Disability Claim In The Future?

I have already posted about Mike McNulty's expected retirement from Congress. McNulty is the Chairman of the Social Security Subcommittee of the House Ways and Means Committee, making him a VIP in the Social Security world. Now comes word of the probable reason for his retirement from Congress at a relatively young age -- 60. He has a history of childhood polio and has become less mobile in recent years. Post-polio syndrome? Hint to McNulty: File your Social Security disability claim the same day you stop work. Post-polio syndrome claims are often denied. Appeals can take a very long time.

Proposed Regulations Concerning ALJ Hearings And Appeals

These official publication date on these proposed regulations is Monday, but you can read them now. These will prove to be controversial. Here are a few excerpts from Social Security's summary:

We also propose to replace both the Appeals Council and the Decision Review Board with a new adjudicative body to be named the ‘‘Review Board.’’ ...

To ensure individuals have adequate time in which to prepare for the hearing and meet the deadlines for submitting evidence, we propose requiring ALJs to notify an individual of the time and place of the hearing at least 75 days before the date of the hearing, unless the individual agrees to a shorter notice period. ...

[N]o later than 5 business days before the hearing, they [claimants] must submit all of the evidence to be relied upon in a case. ...

The 5-day time limit for submitting evidence would be subject to exceptions, depending on when the individual attempts to present the additional evidence. If the individual requests to submit evidence within the 5 business days immediately preceding the hearing, the ALJ would accept and consider the evidence if:
1. Our action misled the individual (for example, if the wrong notice was accidentally sent to you, or you were provided misinformation over the phone);
2. The individual had a physical, mental, educational, or linguistic limitation(s) that prevented him or her from submitting the evidence earlier; or
3. Some other unusual, unexpected, or unavoidable circumstance beyond the individual’s control prevented the individual from submitting the evidence earlier. If the individual requests to submit evidence after the hearing but before the hearing decision is issued, the ALJ would accept and consider the evidence if the individual makes one of the three showings above and there is a reasonable possibility that the evidence would affect the outcome of the case. ...

At any time before the hearing begins, an individual could submit, or the ALJ could request the individual to submit, a prehearing statement on the issues arising in the case. In this statement, the individual should briefly discuss the issues; describe the supporting facts; identify witnesses; explain the evidentiary and legal basis upon which he or she believes the ALJ should find in his or her favor; and provide any other comments, suggestions, or information that might assist in preparing for the hearing.
...

The proposed rule differs from the current rule in that it specifies that the ALJ may direct a witness, other than the individual who requested the hearing, to appear by video teleconference if: (1) Video teleconference is available, (2) use of the technology would be more efficient than conducting an examination of a witness in person, and (3) the ALJ determines that there is no other reason why a video hearing should not be conducted. ...

In addition, this proposed rulespecifies that the ALJ would retain discretion at the time of the hearing to hold the record open for the submission of additional evidence. If an individual were aware of any additional evidence that the individual was unable to obtain and submit before or at the hearing or if the individual were scheduled to undergo additional medical evaluation after the hearing for any impairment that forms the basis of the case, the individual should inform the ALJ of the circumstances during the hearing. If the individual were to request additional time to submit the evidence, the ALJ could exercise discretion and choose to keep the record open for a defined period of time to give the individual the opportunity to obtain and submit the additional evidence. ...

Our proposed rule would specify that the ALJ must explain, in clear and understandable language, the reasons for his or her decision. ...

[W]e propose to extend the additional evidence requirements we are proposing for the hearing level to the Review Board level, with a further restriction that additional evidence offered by the individual may be accepted by the Review Board only if there is a reasonable probability that it, alone or when considered with the other evidence of record, would change the outcome of the decision. ...

[W]e propose to remove ‘‘new and material evidence’’ as a basis for reopening any decision made at the hearing or Review Board levels on a claim for benefits based on disability. ...

[W]e propose in these rules that throughout any appeal to the Review Board, and during any subsequent administrative proceedings on remand from the Review Board or a Federal court, the proceedings will consider only the claimant’s eligibility for benefits on or before the date of that first ALJ hearing decision on the claim for benefits.

The estimate given in the proposal is that if these regulations are adopted that over $1.5 billion will be saved over the next ten years.

Bristol Field Office To Stay Open -- For Now

Will it be possible for Social Security to close any field offices? From a press release issued by Representative John Larson (CT-D):

The Social Security Administration (SSA) told the Connecticut Congressional Delegation today that it has decided to keep the Bristol office open for at least another three months while they reevaluate their decision to close it.

Senators Chris Dodd and Joe Lieberman, as well as Congressman John B. Larson CT-01, Vice Chair of the Democratic Caucus, have worked tirelessly with the community and Administration to keep this office open. Most recently, Lieberman and Dodd were successful in getting an amendment introduced and included in an appropriations bill [which has passed the Senate, but not the House of Representatives, much less been signed by the President] that would prohibit SSA from closing the Bristol office until they meet certain requirements.

Federal Register Alert

The Social Security Administration has posted the following notice of an item to appear in the Federal Register on Monday:

PROPOSED RULES

Organization and procedures:

Administrative Law Judge, Appeals Council, and Decision Review Board appeals levels; amendments, E7-20690

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The GAO Report Seems So Inadequate

The report of the Government Accountability Office on withholding of fees for non-attorneys who represent Social Security claimants and in SSI cases was issued last week. The report was more than three years in the making. One would think that after this length of time that the report would be exhaustive. However, the report is only 55 pages long and does not report information on the following topics that I would have expected to be covered:

• Success rates of attorneys versus non-attorney representatives. The report says that Social Security cannot give meaningful data on this. I do not understand since Social Security has reported such data in the past. It is not that I was expecting dramatic differences. Older data showed only minor differences, but this is an important point and should have been covered if at all possible.
  
• Disciplinary actions against attorney versus non-attorney representatives. It should have been possible to contrast the gross number of such actions against attorneys as opposed to non-attorneys. I think there should have been a discussion of the problems that Social Security has in regulating the conduct of both attorneys and non-attorneys. The effect of this shortcoming is lessened for attorneys because of the regulation provided by state bar licensing agencies. There is no comparable agency for non-attorney representatives. If non-attorney representatives are to become a major part of Social Security representation, some better mechanism for regulating the conduct of non-attorney representatives is needed. There are significant issues regarding conflicts of interest since some non-attorney representatives have simultaneously worked as contractors for the Social Security Administration. At least one non-attorney group has offered "finder fees" to those referring clients to them, including physicians, a practice forbidden to attorneys. A large set of rules govern attorney conduct. These rules exist to serve to protect the public. The public may need similar protection when non-attorneys take on functions historically reserved for the legal profession.
  
• The sufficiency of the non-attorney examination. The report discusses the adequacy of the experience requirement for non-attorney withholding, but does not discuss the adequacy of the examination itself. Somehow, an exam consisting of 50 multiple choice questions does not seem like quite enough to me. My understanding is that a fair number of those who have taken the exam thought the same thing.

Tracking Immigration Judges

The Transactional Records Access Clearinghouse at Syracuse University is using Freedom of Information Act requests to track various government functions, including Immigration Judges decisions. You have to wonder how long it will be before they start tracking Social Security Administrative Law Judges (ALJs) in the same way.

Republican Candidates And Social Security

USA Today reports that the American Association of Retired Persons (AARP) held a forum on Social Security's future in Sioux City, Iowa yesterday and invited the Republican Presidential candidates. The only two Republican candidates who showed up were Mike Huckabee and John McCain. By contrast, a similar forum for Democratic candidates sponsored by AARP was attended by all the Democratic Presidential candidates other than Barack Obama.

The AARP Social Security forum for Republicans was notable for Mike Huckabee's proposal to offer retirees the option of a one-time Social Security payout in lieu of monthly benefits. Huckabee stated his opinion that the only reason President Bush's plan for Social Security failed was that people kept talking about "privatizing" Social Security when they should have been talking about "personalized accounts."