The Christmas Spirit

A Christmas Present For Colvin

After only 14 months, Carolyn Colvin was confirmed by the Senate late today. She is now the Deputy Commissioner of Social Security. This was the last piece of business before the Senate adjourned for this session of Congress.

Update: Social Security issues a press release on the confirmation.

When Will DOMA Be Repealed?

President Obama has told The Advocate that he believes that the Defense of Marriage Act (DOMA) should be repealed. DOMA keeps Social Security from recognizing same sex marriages. Social Security would be far more affected than any other agency if DOMA is repealed.

Even a year ago I would have thought that repeal of DOMA was out of the question. Now, it seems like it is only a matter of time, even with Republicans in control of one house of Congress. This has to be one of the most amazing changes in public opinion in my lifetime.

EAJA Offset Decision

From Kellems v. Astrue (5th Cir. December 16, 2010):

In this social security case, we are asked to decide whether a federal court may order an attorney to remit to his client an award of attorney’s fees under the Equal Access to Justice Act (the “EAJA”) as an offset against fees awarded to the attorney pursuant to 42 U.S.C. § 406(a) for work before the Social Security Administration. This appeal was stayed pending our decision in Rice v. Astrue, 609 F.3d 831 (5th Cir. 2010). There we held that federal courts do not have the discretion to offset an EAJA award of attorney’s fees for work performed before a court with a future award of attorney’s fees by a federal agency pursuant to 42 U.S.C. § 406(a). Id. at 839. We now hold, in accordance with Rice, that a federal court may not order an award of attorney’s fees for work performed before a federal agency pursuant to 42 U.S.C. § 406(a) to be offset by an award of attorney’s fees for work performed before a federal court pursuant to the EAJA. We therefore vacate the order of the district court.

What About Your Own Shortcomings?

Barbara Kennelly, the President of the National Committee to Preserve Social Security and Medicare, writing in the San Francisco Chronicle:

Charles Dickens' Ebenezer Scrooge feared the Ghost of Christmas Future more than any other he'd met during his long Christmas Eve night. I can relate. After watching congressional passage of the White House-Republican negotiated tax deal, I, too, fear for the future. I fear this tax package is the first step toward radical changes to Social Security that will impact generations of working Americans.

While some elements in the tax package provide desperately needed stimulus for millions of Americans - including far too many who are suffering near-Dickensian levels of poverty and fear - this deal also diverts $112 billion in contributions from Social Security. A "tax holiday" may sound like a wonderful gift for workers now, however this one is wrapped in Washington promises that could turn out to be as thin as tissue paper.

As we've seen in Congress these days, it's easy to enact tax cuts but virtually impossible to allow them to expire. ...

Retirees and their families will watch helplessly as Social Security becomes dependent on general fund revenues rather than worker contributions, which have successfully funded the program for 75 years. Proposals like this threaten the program's independence at this time of unprecedented deficits, forcing Social Security to compete for limited federal dollars. ...

Conservatives have long dreamed of a payroll tax holiday because it fulfills two ideological goals: lower taxes and weakening Social Security's finances.

Ms. Kennelly ought to acknowledge that her organization took more than 24 hours to announce opposition to this FICA holiday and that AARP actually supported it! If there had been rapid, united opposition to this plan, we might not be where we are today.

Not A Good Place For Disabled People

Looks like Shreveport may not be the best place to live if you happen to be a Social Security disability claimant.

OIG Report Shows Bad ALJ Dismissal Problems

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

In an August 4, 2009 letter, Senator McCaskill requested that we review dismissals of hearing requests to ensure disabled individuals are afforded the rights and protections required by law and regulations. The Senator also requested we determine whether there were any unusual dismissal trends by individual ALJs [Administrative Law Judges] or by regions. ...

For our review, we analyzed selected hearing request dismissals to determine whether there was documentation in the case folder to support the dismissal. In addition, we examined dismissal rates by region, hearing office, and ALJ. ...

We reviewed 50 cases dismissed in FY 2009 where ODAR determined the claimant filed the hearing request untimely ...

In 2 of the 50 untimely hearing request dismissals we reviewed, it appeared the ALJ should not have issued an untimely hearing request dismissal. ...

For 7 of the 50 untimely hearing request dismissals we reviewed, there was no evidence in the claimants’ case folders that ODAR requested an explanation for late filing from the claimant (good cause). ...

In 3 of the 50 untimely hearing request dismissals we reviewed, we could not determine whether the ALJ considered the claimant’s good cause explanation. ...

For the 50 untimely hearing request dismissals we reviewed, ODAR took between 6 and 637 days to issue the dismissal to the claimant. ... In fact, more than half the dismissals took more than 60 days. ...

We reviewed 50 cases dismissed in FY 2009 because the claimant abandoned the hearing, that is, the claimant did not appear at the scheduled hearing. For seven cases, the claimants’ case folders did not contain evidence that ODAR attempted to contact the claimants, as required. ...

We reviewed 50 cases dismissed in FY 2009 because the claimant withdrew the hearing request. However, one claimant’s case file did not contain evidence the claimant wanted to withdraw the hearing request. ...

We analyzed all dismissals issued in FY 2009 and found that dismissal rates varied among ODAR regions, hearing offices, and ALJs. ...

For example, one hearing office in the Philadelphia Region had a dismissal rate of 10 percent, while another hearing office in the region had a dismissal rate of 25 percent. ...

Finally, we identified a wide variance in dismissal rates by ALJ. Although 95 percent of ALJs had dismissal rates of 25 percent or less, the dismissal rates by ALJ varied from 0 to 60 percent.

Most of the claimants whose requests for hearing are dismissed are unrepresented. Even when claimants are represented there can be inappropriate dismissals. For example, an ALJ is not supposed to dismiss a request for hearing because the claimant does not appear for his or her hearing as long as the attorney representing the claimant appears but ALJs frequently dismiss in these cases. The Appeals Council always remands them. I must have had a dozen of these cases remanded over the years.

Pre-Effectuation Reviews Of ALJ Decisions

From Emergency Message EM-10090:

This message provides case processing information to Field Offices and Processing Centers on cases selected for review by the ODAR [Office of Disability Adjudication and Review] Appeals Council (AC) Quality Review Branch (QRB). ODAR AC/QRB is instituting a pre-effectuation review of ALJ [Administrative Law Judge] favorable and partially favorable decisions. They have already pulled approximately 50 cases for their initial review. The AC/QRB expects to sample approximately 3500 cases per year, equally divided among all regions, when at full capacity.

It is only fair to note that this will be a review of less than 1% of ALJ favorable and partially favorable decisions.