Eight Circuit Says No Right To Cross-Examine

A panel of the Eight Circuit Court of Appeals held yesterday in Passmore v. Astrue that a disability claimants has no absolute right to cross-examine a consultative physician who examined a claimant at the behest of the Social Security Administration and who issued a report adverse to the claimant. This is at odds with the decisions of some other Courts of Appeals and even with a prior panel of the Eight Circuit. The Passmore panel went to some effort to avoid prior precedent. I would read the Court's analysis of the issue of whether it was an abuse of discretion to deny Mr. Passmore's request to cross examine the physician to mean that a claimant simply has no right to cross-examine the author of an adverse consultative examination report under just about any circumstance.

I have no idea whether this case is an appropriate vehicle for Supreme Court review -- Social Security filed the appeal in the case suggesting that the underlying case might not be that strong -- but this issue may be headed for the Supreme Court.

John McCain On Social Security

Today Is The Deadline

Under Executive Order (EO) 12866 any regulation proposed by any agency must be submitted to the Office of Management and Budget (OMB) for approval. EO 12866 sets forth a 90 deadline for OMB to act upon a regulatory proposal. This deadline can be extended by 30 days.

On April 10, 2008 the Social Security Administration submitted proposed new mental impairment listings to OMB for approval. As of this writing, OMB has taken no action on this regulatory proposal. OMB's time is up today. Either OMB must take action on this proposal or extend the time period.

Some are hopeful that what is in this proposal will help people who suffer from mental illness, particularly those who suffer from mental retardation. Some are fearful that the proposed listings would hurt mentally ill claimants. A lot of people are just apprehensive.

In any case, it is far too late for any final mental impairment listings to be finally adopted during the Bush Administration. All that OMB can approve now would be proposed regulations. The proposed regulations would then be published in the Federal Register for public comments. Final regulations could not be adopted until at least next year.

Client Abducts Social Security Attorney

From the Herald Bulletin of Madison County, Indiana:

Anderson police are still searching for a man who they say abducted his attorney at knifepoint while on their way to the Madison County Jail.

Anderson attorney Thomas Hamer was driving his client Richard Lee Hudson from a successful Social Security benefits hearing in Indianapolis on Monday, when, according to Hamer and police reports, Hudson jumped into the backseat of Hamer’s sport utility vehicle and held a knife to his throat.

Police were called to Rangeline Nature Preserve at 12:41 p.m., Detective Mitch Carroll said, after Hamer flagged down a telephone repair truck going southbound on Rangeline Road for help.

“When we were coming back from Indianapolis, we were right in front of KeyBank (across the street from the jail), and that’s when (Hudson) said ‘I’m not going back to jail,’ or ‘If you think I’m going back to jail you’re crazy’ or something like that,” Hamer said during an interview Monday night.

At that point, Hudson jumped from the passenger’s seat into the backseat behind Hamer, where he held a knife to Hamer’s throat, Hamer said. The attorney said then Hudson said he wanted to go to Maplewood Cemetery because his mother and father were buried there.

“When we got to the cemetery, we kept going farther and farther back, and that’s the first time I thought he was going to kill me,” Hamer said.

According to Hamer, Hudson then tied Hamer’s hands behind his back with a belt and put him in the car.

“He was driving, talking about how he was going to kill his ex-girlfriend,” Hamer said. “I tried talking him out of it, but he was saying he was going to kill her, then commit suicide. What I thought he was going to do was go to this girl’s house, stab her, take the pills — he said he already had the pills, and I thought he would leave me in the car.”

Hudson drove the SUV to Rangeline Nature Preserve, located at 1200 S. Rangeline Road, Hamer said, and the men started walking along one of the trails in the park.

“I said, ‘if you’re going to tie me up, just tie me up here,’” Hamer said. “We went a few steps further and instead of walking on the path, we started walking on the brush. He said if I didn’t do anything stupid, he wouldn’t hurt me.”

Hudson then tied Hamer’s ankles with his old shirt and ran from the scene, leaving in his attorney’s burgundy 2007 Ford Escape hybrid with Hamer’s wallet, cell phone and other personal item.

2007 Allowance And Denial Rates

The National Organization of Social Security Claimants Representatives (NOSSCR) has obtained from Social Security a report on the allowance and denial rates on disability claims at the initial and reconsideration levels for 2007. The pages are reproduced here. Click on each to view full size. Note the disparities between the states. By the way, you may want to note NOSSCR's newly redesigned website.

Night Court

My firm has been notified that several hundred cases are being transferred from the Office of Disability Adjudication and Review (ODAR) office in Charlotte to the Seattle ODAR office for video hearings. We have been told that the Seattle ODAR office is planning to schedule hearings starting as late as 8:00 p.m. on the East Coast, which would be 5:00 Pacific time.

We have not heard any explanation for why these hearings would be scheduled so late in the day. I do not know if this is merely a peculiar aberration or a sign of things to come, but ODAR is going to some trouble to arrange for personnel to work this late. I do know that there have been some capacity problems in midday on the network through which Social Security does video hearings.

Somehow, the idea of night court has a declasse feel to it. Besides being inconvenient for the claimant's attorney, the symbolism strikes me as inappropriate.

Disability Mentoring Day Again

It is hard to understand why a cash strapped agency would do this, but they do it every year. From a notice on FedBizOpps.gov:

The Social Security Administration (SSA) intends to award a sole source purchase order to the American Association of People with Disabilities (AAPD), located at 1629 K Street NW, Suite 503, Washington, DC 20006-1634 to provide consultative services that will assist SSA in its outreach efforts during the 2008 Disability Mentoring Day (DMD). The DMD is commemorated on the third Wednesday of every October. DMD is a large-scale effort designed to promote career development for students and other job seekers with disabilities through hands-on career exploration, job shadowing, internship or employment opportunities, and matching of mentee/mentor relationships.

By the way, AAPD has a relationship with Allsup.

The Twenty-Four Month Waiting Period For Medicare

A person who is approved for Disability Insurance Benefits under Title II of the Social Security Act faces two waiting periods. First, there is a five month waiting period until cash benefits begin. This works out to be more than a six month waiting period in fact, since the five months must be full months and because benefits for a month are not paid until after the month has ended. If you become disabled on July 2 2008, you cannot count July as one of the five months. The date of first entitlement to cash benefits would be January 2009, but the check for January 2009 would not arrive until well into February, 2009. Your waiting period in this example would be almost seven months.

The second waiting period is for Medicare. This is a 24 month waiting period after the entitlement to cash benefits begins. Thus, the claimant who became disabled on July 2, 2008 would not become eligible for Medicare until January 2011.

My clients often ask why they have to endure these waiting periods. What is the rationale behind it? They crave some logic to explain these long waits. The only answer I can give them is that it saves money. There is no other explanation. There is no logic.

Both waiting periods are controversial. There have recently been rumblings about eliminating them.

Someone at Social Security decided to do a study to see how many of those people enduring that 24 month waiting period were covered by Medicaid. (Remember, Medicaid is the poverty program and Medicare is the non-poverty program. If you are on SSI, you are categorically eligible for Medicaid. Got that?) My guess is that someone, perhaps the Commissioner, perhaps someone in the White House, perhaps someone in Congress, was looking for ammunition to fight off a push to end the 24 month waiting period. If that was the goal, it looks like the statistical study will not help. The study is presented in a confusing format, but it looks like only 11% of those in the 24 month waiting period for Medicare are on SSI and thus categorically eligible for Medicaid. Of the other 89%, undoubtedly some are covered by health care insurance provided to them at no cost by their former employer and others are able to come up with the money to keep paying their health care insurance premiums. Others are eligible to receive care from the Department of Veterans Affairs (VA). My best guess (and I am in a much better position to guess about this than anyone at Social Security, the White House or Congress) would be that around half of the people who are in the 24 month waiting period have no Medicare, no VA medical care and no health care insurance, even though they have been acknowledged as disabled by their government. Does this sound right? Is it defensible?