Ohio Approves Specialization In Social Security Disability Law

The Ohio Supreme Court has approved Social Security disability law as a field in which attorneys licensed in that state may become certified as specialists. North Carolina and Tennessee already recognize specialists in the field of Social Security disability law.

Quick Disabilty Determinations Instructions Issued

Commissioner Astrue's other legacy project (or should I say vanity project?) is Quick Disability Determinations (QDD). No press release on this one, but new set of Program Operations Manual Series (POMS) instructions was released to the public today. Here is a brief definition of QDD:

The QDD process goes beyond Terminal Illness (TERI) and Presumptive Disability/Blindness (PD/PB) criteria to identify applicants with clearly disabling conditions whose medical evidence is readily available. With such applicants, a fully-favorable determination should be made quickly after receipt in the DDS (recommended timeframe is 20 days or less). A predictive model (PM) is used to identify QDD cases. A unique threshold selection, using scoring criteria, is set by the PM for each DDS which means that similar cases may or may not be identified as QDD cases depending on the DDS processing the case.

Compassionate Allowances Starting Before Election

A press release from Social Security:

Michael J. Astrue, Commissioner of Social Security, today announced the national rollout of the agency’s Compassionate Allowances initiative, a way to expedite the processing of disability claims for applicants whose medical conditions are so severe that their conditions obviously meet Social Security’s standards.

“Getting benefits quickly to people with the most severe medical conditions is both the right and the compassionate thing to do,” Commissioner Astrue said. “This initiative will allow us to make decisions on these cases in a matter of days, rather than months or years.”

Social Security is launching this expedited decision process with a total of 50 conditions. Over time, more diseases and conditions will be added. A list of the first 50 impairments -- 25 rare diseases and 25 cancers -- can be found at www.socialsecurity.gov/compassionateallowances.

Before announcing this initiative, Social Security held public hearings to receive information from experts on rare diseases and cancers. The agency also enlisted the assistance of the National Institutes of Health.

Compassionate Allowances is the second piece of the agency’s two-track, fast-track system for certain disability claims. When combined with the agency’s Quick Disability Determination process, and once fully implemented, this two-track system could result in six to nine percent of disability claims, the cases for as much as a quarter million people, being decided in an average of six to eight days.

"This is an outstanding achievement for the Social Security Administration," said Peter Saltonstall, President of the National Organization for Rare Disorders. "It has taken Social Security less than a year to develop this much-needed program that will benefit those whose claims merit expedited consideration based on the nature of their disease. Disability backlogs cause a hardship for patients and their families. Commissioner Astrue and his staff deserve our thanks for a job well done.”

“Unfortunately, many hardworking people with cancer may not only face intensive treatment to save their lives, but they may also find themselves truly unable to perform their daily work-related activities and as result, may face serious financial concerns, such as the loss of income and the cost of treatment,” said Daniel E. Smith, president of the American Cancer Society Cancer Action Network. “The Social Security Administration’s Compassionate Allowances program will help streamline the disability benefits application process so that benefits are quickly provided to those who need them most.”

“This is America, and it simply is not acceptable for people to wait years for a final decision on a disability claim,” Commissioner Astrue said. “I am committed to a process that is as fair and speedy as possible. The launch of Compassionate Allowances is another step to ensuring Americans with disabilities, especially those with certain cancers and rare diseases, get the benefits they need quickly.”

I wish I could call this an "outstanding achievement", but it is pathetic. I have been practicing Social Security law for 29 years. There is only one disease on the list that I have seen in my practice, Amyotrophic Lateral Sclerosis (ALS), and it is absurd that I have seen two cases of ALS denied at the initial level. I expect that the ALS cases are being paid quickly now anyway. That does not mean that all the other diseases on this list are all that rare. It means they have always been paid quickly by Social Security.

If anything, this arbitrary list may make it harder for those whose disease is not on the list to get a quick decision when that is justified. Got metastasized prostate cancer. Go to the back of the line. Got multiple myeloma that is progressing rapidly despite treatment. Go to the back on the line. Why would you have Creutzfeldt-Jakob Disease on the list but not metastasized lung cancer? Is it because most lung cancer comes from smoking? If you are going to have such a list, it should be much, much longer, but there is no need for such a list to begin with. Trust the people at the operational level. For decades they have been recognizing cases that deserve a quick allowance without this sort of unnecessary direction from above.

I do not think that Astrue is hustling to get this out before the election in order to have an effect upon the election. This is way too small for that. I think he is getting it out now because he does not expect to be around after the election and he wants this to be his legacy. I predict that after Astrue leaves, compassionate allowances will meet the same fate as former Commissioner Barnhart's legacy project, Disability Service Improvement (DSI). Astrue made a quick -- and sensible -- decision to cancel that one shortly after taking office. But before that, Barnhart made a quick decision to cancel Hearing Process Improvement (HPI), her predecessor's legacy project. At least, Compassionate Allowances will not have anything like the deleterious effects that HPI and DSI had on the agency.

Social Security Bulletin Out

The Social Security Administration has released the November 2008 issue of the Social Security Bulletin, a mostly statistical publication. This issue contains a technical article co-authored by Andrew Biggs, who had earlier worked at Social Security where he was a huge promoter of privatization of Social Security.

TMS For Depression -- It's Coming

Those who have much involvement with the Social Security Administration know that the primary work of the agency is adjudicating disability claims. Depression is an incredibly important element in producing disability. It may be the most commonly encountered illness in disability claims. Depression is often the primary cause of depression and is even more common as a complication to the treatment of physical illness or as a cause of somatization. Often, depression is so intertwined with a claimant's other health problems that it is impossible to say how much of the person's disability is due to depression and how much is due to other illnesses.

Any new treatment for depression is potentially quite important to Social Security. On October 8, 2008 the Food and Drug Administration approved Transcranial Magnetic Stimulation (TMS) as a treatment for depression.

Here is a description of TMS from Wikipedia:

TMS is simply the application of the principle of induction to get electrical current across the insulating tissues of the scalp and skull without discomfort. A coil of wire, encased in plastic, is held to the head. When the coil is energized by the rapid discharge of a large capacitor, a rapidly changing current flows in its windings. This produces a magnetic field oriented orthogonally to the plane of the coil. The magnetic field passes unimpeded through the skin and skull, inducing an oppositely directed current in the brain that flows tangentially with respect to skull. The current induced in the structure of the brain activates nearby nerve cells in much the same way as currents applied directly to the cortical surface.

Unlike Electro-Convulsive Therapy (ECT), TMS does not require anesthesia. There are far fewer side effects. It appears that TMS could be easily used routinely by psychiatrists. It will take time to tell if this will be used only rarely, as is the case with ECT, but anything that holds out hope for those suffering from depression, especially those who do not respond to medication is important.

Biggs In Wall Street Journal

Andrew Biggs, formerly the Deputy Commissioner of Social Security (on a recess appointment, after the Senate refused to consider his nomination) has a piece in today's Wall Street JournalWants Social Security To Be A Welfare Plan." claiming that "Obama Of course, in a larger sense Social Security has always been a "welfare plan" in the sense that it is intended to promote the welfare of the American people. The widespread belief that Social Security does promote the welfare of the American people is why the American people support Social Security, a point which Biggs has never understood.

Biggs' article, like everything else that I have read by him, is almost incomprehensible. His thesis, as best I can tell, is that because Barack Obama wants to cut income taxes on the poor and middle class while increasing the FICA tax on high income earners that somehow Social Security will become a dreaded "welfare program." As best I can tell, any increase in the progressivity of taxation in the United States is "welfare" to Biggs. I guess the word "Welfare" sounds more frightening to Biggs than "Socialism", the other term being thrown around by the McCain campaign to describe Obama's plan to increase progressivity of taxation. All Biggs is doing is coupling statistics of dubious relevance with a ridiculous argument and using a pejorative term to describe his opponent's plan.

Union Upset With Astrue

Below is an e-mail which I just received from James Marshall of the American Federation of Government Employees, which has attached to it two e-mail which he recently sent to Commissioner Astrue:

I know you are quite interested in Social Security matters and I believe you have a blog where you post various information concerning Social Security news. I am also aware that Commissioner Astrue has not kept his commitments made during his confirmation process that he would work with the employees' union in addressing the disability backlog, as well as other problems facing the Agency. I have pasted two e-mails below that I sent to Commissioner Astrue this month regarding the Agency's Strategic Plan and the barriers we will be facing due to the continuing resolution and shortfalls in funding and staff this fiscal year. I also noted that Deputy Commissioner de Soto and/or Chief Administrative Law Judge Cristaudo have not even met with me to discuss how we can work together to eliminated the hearing backlog and improve the overall processing of disability claims and the quality of such decisions. For the record, I have been employed by the Social Security Administration for 50 years and the Office of Disability Adjudication and Review (formerly Office of Hearings and Appeals) for 36 of those years and believe I can provide constructive input regarding the Agency's failures in eliminating the disability backlog in a more timely manner, improving employee morale and other critical issues facing the Office of Disability Adjudication and Review.

While I speak for approximately 5,000 ODAR employees, their constructive input to me has remained with me because the Agency's leadership does not wish to hear from its dedicated and outstanding employees as to how the Agency's quick fix changes are not the answer to decrease the backlog and improve quality of service. You may post this e-mail to your blog and/or question Commissioner Astrue directly as to his negativity towards AFGE which obviously affected the American people we serve.

James E. Marshall
Acting Spokesperson, AFGE General Committee and President, AFGE Council 215


From: Marshall, James
Sent: Wednesday, October 22, 2008 9:37 AM
To: Astrue, Michael J.
Subject: Pre-Senator Baucus (Strategic Plan FY 2008 - FY 2013 and FY 2009 CR)
Importance: High
Sensitivity: Confidential

Commissioner Astrue:
I note that approximately two weeks have elapsed since I sent the e-mail below to you without a response from you or any other individual in the Agency. Prior to referring this matter to Senator Baucus, as well as several other Congressional leaders, I am giving you a second opportunity as the head of the Agency to demonstrate some type of working relationship with AFGE, noting we represent over 40,000 Social Security employees. I still find it extremely difficult to understand why you have such reluctance to work with us to meet the challenges this Agency faces now and will face over the next several years. As you are fully aware, I have been extremely disappointed in the attitudes of Deputy Commissioner de Soto and Chief Administrative Law Judge Cristaudo in that neither of these individuals has met with me and/or has had the common courtesy to be responsive to me regarding a multitude of issues, as well as suggestions, many of which I believe would improve the overall processing of disability claims.

I would appreciate a timely response to this e-mail or I will proceed accordingly in the representation of the outstanding Federal employees who I represent.

James E. Marshall
Acting Spokesperson, AFGE General Committee and President, AFGE Council 215

From: Marshall, James
Sent: Thursday, October 09, 2008 11:48 AM
To: Astrue, Michael J.
Cc: Alfonzo, Carmen; Ennis, Cynthia; 'Ennis, Cynthia'; Fredericksen, Deborah; 'Fredericksen. Debbie'; Joseph, Agatha; Sipple, Cindy O.; Skayne, Susan; Tucker, Earl; 'witold1@attglobal.net'; Hicks, Cathy; Armet, James

Subject: Strategic Plan FY 2008 - FY 2013 and FY 2009 CR
Importance: High
Sensitivity: Confidential

Good Morning Commissioner Astrue:

On behalf of the AFGE General Committee, I am submitting this e-mail in response to your e-mail broadcast dated September 24, 2008, to all SSA and DDS employees regarding Agency Strategic Plan FY 2008 - FY 2013. At the outset, AFGE notes that in your letter, you indicated that this plan had been developed in part by conferring with our unions which we presume meant AFGE was included. To our knowledge, the only contact that the General Committee had with the Agency regarding the Strategic Plan was a slideshow with notice that if we had comments they should be submitted in writing within 10 days of the slideshow. Unfortunately, we were unable to meet such mandated time frames for submission of any comments and thought that we would subsequently have the opportunity to sit down with you and your executive staff and have a full and open dialogue regarding the Agency's goals. It appears that again, our thoughts and vision for the future SSA have been buried without being heard. Shame on someone because as the representative of over 40,000 employees in this Agency, their voices should be heard through us, especially since they are the most outstanding Federal employees of any Agency.

We recognize that for FY 2009, there will be significant barriers to meet goals because of the continuing resolution and shortfalls in funding and staff. Having said that, we would have thought you would have arranged a meeting with the General Committee to discuss these shortfalls and how we can work together to eliminate the hearing backlog and to improve the overall processing of disability claims and the quality of such decisions, as well as improving all other services for our retirees. To allow the progress in our attempts to meet such challenges over the past several years to erode like the stock market, is unconscionable and you as the Commissioner should embrace the General Committee leadership for the American public we serve to ensure that such erosion does not occur. I await your response on behalf of the General Committee for a face to face meeting with you, your executive staff and our AFGE General Committee leadership.

In closing, please be advised that I, as the President of AFGE Council 215 representing ODAR employees, have yet to have any meeting with Deputy Commissioner de Soto and/or Chief Administrative Law Judge Cristaudo since they been in their positions.

Rosasco Impressed By Astrue

Troy Rosasco, a member of the Board of Directors of the National Organization of Social Security Claimants Representatives (NOSSCR), met Commisioner Astrue at the pool while attending the recent NOSSCR Conference in Los Angeles and came away impressed, writing in his blog that "This is a very bright guy, and in my opinion he is moving the agency in the right direction."