Social Security Press Release On California Furlough Bill

A press release from Social Security

Michael J. Astrue, Commissioner of Social Security, today called for the California State Assembly to quickly pass Senate Bill 29. This bill, which already has passed the State Senate, would end the practice of furloughing Federally-funded state employees, a practice recently held to be illegal by a California superior court judge.

About 1,500 employees in this category are responsible for reviewing applications for Social Security disability benefits in California. California's taxpayers, state employees, and disability applicants all are harmed by these furloughs, and no one benefits. Each furlough day costs the state about $850,000 in administrative reimbursements and delays the payment of over $420,000 in much needed Social Security benefits to residents’ with disabilities.

“Furloughing disability examiners is incomprehensible under any circumstances, and it is callous in a recession of this magnitude,” Commissioner Astrue stated. “Congress authorized half a billion dollars under the Recovery Act to hire staff to reduce disability backlogs, and California is thwarting Congress by unilaterally reducing staffing in a punitive way that also hurts the State’s coffers.”

“It is time for Governor Schwarzenegger to renounce his failed furlough policy by withdrawing his veto threat of Senator Steinberg’s Bill 29 and by declining to appeal the decision in the furlough lawsuit. Fairness, compassion, and common sense all require that result.”

It makes sense that the Commissioner would do this but it is still weird that he would be asking a state legislature to pass a bill and a governor not to veto the bill. Why would the governor threaten to veto this, anyway?

Gotta Be Able To Do It 40 Hours A Week

From a recently issued section of Social Security's Program Operations Manual Series (POMS):

Policy for Residual Functional Capacity [RFC]

RFC represents the most a claimant can do despite his or her limitations or restrictions. Ordinarily, RFC is the individual's maximum remaining ability to do sustained work activities:

• In an ordinary work setting,

• On a regular and continuing basis, and

• For 8 hours a day, 5 days a week, or an equivalent work schedule.

However, if a claimant is unable to sustain a 40-hour workweek because of a severe medically determinable impairment (MDI), the adjudicator or medical consultant must discuss sustainability in the RFC.

I do not recall ever seeing that in print before as an official Social Security position.

Moving Forward On Setting Hearings For ALJs

Shortly after the last Presidential election, Social Security published proposed rules that would give the agency the authority to set the time and place for Administrative Law Judge (ALJ) hearings. This would allow the agency to set hearings for an ALJ without the ALJ's consent. Social Security has now sent a final version of this rule to the Office of Management and Budget (OMB), which is part of the White House, seeking approval before publishing the rule in the Federal Register to make it effective.

Pressure In Alabama

From a recent report by Social Security's Office of Inspector General (OIG):

The Office of the Commissioner of Social Security provided the Inspector General a September 25, 2008 letter from an anonymous individual claiming to be a State of Alabama Medical Consultant (SAMC) at the DDS [Disability Determination Service] in Birmingham, Alabama. ...

Based on interviews with 53 current and former AL-DDS MCs and review of instructions the DDS provided to some of them, we concluded that, at a minimum, a perception existed that AL-DDS pressured some MCs to increase their disability allowance rates. Several MCs told us the pressure to approve claims influenced their medical decisions. We acknowledge that analyzing information on disability allowance and denial rates is beneficial in identifying anomalies, which may indicate a need for further MC training. However, we believe each case should be weighed on its own merit in accordance with SSA disability determination policies.

Processing Time Report

These are the processing time reports for Social Security's Office of Disability Adjudication and Review (ODAR) hearing offices, expressed in days, published in the newsletter of the National Organization of Social Security Claimants Representatives (NOSSCR).

Fee Bill Passes In Congress

H.R. 4532, which makes permanent withholding of fees for certain non-attorney representatives of Social Security claimants and withholding of fees in Supplemental Security Income (SSI) cases, has been passed by both houses of Congress. It should be signed by the President in the near future.

Complaints About ALJs To Be Tracked

Under the Privacy Act, federal agencies must post a notice in the Federal Register before creating a new system of records concerning the public. This is from a notice posted by Social Security in the Federal Register today:

At present, we do not have a good mechanism to track complaints about ALJs f[Administrative Law Judges] from initiation to resolution. This weakness makes it difficult for us to identify and resolve service delivery issues, and also impairs customer service. This system of records will help us improve service to the public by creating a centrally managed, electronic method to collect, monitor, and retrieve information concerning complaints about ALJs.

Would these records, properly redacted, be available under the Freedom of Information Act?

Justices Seemed Sympathetic To Government In Ratliff

From the National Law Journal:

A majority of the Supreme Court appeared sympathetic on Monday to the Obama administration's arguments that attorney fee awards under a key fee shifting statute belong to the clients, not the attorneys who earn them, and the awards can be offset to pay debts owed to the government.

In Astrue v. Ratliff, Assistant to the Solicitor General Anthony Yang and James Leach of Rapid City, S.D., sparred over what each claimed was the "plain meaning" of the Equal Access to Justice Act. The act awards attorney fees and expenses to "a prevailing party other than the United States" in any civil action against the government unless the court finds the government's position was "substantially justified" or an award would be unjust.

The government is urging the high court to overturn a ruling by the 8th U.S. Circuit Court of Appeals (pdf) which, counter to most courts that have ruled on the issue, held that the fee award belongs to the prevailing party's attorney and cannot be used to offset the client's government debts.

Here is the transcript of the oral argument if you wish to read it.