A Question

My recollection is that some years ago there was a program by which the Office of Hearings and Appeals (OHA), as it was known then (and as I hope it will eventually be known again) had a program to pre-notify Social Security's payment centers when an Administrative Law Judge (ALJ) was about to issue a decision approving a Social Security disability claim, so that implementation could begin even while the ALJ's office was still writing the decision.

I was under the impression that pre-notification had been quietly dropped many years ago. At least I had seen no evidence that it still existed. However, today I received an attorney fee payment less than a week after I received a favorable decision from an ALJ -- and, no, there was no delay in my receiving the ALJ decision. Given the time frames involved in getting a check issued, I find it hard to believe that the ALJ decision could have been implemented that quickly unless there was pre-notification.

Did the pre-notification of ALJ decisions never really end? Has it been re-implemented?

An Image From 1970

Fraud In Blountville, TN

The Tri-Cities Times News reports that William D. Pickel of Blountville, TN has pleaded guilty to one count of Social Security fraud. He had failed to report occasional employment as a truck driver and later as owner of a truck line while drawing Social Security disability benefits.

Social Security And Supported Employment

From the San Antonio Express News:

The Social Security Administration is sponsoring an important four-year study of supported employment to determine how to best assist those living with mental illness. ... Supported employment offers some close supervision and skill coaching to assist the individual in coping with work stress and demands, and the demands of the illness. ...

The Mental Health Treatment Study extends an earlier pilot study in 1996 ...

Based on this earlier success [what earlier success?], the government is further investigating the Individual Placement and Support Model in a larger national study. The IPS model involves providing job coaching (only two weeks of pre-employment training so individuals can begin working sooner), a rapid job search and an emphasis on mainstreaming individuals rather than referring them to "enclaves." ...

The national study will include 22 sites this time instead of nine. From our site [in San Antonio], the study is recruiting 150 Social Security Disability Insurance beneficiaries who have mental illness; those already enrolled in supported employment cannot participate in the study.

Bad Day For Claimant: Legal Malpractice And A Possible Privacy Act Violation

From a recent opinion published in Social Security's Program Operations Manual Series (POMS):

The evidence provided indicates NH [Number Holder] reached a compromise settlement with his employer through the South Carolina Workers' Compensation Commission (SCWCC) in his workers' compensation case. NH was rated as having a 28% impairment to his spine. As part of the settlement, NH's employer agreed to pay NH a sum of $140,000. The parties agreed the sum would include attorney's fees and costs and $93,055.34 over NH's life expectancy of 57 years at the rate of $31.40 per week ...

... when a disability beneficiary receives a lump-sum settlement that is a commutation of, or substitute for, periodic workers' compensation benefits, the Act requires the Agency to prorate that lump-sum payment. Act § 224(b), 42 U.S.C. § 424a(b), 20 C.F.R. § 404.408(g). The Act instructs the Agency to prorate the lump-sum payment in a manner that "will approximate as nearly as practicable the reduction" that would have been applied had the beneficiary received his or her workers' compensation payments on a weekly or monthly basis. Id.. To accomplish this, the Agency must determine the amount of workers' compensation payments the beneficiary would have received weekly or monthly had he not opted for a lump-sum payment, prorate the lump-sum award using the prorated amount, and impose the statutorily prescribed offset accordingly. To guide Agency adjudicators, the longstanding policy in the POMS sets forth a three-tiered set of priorities for prorating state lump-sum workers' compensation awards at an established rate. In priority order, the Agency is to prorate the award at:

1. The rate specified in the lump-sum award.

2. The latest periodic rate paid prior to the lump-sum, if no rate is specified in the lump-sum award.

3. The state's maximum workers' compensation in effect in the year of the injury/illness, if no rate is specified in the award and there was no preceding periodic benefit.

POMS DI 52001.555(C)(4)(a). However, the Agency has for some time been aware that attorneys have seized upon the opportunity offered by these POMS instructions to insert artificially low rates in settlement agreements to lessen or perhaps avoid entirely the reduction that otherwise would be required by section 224 of the Act. While the Agency's long-standing interpretation of section 224 has been that the Act requires it to look to state law to determine what rate would have been paid had the workers' compensation been made on a periodic basis, see § 224(a)(b) of the Act, 42 U.S.C. § 424a(a)(b); 20 C.F.R. § 404.408(g) (2006), the Act still places the ultimate responsibility for determining the offset rate in the hands of the Commissioner. See B~ v. A~, 150 F.3d 177, 181-182 (2nd Cir. 1998). ...

In the settlement, the parties state this weekly allocation rate is based on a life expectancy of 57 years which was determined pursuant to S.C. CODE ANN. § 19-1-150. However, in reviewing this statute, we find that the SCWCC erred in calculating NH's life expectancy. The proper application of S.C.CODE. ANN. § 19-1-150 reveals that a person of NH's age of 57 actually has a life expectancy of 23.10 years. See S. C. CODE ANN. § 19-1-150. Therefore, the SCWCC's life expectancy determination was incorrect in light of the South Carolina statute relied on by the parties. (emphasis added) ...

The life expectancy determination by the SCWCC was incorrect. The Agency is not bound to follow the weekly allocation rate set forth in NH's settlement agreement as would be customary under step one of POMS DI52001.555(C)(4)(a).

If you are following this, the attorney representing this claimant based the worker's compensation settlement upon a life expectancy of 57 years, but 57 was how old the claimant was. His life expectancy was actually 23.1 years.

By the way, I will not repeat it here, but this opinion happens to list the actual name of the claimant. Only his Social Security number is redacted. It may not just the claimant's attorney who fouled up. I wonder if Social Security has some obligations under the Privacy Act in this case.

Statements To House Social Security Subcommittee On Identity Theft and SSNs

Several of the written statements to the House Social Security Subcommittee for today's hearing on protecting the privacy of Social Security numbers from identity theft are now available online. The statement of Marc Rotenberg of the Electronic Privacy Information Center contains this interesting information:

H.R. 948, the Social Security Number Protection Act of 2007, has passed before the Committee on Energy and Commerce and has been reported to the House. The purpose of H.R. 948 is to prohibit the display and purchase of Social Security numbers in interstate commerce pursuant to rules to be promulgated. ...

Sections 3(a)(1) through (3)(a)(3) of H.R. 948 create a facially broad prohibition on the public display of Social Security numbers on the Internet, the requirement to use an individual’s Social Security number as a password for access to any goods or services, and the display of Social Security cards on any membership or identity card. However, Section 3(c) grants the Federal Trade Commission open-ended authority to promulgate exceptions to the prohibitions contained within the bill.

Senate Finance Committee Written Statements

The written statements for the Senate Finance Committee's hearing today barriers to work for Social Security disability recipients are now available online.

The only witness whose written statement suggests a strong attachment to the delusion that some change in policy could return vast numbers of disability recipients to work was Dr. David Stapleton of the Cornell University Institute for Policy Research. Stapelton has been receiving a good deal of grant money from Social Security. Could considerations of his own self-interest have something to do with this paragraph at the close of his statement?

I urge this Committee, all government leaders, and advocates for people with disabilities to support the design, testing, and eventual implementation of transformative disability policy changes – changes that will help people with disabilities achieve both greater economic self-sufficiency and more fulfilling lives. Within that framework, the highest priority should go to efforts that will reduce the premature exit of workers with disabilities from the labor force and
into SSDI.

I would like to read even one report or statement from one of these researchers that did not call for more research dollars to be funeled to them.

Social Security Indendent On Budget

An anonymous poster responded to something I had written to say that regulations of the Office of Management and Budget prohibit federal agency heads from lobbying for appropriations in excess of what is contained in the President's recommended budget. This is true and an important fact for agencies other than Social Security.

However, the Social Security Administration is in a unique position. The Social Security Independence Act now only allows, but requires Social Security to submit its own budget request directly to Congress, which means that the Commissioner of Social Security is free to lobby Congress for whatever budget he feels that his agency needs. Indeed, if the Commissioner of Social Security is unwilling to do so, there is little point in the Social Security Administration being an independent agency.

In refusing to advocate for his own agency's budget, Michael Astrue is making the case that the "independence" of the Social Security Administration is a sham and that in the next administration Social Security should either be returned to the Department of Health and Human Services or made a cabinet level department. Either of these would put Michael Astrue out of a job, which might not displease a newly elected Democratic president.