ALJ Removed

The Merit Systems Protection Board has affirmed the removal from office of Danvers Long, who had been an Administrative Law Judge (ALJ) for Social Security, after he was arrested in Coral Springs, FL for domestic violence battery and culpable negligence.

Clear That Backlog!

Beth Bates, a Jackson, TN attorney, has a nice op ed piece in the Jackson Sun dealing with the human costs of Social Security's hearing backlog. While there has been some progress on this backlog in the past year, a budget freeze could start moving things in the opposite direction.

Budget Situation Perilous

President Obama's recommended budget for fiscal year (FY) 2011, which begins on October 1, 2010, is due out on Monday, February 1. The President has stated that he intends to recommend a freeze for almost all domestic agencies. for the next three years. The Center for American Progress has posted an analysis of what this could mean, which includes this paragraph:

Based on extensive analysis, the IRS Oversight Board has concluded that for each dollar spent at the IRS, four dollars in taxes owed to the Treasury are collected. Studies by the Social Security Administration and Centers for Medicare and Medicaid Services show similar ratios between staffing resources and savings to the U.S. Treasury from identification of fraudulent claims, overpayments, and incorrect billings. These three agencies have a combined annual budget of $27 billion over the next 10 years. The federal government will spend approximately $337 billion on salaries, contracts, and other expenses if we maintain the same level of effort as we have today.

A Contrast

The Department of Veterans Affairs (VA) has its own severe backlog problem. To help deal with the onslaught of claims, VA is proposing some changes to its computer systems. The response from veterans advocacy groups:

• "This is old news"
• "Verbiage in proposal is obtuse to the max ... many in attendance did not understand the Gov.speak gobbledygook."
• "This proposal is Dead on Arrival."

I cannot help but contrast this to past introductions of somewhat similar plans at Social Security. I do not know whether this is good or bad but I have to say that Social Security advocacy groups have been much more restrained in their comments on similar proposals at Social Security even when their private thought might have been the same as what the veterans advocacy groups are saying.

Status Of Attorney Scheduling System?

There have been reports that Social Security is working on a computer system to track Social Security hearings scheduled for individual attorneys to avoid conflicts. I have never heard that Social Security considered such a system to be operational.

I now have a Social Security hearing scheduled in one city on a specific date and at a specific time. Another Social Security hearing office has scheduled a hearing for another client in a different city on the same date and at the same time without calling me as Social Security's own HALLEX manual requires. When I asked for a continuance, I was told that no continuance would be granted since their system did not show any such conflict for me.

What is going on?

A Question And An Opinion

Is it appropriate for a Commissioner of Social Security to change the agency's basic interpretation of a statute without any intervening change in the statute? I was under the impression that members of the Federalist Society such as Michael Astrue opposed reinterpreting even the Constitution which is over 200 years old. Of course, there is the recent example of Citizens United v. FEC where other members of the Federalist Society were quite happy to reinterpret the Constitution when it suited the interests of their political party.

My opinion is that if a Commissioner does not like the settled interpretation of a statute that he inherits that he should go to Congress and ask them to change the statute instead of threatening to unilaterally change that interpretation.

Commissioner Says Ohio Shoots Itself In Foot

From the Cleveland Plain Dealer:

Commissioner of Social Security Michael Astrue said Ohio is losing millions of dollars and contributing to the backlog of disability cases by furloughing state workers paid with federal funds.

Astrue, who met with The Plain Dealer editorial board Thursday, also said the furlough of workers who process disability requests will delay 14,600 claims and postpone almost $3 million in federal benefits to Ohio residents.

According to Asture, Ohio will lose $6.9 million in federal money by imposing a 20-day furlough to each of the 627 employees of the Ohio Bureau of Disability Determination over two years. The furlough began last summer.

Policy Change On Substance Abuse Coming?

From a Request for Comments to be published in the Federal Register tomorrow:

We are requesting your comments about our operating procedures for determining disability for persons whose drug addiction or alcoholism (DAA) may be a contributing factor material to our determination of disability. ...

To provide guidance on how we interpret the DAA provisions of the Act, we issued instructions to our employees in an Emergency Message on August 30, 1996. ...

We are asking for your comments on the procedures we follow when evaluating DAA. In particular, we would like your opinion about what, if any, changes you think we should make to our instructions. For example, do you have any suggestions about:

• What evidence we should consider to be medical evidence of DAA?
• How we should evaluate claims of people who have a combination of DAA and at least one other physical impairment?
• How we should evaluate the claims of people who have a combination of DAA and at least one other mental impairment?
• Whether we should include using cigarettes and other tobacco products in our instructions?
• How long a period of abstinence or nonuse we should consider to determine whether DAA is material to our determination of disability?
• Whether there is any special guidance we can provide for people with DAA who are homeless?

Social Security's position has been that if it is impossible to separate the effects of DAA from the effects of other psychiatric illness that the combined effect of both may be considered disabling. This situation is frequently present in individuals suffering from bipolar disorder, a psychiatric illness which has a high degree of association with DAA. A change in this policy would be of considerable importance.

Social Security has never previously asserted or even suggested officially that tobacco use could be considered DAA.

The talk of whether a period of abstinence should be required before a person could be found disabled is worrisome. The statute does not forbid disability payments to alcoholics and drug addicts. It merely prohibits consideration of alcoholism and drug addiction in determining disability. A person may have a raging substance abuse disorder but be found disabled due to other health problems. This has always bothered some people. They find drug abuse and alcoholism so loathsome that they believe that no one alcoholics or drug addicts should be on Social Security disability benefits even though the statute says otherwise. One interpretation of this notice is that Social Security has a desire to move towards forbidding benefits to anyone with a substance abuse problem.