New EAJA Payment Issue

The Equal Access to Justice Act (EAJA) reimburses civil litigants who sue or who are sued by the federal government for their legal fees if the government's position is not "substantially justified." EAJA is used far more often by claimants suing the Social Security Administration than by any other group of litigants.

EAJA has evolved into a well understood routine for the Social Security Administration and attorneys who represent Social Security claimants. The end result if EAJA is approved has been that Social Security makes a direct deposit of the fee into the attorney's bank account. Since the EAJA fee is almost always received long before any other fee in a Social Security case and, indeed, before the claimant is paid, the EAJA fee is just used to reduce the fee that the attorney would otherwise receive coming out of the claimant's benefits.

The problem is that the Department of Justice -- not Social Security -- is insisting that the EAJA fees be sent to the person who has sued or been sued by the federal government. This means the end of payments to the attorney. Instead, the Social Security claimant, who generally has not yet received any Social Security benefits, will be paid the EAJA fee, leaving it to the attorney to try to collect the fee directly from the client. I have heard directly from Social Security today that a memo has come out directing Social Security's attorneys from refusing to agree to an EAJA payment that goes directly to the claimant's attorney.

This is going to lead to two things. First, there will be efforts to get Social Security claimants to agree to assign the EAJA fee to the attorney. Second, there will be litigation that will probably get to the Supreme Court eventually, if some new Attorney General appointed after George W. Bush leaves office decides that this is not worth fighting over.

House Appropriations Bill Only $100 Million Over President's Proposed Budget For SSA

Despite a mistaken press release from the House Appropriations Committee and despite an erroneous report from the Disability Policy Collaboration, I am being told that the fiscal year 2008 Labor-HHS appropriations bill that covers Social Security is currently only $100 million over the President's proposed budget for the Social Security Administration (SSA), instead of the $400 million expected.

I know you are thinking, a hundred million dollars here or there, what difference does it make? Trust me, $300 million in the context of Social Security's budget is REAL money that will make a real difference in how well or how poorly the agency performs.

The $100 million figure has been reported out of Subcommittee. The entire House Appropriations Committee takes up the matter on June 14 at 9:00. You can watch it live on your computer in streaming video, although the vast majority of the markup session will be about other agencies. Although a small matter in the context of the entire bill, the Social Security appropriation seems certain to get some discussion. The public confusion we are getting on this is probably the result of some behind the scenes differences of opinion.

An Old Error Corrected

From The Day of Connecticut:

Montville — A local man was recently awarded more than 25 years worth of disability benefits, retroactive to the Reagan era.

Uncasville resident Robert Kram, 64, could receive about $150,000 in benefits dating back to December 1982, according to his lawyer, Thomas Albin. ...

Kram was granted Social Security disability benefits in July 1970, when he was 27 years old, based on chronic schizophrenia that was diagnosed and well-documented, according to Albin. Kram was paid monthly disability checks until the Social Security Administration, pursuant to a policy initiated by President Reagan, determined in December 1981 that Kram had made significant medical improvement.

Kram, living with his parents at the time, did not contest the decision and went without funds for many years while his parents took care of him.

“His parents didn't know how to go about filing an appeal, so instead, the following year they filed a new application,” Albin said.

His new application was also denied and not appealed.

In 1995, Kram's sister, Dorothy Smith of Quaker Hill, brought Kram to Albin's office to see what recourse he might have. ...

everal years passed and several court appearances followed. Kram's parents died during the appeal process, and another sister, Dolores, moved in to his Uncasville home to take care of him. ...

At a hearing in March, Billings S. Fuess, a medical expert, testified that Kram's condition had been disabling at all times, that he had never made any significant improvement and that his condition would have prevented him from filing his own appeal.

Administrative Law Judge Ronald Thomas found that Kram was impaired by schizophrenia and that he had not engaged in substantial activity since his diagnosis in 1970. He noted that Kram's condition had not improved, and the claimant meets the criteria to receive disability benefits.

Monthly Social Security Stats

The Social Security Administration has issued its monthly packages of statistics on Social Security and Supplemental Security Income.

Hearing Office Backlogs Correction

Let me correct something I posted yesterday. I said that the hearing backlog numbers that Social Security is releasing to the public understate the severity of the problem, since they do not include backlogs that delay requests for hearing reaching Social Security's hearing offices. I am pretty sure this is now incorrect.

The problem of Social Security's hearing backlog statistics being inaccurate because they counted only the time from the date the appeal reached a hearing office rather than from the date it was filed was one that existed in the old Hearing Office Tracking Systems (HOTS), but that has been replaced by the more accurate Case Processing Management System (CPMS), which apparently solved this problem. There is a report from Social Security's Office of Inspector General that discusses the improvements in going from HOTS to CPMS.

Remember, I am an attorney in private practice. I have never used either HOTS or CPMS.

The problem of data entry backlogs at Social Security's Field Offices to which I referred is a very real and growing problem that is receiving virtually no attention.

Somebody Is Confusing Me

The Disability Policy Collaboration is reporting that the House Appropriations Subcommittee that covers Social Security has reported out a $400 million increase for the Social Security Administration (which was what was expected), yet the Subcommittee's summary shows only a $100 million increase (which had surprised me). Is the Disability Policy Collaboration confused or is the Subcommittee summary misleading?

The same report from the Disability Policy Collaboration also says that:

House Republican leaders are urging their colleagues to sign a pledge to uphold the President’s promised vetoes of eight FY2008 appropriations bills that are expected to exceed the Administration’s budget request, including the Labor/HHS/Education proposal. The support of two-thirds of the House is necessary to override a veto. At the end of last week, about 140 Republicans had signed a letter being circulated by Representative John Campbell (R-CA) promising to support the President, leaving the GOP leadership still shy of having enough votes to sustain the veto threats.

More Personnel Or More Williard Scott Expenditures?

It looks as if Social Security may end up with more money than was called for in the President's proposed Fiscal Year 2008 budget. The appropriations bill pending in the House of Representatives would increase the budget by $100 million. Others want to increase the budget by $400 million or more above Bush's budget. However, Michael Astrue, Social Security's Commissioner wants no more than Bush's proposed budget.

This raises an important question. If Social Security ends up with more money than Bush and Astrue are asking for, what will Astrue do with the extra money? The assumption may be that he would use the extra money for more employees. There seems to be near universal agreement that Social Security needs more employees. However, I said near universal agreement. There are signs that the Office of Management and Budget is extremely interested in holding down the number of employees at the Social Security Administration. During former Commissioner Barnhart's term of office, the number of employees at Social Security declined rapidly, even though Social Security's operating budget was going up at greater than the rate of inflation. Bush's proposed 2008 budget for Social Security contains a 4% increase in agency funding -- but holds employment steady. Mike Astrue has already said that he intends to add about 1,000 employees to Social Security's Office of Disability Adjudication and Review (ODAR). Does that mean that he intends to cut employment elsewhere at Social Security by 1,000? With extra money, does he just increase ODAR employment and hold employment elsewhere in Social Security steady? Does he just continue cutting employment elsewhere in Social Security and find other ways to spend the money?

There are always ways that an agency can spend money that do not involve hiring more people to get the work done. There are always contractors to hire and computer equipment to buy. Also, you can just waste money. My favorite Social Security waste of money was hiring Ari Fleischer and Willard Scott in 2006 to speak at a gathering of Social Security public relations personnel, as service was rapidly deteriorating at Social Security Field Offices.

So, if Social Security gets more money than the President proposed, does Astrue spend the money for more employees, who are hard to get rid of, or does he spend it on contractors and equipment that may or may not be needed, or does he just find ways to just fritter it away?

I have read some bad things about earmarks in appropriations bills, but I think some earmarks in Social Security's appropriations bill could be a good thing.

The Name "Mohammad"

This is a bit off topic, but fascinating. It is from a blog by the editors of Foreign Policy Magazine:

Last week we learned that Mohammed was the #2 name for baby boys in Britain last year, when the top 14 spellings were considered.

Of course, that made me wonder, how popular is Mohammed in the United States? So I visited the website of the U.S. Social Security Administration, which provides the top 1,000 baby names for each sex going back to the late 1800s. No spellings of Mohammed made it into the top 1,000 until 1976, when Muhammad came in 976th place with 73 births.

In 2006, Mohammed ranked #217, between Dominick and Rafael, when the four spellings that made it into the top 1,000 (Mohamed, Mohammad, Mohammed, and Muhammad, in order of decreasing popularity) were considered. No other spelling has ever made it into the top 1,000.

Then I wondered, were Muslims hesitant to name their sons Mohammed after the 9/11 terrorist attacks? It looks like that might have been the case, at least for a while. The graph below shows how many Mohammeds of all four aforementioned spellings were born in the United States each year since 1976, with data coming from Social Security card applications.

Interestingly, a total of 27,350 Mohammeds of the top four spellings were born from 1976 to 2006. That may sound like a lot, but 24,418 Jacobs were born last year alone.