Testimony On SSI Computation Issues

Below are some excerpts from testimony of David Rust, Social Security's Acting Deputy Commissioner for Disability and Income Security Programs before the Subcommittees on Select Revenue Measures and Income and Family Support on October 17.

... this provision would treat most military compensation as wages for SSI, and codify SSA's policy of treating certain housing allowances as “in-kind” income. We believe this legislation is very important. ...

Under current SSI law, generally only basic pay is counted as earned income. All other allowances – housing, uniform, special duty pay, and so on – are counted as unearned income. Because of SSI's provisions supporting beneficiary efforts to work, earned income is treated differently than unearned income in determining benefit eligibility and payment level. ...

This distinction between consideration of military basic pay and other pay types has had the effect of disadvantaging military personnel compared to civilians in similar situations....

The proposal contained in the HEART bill would result in treating most cash military compensation and civilian wages alike (for SSI purposes), thus eliminating this present unfair treatment of military compensation other than basic pay. ...

Turning to the second proposal, we also support legislation that would exclude the AmeriCorps State and National and AmeriCorps National Civilian Community Corps program payments for purposes of determining SSI eligibility and benefit amounts. ...

... the third proposal to exclude State annuity payments to blind veterans from income consideration for SSI benefits, could serve as a means to recognize that sacrifice. An exclusion of State annuity payments for veterans who, by definition, are blind and also of limited means, may be reasonable and appropriate.

Department Of Treasury Issues Another "Issue Brief" On Social Security

Proving that he still believes, the Secretary of the Treasury has put forth another "Issue Brief" designed to move the country towards some sort of "Social Security reform." The paper tries to convince the public that Social Security as presently constituted is worthless, that anyone born after 1935 will get less money out of Social Security than they put in, unless they are a very low wage earner. Of course, in figuring this, disability benefits are not considered. Although the report does not mention it, I think that survivor benefits are also ignored, which makes the report seriously misleading. The report also suggests that the Social Security trust funds are meaningless and no one should have any real hope of receiving Social Security benefits in the future. If you believe what this report says, you have to believe that the country made a grievous mistake in enacting Social Security in the 1930s and that the program should be abolished as quickly as possible.

One Thing Astrue Did Not Mention

When Social Security's Commissioner, Michael Astrue, spoke at the conference of the National Organization of Social Security Claimants Representatives (NOSSCR) in St. Louis this week one subject that I hoped would come up was the cap on fees that may be paid for representing Social Security claimants. This has remained at $5,300 for more than five years. Social Security is allowed, but not required, to increase the fee cap for inflation. If the fee cap were adjusted for inflation, it would now be about $6,100. Astrue did not mention this subject.

New Digestive System Listings

The Social Security Administration has published new digestive system listings. The notice indicates that the new listings are expected to save substantial sums of money that would have been paid out to claimants. The rules are effective on December 18.

More From NOSSCR Conference

Here are a few more items from the National Organization of Social Security Claimants Representatives (NOSSCR) conference in St. Louis.

• More than 1,000 were in attendance.
• NOSSCR bestowed it Eileen Sweeney Distinguised Service Award to Barbara Samuels and Donald Becker.
• Michael Astrue has a daughter in college in St. Louis.
• Nancy Shor, NOSSCR's long time executive director said that it was her understanding that the current plan is that only 125 new Administrative Law Judges (ALJs) are to be hired in fiscal year 2009, which begins on October 1, 2008. [This may not be enough to keep up with ordinary attrition and is certainly not enough to do anything about the hearing backlog.]
  

Lisa De Soto At NOSSCR Conference

Lisa De Soto, Social Security's Deputy Commissioner for the Office of Disability Adjudication and Review (ODAR), spoke today at the National Organization of Social Security Claimants Representatives (NOSSCR) conference in St. Louis. Here are some points that I picked up from her presentation, with my comments in brackets:

• There were 18,000 cases remanded with 8,600 allowances under the "informal remand" [or re-recon] process in the fiscal year that ended September 30, 2007.
• ODAR has 144,000 cases that have been waiting for a hearing for 900 days or more. [Good Lord, that is a huge number.]
• ODAR has 1,045 Administrative Law Judges (ALJs) on duty now. [I believe that is down about 50 in the last six months or so -- ordinary attrition.]
• The new register from which ALJs can be hired should be available later this month.
• Only 92 additional staff members are to be hired to support the ALJs. [Since ODAR hiring along with all Social Security hiring is frozen as a general matter, this means that the support staff at ODAR will decline over the course of this fiscal year, since 92 will not be enough to replace ordinary attrition.]
• De Soto does not expect the new ALJs to be able to produce many decisions until near the end of this fiscal year (September 30, 2008).
• De Soto plans a November 1, 2007 "kickoff" for the Senior Attorney program.
• By the end of this month, ODAR will send out "guidance" to the ALJs to require them to hear and decide 500-700 cases per year.
• De Soto also mentioned the 11 actions brought before the Merit Systems Protection Board (MSPB) against ALJs this year and promised to "keep it up."
• She expects rules to be issued soon to require 75 day notice of ALJ hearings and to require that all evidence be submitted five days before ALJ hearings. These new rules will also "close the record" after an ALJ decision.
• ALJs at the new national hearings center at ODAR headquarters will supervise the attorneys who write the decisions for them. [This makes these ALJs supervisory personnel who would be ineligible to join a union. Was there an anti-ALJ flavor to her remarks? Absolutely.]
• If the national hearings center works, there may be an expansion to regional hearings centers.
• Currently there are 160,000 "unpulled" cases at ODAR. [If you do not know what "unpulled" means, well, the subject may not be important to you anyway.] Social Security has signed a contract for "e-pulling" of files. E-pulling should begin nationally by June 2008.
• The pilot for a program to allow attorneys to review online the files of their clients should begin in June 2008.
• By October 2008, ODAR should have many new things in place.
• De Soto favors an expansion of video hearings. De Soto refused to answer a question asking whether she expects local hearing offices to "wither away." I do not mean that she evaded the question. She said specifically that she was refusing to answer the question. [My congratulations to the person who asked this question.]
  
• De Soto said that she would not eliminate the right of a Social Security claimant to refuse a video hearing.
  

Astrue At NOSSCR Conference

Michael Astrue spoke today at the conference of the National Organization of Social Security Claimants Representatives (NOSSCR) in St. Louis. Here are some points which I gleaned from his remarks, with my comments in brackets:

• Former Commissioner Barnhart's Disability Service Improvement (DSI) plan was budgeted for 35% of his agency's budget when Astrue took office. [I found that to be a stunning figure. I can understand why Astrue may have thought when he first took office that merely cancelling DSI would free up a lot of dollars to deal with his agency's backlogs. The fact that it did not is very strong proof of just how unrealistic DSI was.]
  
• He described the Social Security Administration (SSA) as "struggling." He is "frustrated" with the length of time it takes to get out disability decision.
  
• Two years ago SSA had 66,000 employees. By the end of this year [calendar year (CY) or fiscal year (FY)?] SSA will have fewer than 60,000 employees.
• In this FY, Social Security will generally be unable to replace employees who leave. Disability Determination Service (DDS) offices will be allowed to replace one employee for every two who leave, because of their higher employee turnover rate.
  
• Astrue expects 150 new Administrative Law Judges (ALJs) to come "online" by April 2008. It was clear that he was talking only about 150 new ALJs, not a net increase in the number of ALJs. [150 new ALJs may not be enough to even cover the normal attrition in ALJs between now and the end of the FY.]
• He hopes that SSA will have a new interactive website by "next year" through which attorneys will be able to view their clients' files at SSA and that SSA will have an I-Appeals system which will allow for the online filing of appeals -- "next year." [Again, is the "next year", the next CY or the next FY?]
• Astrue is looking at shutting down many temporary offsite hearing locations.
• SSA is working on new regulations on the recognition of law firms and other similar entities as claimants' representatives. He hopes to get this to the Office of Management and Budget (OMB), where it would have to be approved, by early 2008. [This would not sound like anything important to an SSA employee or even to many who represent Social Security claimants, but it is a potentially major change which dramatically eases the path towards larger entities, either law firms or non-attorney entities, to represent Social Security claimants.]
• Astrue wants it to be possible for attorneys to be able to attend Social Security hearings electronically from their offices. He described this as "big."
• Earlier plans to open several new hearing offices around the country have been shelved due to lack of funds.
• Astrue has been wondering why it has been many years since SSA has asked Congress for legislation to simplify its processes or reduce its workloads.
• Instructions on the Senior Attorney program are going out "now."
• Astrue feels that he learns more when he takes unscheduled visits to Social Security offices and facilities. [A very wise observation.]
• He described many of Social Security's work processes as being medieval and said that "It's a miracle and a credit to the people that the system still works."
• Astrue said that he was becoming convinced that SSA has too much "bricks and mortar" and that he wanted to put more money in people. [Interesting, but what does it mean?]
• SSA now has 11 cases at the Merit Systems Protection Board against ALJs. [By SSA standards this is a stunningly high number.] He intends for SSA to be much more "proactive" on ALJ discipline. He talked about being heavily involved in ALJ disciplinary matters when he worked at SSA previously and being frustrated at the lack of action on ALJ discipline at that time. He said that there was one current ALJ who was trying to simultaneously hold down a second full time federal job! [OK, who is it?]
  

Federal Register Alert

New proposed digestive system listings will appear in the Federal Register tomorrow. According to Michael Astrue, Social Security Commissioner, who spoke today at the conference of the National Organization of Social Security Claimants Representatives (NOSSCR), these will include major changes in the listings concerning liver diseases. These listings will now include the MELD score, a concept previously unknown to the listings. (Much more on Astrue's talk later.)