How To Lose Your Job As An ALJ

The U.S. Court of Appeals for the Federal Circuit has issued an opinion in Steverson v. Social Security affirming a Merit Systems Protection Board (MSPB) decision removing London Steverson from his position as an Administrative Law Judge (ALJ) for Social Security. Here are the allegations against Steverson, as summarized in the opinion:

• [T]he agency alleged that Judge Steverson used official agency letterhead to send three letters to mortgage or loan companies relating to a personal home loan.
• Judge Steverson had used official agency letterhead to lodge a complaint against a California state court commissioner he had appeared before in a custody dispute.
• Judge Steverson had used his work computer between 2001 and 2007 to view and store sexually oriented material.
• Judge Steverson had displayed a lack of candor during his investigatory interview with Hearing Office Chief Administrative Law Judge Cynthia Minter. ... Judge Steverson maintained that he had no idea how the sexually graphic material got on his computer and that he thought his use of official stationery was acceptable under the circumstances.
• The fourth charge related to Judge Steverson’s use of his business address to send and receive personal correspondence. In June 2004, the office director for Judge Steverson’s branch office informed all employees that the office mailing address was not to be used for personal correspondences.

The ALJ assigned to hear the case at the MSRB found for Social Security on all but the lack of candor allegation and ordered that Steverson be suspended from his position for 35 day. Social Security appealed to the MSRB which agreed with Social Security and ordered Steverson removed from his position as an ALJ.

Internet Access To Social Security Files Moving Along

There was an important development at the conference of the National Organization of Social Security Claimants Representatives (NOSSCR) last month that I had not gotten around to posting about. Social Security invited over 200 attorneys to sign up during the conference to participate in a program to allows them internet access to the electronic files that Social Security has on their clients. Previously, Social Security had only a tiny pilot with nine participants.

Since the NOSSCR conference, I and others at my firm have been able to access our clients' files, so long as the client is awaiting a hearing on their Social Security disability claim. I would not call the process elegant but it is functional and convenient. The biggest annoyance is the requirement that after I enter my user id online as well as a password that I must wait for a code number to be sent as a text message to my cell phone. I must enter that code number to gain access to my clients' files. I understand the need to be vigilant about security but this seems like overkill to me. If a person has someone else's user id and password, they can easily change the cell phone number so that they can received the text message. I do not see how the texting of a second password provides any extra security. Another annoyance is the fact that I cannot immediately download a copy of my client's file. I must ask for the file and then wait for an e-mail message telling me that it is ready to download. The delay in file preparation is not so bad now but I fear that as more and more attorneys begin using this system that the delay will creep up.

Social Security must feel that the rollout is going reasonably well. I have heard that next month Social Security will begin signing up any attorney who practices before the Raleigh hearing office. I do not know whether Raleigh is just a further test or the start of national rollout.

Preaching To The Choir

From the Philadelphia Inquirer:

David Walker,who warned Congress against spending more money than it collects from U.S. taxpayers while he headed the Government Accountability Office under Presidents Bill Clinton and George W. Bush,is in Philadelphia this week on a national tour pushing new restrictions on Social Security and Medicare eligibility, and higher payroll taxes, at least for the rich.

He's asking support from influential Philadelphians who don't personally need federal checks. As president of the Peter G. Peterson Foundation, endowed by the billionaire Blackstone Group L.P. investment manager, Walker was guest of honor Wednesday night at tech investor Thomas Gravina's Haverford home, where local invitees included real estate mogul Ira Lubert of $12 billion-asset Independence Capital Partners, bond and casino investor Michael Forman, and McDonald's meat-supplier-turned-philanthropist Herbert Lotman. ...

What exactly does Walker want? For Social Security, he wants an added "automatic" savings plan without guaranteed payouts, like a 401(k) plan; delayed eligibility, eventually limited to age 70 and older or "indexed to life expectancy" for the continuing guaranteed benefit; and higher payroll taxes on the rich, who pay no Social Security after their first $108,000 in salary.

That's a lot more than would be needed to address any long term financing issues with Social Security.

Searching For Plausible Occasions

Ted Marmor has an interesting piece on the Huffington Post concerning the work of the National Commission on Fiscal Responsibility and Reform. Marmor believes that the Commission seems determined to recommend deep cuts in Social Security benefits. Here is a brief excerpt:

[T]he same attacks on Social Security have been going on -- in different guises -- for at least four decades. ... What is crucial to understand is how devious and misleading such lines of argument are. They are best understood as an ideological remedy searching for plausible occasions to celebrate what was presumed.

Marmor's piece must be hitting home. Andrew Biggs has chosen to respond on his own blog. Biggs seems to feel that it is inappropriate for anyone to respond to the right wing attacks upon Social Security. He calls Marmor's piece an attack upon the character and motivation of those who want to dismantle Social Security. Biggs takes offense at the suggestion that he and others who want to gut Social Security are ideologically motivated. Yeah, right, you're just a scholar and a patriot, Biggs. You've got no ideological ax to grind.

Union Newsletter

Council 220 of the American Federation of Government Employees (AFGE), the union that represents most Social Security employees, has issued the May 2010 issue of its newsletter, UNITY. Here is a small sample from the newsletter:

The Social Security Administration has again shown there are two sets of rules: one for management officials and one for bargaining unit employees. Jared Gaspard was featured in the January, 2010 UNITY after he apparently processed about 38 phony SSI applications in order to meet agency “goals.” At the time, Gaspard was manager of the SSA office in Independence, Missouri. ...

The Office of the Inspector General (OIG) conducted an investigation, and the result was that Gaspard was moved to the Training and Development Team in the Kansas City Regional Office. ...

Despite the evidence that Gaspard falsely attested to contacting applicants and taking fake applications under their name, Kansas City Regional Commissioner Michael Grochowski recently awarded him with a Regional Commissioner’s citation award for exemplary service.

[Union President] Skwierczynski said, “Awarding Gaspard who took fake SSI applications and attested to their accuracy with a Regional commissioner’s citation is outrageous. This is especially hypo-critical since the Union is currently defending bargaining employees who have been fired for the same alleged infractions.” ...

OIG Report On Flexiplace

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

Negotiated agreements between the Social Security Administration (SSA) and its unions established Flexiplace for ODAR [Office of Disability Adjudication and Review] bargaining unit employees. Flexiplace allows qualified hearing office staff to perform assigned work at a management approved alternate duty station (ADS), which is typically their personal residence. As such, employees who participate in Flexiplace take claimants’ case files to their ADS. These case files can be in paper form or stored on portable devices, such as compact discs (CD) and laptop computers, and generally include claimants’ PII [Personally Identifiable Information]—Social Security numbers (SSN), names, addresses, earnings information, and medical histories. According to an ODAR survey, approximately 2,037 (29 percent) of its 6,992 employees worked Flexiplace at least 1 day per week in Calendar Year 2008. ...

To accomplish our objective, we selected 20 hearing offices. At each office, we randomly selected and interviewed hearing office employees who participated in Flexiplace in Calendar Year 2008 as well as group supervisors. We also interviewed each office’s director and chief ALJ. In total, we interviewed 135 hearing office employees and 75 managerial staff. ...

According to most ODAR employees we interviewed, SSA’s Flexiplace program has had a positive impact on their morale or helped them work more effectively at home because of fewer interruptions. ...

ODAR’s practices over PII did not properly protect claimant data that Flexiplace employees removed. For example, ODAR management at 17 (85 percent) of the 20 hearing offices we visited allowed Flexiplace employees to remove electronic PII that was stored on unencrypted CDs. As long as employees placed claimants’ electronic data in a locked container, ODAR considered the employees to be taking proper steps to secure PII. However, we do not believe such controls are sufficient because PII remains vulnerable to unauthorized disclosure when it is “secured” in such ways.

The Office of Management and Budget (OMB) requires that Federal agencies encrypt all data on mobile computers/devices, unless the data are not sensitive. To address OMB’s requirement, SSA implemented a policy that requires employees use Agency approved encrypted or password protected electronic devices when PII is removed in electronic form. ... While SSA is working on an encryption solution for ODAR, we believe ODAR needs to adequately safeguard claimants’ electronic data by requiring that employees save PII to an encrypted and password protected laptop—at least until the Agency implements a complete encryption solution.

Federal Computer Week has picked up on this OIG report.

Ratliff Decision No Surprise

The Supreme Court has issued an opinion in Astrue v. Ratliff. No surprise. The government won. The Court held that an attorney fee under the Equal Access to Justice Act (EAJA) belongs to the plaintiff and may be seized by the government for debts owed the government. Justices Sotomayor, Stevens and Ginsburg filed a concurring opinion inviting Congressional action on the issue, saying that the decision in the case would make it more difficult for Social Security claimants to obtain representation in federal court.

S Corp Tax At Issue

Congress is currently considering a bill that would extend tax cuts first enacted during the George W. Bush administration. One aspect of this bill that has attracted little public attention would affect Social Security. Currently "S" corporations do not pay the F.I.C.A. tax, the one that funds the Social Security trust funds. "S" corporations pay no federal income tax; their income passes through to their owners who pay individual income tax. The owners do not pay F.I.C.A. taxes on the income they receive from an "S" corporation. The "S" corporation technique is used primarily by professionals such as physicians, dentists, lawyers, architects, etc. The bill would change that for "S" corporations with three or fewer key service providers. There is a fight against the "S" corporation provisions of the bill, which is being labeled as a tax increase. If passed, the bill would increase tax revenues by about $11 billion over ten years.

Tax increase or loophole closing? What do you think?

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