GAO Reports On Wounded Warrior Project -- SSA To Propose Legislative Changes In Retroactive Effect Of Disability Claims?

The Government Accountability Office (GAO) has issued Additional Outreach and Collaboration on Sharing Medical Records Would Improve Wounded Warriors’ Access to Benefits, a report on Social Security's Wounded Warrior program which accelerates the disability process for those injured in military service. Some findings:

As of December 2008, about 7,600 of the16,000 wounded warriors who have applied for SSA disability benefits since 2001 have been approved. ... [A] sizable minority of approved claimants filed long enough after injury that they lost some retroactive benefits; SSA is considering a legislative proposal to change the retroactive period for wounded warriors. Among wounded warriors receiving DOD or VA disability benefits, 4 percent were receiving SSA benefits. In addition, more than 6 percent had applied but were not receiving SSA benefits; some still had claims pending. Those with higher disability ratings from DOD or VA were more likely to receive SSA benefits. ...

With help from DOD [Department of Defense] and VA, SSA has been able to expedite processing of wounded warrior claims. SSA has established a nationwide policy requiring its offices to give priority to wounded warrior claims. ...DOD’s paper-based transfer of medical records to SSA is slow, which can prolong the process by weeks or months, according to claims processing staff.

I wish the wounded warriors all the best but I can think of no reason why their disability claims should get a longer retroactive effect than those of other claimants.

Social Security Gets Involved In California Budget Lawsuit

A press release issued by Social Security:

Michael J. Astrue, Commissioner of Social Security, today announced that the Department of Justice, on behalf of the Social Security Administration, has filed a “Statement of Interest” in Union of American Physicians and Dentists v. Arnold Schwarzenegger, Governor of California, which is currently pending in a state trial court in California. The Union of American Physicians and Dentists includes employees of the California Disability Determination Services Division (DDSD), Department of Social Services, who evaluate Social Security Disability and Supplemental Security Income claims. The Federal government fully pays for the salaries and overhead costs for these employees.

“For many months we have been trying to convince California officials that furloughing DDSD employees does not save the state a single penny, and actually costs the state money. It also unnecessarily harms their citizens with disabilities and their civil servants,” said Commissioner Astrue. “Unfortunately, our arguments have fallen on deaf ears. We hope our Statement of Interest will awaken state officials to the irreparable damage their furlough policy is causing.”

California’s furlough of DDSD employees costs the state $849,000 per furlough day in administrative funding. More importantly, each furlough day results in a delay costing California’s disabled citizens over $420,000 in much-needed Social Security benefits.

The Statement of Interest notes that California’s furloughs of DDSD employees are inconsistent with the state’s obligations and responsibilities under the Social Security Act. Specifically, implementing regulations obligate California to provide adequate facilities and qualified personnel to carry out the disability determination function and, “to the best of its ability, facilitate the processing of disability claims by avoiding personnel freezes, restrictions against overtime work, or curtailment of facilities or activities.”

“As Vice-President Biden noted in his recent letter to Governor Edward Rendell, Chair of the National Governor’s Association, ‘During these difficult economic times, it is critical that we all do what we can to ease the financial burdens on the American public,’” Commissioner Astrue said.

Is "Option" The New Term For "Accommodation"

Here are a couple of quotes from the report of the Occupational Information Development Advisory Panel (OIDAP):

There are some sedentary jobs where a sit-stand option is available. This identification borders on accommodation. (Physical Demands Subcommittee, page 30 of the PDF of the entire OIDAP Report.)

But a different emphasis later in the report.

We differentiate between accommodations and work options. Accommodations involve retooling of work space or interventions that an employer may provide for an individual worker for any reason, but most typically the accommodation is made to enable an individual with a physical or mental-cognitive impairment to perform a work activity(ies). We agree that the OIS should not include accommodation information as SSA cannot use this data for disability adjudication. However, we think that it would be helpful for SSA if the OIS included data regarding options for performing work activities that are typically found among a number of occupations as they are generally performed throughout the nation. The sit-stand option is a prime example, as is the use of tools such as a nail gun instead of hammer, etc. ... (User Needs and Relations Subcommittee, page 374 of the PDF of the entire OIDAP report.)

As a backdrop, Social Security decided long ago that it could not consider "accommodations" under the Americans with Disabilities Act (ADA) in determining disability. Here, one Subcommittee considers a sit-stand option to be bordering on accommodation, but another Subcommittee thinks that a sit-stand option is just a "prime example" of an "option" that should be considered in determining disability.

The consideration of "options" could easily be a subterfuge to allow the consideration of accommodations or even worse, to allow consideration of the fact that some employers put up with terrible employee performance. If one looks at a wide range of employees, one is going to find that a certain percentage are allowed to:

1. Show up for work at whatever time they please on any given day.
2. Leave work whenever they want if they are feeling poorly.
3. Do poor quality work that the vast majority of employers would find unacceptable.
4. Display productivity that the vast majority of employers would find unacceptable.
5. Regularly behave rudely to co-workers and supervisors.
6. Receive massive assistance from co-workers in completing job tasks.
7. Be assisted in doing work by relatives or friends who are not even employees.

If all of this happens in the world of work -- and any comprehensive survey will show that this and a lot more does happen -- are these accommodations, poor employment practices or "options?" Where does one draw the line? Consideration of this sort of thing could make it almost impossible for anyone to be considered disabled, since Social Security could always say that someone, somewhere is working with all the limitations that a particular claimant may have.

Social Security is going to need a good deal of money to create this "Occupational Information System" (OIS). They may have trouble getting the money if a significant number of "stakeholders" (to use a term that Social Security is using more and more) find it threatening. I quality as a "stakeholder" and I find this threatening. I have talked with a few other stakeholders and they also find this threatening. Social Security ought to stay away from anything like this if it wants to avoid the sort of controversy that might derail this entire project. The new OIS should describe work as it typically exists and avoid trying to find "options" in jobs.

A 12 Minute Test For Mental Or Cognitive Disability?

Social Security's Occupational Information Development Advisory Panel (OIDAP) has been assigned the task of advising the agency on what to do about the fact that disability determination at Social Security is heavily dependent upon the Department of Labor's hopelessly out of date Dictionary of Occupational Titles (DOT).

Most, if not all, of OIDAP's report to the Commissioner of Social Security is now available. I have been going through it and will be posting about what I have found.

What I have seen consists of the reports of OIDAP's five subcommittees. I have not seen a report from the entire Panel. It is not clear to me that the entire Panel issued any final recommendations other than to endorse what its Subcommittees recommended.

I will start with the report of the Mental Cognitive Subcommittee since I find it extraordinarily jarring, but before I get to that let me give this quote from the report of the Transferable Skills Analysis Subcommittee as a backdrop:

At the inaugural meeting of the Panel, we were advised that the work of the Panel did not include recommending changes to SSA's [Social Security Administration's] disability policies; rather, we were instructed to treat SSA's disability policies as though they were "standing still." Through further conversations, it was learned that SSA intended that the focus of our recommendations be upon the OIS [Occupational Information System] itself rather than SSA policy or possible effects upon said policy. That is, the OIS we are helping to create must meet SSA's current adjudicative needs at a minimum. (page 223 of the OIDAP Report PDF)

Now, let me give a couple of excerpts from the Mental Cognitive Subcommittee Report:

The conceptual model of psychological abilities required to do work should be revised. The aims are to address shortcomings of the current model, base a revised model on scientific evidence, identify specific abilities that can be reliably assessed and tested for predictive validity, and retain elements of the current mental residual functional capacity (MRFC) that meet these criteria in order to maintain continuity where possible.

The Subcommittee recommends a series of studies to determine the reliability and predictive validity of any instruments developed to assess residual functional capacities and occupational demands as part of the OIS [Occupational Information System] Project. (page 56) ...

... [T]he Subcommittee recommends that the SSA conduct a study in which all of the revised physical and mental residual functional capacity measures are administered to a nationally representative sample of persons who have worked for at least six months ("successful incumbents") in one of the 150 to 200 most common occupations in the U.S. Economy. (page 82)

First, who told the Mental Cognitive Subcommittee that their job was to revise "conceptual models" or to come up with some test instrument to determine disability due to mental and cognitive problems? From what the Transferable Skills Subcommittee says, OIDAP was told the exact opposite, to stick to the issue of how to replace DOT.

You may well wonder what sort of test the Mental Cognitive Subcommittee thinks can be used to determine disability. You may not believe the answer. The Subcommittee was entranced with something called "g." G is a score derived from the Wonderlic employment aptitude test. That test consists of 50 questions and can be given in 12 minutes. The Subcommittee seemed to believe that g was close to being a perfect index for determining disability due to mental or cognitive problems. However, the Subcommittee thought that g was still not perfect enough for disability determination and that Social Security could and should build on g to create a test to be used to determine disability due to mental and cognitive problems. I told you that you might not believe this.

As best I can tell from reading the Subcommittee's report, they felt that any Occupational Information System (OIS) to replace the DOT would be irrelevant in determining disability due to mental and cognitive impairments. As the quote above says, they have in mind a new "conceptual model" for determining disability due to mental and cognitive impairments. Apparently, age, education and work experience are not included in their "conceptual model," even though the statutory definition of disability requires consideration of these elements.

My prediction is that someone will devise a test to simply and accurately determine mental or cognitive disability at about the same time as a machine is invented to accurately measure how much pain a person is suffering -- never.

The Mental Cognitive Subcommittee went completely out of bounds. My opinion is that their report is worthless and should be quickly repudiated by Social Security.

By the way, I have already heard an attorney who practices Social Security law say that he is considering having all his clients take the Wonderlic. I wonder what Social Security will make of it if that starts happening regularly.

Also, by the way, the Mental Cognitive Subcommittee report recommended that Social Security conduct a study of physical residual functional capacity measures as well as mental. None of the other Subcommittees recommended physical residual functional capacity measures. Does this mean that the Mental Cognitive Subcommittee was so far out of bounds that it was making a recommendation of physical residual functional capacity tests as well as a mental one? Does this mean the physical residual functional capacity measures were under consideration by other Subcommittees which decided not to recommend them? Is this a sign that OIDAP will recommend physical residual functional capacity tests at a later time?

Astrue Supports $250 Payments

A press release from Social Security:

With consumer prices down over the past year, monthly Social Security and Supplemental Security Income benefits for more than 57 million Americans will not automatically increase in 2010. This will be the first year without an automatic Cost-of-Living Adjustment (COLA) since they went into effect in 1975.

“Social Security is doing its job helping Americans maintain their standard of living,” Michael J. Astrue, Commissioner of Social Security said. “Last year when consumer prices spiked, largely as a result of higher gas prices, beneficiaries received a 5.8 percent COLA, the largest increase since 1982. This year, in light of the human need, we need to support President Obama’s call for us to make another $250 recovery payment for 57 million Americans.”

The Social Security Act provides that Social Security and Supplemental Security Income benefits increase automatically each year if there is an increase in the Bureau of Labor Statistics' Consumer Price Index for Urban Wage Earners and Clerical Workers (CPI-W) from the third quarter of the last year to the third quarter of the current year. This year there was no increase in the CPI-W from the third quarter of 2008 to the third quarter of 2009. In addition, because there was no increase in the CPI-W this year, under the law the starting point for determinations regarding a possible 2011 COLA will remain the third quarter of 2008.

Some other changes that would normally take effect in January 2010 based on the increase in average wages also will not take effect, even though average wages did increase. Since there is no COLA, the statute prohibits an increase in the maximum amount of earnings subject to the Social Security tax as well as the retirement earnings test exempt amounts. These amounts will remain unchanged in 2010. The attached fact sheet provides more information on 2010 Social Security changes.

Information about Medicare changes for 2010, when available, will be found at www.Medicare.gov. The Department of Health and Human Services has not yet announced if there will be any Medicare premium changes for 2010. Should there be an increase in the Medicare Part B premium, the law contains a “hold harmless” provision that protects about 93 percent of Social Security beneficiaries from paying a higher Part B premium, in order to avoid reducing their net Social Security benefit. Those not protected include higher income beneficiaries subject to an income-adjusted Part B premium and beneficiaries newly entitled to Part B in 2010. On September 24th, the House passed legislation by 406-18 that would, on a fully paid-for basis, prevent abnormally large premium increases. The President is calling on the Senate to enact this legislation before it becomes too late for the Social Security Administration to update its computer systems to implement this needed change.

Update: And Max Baucus, the Chairman of the House Finance Committee, has signed onto this proposal.

President Signs On To $250 Proposal

The Hill reports that President Obama has announced his support for a proposal to give Social Security recipients a one time extra payment of $250 to make up for the lack of a cost of living adjustment (COLA) at the end of the year.

Proposed New Rule On Rep Payees

From today's Federal Register:

We propose to amend our regulations to allow a representative payee who will no longer be serving in that capacity to transfer accumulated benefit payments and interest directly to a beneficiary if we determine that it would be in the best interest of the beneficiary. This change would give us more flexibility in deciding how conserved funds should be handled in these circumstances. The change would also reduce or eliminate delays in the delivery of conserved funds to some beneficiaries.

Tanner Praises Social Security

From NWTN [Northwest Tennessee?] Today:

U.S. Rep. John Tanner, chairman of the Ways and Means Subcommittee on Social Security, praised the Social Security Administration for the success of its ongoing efforts to reduce the unprecedented backlog in disability appeals hearings.

The number of pending disability hearings declined during fiscal year 2009 for the first time since 1999. SSA projects that with adequate funding, it will eliminate the hearings backlog by the end of fiscal year 2013.

“Social Security’s disability hearings backlog has skyrocketed in recent years due to a lack of resources,” Tanner said in a press release. “This has caused untold hardship for many Tennesseans and Americans with severe disabilities who must often wait years to receive benefits for which they are eligible.

“Eliminating this backlog is a top priority of our subcommittee. We are very pleased that, due to the increased commitment from Congress and the concerted efforts of the Social Security Administration and its hard-working staff, we have finally turned the corner; the backlog is decreasing for the first time in nearly a decade.”