Where The New ALJs Are Going -- And Why 135 New ALJs Instead of 144?

The Social Security Administration has posted a spreadsheet showing where the 135 newly hired Administrative Law Judges (ALJs) are going. You have to have a spreadsheet program to open it from Social Security's website, but I have reproduced it above. Click on each page to see it full size.

By the way, it was only a little over a month ago that it was supposed to be 144 new ALJs. Why the slippage? It looks like Social Security offered jobs to 144 people, but only hired as many as accepted. After nine applicants turned them down, why did they not offer jobs to nine more applicants so they could hire the 144 they were talking about earlier? Was the talk about 144 ALJs being hired a bit misleading?

A Closer Look At The New Immune System Listings -- Wow!

This may seem awfully technical to readers who do not work with the Social Security disability program in some detailed way, but trust me, it is important. You will have to follow me to the end to fully understand its importance.

Social Security's listings are a shortcut that allows relatively rapid approval for disability claimants who are most seriously ill. Claimants do not have to meet a listing to be approved, but, unless working, a claimant who meets a listing will automatically be found disabled.

I did not have time until recently to study the the new Immune System Listings published on March 18. Once I did, I discovered the following language that looked out of place:

1. Limitation of activities of daily living.
2. Limitation in maintaining social functioning.
3. Limitation in completing tasks in a timely manner due to deficiencies in concentration, persistence, or pace.

Those familiar with the listings know this language to be the "B" criteria from the psychiatric listings. This language had previously been in the HIV/AIDS listing, but not in the other immune system listings. So how does this "B" criteria language fit in the non-psychiatric immune system listings? This language appears anew eight separate times in the new immune system listings. It follows each of these:

• 14.02 B. Repeated manifestations of SLE [systemic lupus erythematosus], with at least two of the following constitutional symptoms or signs (severe fatigue, fever, malaise, or involuntary weight loss) and one of the following at the marked level:
• 14.03B. Repeated manifestations of systemic vasculitis, with at least two of the constitutional symptoms or signs (severe fatigue, fever, malaise, or involuntary weight loss) and one of the following at the marked level:
• 14.04D Repeated manifestations of systemic sclerosis (scleroderma), with at least two of the constitutional symptoms or signs (severe fatigue, fever, malaise, or involuntary weight loss) and one of the following at the marked level:
• 14.05E. Repeated manifestations of polymyositis or dermatomyositis, with at least two of the constitutional symptoms or signs (severe fatigue, fever, malaise, or involuntary weight loss) and one of the following at the marked level:
• 14.06 B. Repeated manifestations of undifferentiated or mixed connective tissue disease, with at least two of the constitutional symptoms or signs (severe fatigue, fever, malaise, or involuntary weight loss) and one of the following at the marked level:
• 14.07 C. Repeated manifestations of an immune deficiency disorder, with at least two of the constitutional symptoms or signs (severe fatigue, fever, malaise, or involuntary weight loss) and one of the following at the marked level:
• 14.09 D. Repeated manifestations of inflammatory arthritis, with at least two of the constitutional symptoms or signs (severe fatigue, fever, malaise, or involuntary weight loss) and one of the following at the marked level:

What Social Security is saying is that if you have one of these immune system (or more accurately, rheumatic) disorders to a significant degree and also have rather significant psychiatric problems, you meet the listing and should be found disabled, even though neither the physical nor the mental illness on its own would otherwise meet a listing.

The "B" criteria language was not in the Notice of Proposed Rulemaking apart from the HIV/AIDS listing, so this came as quite a surprise to me. Social Security explains in the notice published with the new regulations that the "B" criteria were added to the new listings as a result of public comment.

What I am about to say may surprise readers who do not have significant experience working on the front lines with Social Security's disability programs, as will the vehemence with which I say it, but I do not think I will get many arguments from those who are experienced. There is a complex interplay between physical and mental illness. It is normal for chronic physical illness to lead to depression, often severe depression. Psychiatric illness is usually accompanied by physical symptoms. Panic disorder, for instance, is not uncommon and causes dramatic physical symptoms. Depression is even more common and produces symptoms that mimic all sorts of serious phyisical ailments. Somatoform disorders (psychosomatic illnesses) are not rare. To some extent, all of us have psychosomatic symptoms. Depression heightens the perception of pain. Separating physical and mental illness into two separate categories is impossible, since there is no clear boundary between the two. In many, many cases the claimant is clearly disabled but the disability is not produced by either physical illness or mental illness, but by the combination of the two. In theory, Social Security accepts that a claimant may be disabled by a combination of physical and mental illness, but only in theory. In practice, the agency tries to slice a claimant in half and evaluate the physical and mental components of a claimant's health problems separately.

These new listings reflect an understanding that the suffering caused by chronic physical illness extends to psychiatric symptoms and that the disability caused by those psychiatric symptoms must be considered.

By this point, I think that those who are well versed in Social Security disability determination have already leaped ahead to the logical corollary of these new listings. If the psychiatric "B" criteria should be imported into the immune system listings, logically they should be imported into virtually every physical listing. That would be a major change in the listings and, in my opinion, a major step forward.

Will this happen? No time soon. I doubt that such a result was intended. At least, I strongly doubt that anyone at a high level at Social Security intended this. I doubt that the implications of these new listings has even dawned upon the upper reaches of the Social Security Administration.

Certainly, the agency can try to tell the world that there is a vast difference between the chronic illness produced by immune system disoders and the chronic illness produced by other diseases, but is there? I keep thinking about chronic liver disease. Sure, it is vastly different than lupus, for instance, but my experience is that it is even more likely to produce symptoms that seem psychiatric and, indeed, are psychiatric. You can say much the same thing about low back pain, inflammatory bowel disease and multiple sclerosis, just to name three diseases. In fact, you can say it about any serious chronic illness.

This argument is going to be made the next time that Social Security publishes proposed new listings. How will the agency respond? What if there is a new President by the time the agency has to respond?

This issue should be coming up soon. Proposed changes in the cancer listings are due out before long.

Social Security's Role In Employment Verification

In response to my post noting the apparent inactivity of the House Social Security Subcommittee, an anonymous poster gave a link to this letter sent by Mike McNulty, the Chairman of the House Social Security Subcommittee and Charles Rangel, Chairman of the House Ways and Means Committee to their Democratic colleagues in the House of Representatives.

I think it makes a powerful argument. It makes clear the threat to the Social Security Administration and to United States citizens from overzealous, unrealistic efforts at immigration enforcement.

This is the text of the letter:

The Facts on Employment Verification:
Current Proposals are Unworkable for SSA,
Threaten Progress in Reducing Disability Claims Backlog

March 27, 2008

Dear Democratic Colleague:

The current discussion about a national employment verification program to prevent the hiring of illegal immigrants lacks basic information about how well the existing pilot system works. An ill-considered expansion of the "E-Verify" pilot system, which is run jointly by the Social Security Administration (SSA) and the Department of Homeland Security (DHS), could have a potentially devastating impact on American workers, on Social Security beneficiaries, and on the SSA, which would bear the brunt of the fallout created by errors in the databases that are used by the system.

SSA simply cannot handle the massive new workload that expansion of this pilot would impose, especially given the current backlog in disability claims processing and the impending wave of retirement claims from the Baby Boom generation.

In the first year alone, the legislation that is being promoted by the Republican discharge petition (H.R. 4088) would cost SSA more than $1 billion - about 10 percent of SSA's current administrative budget. It would impose an enormous new workload on an already overburdened agency which has been unable to process disability claims timely, and is now facing millions of new retirement claims from the Baby Boomers.

Congress should ensure that our immigration laws are enforced, but we can do so without jeopardizing Americans' ability to obtain the Social Security retirement, survivors and disability benefits which they have earned. We urge you to get the facts before signing any discharge petitions to bring up bills, such as H.R. 4088, that have not had a thorough review of their consequences.

The "E-Verify" Pilot Is Not Ready for National Roll Out

• According to the DHS, the E-Verify pilot only had 3.6 million inquiries in 2007. Under proposals for a mandatory verification system, the number of inquiries would quickly rise to at least 60 million per year, making it difficult to foresee how well the system would perform.
• The 53,000 employers currently enrolled in E-Verify either volunteered to use the system so they are a law-abiding, self-selected group - or were required by DHS to enroll as a penalty for prior immigration law violations. The expansion proposal would require that every employer in the U.S. be enrolled within four years, increasing the number of participants to 6 million. This requires DHS to enroll approximately 4,000 employers per day for four years.
• The effect of a national system on SSA's workload is subject to substantial uncertainty. Mistakes committed by employers and inaccuracies inherent in SSA's database will combine to produce millions of erroneous non-confrrmations. This will in turn force millions of employees into SSA field offices in order to correct their records or else be fired.
• Existing programs under which employers must match data with SSA have very high rejection rates. SSA has testified numerous times that 10 percent of the 240 million W-2s received annually by SSA do not match the names and Social Security numbers in SSA's records. Last year, SSA testified that 7 of every 100 workers currently run through EVerify could not be immediately confirmed because of mismatches with Social Security records.
• Many mismatches will result from errors in the Social Security database, which has a 4.1 percent inaccuracy rate, according to SSA's Inspector General. These errors are normally corrected at the time of benefit application and would not necessarily affect individuals' ability to obtain benefits. These errors would, however, prevent workers from being able to keep their jobs.
• The vast majority of the workers affected by these database errors are U.S. citizens because immigrants would be verified through DHS databases.
• SSA testified in 2007 that, under a national system, 6 of every 100 workers would need to visit an SSA field office in person in order to correct their records, or lose their jobs.
• There are 60 million new hiring decisions made each year, according to the Bureau of Labor Statistics. Thus, 3.6 million Americans would have to visit an SSA field office each year in order to keep their jobs. This number increases if the already-hired workforce were also required to be verified.

Expansion Threatens Americans' Ability to Obtain Timely Disability and Retirement Benefits

• SSA has been underfunded for nearly a decade and is already working at capacity - with long lines, half of calls to local field offices going unanswered, and multi-year waits to receive disability benefits. If the ability of Americans to work depends on SSA's ability to handle the new workload, then the agency may be forced to divert scarce resources away from SSA's core mission to the new immigration function, putting workers at the head of the line for SSA's assistance in front of seniors, people with disabilities, and those who have lost a loved one.
• There is currently a backlog of over 750,000 disability cases waiting for a hearing, with an average wait of about 500 days. Last year, we provided SSA with an overdue increase in funding to begin to work down this backlog. If Congress places the fallout from E-Verify on SSA's shoulders, it would be undermining the backlog reduction effort. SSA has testified that for every one million dollars that SSA is forced to spend on other workloads, 565 more disability hearings could be held.
• The legislation being promoted by the Republican discharge petition does not provide any funding for SSA's role in the employment verification program. The bill only authorizes appropriations; it does not actually provide any funds. Moreover, it leaves it up to DHS to decide how any appropriations are allocated. SSA currently receives no appropriation for the immigration-related work it does. Instead, SSA must seek reimbursement from DHS.
• More importantly, even with a special appropriation, it would be exceedingly difficult for SSA to handle the massive new workload because the agency's current workload already exceeds its staff and infrastructure capacity.

The verification system in the legislation being promoted by the Republican discharge petition, and other existing proposals, fails to protect Social Security beneficiaries or American workers from the disastrous effects of this system.

We can do better than current proposals if we learn the facts, evaluate the options to fix the databases, and most importantly prioritize Democratic principles that strengthen and enforce labor protections for American workers - without undermining the efficiency of the SSA or eroding public support for Social Security programs that Democrats have successfully protected from ideological attacks for decades.

Sincerely,

Michael R. McNulty
Chairman
Subcommittee on Social Security
Committee on Ways and Means

Charles B. Rangel
Chairman
Committee on Ways and Means

No Match Rules Heading Back To Court

From the People's Weekly World:

The United Food and Commercial Workers has stepped up its fight against Bush administration use of “no match” Social Security letters against workers whose on-the-job identification doesn’t match what’s in government files. The government uses the program to pressure companies to fire employees and to force workers to prove “legal” status or face deportation.

The UFCW, joined by the Los Angeles County Federation of Labor, the American Federation of Government Employees and various business and community groups, is saying it will renew the fight against the Department of Homeland Security in court on this issue. The renewed court battle is necessary, the UFCW and its allies say, because of recent DHS action. ...

Witold Skwierczynski, president of AFGE [American Federation of Government Employees, which represents a good part of Social Security's workforce] Council 220, explained that workers at the Social Security Administration are being asked to take on ever-increasing loads by a mean-spirited and vindictive Bush administration. He said that recently the administration has demanded agency workers run checks against Social Security records on the eligibility of millions for prescription drug and other programs. All of these demands are made, he said, with no increases in staff.

Waiting In Dallas

From the Dallas Morning News -- and notice that this appears to be another example of the successful public relations effort by Allsup:

Judith Byrd thinks Social Security has flunked its first big test with baby boomers. After losing her airline customer service job following medical problems, the 59-year-old Allen woman waited more than two years for an answer to her claim for disability insurance.

Ms. Byrd received her first payment last May after enduring what she describes as the longest 26 months of her life. The pain of her unrelenting back problems and the frustration of dealing with a government bureaucracy threw her into a crippling depression that kept her at home for weeks....

"I'm convinced the disability claims system was designed to be difficult to navigate because the government can't afford to pay benefits to everyone," said Jim Allsup, president of Allsup Inc., an Illinois company that represents claimants and has seen its clients quadruple since 2000. ...

Last year, Ms. Watson received $34,000 in retroactive benefits, including the $5,300 she paid Allsup, and began collecting $1,450 a month.

The Dog Ate The Homework Excuse

The St. Petersburg Times is running a local follow-up story to the New York Times article that set forth the proposition that Social Security is overburdened with disability claims because Long Term Disability (LTD) insurance carriers are forcing their insureds to file disability claims when they have no chance of being approved.

I have a low regard for the LTD carriers, but this story is preposterous. Blaming the LTD carriers for Social Security's backlogs is about as pathetic as saying the dog ate the homework. The few excess claims that may be attributable to LTD carriers is a drop in the bucket compared to the flood of disability claims caused by the aging of the baby boom population.

If the Social Security Administration wants to cut down on excessive claims, it needs to look at its own conduct. Field offices are routinely taking Supplemental Security Income (SSI) claims for many individuals whose income is far too high for them to qualify. Part of the reason for this is a genuine desire to avoid missing SSI claims, but a good part of this is that Social Security field offices are alloted staff based upon the number of claims they take, giving field office managers an incentive to try to increase the number of claims taken. I would daresay that the number of unnecessary SSI claims taken by Social Security field offices vastly exceeds the number of unnecessary disability claims taken as a result of LTD carrier pressure.

I also have to question how unnecessary these claims taken at the behest of LTD carriers really are. Let me set forth an example. The claimant has been in an automobile accident and has been seriously injured. The expected return to work date is eight to ten months after the accident. Is it abusive to tell this person to file a Social Security disability claim -- since the definition of disability requires that the claimant have been or be projected to be disabled for at least a year? I would say not. Projections on when an individual will return to work after serious trauma are inherently uncertain. There is a real chance that a person in this situation will take more than a year to recover. So why not just wait and see how long it takes them to recover? You do not want to wait in this situation because it takes Social Security so long to adjudicate claims! The best thing to do is to get the claim filed as quickly as possible. The claimant can drop the case if he or she can get back to work in less than a year, but if not, the claimant will be much further along with the case if he or she files the claim shortly after the accident. This is just common sense.

Poll Results

Which Team Will Win The NCAA Men's Basketball Championship?

Kansas (6)	13%
Memphis (8)	18%
North Carolina (25)	56%
UCLA (6)	13%

Total Votes: 45

New Newsletter

The Social Security Administration has introduced "Social Security Update," a new newsletter. No real news in it this time. The website contains information on subscribing.