California May End Furloughs Of State Employees Who Make Disability Determinations For Social Security

From the New York Times:

Gov. Arnold Schwarzenegger took his first shot at closing California’s impending $20 billion budget gap on Friday ...

Mr. Schwarzenegger also proposed ending the furloughs for state workers, which were begun last year by the administration and were overturned in part in court battles waged by some unions. In their place, the governor said that he would like to see 5 percent pay reductions across the board, and that he wanted state employees to contribute an additional 5 percent toward their retirement costs.

OIG Report On Arizona Biltmore Conference

Social Security's Regional Management Conference at the Arizona Biltmore last July led to adverse press attention for the agency. Senator Charles Grassley, the Ranking Minority Member of the Senate Finance Committee, asked for a report by Social Security's Office of Inspector General (OIG) on the conference. Here are some excerpts from the recently released report:

In general, we found most of the approximately $675,000 in costs incurred at the Training Forum was properly supported and in compliance with Agency guidance and applicable laws and regulations (see cost breakout in the table below). However, we question whether approximately $13,400 spent on reception refreshments was allowable, since the reception did not meet the established criteria for such refreshments. We also found the Region accepted gifts and donations from outside sources for the conference, which may be inconsistent with ethical guidelines and other policies. In addition, we found that regional staff could have maintained better contract procurement documentation related to the trainers. ...

The Training Forum was held at the Arizona Biltmore Hotel, which was selected as part of a competitive bidding process. The Region contracted with a private firm representing the Hotel to supply the necessary space as well as meals and refreshments. The bid related to the Hotel stated it had 738 guest accommodations and restaurants on-site as well as proximity to off-site restaurants, shopping, and airport shuttle transportation.

The Hotel charged $85.51 per room per night, which was below the Government per diem of $96 per room per night. ...

A number of non-governmental organizations donated items to the conference (see Appendix F) that were later used as free employee door prizes. We believe the Agency’s acceptance of such donations was inappropriate for a number of reasons. First, we believe the acceptance of outside donations may be mistaken for SSA’s endorsement of a product. For example, Blue Cross/Blue Shield donated small items, such as pens, dental floss, and key chains with flashlights. Since Blue Cross/Blue Shield is one of many companies that provide health insurance to SSA employees, the acceptance and distribution of such items to SSA employees may be interpreted as SSA’s endorsement of this company’s product. ...

The Region also accepted a donation of the services of a disc jockey from the San Francisco Region Management Association (SFRMA) at the opening night reception, a service that regional managers estimated would have cost about $1,200. The receipt of such services appears to violate the voluntary services prohibition of the Antideficiency Act.

Questions Raised On Contract With Mathemetica

From Contract With Mathematica Policy Research, Inc., For Services To Evaluate Youth Transition Demonstration Projects, a report by Social Security's Office of Inspector General (OIG):

SSA contracted with Mathematica to support the development, implementation, and evaluation of the Youth Transition Demonstration (YTD) interventions designed to help youth with disabilities maximize their economic self-sufficiency as they transition from school to work. ... The contract period of performance was September 30, 2005 to September 29, 2014. As of September 2008, there were nine modifications to this contract (see Appendix D), and SSA had expended approximately $17.1 million of the $46.8 million contract award. ...

For the first 3 years of the 9-year contract period, SSA received the goods and services for which it contracted. However, a lack of tangible results achieved to date through this and previous YTD projects funded by SSA raises concerns as to whether additional expenditures on YTD projects will yield significant benefit to SSA. ...

Work performed under this contract was intended to build on background research, conceptual frameworks, measurement strategies, and evaluation findings from ongoing and previous SSA evaluation projects conducted since 1999. To date, SSA has received little tangible benefit from approximately $42.4 million spent on YTD-related projects since 1999. In addition to $17.1 million expended under this contract through September 2008, SSA spent approximately $25.3 million on three previous YTD-related initiatives. ...

A senior Agency official indicated that predecessor YTD-related projects conducted over the past 10 years encountered significant problems that diminished their effectiveness. While these setbacks could reasonably have resulted in reconsideration of continued project funding, SSA instead increased funding and expanded the projects. Given the history of setbacks and the substantial costs expended, SSA should have established clear expectations, including cost-effectiveness, with measurable results and interim assessments to inform decisions on continued funding. Instead, Agency officials plan to perform a cost-benefit analysis only after the contract is completed. SSA strongly disagreed with our conclusion and stated the outcome of this contract is not policy changes or monetary savings to the Agency but rather a report that answers whether the interventions successfully help youth transition into adulthood, which informs SSA about the costs or savings to the Agency should such a program be implemented. ...

Based on the lack of results achieved from the $42.4 million in YTD expenditures made from Fiscal Years (FY) 1999 through 2008, we believe a substantial risk exists that spending the $29.7 million remaining on this contract will provide little or no actual benefit to SSA.

Sixth Circuit Says The DOT May Not Be Enough To Justify Denial

From Cunningham v. Astrue:

The VE based his testimony on job descriptions contained in the Dictionary of Occupational Titles (“DOT”), a document published by the Department of Labor that was more than a decade old when the ALJ heard Cunningham’s claim. While the Social Security Commissioner does take administrative notice of this document when determining if jobs exist in the national economy, 20 C.F.R. § 404.1566(d)(1), common sense dictates that when such descriptions appear obsolete, a more recent source of information should be consulted. The two relevant descriptions here—document preparer and security camera monitor—strike us as potentially vulnerable for this reason. Without more, however, we cannot adequately review whether these job descriptions were up-to-date and, thus, whether the VE’s testimony was reliable. ...

In light of the fact that more current job descriptions were available at the time of the hearing before the ALJ—the Department of Labor replaced the DOT with the Occupational Information Network (O*NET), a database that is continually updated based on data collection efforts that began in 2001— and that the two descriptions relied on by the VE are not found in O*NET, we conclude that the VE’s dependence on the DOT listings alone does not warrant a presumption of reliability. E.g., O*NET Resource Center, http://www.onetcenter.org/dataCollection.html (last visited Jan. 4, 2010). As such, we remand to the Commissioner for consideration of whether the DOT listings, specifically the document preparer and security camera monitor descriptions, were reliable in light of the economy as it existed at the time of the hearing before the ALJ.

Social Security's plan to do something about the DOT sometime in the next ten years or so may not work. The agency should have started serious work on this at least ten years earlier. The only option now may be something quick and dirty.

Update: I have been asked to note that the Court did not recommend this opinion for publication which means that it is not precedential. Either party can ask the Court to change this to a published decision. I would be surprised if appellant's counsel failed to do so. In any case, once attorneys know this argument worked one time, it is likely to be used again. A Court can declare an opinion non-precedential but a Court cannot prevent attorneys representing other clients from being influenced by it.

Information On New Hearing Offices

Social Security's Office of Inspector General (OIG) has just released The Office of Disability Adjudication and Review’s Staffing Plans Under the American Recovery and Reinvestment Act. It is tempting to wonder if this report had something to do with David Foster's abrupt departure from ODAR but there is nothing in the report to suggest that.

The report does give a summary of ODAR's plans for opening new hearing offices this year. I wish I could do this as a table but Blogger makes that almost impossible. What I can do is give you the data separated by commas. First you see the location of the new hearing offices, after a comma there is the number of Administrative Law Judges to be assigned to the offices, after another comma there is the total number of staff to be assigned to the office, and finally, after another comma, you will see the projected opening date for the office.

New Hearing Office Location, ALJs To Be Assigned To Office, Total Staff To Be Assigned To Office, Planned Opening Date (All In 2010)

• Anchorage, Alaska 2, 11, February
• St. Petersburg, Florida 11, 54, May
• Akron, Ohio 12, 58, June
• Livonia, Michigan 10, 49, June
• Madison, Wisconsin 6, 30, June
• Phoenix, Arizona 8, 39, June
• Tallahassee, Florida 5, 45, June
• Toledo, Ohio 10, 49, June
• Covington, Georgia 9, 45, July
• Topeka, Kansas 5, 26, July
• Fayetteville, North Carolina 9, 58, August
• Mt. Pleasant, Michigan 12, 58, August
• Valparaiso, Indiana 12, 63, August
• Totals 111, 585

Personnel Changes

MEMORANDUM

Date: January 5, 2010

Refer To: S7K
To: Senior Staff

From: Michael J. Astrue /s/

Commissioner

Subject: Executive Personnel Assignments - INFORMATION

In addition to those assignment changes announced in October 2009, I am making additional executive assignment changes affecting the Offices of Disability Adjudication and Review and Quality Performance.

David Foster will move from Deputy Commissioner for Disability Adjudication and Review to Assistant Deputy Commissioner for Quality Performance.

Glenn Sklar will move from Assistant Deputy Commissioner for Quality Performance to Deputy Commissioner for Disability Adjudication and Review.

Judy Kautsch will return to be the Associate Commissioner for Electronic Services and Strategic Information.

Theresa Gruber, currently in the SES Candidate Development Program, will serve as the Acting Assistant Deputy Commissioner for Disability Adjudication and Review.

Judge William King has been named Acting Regional Chief Administrative Law Judge (ALJ) in San Francisco.

Judge JoAnn Anderson, most recently Acting Regional Chief ALJ in San Francisco, is on a detail assignment as Acting Associate Chief Judge overseeing special initiatives in the immediate Office of the Chief Judge.

Judge Robert Wright, Hearing Office Chief Judge in Albany, NY, is the Acting Associate Chief Judge for the National Hearing Center.

David Foster Leaves ODAR

An e-mail message:

From: Foster, David V.
Sent: Tuesday, January 05, 2010 2:45 PM
To: Kautsch, Judy; Jonas, Patricia; Ray, Gerald; Cristaudo, Frank; Griswold, Nancy J.; Rime, Carla; Ramirez, Adolph; McDaniel, Eileen; McKinnon, Beth; Stewart, Patrice; Bentley, James; Reich, Elizabeth; Sanchez, Raymond; Murdock, John; Meisels, Ray; Wright, Robert; Markowski, Lisa; Watts, Robbie; Schneider, Sybil; Garcia, Ernesto; Smith, Regina B.; Delisle, Michelle; #ODAR All Managers; Taylor, Paula; #ODAR All RCALJs
Cc: Wells, Reginald

Subject: Announcement

Effective immediately, I am no longer Deputy Commissioner for ODAR. I have greatly enjoyed working with all of you and expect that you will do great things on behalf of ODAR and for the American people. Good luck. David

I do not know what happened. This e-mail sounds awfully abrupt.

Backlogs In Maine And How To Pronounce NOSSCR

From the Maine Public Broadcasting Network:

According to figures from the National Organization of Social Security Claimants Representatives, known as NOSSCR -- or noss-car -- the backlog of people around the country waiting for decisions on their social security disability applications increased by more than 38 percent last year.

Nationally, the number of new claims filed between 2008 and 2009 jumped 14 percent. In Maine, it was slightly higher: 17 percent. Topsham attorney Jim Fongemie says all this is creating longer wait times for decisions and hardships for his clients who are appealing their initial denials. ..

It's a trend that mirrors what's happening around the country, says spokesman Steve Richardson of the Social Security Administration. "We always see the unemployment rate affects the number of disability claims we receive, and with the recent unemployment numbers at over ten percent, the number of our disability applications are expected to peak in 2010 at over 3.3 million, and that's kind of what we're seeing."