimants are set to expire before long. Republicans in the Senate were the biggest supporters of non-attorney withholding and previously held up SSI withholding to force inclusion of non-attorney withholding. Will Republicans be able or willing to do this again?
    
24. If non-attorney withholding is renewed will there be increased requirements for non-attorneys to qualify for withholding?
25. Will there be increased regulation of non-attorney representatives, who are current subject to almost no regulation?
26. Will attorneys be able to achieve higher limits on fees they can charge?
    
27. Could attorneys even achieve a substantial deregulation of Social Security attorney fees, so that Social Security issues a joint check to the attorney and client, leaving the fees to be determined by the marketplace?
    

Clay Shaw Defeated

In Florida, Representative Clay Shaw, former Republican chairman of the House Social Security Subcommittee was defeated by Democrat Ron Klein. Shaw had recently been jockeying for the position of Chairman of the entire Ways and Means Committee, but will now be going into retirement.

Attorney Fee Payments For October

Social Security has released the figures for payments of fees to attorneys and other eligible for direct payment of fees for representing claimants before the agency. The figures for 2006 are below. Payments were down 29% in October from September 2006, but up 10% from October 2005.

Fee Payments
Month/Year	Volume	Amount
Jan-06	18,752	$64,848,326.02
Feb-06	20,426	$70,312.586.15
Mar-06	26,227	$91,045,934.83
Apr-06	23,042	$79,714,961.76
May-06	23,581	$82,015,869.29
June-06	27,771	$97,085,724.60
July-06	21,432	$74,648,883.83
August-06	24,579	$85,528,548.61
Sept-06	28,968	$99,124,616.47
Oct-06	20,246	$71,009,543.75

Social Security Recipients By Zipcode

Social Security's Office of Policy has published statistics showing the number of Social Security benefit recipients by zipcode. The data is broken down by the type of benefit.

GAO Report On Medical Improvement

The Government Accountability Office (GAO) has issued a report entitled "Clearer Guidance Could Help SSA Apply The Medical Improvement Standard More Consistently." This is a summary from the report:

Several factors associated with the medical improvement standard (the standard) pose challenges for SSA when assessing whether beneficiaries continue to be eligible for benefits. First, limitations in SSA guidance may result in inconsistent application of the standard. For example, SSA does not clearly define the degree of improvement needed to meet the standard, and the DDS directors GAO surveyed reported that they use different thresholds to assess if medical improvement has occurred. Second, contrary to existing policy, disability examiners in a majority of the DDSs are incorrectly conducting CDRs with the presumption that a beneficiary has a disability rather than with a “neutral” perspective. Other challenges associated with the standard include inadequate documentation of evidence as well as the judgmental nature of medical improvement determinations. All these factors have implications for the consistency of CDR decisions. However, due to data limitations, GAO was unable to determine the extent to which these problems affect decisions to continue or discontinue benefits.

GAO's belief that a medical improvement standard somehow means that there is no presumption that a claimant who has been awarded disability benefits remains disabled is ridiculous on its face and suggests a basic misunderstanding. One can read the Social Security Act and regulations to mean this, but it is a logical absurdity. We definitely have a medical improvement standard and that means there must be specific evidence of medical improvement to justify terminating benefits. This means, in fact, that there is a presumption of continued disability regardless of what the statutes and regulations say, because otherwise there is no medical improvement standard. This is the only way a medical improvement standard could be applied.

Like almost all GAO reports, this one suggests that Social Security give clearer guidance to decision makers and that decisions should be more consistent, but fails to suggest any specific ways in which Social Security could achieve these goals.

Interesting, the report shows that Social Security is performing fewer continuing disability reviews in recent years, but cutting the same or more claimants off benefits for medical improvement.

New Southeastern Program Service Center Mod Assignments

MOD #	SSN ASSIGNED	PHONE NUMBER
1	0000-0624	(205) 801-3015
2	0625-1249	(205) 801-3025
3	1250-1874	(205) 801-3035
4	1875-2499	(205) 801-3045
5	2500-3124	(205) 801-3055
6	3125-3749	(205) 801-3065
7	3750-4374	(205) 801-3075
8	4375-4999	(205) 801-3085
9	5000-5624	(205) 801-3095
10	5625-6249	(205) 801-3105
11	6250-6874	(205) 801-3115
12	6875-7499	(205) 801-3125
13	7500-8124	(205) 801-3135
14	8125-8749	(205) 801-3145
15	8750-9374	(205) 801-3165
16	9375-9999	(205) 801-3175

Upcoming Meetings and CLE

• November 2-4 2006, NCSSMA Regional Meeting, San Juan, PR
• November 9, 2006, Memphis Bar Association CLE, Memphis, TN
• November 9-10, NCSSMA Regional Meeting, San Francisco, CA
  
• November 15-17, 2006, Ticket to Work and Work Incentives Advisory Panel meeting, Washington, DC
  
• November 16, 2006, Tennessee Trial Lawyers CLE, Chattanooga, TN
  
• November 17, 2006 SSI Coalition Meeting, Boston, MA
• November 30, 2006, Social Security Advisory Board Meeting, Washington, DC
• December 8, 2006, NC Academy of Trial Lawyers CLE, Winston-Salem, NC
• March 1-3, 2007, NADE Mid-Year Board Meeting, Washington, DC
  
• March 9, 2007 Ohio Academy of Trial Lawyers CLE, Columbus, OH
• March 25-28, 2007, NADR Conference, Albuquerque, NM
  
• April 18-20 2007, NADE Regional Training Conference, Albuquerque, NM
  
• April 18-21 2007, NOSSCR CLE, Baltimore, MD
• May 2-4, 2007, NADE Regional Training Conference, Seattle, WA
  
• May 7-10 2007, NADE Regional Training Conference, Atlanta, GA
  
• May 20-23, 2007, National Association of Disability Examiners Meeting, Stowe, VE
• September 15-20, 2007, NADE National Conference, Sioux Falls, SD
  
• October 17-20, 2007, NOSSCR CLE, St. Louis, MO
• April 8-11, 2008 NADE Regional Conference, Austin, TX

If you know of one that I have missed, please e-mail me at charles[at]charleshallfirm.com.

Astrue Nomination Coming To A Head Before Election?

The Senate Democratic Leader, Harry Reid and the Ranking Democrat on the Senate Finance Committee, Max Baucus, have written Michael Astrue, President Bush's nominee to become the next Commissioner of Social Security. Note two things in the letter that is reproduced below. First, Reid and Baucus are obviously concerned about Astrue being in office during the term of President Bush's successor, whom they hope will be a Democrat. Second, and more interesting, the two Senators are demanding answers to questions on Astrue's views on privatization before the election and make only the most thinly veiled threat to block Astrue's confirmation if he fails to answer before the election. The fate of Astrue's nomination may be determined in the next few days.

October 31, 2006

Dear Mr. Astrue:

Congratulations on your nomination to be the next Commissioner of Social Security. This position is one of the most important in the Federal Government because the Commissioner is responsible for maintaining a program that many Americans depend on for their financial survival. Indeed, if the Social Security program did not exist, more than 50 percent of our seniors would be living in poverty. Therefore, we and the other members of the Congress will examine your qualifications for this position very closely.

Given the importance of the Social Security program, Congress established the Social Security Administration as an independent agency in 1994. One important aspect of the Agency's independence is that the Commissioner serves a six-year term, in contrast to the four-year term for the President. Additionally, a President can only fire the Commissioner of Social Security for willful misconduct. With these two features that make the agency and the Commissioner independent, it is quite possible that a Commissioner could be in office during the term of a President who did not appoint him or her. Thus, Congress clearly contemplated the possibility that a Commissioner may have different views on some issues than the President who is in office at the same time.

A critical issue facing the Social Security program is the challenge of shoring up its long-term finances. Under current law, the Social Security program can be fully financed until 2046, according to information on Congressional Budget Office. After that, the program can pay 79 cents of every dollar of benefits. Clearly, we must make some changes to pay full Social Security benefits in the future. The sooner we make these changes, the more time future workers and beneficiaries will have to adjust their retirement plans.President Bush has proposed a privatization plan that would change the Social Security program dramatically, and this proposal is fully reflected in the proposed Budget he sent to the Congress last February. The proposal has two major elements." President Bush has proposed a privatization plan that would change the Social Security program dramatically, and this proposal is fully reflected in the proposed Budget he sent to the Congress last February. The proposal has two major elements.

The first major element would privatize Social Security by allowing workers to divert a portion of their Social Security payroll taxes into private savings accounts, rather than into the Social Security Trust Fund. We have strong objections to this change. The diversion of payroll taxes into private accounts would worsen -- not improve -- Social Security's long-run solvency problems, thereby leading to benefit cuts, it would increase Federal debt held by the public by $5 trillion during its first twenty years in operation, and it would expose Social Security benefits -- which are the sole or primary source of income for many seniors -- to financial market risks.

The second major element of the President's proposal would further cut Social Security benefits deeply by changing the formula by which initial Social Security benefits of future retirees would be determined. As a result of this change, many middle-class retirees would suffer enormous reductions in their benefits. For example, workers with yearly earnings equivalent to $59,000 today would have their future Social Security benefits reduced by 42 percent. Workers with earnings equivalent to $37,000 would suffer a 28 percent reduction in their future benefits. We think that such huge cuts in benefits are not acceptable.

To adequately evaluate your nomination, it is important for us to know your answers to two questions:

1. What are your views on each major element of President Bush's privatization plan?

2. To what extent will you speak out and take actions to support President Bush's privatization plan in public or in private?

In order for us to proceed expeditiously, please provide your answers no later than Nov. 3.

We look forward to hearing your responses to these two important questions and to working with you to keep the Social Security program strong for future beneficiaries.

Sincerely,

Harry Reid, Senate Democratic Leader

Senator Max Baucus, Ranking Member, Committee on Finance