Michigan Social Security Section Issues Newsletter

The Social Security Section of the State Bar of Michigan has issued its Spring 2007 newsletter. Michigan has been hit by some of the worst Social Security hearing backlogs in the country. In one way or another, most of the newsletter has to do with these backlogs.

Federal Times On Social Security Subcommitt Hearing

Some excerpts from a Federal Times article:

Using terms such as “criminal,” “deeply disturbing” and “national embarrassment,” lawmakers ripped into the heads of the Social Security Administration and the Office of Personnel Management on May 1 for failing to bring on new administrative law judges to tackle historically high backlogs of applications for federal disability benefits. ...

“I think it’s criminal — and I’ll repeat that, I think it’s criminal — that you’re waiting until the end of the year now to get it [create a new register from which Social Security could hire Administrative Law Judges (ALJs)] done,” said Rep. Sam Johnson, R-Texas, ranking member of the subcommittee. ...

Astrue said a lack of money — and not the absence of a new register — has been the biggest barrier to hiring new judges. On average, Social Security has received about $180 million less than the president has requested each year since 2001, he said. The additional money would have allowed the agency to process an additional 177,000 disability benefit claims and hold 454,000 additional ALJ hearings since 2001.

Disappointing News From Social Security Subcommittee Hearing

I found yesterday's Social Security Subcommittee hearing a bit disappointing for the following reasons:

• Commissioner Astrue wants to hire only 150 new Administrative Law Judges (ALJs) with support staff to go with them in the next fiscal year. When Subcommittee members pressed him on whether this would be enough, he said that this was the most that Social Security could absorb in one year. He did not say anything like, "Under the budget I expect to get, that is the best I think we can do" or "If you can get me another $100 million, I can hire another 200 ALJs and staff to go with them." There is some uncertainty about exactly what Social Security's budget will be for the next fiscal year, but Astrue seemed certain that regardless of the budget, 150 new ALJs and staff to go with them was all he intended to hire.

Hiring 150 new ALJs is not enough to make much of a dent in Social Security's hearing backlog. It is little more than enough to keep the backlog from getting worse. If there is no more hiring than this, the wait for an ALJ hearing on election date 2008 will be only slightly less than it is now.

I do not discount the difficulty in hiring, training and housing 150 new ALJs and the staff to go with them in the next fiscal year. That will be a challenge. Hiring a good many more would be very difficult. Finding enough office space to house more would be a huge challenge. However, the Subcommittee seems to share my view that this is a crisis. In a crisis, one must do extraordinary things. I suggest that the appropriations bill for Social Security should earmark $250 million for more ALJs and the staff to go with them. This would force Social Security to treat the hearing backlog as a crisis and undertake a crash program to deal with it. I can only make a wild guess on this, but I would guess that this sort of earmark would triple the number of ALJs and support staff hired. That would make a huge difference.

• Astrue made only a vague mention of ideas that he has for reducing the hearing backlog other than hiring more personnel. He said that he had something pending at the Office of Management and Budget (OMB) and that he could not say anything until he heard back from them.

At the conference of the National Organization of Social Security Claimants Representatives two weeks ago, other Social Security officials mentioned using senior attorneys to review requests for hearing and allow strong claims, restarting re-recon, allowing use of short form allowances and encouraging bench decisions. To the best of my knowledge, the only one of these that would require new regulations which would require OMB approval would be the senior attorney program -- and, if Astrue really wanted to get that going quickly, he could just call the senior attorney decisions reconsideration decisions and do it without OMB approval. Why did Astrue not mention these other ideas? Why is he waiting on OMB approval for restarting senior attorneys instead of simply calling these senior attorney decisions reconsideration decisions? There is no guarantee that OMB will approve senior attorney decisions. OMB officials do not have to testify at Congressional hearings. OMB is part of the White House. Traditionally, OMB has been leery of anything that accelerates the process of getting disabled people on Social Security disability benefits. We will have to see what Commissioner Astrue has to say when he testifies before the Senate Finance Committee. That hearing has not been scheduled yet, but should come up before the end of the month.

• Commissioner Astrue said that he wants to centralize a good part of the ALJ corps.

Why centralize? Falls Church, VA, which is where the central offices for the Office of Disability Adjudication and Review is located, has high real estate costs and terrible traffic for commuting. Would ALJs want to work at a large ALJ farm with dozens of other ALJs? It is going to be hard to hire ALJs to work in Falls Church. Falls Church is in the Eastern time zone, which would be inconvenient for holding video hearings for claimants on the West coast. There is no need for centralizing ALJs to deal with workload imbalances. An ALJ at an ODAR hearing office in Miami can hold a video hearing for a claimant in Detroit just as easily as an ALJ in ODAR's central office in Falls Church. On the whole, centralizing a large group of ALJs in Falls Church seems both unnecessary and unworkable.

So why would Commissioner Astrue be thinking of centralizing ALJs? I can think of only one reason. He likes the Medicare model. The Center for Medicare and Medicaid Services (CMS) has centralized ALJs. The reason appears to be a strong desire to control the ALJs. The feeling is that if ALJs are centralized that they can be closely managed and controlled by central office brass. This reflects a strong distrust for ALJs. This is a bad sign.

Medicare Prescription Drug Implementation Hearing Coming

The Senate Finance Committee has scheduled a hearing for May 8 on the Medicare Prescription Drug Benefit. Beatrice Disman, the New York Regional Commissioner for Social Security, who is the chair of Social Security's Medicare Planning and Implementation Task Force, is scheduled to testify.

More Coverage Of House Social Security Subcommittee Hearing

An excerpt from GovExec.com:

Astrue testified that Social Security has worked hard to resolve those cases in which applicants had waited 1,000 days or more for a hearing, and has cut that number from 65,525 last October to 17,966 as of last week. But he said that despite making a record number of decisions last year, the agency lost ground and has more than 730,000 cases pending.

He said that over the past several years, funding has been a greater constraint than the ALJ candidate roster. He said appropriations repeatedly have fallen short of the president's budget request, and that he has been meeting with appropriators to make the case for full funding in the next budget cycle.

He said the productivity of some of the ALJs, who essentially receive lifetime appointments, also has been a concern, and that the agency is working to modernize its systems and make better use of technology.

The agency hopes to hire 150 additional ALJs in the coming budget year. Pomeroy questioned whether that would be sufficient to handle the record backlog, urging the commissioner to "think more aggressively than that." But Astrue said 150 new judges would be a challenge to train in one year, and that funds for more hiring could be requested later.

Rep. Stephanie Tubbs Jones, D-Ohio, attacked Astrue for the agency's failure to fix the problem, and invited him to Cleveland to explain the problems to her constituents.

Describing the heartbreak he experiences facing impoverished, disabled constituents, some of whom wait three or four years for a decision on their case, Rep. Sander Levin, D-Mich., noted that about two-thirds of those appeals ultimately would be vindicated. "I don't know how you live with yourselves," he said to the witnesses.

Fraud Charge In Maryland

From the Baltimore Examiner:

A woman faces welfare fraud and theft charges for allegedly lying about her marital status to collect $12,000 dollars in government benefits on behalf of her son.

Ginger Kay Wilson, 44, also faces unrelated charges of dealing methamphetamine, maintaining a common nuisance and neglect of a dependent.

Brett M. Yonkus, a special agent with the Social Security Administration, said Wilson collected $12,041 between May 2005 and January of this year by falsely reporting she lived alone with her 2-year-old son.

When Wilson completed paperwork in February applying for her own disability benefits, she reportedly told a claims representative she had lived with her husband, Thomas, for seven years. The claims representative later found paperwork Wilson had filed within the same time frame for her son and noted the discrepancy.

Disability Benefits Restored

The Journal Star of Lincoln, Nebraska reports on Michael Rhodes whose Social Security disability benefits were finally restored after a five year battle. If only all such stories were covered by newspapers.

Upcoming Meetings and CLE

• May 1, 2007, Legal Services of New York Legal Support Unit CLE, New York, NY
• May 2, 2007, Indiana CLE, Indianapolis, IN
  
• May 2-4, 2007, NADE Regional Training Conference, Seattle, WA
• May 5-9, 2007, NADE Biregional Training Conference, Atlanta, GA
  
• May 7-10 2007, NADE Regional Training Conference, Atlanta, GA
• May 8, 2007, Social Security Advisory Board Meeting, Washington, DC
  
• May 14, 2007, Legal Services of New York Legal Support Unit CLE, New York, NY
• May 16, 2007, Legal Services of New York Legal Support Unit CLE, New York, NY
• May 18, 2007, State Bar of Michigan Social Security Section Meeting, Lansing, MI
• May 20-23, 2007, National Association of Disability Examiners Meeting, Stowe, VE
• June 8, 2007, Minnesota CLE on Social Security Practice, Rochester, MN
• July 12, 2007, PBI CLE, Pittsburg, PA
• July 23, 2007, Legal Aid Society, Nashville, TN
  
• September 10-15, 2007, International Social Security Association General Assembly, Moscow, Russia
  
• September 15-20, 2007, NADE National Conference, Sioux Falls, SD
• October 17-20, 2007, NOSSCR CLE, St. Louis, MO
• November 30, 2007, Legal Services of New York Legal Support Unit CLE, New York, NY
• April 8-11, 2008 NADE Regional Conference, Austin, TX
• June 4-7, 2008 NOSSCR CLE, Miami, FL
• October 15-18, 2008 NOSSCR CLE, Century City, CA

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