Checking Facebook To See Whether Claimant Disabled?

United Press International (I thought they were out of business) is reporting that a Canadian court has ordered a search of the hard disk drive of a man applying for disability benefits from the provincial insurance agency to see how much time he has spent visiting Facebook. This was felt to be probative.

Editorial Criticizes Furloughs

The San Jose Mercury News is running an editorial criticizing the decision to furlough employees of the state of California who do disability determination work for the Social Security Administration. As the editorial says, "Gov. Arnold Schwarzenegger is clinging to the ridiculous notion that being 'fair' to all employees is more important than what's best for the people they serve — even if it costs California millions of dollars."

A Little Deceptive

I practice law in North Carolina. My firm handles cases throughout most of the central and eastern part of the state. North Carolina is not the only state to have backlogs that are worse than the national average, but the backlogs here are significant. Here is the average processing time at the Office of Disability Adjudication and Review (ODAR) offices in North Carolina with the national average for comparison:

• National 499 days
• Raleigh 543 days
• Charlotte 592 days
• Greensboro 731 days

Social Security Commissioner Michael Astrue has said in testimony before a Congressional committee that he will address these backlogs by opening an additional ODAR office in Fayetteville, NC. Opening an office in Fayetteville would be helpful to each of the existing ODAR offices in North Carolina, since each services a portion of the territory that would be served by a new ODAR office in Fayetteville. Greensboro ODAR got its huge backlog because it had most of the Fayetteville area for several years. Raleigh ODAR is building a larger backlog now since most of the Fayetteville area has been reassigned to Raleigh ODAR.

So, with a new ODAR office in Fayetteville, we must be heading towards a solution to the backlog problem in North Carolina? Wrong. The ODAR office planned for Fayetteville is not a real ODAR office. The plan is for an office with no employees. The "office" will have four hearing rooms that may be used for video hearings, but no employees.

Hearing rooms do not hold hearings. People hold hearings. This plan actually worsens service for claimants living in the Fayetteville area, since it means they are less likely to get a live hearing. This will lead to wild fluctuations in the number of hearings held, presenting practical difficulties for local attorneys. It also means that local attorneys will be relegated to dealing with a constantly changing array of Administrative Law Judges who have no familiarity with the area or local attorneys. To give an idea of the problem, Fayetteville is the home of Fort Bragg, the largest U.S. military base in the world. The area is crawling with retired military personnel. Their cases present some unusual aspects. Are you familiar with the medical condition known as "immersion foot?" You would if you heard cases in the Fayetteville area for long. Can someone who is still on active duty in the U.S. Army get Social Security disability benefits? You would know the answer if you heard cases in Fayetteville for long. See Social Security Administration, Program Operations Manual Series (POMS) §DI 10505.023 TN 7 (08-07) if you are interested in the answer. Have you ever dealt with a Social Security disability case in which a retired serviceman was suffering from PTSD as a result of taking "trophies" in a combat situation? The "trophies" I am talking about here are body parts of killed enemy soldiers. I imagine that ALJs in other areas of the country have seen this kind of case, but not nearly as often as ALJs in this area.

In my opinion, it is somewhat deceptive to say that Fayetteville is getting a new ODAR office. The difference between what Astrue has said and what is actually happening is significant.

Spin is part of government, but excessive spin reduces credibility. In my opinion, a Republican holdover like Michael Astrue ought to keep spin to a minimum. It would be better for him to be as blunt and straightforward as possible and, in general, to underpromise and overdeliver.

Astrue On Furloughs

From the Federal Times:

The state furloughs are “disappointingly cynical,” SSA Commissioner Michael Astrue said in an interview with Federal Times. “They understand they’re not saving any money and that it’s actually anti-stimulus because it’s taking money away from state’s citizens.” ...

Astrue said states he’s talked to clearly understand the ramifications of furloughing DDS employees, but they decided not to exempt them out of a sense of fairness to other state employees — a “triumph of spin over compassion,” Astrue said. ...

Astrue said he’s made progress convincing some states to exempt DDS employees, but it’s an issue SSA may be tackling for the rest of the year, comparing it to the arcade game Whac-a-mole.

“We think we have a contained situation and we make progress, and just when you think you’re done, two or three more pop up,” he said.

Fugitive Felon Settlement: Social Security Loses Big Time

From Emergency Message EM-09-025:

As a result of a settlement agreement in Martinez, et al. v. Astrue, which should soon be approved by the court, this Emergency Message (EM) provides new instructions ... Martinez challenged the agency’s policy and procedures in applying non payment actions to fugitive felons and non-selection of fugitive felons as representative payees. ...

Effective immediately, SSA policy is to suspend or deny Title II and Title VIII benefits or Title XVI payments, and to prohibit an individual from serving as a representative payee only if the individual’s outstanding felony warrant was issued for one of the following three offenses:

• Escape (offense code 4901),
• Flight to Avoid prosecution, confinement, etc. (offense code 4902), and
• Flight-Escape (offense code 4999). ...

Identification of individuals affected by the Martinez settlement will be done centrally and appropriate notices released.

This is a big step forward. Social Security had interpreted the fugitive felon provision in an extremely expansive way. Congress thought they were denying benefits to murderers and rapists on the lam, but many individuals were denied benefits even though they had no idea that there was an outstanding warrant for their arrest. Many of the alleged felonies were decades old and quite minor. Many, perhaps most, of those caught up in this had never been convicted. Records concerning the charges have often been unavailable. Claimants have been put in the difficult position of convincing a busy prosecutor to clear their name. The fugitive felon provisions fall into the "It sounded like a good idea at the time" category.

Pikeville Office Honored

From WYMT:

The Pikeville [KY] Social Security office received special honors in an awards ceremony.

The office was selected as the Social Security Administration's best level two office in the Atlanta region, which is one of the highest honors an office can receive.It's an indication of how well they work together. It's an indication of how much they care about people in this service area and I'm just really proud of the staff of this office,” Paul Barnes said.

The office was selected from more than 250 facilities in the Atlanta region, which includes seven other states.

McPaper Says Sky Falling

From the USA Today editorial page:

Preliminary damage estimates by the Congressional Budget Office aren't pretty. Projected Social Security surpluses over the next decade have all but disappeared. Next year's operating surplus, previously estimated at $86 billion, is now $3 billion. Ten years of cumulative surpluses, once seen at about $703 billion, are now projected at $83 billion. ...

Each year that the U.S. government fails to address its massive retirement and health care obligations raises the prospects of it defaulting on its debts, inflating its way out of them, or imposing punitive taxes to pay them off — any of which would cause greater misery than the changes needed to stabilize the system. A commitment to shore up Social Security would serve as a clarion statement that the U.S. economy is a sound long-term investment. ...

For all the talk about "trust funds," Social Security essentially operates on a cash-in, cash-out basis. And once the amount being paid out in benefits exceeds the amount coming in — now expected in 2017 — the government will have to borrow billions of dollars to cover the difference. ...

Preserving Social Security for the long term isn't that complicated. It can be done by gradually raising the retirement age for able-bodied workers, curbing growth in benefits and making high-income workers pay more payroll taxes. The longer a solution is delayed, the more painful it will become.

Just a couple of errors here. First, we do not have to start borrowing money to pay Social Security benefits once more money starts flowing out of the trust funds than comes in. The trust funds are still large and can support net outflows for decades. Second, making high income workers pay FICA, the Social Security tax, on all their wages will pretty much solve the problem all by itself without raising the retirement age or cutting back on cost of living adjustments.

Update: USA Today also published another editorial with the title "Hands Off Social Security" offering an opposing viewpoint, although it does not mention raising or eliminating the ceiling on FICA.

Backlog Growing

This is from the National Organization of Social Security Claimants Representatives (NOSSCR) Forum. Click on the image to view it full size. Note that despite increasing productivity and considerable overtime there appears to be no sign of progress on reducing the backlogs. Depending upon how you look at it, the backlog may be growing.