DSI Won't Work Unless This Works

From Federal Business Opportunities, a website that lists opportunities for those seeking to do business with the federal government:

The Social Security Administration (SSA) has a requirement for the services of a contractor to develop an automated, Section 508 compliant*, profiling/screening tool (software) for identifying Administrative Law Judge (ALJ) disability decisions that are likely to be appealed to federal district court and remanded or reversed by the court. The contractor may also recommend the purchase and/or modification of an existing Commercial Off the Shelf (COTS) software package for the profiling/screening tool if an existing product can be identified.

On March 31, 2006, SSA published the final rules establishing a new disability determination and administrative appeals process effective August 1, 2006. Under the new rules SSA is gradually phasing out the Appeals Council?s review of disability claims and replacing it with a review by a Decision Review Board (DRB). The DRB will focus on identifying decision making errors as well as policies and procedures that will improve decision-making at all levels of the disability determination process.

SSA intends to select ALJ decisions for review by the DRB in several different ways, including the use of computer based predictive screening tools. It is envisioned that a sophisticated computer based profiling/screening tool could be developed to help identify unfavorable ALJ decisions that contain characteristics associated with federal district court appeals and remands or reversals. The profiling model will be developed using data recorded at the time of the initial level determination, ALJ decision, Appeals Council review, and the court action. This information includes the applicant?s age, education years, primary impairment, reason for the court remand, etc. The methods for selecting cases for DRB review are expected to evolve over time as more data are available and SSA gains more experience and knowledge in the use of computer-based tools. Any software will make use of current SSA databases and systems architecture already available, if applicable.

The Disability Service Improvement (DSI) plan does not work unless this profiling/screening tool works, since otherwise there will be far too many Social Security cases going to federal court. This would cause intolerable problems for the federal courts and for Social Security. No one knows if screening tools can be made to work, yet DSI is already underway.

Specialization Exam Topics

The North Carolina State Bar has posted a list of topics covered on the examination they gave in November 2006 to applicants to become certified as Social Security Disability Law specialists. The list appears below. The NC State Bar is the only state bar so far which has certified specialists in Social Security Disability Law. The National Board of Trial Advocacy (NBTA) also certifies specialists in Social Security Disability Law, although no state other than Tennessee fully accepts the NBTA Social Security Disability Law certification, to the best of my knowledge.

2006 Social Security Disability Exam Topics To Help Prepare For The 2007 Exam

Asterisks appear beside many of the topics. These asterisks signify topics that were problematic for those taking the 2006 examination. Below is an explanation of the asterisks.

* Missed by 25% or more of test takers
** Missed by 50% or more of test takers
*** Missed by 75% or more of test takers

Where an issue was presented in more than one question, the asterisk or asterisks shown reflect the question that was most frequently missed.

1/3 reduction rule*
Age as factor in disability determination
Alcoholism
Ambulate effectively
Amending alleged onset date**
Appeal of partially favorable decision***
Appeal deadline closely approaching**
Appealable decisions**
Bipolar disorder*
Burden of proof**
Chances of success at various levels of review
Childhood listings*
Close transference of skills*
Closed period cases
COBRA**
Computation of title II benefits
Computing date last insured**
Consultative examinations
Correction of Title II computation errors
Correction of Title XVI computation errors
Court remands
Cross examination of VE***
Death of claimant
Dependent benefits
Diabetes
Disabled widow and widower benefits
Disabled adult child benefits***
Diseases treated by various medical specialties
EAJA*
Effect of receipt of unemployment insurance benefits
Equaling listings*
Erosion of occupational base***
Escalation of claim*
Ethical issues in representing incompetent client**
Exertional and non-exertional impairments
Expedited decisions***
Factors that determine prospects for success of disability claimant**
Failure of claimant to appear for hearing**
Family relationships**
Fee agreement process
Fee petition process
Fees in termination cases
Fibromyalgia
Filing new claim at same time as appeal
Fully insured status
Good cause*
Grid regulations
Hearing continuance
Impairment related work expenses
Interim benefits
Listings*
Medical abbreviations
Medical terminology
Medicare eligibility***
Medicare Part B
Medicare only claims**
Medicine
NC Teachers and State Employees Retirement System, relationship to Social Security benefits*
Non-exertional impairments**
Not severe impairments
Obtaining medical evidence***
On record decisions**
Overpayment of attorney fee*
Overpayments
Passalong provision (Pickle people)***
Past relevant work
Period of disability
Post hearing interrogatories
Procedure on remand from Federal Court*
Protective filing dates***
Recognizing failure to file all appropriate claims***
Recognizing ethical issues in Social Security practice**
Re-entitlement period**
Reopening based upon mental incompetence*
Reopening based upon new and material evidence
Representative payee*
Res judicata and collateral estoppel***
Retroactive Medicare coverage
Retroactive effect of Title II claim
Return to work while claim pending**
RFC
RFC between two ranges of work**
Rulings**
Schizophrenia***
Sentence 4 versus sentence 6 remands*
Sequential evaluation
SGA
Social Security abbreviations
Spotting signs of retardation or mental illness**
SSI resources
SSI transfer of assets
SSI child disability
SSI benefits effective date
SSI -- requirement to file all other claims**
Subsidized employment*
Surviving divorced spouse benefits***
Sustained work activity
Transferability of skills
Trial Work Period*
Unsuccessful Work Attempts *
VA decisions**
VE qualifications***
Waiting period for Title II benefits
Withdrawing from representing claimant
Workers compensation offset, including issues raised by clincher agreements**
Worn out worker rule

Five Years For Social Security Fraud

Elmo Shepard has been sentenced to five years in prison for Social Security fraud for working under his late brother's Social Security number while drawing Social Security disability benefits, according to a story in the Chattanoogan.com.

Acting Commissioner To Be Dye?

Under an order issued some months ago by President Bush, Larry W. Dye, Social Security's Chief of Staff will become the Acting Commissioner of Social Security as of January 20, when the position becomes vacant because of the end of Commissioner Barnhart's statutory term. At least Dye will become the Acting Commissioner assuming that Dye is still at Social Security and that the President has not altered the succession at the last minute. Social Security's website shows Dye still at Social Security as the Chief of Staff. Perhaps, Social Security will put out a press release on Monday to make it absolutely clear.

The name of the Acting Commissioner is not without importance. Each working day dozens of Social Security claimants sue the Commissioner or Acting Commissioner of Social Security and they need to know whom they should list as the defendant.

An Assessment Of Jo Anne Barnhart's Term As Commissioner

Today is the final day in office for Jo Anne Barnhart, who has been Commissioner of Social Security for around five and a half years. Other than Govexec.com, few seem to be noticing this event. The Baltimore Sun has completely ignored her leaving.

Any evaluation of Barnhart's term as Commissioner should start by acknowledging a paradox. Upon becoming Commissioner, Barnhart frankly acknowledged that there were severe problems in Social Security's disability programs, with the biggest problem being how long it was taking to adjudicate cases. She promised to undertake dramatic reforms to make the situation better. Her frank acknowledgment of Social Security's problems and promises for reform have drawn praise from Republicans and Democrats alike. So what is the paradox? The paradox is that the Social Security disability program problems that Barnhart inherited are still there as Barnhart leaves office and they have become worse. Indeed, Social Security as an agency can accurately be described as crumbling, yet Barnhart remains widely admired for her work as Commissioner.

Barnhart promised to make things better, but things got worse. How could she leave office with the aura of having been a successful Commissioner of Social Security? Three reasons come to mind. First, Barnhart has been quite willing to listen to other people. In the Bush Administration this has not been a common virtue. Second, she has not had a nutty right wing agenda. Again, this makes her stand out in the Bush Administration. Third and most important, Barnhart has shown herself to be an excellent politician. She has succeeded in having herself defined by her ambitions rather than by her achievements.

If we are to base an appraisal of Barnhart on her actual achievements, we can only believe her to have been a successful Commissioner if we believe the following three things:

1. The only reason that there are still big backlogs at Social Security is that Congress would not appropriate the money that Barnhart asked for and that President Bush put in his budget for Social Security.
2. EDIB (paperless files) is going to make Social Security significantly more efficient.
3. DSI (Disability Service Improvement, Barnhart's reorganization of the Social Security disability process) is going to bring significantly greater efficiency and consistency to disability determination.

Barnhart has been claiming for the last three or four months that there would be no major backlogs at Social Security if Congress had just voted for the budgets that President Bush put forward. It is impossible to either prove or disprove this claim. However, the cuts that Congress has made in Social Security's budgets, while serious, cannot realistically be said to account for backlogs approaching two years in giving claimants hearings on Social Security disability claims or to account for the agency's inability to answer its telephones in a timely fashion.

One also has to wonder why Barnhart has only been willing in the last three or four months to blame Social Security's backlogs on an inadequate budget. Why was she almost completely silent on this subject for five years? If Barnhart had been willing to make a fuss about her budget would Social Security have gotten more money? There is no way to know, but Barnhart would be in a stronger position to blame Congress if she had complained publicly that the budgets that Congress was providing were inadequate to provide basic service.

While Congress must bear the blame for what has been appropriated for Social Security, Barnhart's conduct as Commissioner has not helped Social Security's budget situation and has probably hurt. She came into office promising that service at Social Security could be dramatically improved with some improved technology and what amounts to a reorganization. A reasonable Congressperson would have concluded from this that Social Security's service problems were relatively minor and that there was no pressing need for additional funding for Social Security's administrative budget. Had Barnhart concentrated upon Social Security's budget from the beginning rather than distracting Congress by promising a relatively painless fix, Social Security might be in much better shape today. If nothing else, Congress would have a more accurate idea of what the problem is.

Barnhart has also chosen to spend huge sums of money on the implementation of EDIB, the paperless file that she has claimed will make Social Security much more efficient. In the short run the money spend on EDIB has been taken away from current operations. This has hurt the agency. Implementation of any new technology also causes at least short term disruption in operations. That disruption has been quite visible with EDIB and has hurt Social Security in the short run. The question is whether the long term advantages of EDIB outweigh these short term costs. Unfortunately for Barnhart, by this point we have enough implementation of EDIB that we can say that, at best, EDIB, will never yield more than minor productivity gains. Indeed, Barnhart, herself, has been noticeably quiet on the marvels of EDIB over the last year or two -- since about the time the first reports came in on how EDIB was affecting productivity, reports that have yet to see the light of day. This makes, implementation of EDIB look like a very questionable accomplishment for Barnhart.

There are also issues about how EDIB has been implemented. Why was EDIB based upon TIFF files rather than PDF files? TIFF versus PDF sounds arcane, but it is not that complicated. The dominant scanned file technology in the marketplace is Adobe Acrobat, which uses PDF files. TIFF is a technology that has lost out in the marketplace. Other than at Social Security, TIFF is a legacy technology, something that has to be dealt with because there are still files around that were scanned in TIFF years ago, but not something used to scan new files. Commissioner Barnhart chose to hire a contractor who is charging huge sums of money to program TIFF to provide features that are already available off the shelf in Adobe Acrobat. Why lock Social Security into spending huge sums of money to create and maintain a proprietary program that largely replicates a program that is already available in the marketplace? No one ever forced Barnhart to answer this question.

Barnhart has also chosen to turn to large contractors to do most of the scanning for EDIB. This means that Social Security offices receiving material to be scanned generally do not do the scanning in-house. They ship the paperwork to huge scanning centers in other states to be scanned. Is this efficient or reasonable?

Implementation of Barnhart's Disability Service Improvement (DSI) plan has just begun. DSI has not had a chance to either succeed or fail. Will it succeed? The odds seem stacked against it.

The centerpiece of DSI is the Federal Reviewing Officer (FEDRO). At the moment, it is unclear whether Social Security has enough money to hire enough FEDROs to implement DSI even in one small region. Even if the money can be found, it is unclear whether Social Security can find enough people willing to work as FEDROs, when the future of DSI remains uncertain. Even if enough people can be hired, Barnhart has never put forward any compelling rationale for why FEDROs are an improvement over the traditional method of review. Barnhart's main argument seems to have been to ask people to look at how bad things are -- and then say that her plan will be much better, without explaining why. It is undeniable that the current situation is terrible, but that does not mean that any change must be a change for the better. Iraq is a good example of the fact that a poorly thought out plan can always make a bad situation worse.

The other major part of DSI is elimination of the Appeals Council. The pesky problem with this is that everyone who has looked at eliminating the Appeals Council, including Barnhart, knows that simply eliminating the Appeals Council will increase the number of Social Security civil actions in the federal courts to unacceptable levels. Barnhart has promised this will not happen because Social Security will somehow find a way to screen out most of those cases by using some computer program to identify those cases and review them before they ever get to federal court. Yet, no such program exists. Social Security has only recently started seeking a contractor to develop such a program. Actually, there would be a simple way of doing this. That would be to review ALJ decisions denying benefits when the claimant is represented by an attorney who has a history of bringing civil actions against Social Security, but that would not be politically acceptable. It would also be a long term disaster for Social Security since it would just encourage more civil actions. Other than identifying cases to review based upon who is representing the claimant, there is probably nothing that will work. The dramatic increase in business for the federal courts caused by eliminating the Appeals Council is a problem that Barnhart has sought to finesse. Her solution has been to leave the problem for her successor.

Barnhart came into office promising to successfully implement EDIB and DSI so that she could "enjoy" them before the end of her term in office. Clearly, that did not happen. Social Security disability claimants cannot now "enjoy" any of Barnhart's achievements, for there are none. There is scant evidence that future claimants will ever "enjoy" any benefit from Barnhart's plans. At the end of the day, Social Security is demonstrably worse off than when Barnhart arrived and there is little reason to believe that future developments will make her time in office look any better.

In the end, the best defense of Barnhart -- and in the context of the Bush Administration, it may not be a bad defense -- may be that she meant well and we could have done a lot worse.

Maybe Grover Norquist Was The Final Straw

The Associated Press reports that President Bush has now grudgingly, but officially, agreed that he will no longer pursue private accounts at Social Security -- or at least he will not pursue private accounts to begin until at least 2011 or 2012. The stated grounds for this decision is the need to produce a plan to balance the budget by 2012.

Grover Norquist has been strongly pressuring President Bush to not include any tax increase in any plan he may have for Social Security. There was probably no hope for a Social Security plan anyway, but eliminating the possibility of a tax increase makes it utterly impossible. Norquist may not be a household name, but he is one of the most important figures in right wing political circles and someone whom a weakened President Bush cannot afford to cross.

Fraud Allegation In Pennsylvania

The Pittsburgh Tribune-Review reports on Angelette Freeze who has been indicted for Social Security fraud for failing to reveal that she was married, a fact that would have affected her right to receive Supplemental Security Income from Social Security.

Grover Norquist Drives Another Nail In the Coffin

From Bloomberg:

Conservative leaders are confident their opposition to higher taxes scuttles any chance that President George W. Bush will make a deal with congressional Democrats to overhaul Social Security.

`Nothing will happen in the next two years'' on Social Security, said Grover Norquist, president of Americans for Tax Reform. After lobbying Bush and Treasury Secretary Henry Paulson, Norquist said the officials made clear to him that ``they don't intend to raise taxes.'' Some Democrats have made Bush's willingness to consider tax increases a precondition for negotiations over Social Security.