Those proposed regulations to prevent people from withdrawing claims for Social Security retirement benefits after several years of receiving benefits has now cleared the Office of Management and Budget (OMB). A few people have done this in recent years and then filed a new claim for benefits in order to increase their monthly benefit amount. This has worked but if you withdraw a claim you have to pay back all the money you received. For some reason, the proposal was changed while at OMB. Expect to see this in the Federal Register in the near future.
Dec 3, 2010
Pathetic
The President's deficit reduction commission has finished up its work without ever holding a vote on the proposal of the co-chairs or any other proposal.
Number Of Threats Increases Dramatically
From a report by Social Security's Office of Inspector General (OIG):
Preventing workplace violence is a growing concern. Public interest and media attention have focused on recent incidences of violence at Federal facilities. ...
SSA [Social Security Administration] uses the Automated Incident Reporting System (AIRS), an online, incident-based reporting system, to collect data about incidents that affect the safety and security of SSA’s personnel, property, or operational capabilities. ...
SSA has experienced a dramatic increase in the number of reported threats against its employees or property. The number of threats recorded in AIRS increased by more than 50 percent in Fiscal Year (FY) 2009 and by more than 60 percent in FY 2010. ...
Dec 2, 2010
Plowing Ahead With An Occupational Information System
From a report issued by Social Security's Office of Inspector General (OIG):
Michael Astrue's term as Social Security Commissioner will end in a little over two years. Unless Astrue is nominated to a new term, a new Commissioner will review the OIS project. It may well be derailed or shifted to a different track then. Even if the OIS project is completed as planned, it still has to stand up to judicial review. No one can now predict how that will come out.
To me, it is obvious that a consensus plan would be far more sensible. Achieving a consensus plan would require that Social Security relinquish the ability to control the process so that it can achieve pre-determined goals. Unfortunately, retaining the ability to control the process to achieve pre-determined goals seems to be the entire point for Social Security.
By the way, I have heard rumors about the size of Social Security's Office of Vocational Resources Development. Does anyone have any solid numbers on how many employees it has?
The objective of our review was to assess the Social Security Administration's (SSA) plans for developing an occupational information system (OIS) designed specifically for its disability adjudication process. ...There is not even a mention in this report of concerns that an OIS created by Social Security will be manipulated to achieve pre-determined goals and will lack the credibility needed to stand up to judicial review.
To conduct this review, we attended public meetings on the OIS, interviewed SSA staff, and gathered and reviewed information on the Agency’s efforts to develop an OIS designed specifically for its disability adjudication process. ...
Based on information available as of July 2010, SSA’s strategy to develop an OIS designed specifically for its disability adjudication process appears reasonable. ...
SSA has put much effort into developing an OIS and established the Office of Vocational Resources Development to oversee the project. ...
The Agency is performing an Occupational and Medical-Vocational Study to determine which occupations to review first when the Agency begins conducting job analyses. As a part of this study, SSA staff is reviewing 5,000 cases to determine the most common jobs reported by claimants for their past work and the most common occupations cited in medical-vocational denials by adjudicators.
Michael Astrue's term as Social Security Commissioner will end in a little over two years. Unless Astrue is nominated to a new term, a new Commissioner will review the OIS project. It may well be derailed or shifted to a different track then. Even if the OIS project is completed as planned, it still has to stand up to judicial review. No one can now predict how that will come out.
To me, it is obvious that a consensus plan would be far more sensible. Achieving a consensus plan would require that Social Security relinquish the ability to control the process so that it can achieve pre-determined goals. Unfortunately, retaining the ability to control the process to achieve pre-determined goals seems to be the entire point for Social Security.
By the way, I have heard rumors about the size of Social Security's Office of Vocational Resources Development. Does anyone have any solid numbers on how many employees it has?
The Question Of Social Security Experience At ACUS
When I posted my concern a few weeks ago that the new incarnation of the Administrative Conference of the United States (ACUS) lacks members with Social Security experience, I received comments reminding me that Paul Verkuil, the Chairman of ACUS, has done a good deal of research on Social Security and that Jerry Mashaw, a public member of ACUS, wrote a book about Social Security. Actually, I was well aware of that. They are exactly why I have concerns about the lack of hands on Social Security experience at ACUS.
Let me start out with Professor Mashaw. He published a book in 1983 that praised Social Security disability determination and particularly its quality assurance program at the initial and reconsideration levels. The book is the worst example of academese that I have ever had the misfortune to read. However, that is not the real problem with Mashaw's book. At about the same time as Mashaw's book was published, Social Security's quality assurance program was getting terrible reviews where it really mattered, the federal courts. They found that Social Security was using its secretive quality assurance program to deny claims based upon a policy of "non-acquiescence." "Non-acquiescence" meant that Social Security was refusing to abide by judicial interpretations of the Social Security Act. Social Security ignored what the courts said and plowed ahead with improper interpretations of the Social Security Act. The most visible of the non-acquiescence disputes concerned the standard for terminating disability benefits. Social Security's position was that it could force a claimant to prove over and over again that he or she was disabled. The courts held that once a claimant is approved for disability benefits that Social Security could only cut they off if they improved. Social Security ignored the courts and cut off benefits for hundreds of thousands of people based upon an illegal standard.
Social Security was also denying almost all disability claims based upon mental illness at the time based upon a bizarre interpretation that required anyone claiming disability based upon mental illness to prove that they met one of Social Security's listings. This was made especially difficult because the listings at that time were both harsh and antiquated. Social Security tried to keep this policy a secret even though it was used to deny hundreds of thousands of claims a year. Eventually, disability determination service physicians blew the whistle. The result was Mental Health Ass'n of Minnesota v. Schweiker, 554 F.Supp. 157 (D. Minn. 1982), a devastating loss for Social Security. I think it would be fair to say that Social Security management was embarrassed, even humiliated, by the revelations in the Mental Health Association of Minnesota case. Social Security's actions that led to this debacle could never have happened without the quality assurance program that Mashaw lauded.
My opinion is that non-acquiescence and the Mental Health Association of Minnesota case discredit Mashaw's book. In any case, Mashaw has, for the most part, stayed away from Social Security since then. At best, his Social Security experience was almost thirty years ago.
Professor Verkuil, for his part, has certainly written about Social Security over many years. Verkuil has consistently advocated for several changes at Social Security:
There are good reasons why a Social Security court was never created. Social Security attorneys have strongly opposed it. Social Security has always worried that a court dedicated to Social Security might be even worse for them than the regular federal court system. Everyone has been concerned that it would be impossible to get adequate funding for a dedicated Social Security court. The experience at the Court of Veterans Appeals lends credence to everyone's concerns about about a dedicated Social Security court. It is not going to happen yet Verkuil keeps calling for it.
Government representation at Social Security hearings was tried many years ago. It got a good, full trial. I only heard the results of the government representation experiment second and third hand but I think I have a pretty good idea what the results were. It turned out that the fears of some that government representatives would be terrible for claimants turned out to be exaggerated. Social Security's unstated hope that many more claimants would be denied turned out to be wrong. The hopes of some that the process would yield demonstrably better results turned out to be wrong. Whether rightly or wrongly, the same people were being approved and denied. The government representation program turned out to be such a disappointment for Social Security that they never issued a public report on it. I have even heard that in recent years that Social Security has claimed that they cannot even find any report on the government rep experiment! (If you happen to have a copy of some report on the government rep resentation experiment in your personal archives, please send a copy to me. This ought to be preserved.) For good reason, the government representation program is not going to be revived yet Professor Verkuil keeps calling for it.
Professor Verkuil has long seemed obsessed with the idea that attorneys who represent claimants deliberately withhold medical evidence and submit it only on appeal in order to increase their attorney fees. In response to the concerns that he and others had, the Social Security Act was amended to say that a federal court could only consider new evidence if there was good cause why it had not been submitted earlier. The reaction of attorneys who represent claimants to this change was basically, "Who cares? We haven't been deliberately withholding evidence." This statutory change did not result in any significant change in the number of cases remanded by the federal courts. Social Security's regulations were also amended to make it essentially impossible to submit new evidence to the Appeals Council. The reaction of attorneys who represent claimants to this change was basically, "You're going a bit overboard here. There are a few cases where you should make exceptions but this really won't affect us since we haven't been deliberately withholding evidence." The result was the same. There was no significant reduction in the number of cases remanded. This was an imaginary problem.
Despite the fact that Verkuil's ideas have been adopted without any good effect, Verkuil seems obsessed with the idea that attorneys who represent claimants are evil people who distort the process. He keeps recommending that the record be closed in Social Security cases as early as possible and as utterly completely as imaginable. I think that if he had his way records would be closed before a claimant ever filed a claim! Verkuil seems incapable of understanding that disability claims are not static. Claimants get sicker. They get better. The develop new health problems. Old problems get new diagnoses. Claimants who seemed not to have been that sick are revealed in the fullness of time to have been just as sick as they said.
If Verkuil had practical experience with Social Security he might have an appreciation for why things proceed as they do with Social Security disability claims. In law schools, the facts are almost always given. Professors and students concern themselves with how the law should be applied to the stated facts. In the real world, regardless of the type of case, the facts are almost always in dispute. Social Security adds the additional dynamic that the facts keep changing. The real world cannot be changed to suit Professor Verkuil's tastes. Any effort to do so wiould create far more problems than it solves. The evolution of medical evidence in these cases is not something that can or should be eliminated from consideration. Trying to freeze these cases in time would be artificial and unjust. If anything, we should recognize that full consideration of changing medical evidence is one of the good things about Social Security disability determination.
Let me start out with Professor Mashaw. He published a book in 1983 that praised Social Security disability determination and particularly its quality assurance program at the initial and reconsideration levels. The book is the worst example of academese that I have ever had the misfortune to read. However, that is not the real problem with Mashaw's book. At about the same time as Mashaw's book was published, Social Security's quality assurance program was getting terrible reviews where it really mattered, the federal courts. They found that Social Security was using its secretive quality assurance program to deny claims based upon a policy of "non-acquiescence." "Non-acquiescence" meant that Social Security was refusing to abide by judicial interpretations of the Social Security Act. Social Security ignored what the courts said and plowed ahead with improper interpretations of the Social Security Act. The most visible of the non-acquiescence disputes concerned the standard for terminating disability benefits. Social Security's position was that it could force a claimant to prove over and over again that he or she was disabled. The courts held that once a claimant is approved for disability benefits that Social Security could only cut they off if they improved. Social Security ignored the courts and cut off benefits for hundreds of thousands of people based upon an illegal standard.
Social Security was also denying almost all disability claims based upon mental illness at the time based upon a bizarre interpretation that required anyone claiming disability based upon mental illness to prove that they met one of Social Security's listings. This was made especially difficult because the listings at that time were both harsh and antiquated. Social Security tried to keep this policy a secret even though it was used to deny hundreds of thousands of claims a year. Eventually, disability determination service physicians blew the whistle. The result was Mental Health Ass'n of Minnesota v. Schweiker, 554 F.Supp. 157 (D. Minn. 1982), a devastating loss for Social Security. I think it would be fair to say that Social Security management was embarrassed, even humiliated, by the revelations in the Mental Health Association of Minnesota case. Social Security's actions that led to this debacle could never have happened without the quality assurance program that Mashaw lauded.
My opinion is that non-acquiescence and the Mental Health Association of Minnesota case discredit Mashaw's book. In any case, Mashaw has, for the most part, stayed away from Social Security since then. At best, his Social Security experience was almost thirty years ago.
Professor Verkuil, for his part, has certainly written about Social Security over many years. Verkuil has consistently advocated for several changes at Social Security:
- A Social Security court
- Government representation at Social Security hearings
- Taking elaborate steps to prevent even the remotest possibility of a case being remanded due to new evidence
There are good reasons why a Social Security court was never created. Social Security attorneys have strongly opposed it. Social Security has always worried that a court dedicated to Social Security might be even worse for them than the regular federal court system. Everyone has been concerned that it would be impossible to get adequate funding for a dedicated Social Security court. The experience at the Court of Veterans Appeals lends credence to everyone's concerns about about a dedicated Social Security court. It is not going to happen yet Verkuil keeps calling for it.
Government representation at Social Security hearings was tried many years ago. It got a good, full trial. I only heard the results of the government representation experiment second and third hand but I think I have a pretty good idea what the results were. It turned out that the fears of some that government representatives would be terrible for claimants turned out to be exaggerated. Social Security's unstated hope that many more claimants would be denied turned out to be wrong. The hopes of some that the process would yield demonstrably better results turned out to be wrong. Whether rightly or wrongly, the same people were being approved and denied. The government representation program turned out to be such a disappointment for Social Security that they never issued a public report on it. I have even heard that in recent years that Social Security has claimed that they cannot even find any report on the government rep experiment! (If you happen to have a copy of some report on the government rep resentation experiment in your personal archives, please send a copy to me. This ought to be preserved.) For good reason, the government representation program is not going to be revived yet Professor Verkuil keeps calling for it.
Professor Verkuil has long seemed obsessed with the idea that attorneys who represent claimants deliberately withhold medical evidence and submit it only on appeal in order to increase their attorney fees. In response to the concerns that he and others had, the Social Security Act was amended to say that a federal court could only consider new evidence if there was good cause why it had not been submitted earlier. The reaction of attorneys who represent claimants to this change was basically, "Who cares? We haven't been deliberately withholding evidence." This statutory change did not result in any significant change in the number of cases remanded by the federal courts. Social Security's regulations were also amended to make it essentially impossible to submit new evidence to the Appeals Council. The reaction of attorneys who represent claimants to this change was basically, "You're going a bit overboard here. There are a few cases where you should make exceptions but this really won't affect us since we haven't been deliberately withholding evidence." The result was the same. There was no significant reduction in the number of cases remanded. This was an imaginary problem.
Despite the fact that Verkuil's ideas have been adopted without any good effect, Verkuil seems obsessed with the idea that attorneys who represent claimants are evil people who distort the process. He keeps recommending that the record be closed in Social Security cases as early as possible and as utterly completely as imaginable. I think that if he had his way records would be closed before a claimant ever filed a claim! Verkuil seems incapable of understanding that disability claims are not static. Claimants get sicker. They get better. The develop new health problems. Old problems get new diagnoses. Claimants who seemed not to have been that sick are revealed in the fullness of time to have been just as sick as they said.
If Verkuil had practical experience with Social Security he might have an appreciation for why things proceed as they do with Social Security disability claims. In law schools, the facts are almost always given. Professors and students concern themselves with how the law should be applied to the stated facts. In the real world, regardless of the type of case, the facts are almost always in dispute. Social Security adds the additional dynamic that the facts keep changing. The real world cannot be changed to suit Professor Verkuil's tastes. Any effort to do so wiould create far more problems than it solves. The evolution of medical evidence in these cases is not something that can or should be eliminated from consideration. Trying to freeze these cases in time would be artificial and unjust. If anything, we should recognize that full consideration of changing medical evidence is one of the good things about Social Security disability determination.
To damn Verkuil a bit more, he applauded former Commisioner Barnhart's Disability Service Improvement (DSI) plan in 2007. I think there were few people at Social Security, even then, who thought that DSI was a good idea. I doubt they would admit it today.
In any case, I urge readers to take a look at the recommendations that ACUS has made in the past on Social Security and ask themselves whether having some person or persons on ACUS with significant hands-on Social Security experience would be a good idea.
- 305.78-2 Procedures for Determining Social Security Disability Claims (Recommendation No. 78-2)
- 305.78-3 Time Limits on Agency Actions (Recommendation No. 78-3)
- 305.86-1 Nonlawyer Assistance and Representation (Recommendation No. 86-1)
- 305.87-6 State-Level Determinations in Social Security disability cases
- 305.87-7 A New Role for the Social Security Appeals Council
- 305.89-8 Agency Practices and Procedures for the Indexing and Public Availability of Adjudicatory Decisions (Recommendation No. 89-8)
- 305.89-10 Improved Use of Medical Personnel in Social Security Disability determinations (Recommendation No. 89-10)
- 305.90-4 Social Security Disability Program Appeals Process: Supplementary recommendation (Recommendation No. 90-4)
- 305.91-3 The Social Security Representative Payee Program (Recommendation No. 91-3)
- 305.91-9 Specialized Review of Administrative Action (Recommendation No. 91-9)
Dec 1, 2010
A Report That's Not A Report
The "report" of The National Commission On Fiscal Responsibility and Reform (called the Catfood Commission in some quarters) is out, except that it is not really the report since it has not been voted on by the commission and besides the commission officially went out of business yesterday. I do not know what the "report" represents other than the fantasies of its leaders but here are the Social Security recommendations:
- MAKE RETIREMENT BENEFIT FORMULA MORE PROGRESSIVE. Modify the current three-bracket formula to a more progressive four-bracket formula, with changes phased in slowly.
- REDUCE POVERTY BY PROVIDING AN ENHANCED MINIMUM BENEFIT FOR LOW-WAGE WORKERS. Create a new special minimum benefit that provides full career workers with a benefit no less than 125 percent of the poverty line in 2017 and indexed to wages thereafter.
- ENHANCE BENEFITS FOR THE VERY OLD AND THE LONG-TIME DISABLED. Add a new “20-year benefit bump up” to protect those Social Security recipients who have potentially outlived their personal retirement resources.
- GRADUALLY INCREASE EARLY AND FULL RETIREMENT AGES, BASED ON INCREASES IN LIFE EXPECTANCY. After the Normal Retirement Age (NRA) reaches 67 in 2027 under current law, index both the NRA and Early Eligibility Age (EEA) to increases in life expectancy, effectively increasing the NRA to 68 by about 2050 and 69 by about 2075, and the EEA to 63 and 64 in lock step.
- GIVE RETIREES MORE FLEXIBILITY IN CLAIMING BENEFITS AND CREATE A HARDSHIP EXEMPTION FOR THOSE WHO CANNOT WORK BEYOND 62. Allow Social Security beneficiaries to collect half of their benefits as early as age 62, and the other half at a later age. Also, direct the Social Security Administration to design a hardship exemption for those who cannot work past 62 but who do not qualify for disability benefits.
- GRADUALLY INCREASE THE TAXABLE MAXIMUM TO COVER 90 PERCENT OF WAGES BY 2050.
- ADOPT IMPROVED MEASURE OF CPI. Use the chained CPI, a more accurate measure of inflation, to calculate the Cost of Living Adjustment for Social Security beneficiaries.
- COVER NEWLY HIRED STATE AND LOCAL WORKERS AFTER 2020. After 2020, mandate that all newly hired state and local workers be covered under Social Security, and require state and local pension plans to share data with Social Security.
- DIRECT SSA TO BETTER INFORM FUTURE BENEFICIARIES ON RETIREMENT OPTIONS. Direct the Social Security Administration to improve information on retirement choices, better inform future beneficiaries on the financial implications of early retirement, and promote greater retirement savings.
- BEGIN A BROAD DIALOGUE ON THE IMPORTANCE OF PERSONAL RETIREMENT SAVINGS.
Death Of Rep Payee Causes Huge Problems
From the Louisville Courier-Journal:
Nearly 100 disabled Louisville residents have had their Social Security benefits unexpectedly cut off after a local attorney responsible for managing their finances died last month.
Louis Cohen, 78, was the designated payee for 96 people whom the U.S. Social Security Administration had deemed in need of someone to receive and manage their monthly checks. Their accounts were frozen when he died Nov. 4 from cancer.
CBS Scare Tactics
From the Columbia Journalism Review:
If there were prizes given for the most one-sided, misleading story about Social Security this year, a segment aired on the CBS Evening News before Thanksgiving would make a great candidate.
In a breathless recitation of the horrors befalling the system, CBS painted a grim picture of Social Security, using scare words and phrases like “the system is headed for a crisis,” “the government is confronting a painful reality,” and “there’s no debating that we’re running out of time.” How’s that for opinion journalism on a news show?
Perhaps to substantiate the segment’s conclusions, CBS piled on quotes from those people in favor of cutting Social Security benefits and raising the retirement age. Here was Andrew Biggs, currently a resident scholar at the conservative American Enterprise Institute, saying: “Americans are living longer, but they’re retiring earlier and saving less. Something in that equation has to give.” Biggs was a deputy Social Security commissioner in the Bush II administration and a Social Security analyst at the Cato Institute, which has been a leader in the efforts to privatize the system. CBS did not mention those credentials.
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