High Reversing ALJ Draws WSJ Attention

From the Wall Street Journal:

Americans seeking Social Security disability benefits will often appeal to one of 1,500 judges who help administer the program, where the odds of winning are slightly better than even. Unless, that is, they come in front of David B. Daugherty.
In the fiscal year that ended in September, the administrative law judge, who sits in the impoverished intersection of West Virginia, Kentucky and Ohio, decided 1,284 cases and awarded benefits in all but four. For the first six months of fiscal 2011, Mr. Daugherty approved payments in every one of his 729 decisions, according to the Social Security Administration. ...

Mr. Daugherty is a standout in a judicial system that has lost its way, say numerous current and former judges. Judges say their jobs can be arduous, protecting the sometimes divergent interests of the applicant and the taxpayer. Critics blame the Social Security Administration, which oversees the disability program, charging that it is more interested in clearing a giant backlog than ensuring deserving candidates get benefits. Under pressure to meet monthly goals, some judges decide cases without a hearing. Some rely on medical testimony provided by the claimant's attorney.
This breakdown is one reason why Social Security Disability Insurance—one of the federal government's two disability programs—is under severe financial strain. It paid a record $124 billion in benefits in 2010 and is on track to become the first major entitlement program to go bust. Government officials said last week it is expected to run out of money in 2018. ...

Judges and local attorneys have complained about the volume of disability cases brought before Judge Daugherty by one lawyer, Eric C. Conn. ...

When asked about Mr. Daugherty, Social Security Administration Commissioner Michael Astrue said in an interview there were several "outliers" among administrative law judges, but that he has no power to intervene because their independence is protected by federal law. ...

Following inquiries from The Wall Street Journal, the Social Security Administration's inspector general's office launched an investigation into Mr. Daugherty's approval rate, according to several people briefed on the matter.  ...

Judges and staff in the Huntington office have complained to supervisors that Mr. Daugherty assigns himself Mr. Conn's cases, including some that were assigned to other judges, two former judges and several staff said. Cases are supposed to be assigned randomly.
According to a court schedule of Mr. Daugherty's day reviewed by The Wall Street Journal dated Feb. 22, 2006, Mr. Daugherty held 20 hearings spaced 15 minutes apart for Mr. Conn and his clients in a Prestonsburg, Ky., field office.

Port Jervis Loses Service

 From the Times Herald-Record of the Hudson Valley in New York:

Port Jervis seniors who need to speak with a Social Security representative are now going to have to travel to another location or become computer savvy.

Regular visits on the third Tuesday of each month by a Social Security rep to the Port Jervis Municipal Building — which has for years given folks a convenient way to get help — has been suspended indefinitely because of federal budget cuts, city officials say.

Update: Port Jervis is getting its service restored.

Actually, I Think He May Have A Few Loose Screws

From the Washington Times:

A key senator has asked the Social Security Administration to investigate how people who live their lives role-playing as “adult babies” are able to get taxpayer-funded disability payments - after one of them was featured on a recent reality TV episode wearing diapers, feeding from a bottle and using an adult-sized crib he built.

Sen. Tom Coburn, Oklahoma Republican and the Senate’s top waste-watcher, asked the agency’s inspector general to look into 30-year-old Stanley Thornton Jr. and his roommate, Sandra Dias, who acts as his “mother,” saying it’s not clear why they are collecting Supplemental Security Income (SSI) benefits instead of working.

“Given that Mr. Thornton is able to determine what is appropriate attire and actions in public, drive himself to complete errands, design and custom-make baby furniture to support a 350-pound adult and run an Internet support group, it is possible that he has been improperly collecting disability benefits for a period of time,” Mr. Coburn wrote in a letter Monday to Inspector General Patrick P. O'Carroll Jr. ...

Mr. Thornton was featured in early May on National Geographic Channel’s “Taboo” program along with Miss Dias, a former nurse who feeds him a bottle and otherwise attends to his needs when he is dressed in diapers.

In the episode, he shows off the adult-sized crib he built and sleeps in, and the cameras follow him to the hardware store where he buys wood for his latest do-it-yourself project - an elevated high chair that is capable of holding his ample frame. ...

Mr. Coburn also questions why Miss Dias, as a former nurse, collects SSI benefits, “since she is able to provide childcare” to Mr. Thornton.

Rep Payee Problem In Arizona

Two Tucson brothers who operated a service that managed Social Security checks for the elderly and disabled pleaded guilty for their roles in a $1.3 million embezzlement case.

Robert Lee Skaggs, 57, and Ray T. Skaggs, 42, pleaded guilty Monday to conspiracy, mail fraud and conversion of security payee funds, according to a U.S. Attorney's Office news release.

The brothers, along with their sister Jo Ann Skaggs, operated SCOPE payee services, which paid bills and distributed social security money for recipients not able to manage their own expenses.

Putting It In Context

From Dean Baker, Co-Director of the Center for Economic and Policy Research, writing at the Huffington Post:

There was both good news and bad news in the Social Security trustees' report released last week. The bad news is that the program is projected to cost somewhat more in the latest report than in the 2010 report. ...

This bad news about the program is also the good news. The main reason that the program's finances deteriorated between the 2010 report and the 2011 report is that in the 2011 report the trustees assumed that we would enjoy substantially longer life expectancies than they did in the 2010 report.

They increased their projected life expectancy for men turning age 65 in 2010 from 18.1 years to 18.6 years, a gain of 0.5 years. The trustees increased their projected life expectancy for women turning age 65 by 0.3 years. ...

Even accepting the 2011 report at face value the picture is hardly as dire as many politicians in Washington are claiming. We have seen much worse before. For example in 1997, the trustees projected a shortfall that was equal to 2.23 percent of payroll. At that time, their projections showed the trust fund first being depleted in 2029. ...

It is also important to keep the Social Security numbers in context. Proponents of cuts to Social Security have spent fortunes on pollsters and focus groups trying to put the program's finances in the most dire possible light. They are fond of reporting things like the program's $17.9 trillion shortfall over the infinite horizon. ...

The vast majority of this $17.9 trillion shortfall comes in years after 2200. Social Security does have a long planning period, but if anyone thinks that we are actually making policy for the 24th century then we should keep this person far removed from the levers of power. ...

The best way to make the size of the projected Social Security shortfall understandable is to put it in context. Relative to the size of the economy, the projected Social Security shortfall is equal to 0.7 percent of GDP. By comparison, annual spending on the military increased by more than 1.6 percentage points of GDP between 2000 and 2011. So the burden imposed by the wars in Iraq and Afghanistan are almost 2.5 times larger than the money that would be needed to eliminate the Social Security shortfall. ...

To take another point of reference, the Congressional Budget Office's analysis of the Ryan Medicare privatization plan implied that it would increase the cost of buying Medicare-equivalent policies by more than $34 trillion, a sum that is almost five times as large as the projected Social Security shortfall.

Schizophrenia And Social Security

I have been seeing more and more people contacting me who have been denied Social Security disability benefits even though they are schizophrenic. I have talked with other attorneys in North Carolina who tell me that they have seen the same thing. I have not seen disability claims based upon schizophrenia denied in a long time, more than 25 years. Social Security for many years that schizophrenia is such a devastating illness that any virtually every schizophrenic ought to be approved.

So what has changed? It's not been a change in the treatment of schizophrenia. There's no cure. Schizophrenia cannot be managed in the way that bipolar disorder can be managed for many people. The best that can be achieved with schizophrenia is to control the positive symptoms, the hallucinations and delusions, but treatment hardly touches the negative symptoms of schizophrenia, such as "inexpressive faces, blank looks, monotone and monosyllabic speech, few gestures, seeming lack of interest in the world and other people, inability to feel pleasure or act spontaneously." That may sound a little vague but it is very real and very disabling.

If something has changed in disability claims based upon schizophrenia, it is at Social Security. Social Security never announces these things. In fact, they always deny that they have made any change. They "announce" the change secretly using their quality assurance program. Disability Determination Services (DDS) tries to approve someone at the initial or reconsideration level, the case is subjected to quality assurance review and gets sent back because the quality assurance people did not like paying that person. Once DDS gets several returns on the same issue, they gets the picture and cut back on approving people who present that particular situation without Social Security every acknowledging that anything has changed.

Take a look below at a quality assurance return that I have seen in a client's file recently. I have redacted the identifying information. Don't try to blame it on the diagnosis of "schizophreniform disorder" instead of schizophrenia? That's technical, because the young woman in question hadn't demonstrated her symptoms for six months. Since that time, predictably, her symptoms have continued unabated. DDS got the message from this return. They got updated clinic records which showed the continuation of the same problems and they turned her down. That's why her mother called me.

I find this depressing. What do you think?

Schizophrenia

Ezra Klein On Social Security

 From Ezra Klein writing in the Washington Post:

1. Over the next 75 years, Social Security’s shortfall is equal to about 0.7 percent of GDP. Source (PDF).
2. For the average 65-year-old retiring in 2010, Social Security replaced about 40 percent of working-age earnings. That “replacement rate” is scheduled to fall to 31 percent in the coming decades. Source.
3. Social Security’s replacement rate puts it 26th among 30 Organization for Economic Cooperation and Development nations for workers with average earnings. Source.
4. Without Social Security, 45 percent of seniors would be under the poverty line. With Social Security, 10 percent of seniors are under the poverty line. Source.
5. People can start receiving Social Security benefits at age 62. But the longer they wait, up until age 70, the larger their checks. Waiting to 66 means checks that are 33 percent larger. Waiting to 70 means checks that are 76 percent larger. But most people start claiming benefits at 62, and 95 percent start by 66. Source.
6. Raising the retirement age by one year amounts to roughly a 6.66 percent cut in benefits. Source.
7. In 1935, a white male at age 60 could expect to live to 75. Today, a white male at age 60 can expect to live to 80. Source.
8. In 1972, a 60-year-old male worker in the bottom half of the income distribution had a life expectancy of 78 years. Today, it’s around 80 years. Male workers in the top half of the income distribution, by contrast, have gone from 79 years to 85 years. Source.

Speakers At NOSSCCR Conference

 I am bumping this up since Blogger's problems had it hidden for so long.

The National Organization of Social Security Claimants Representatives (NOSSCR) is having a conference this week in Baltimore. I am unable to attend. Eric Schanufer has been kind enough to take some notes on the speakers at this morning's general session. Here are Eric's notes with some light editing by me:

Carolyn Colvin, Deputy Commissioner of Social Security

• Nine States under Disability Determination Services (DDS) furloughs
• About 4,700 representatives are registered for electronic access
• Through second quarter of 2011, 386,000 requests for hearings precessed
• Anticipate processing 814,000 requests for hearings in fiscal year (FY) 2011
• Average processing time is less than one year as of March 2011
• FY 2009 36,000+ attorney advisory fully favorable decisions, FY 2010 54,000+, FY 2011 at present 32,000+
• There is a virtual screening unit. It now has 72 attorney advisors. In FY 2011, it has screened 22,000 requests for hearings and rendered 6,000 fully favorable decisions
• In FY 2011, about 130 Administrative Law Judges ALJs will be hired with support staff. There is a hiring freeze except for Office of Disability Adjudication and Review (ODAR). The Agency will lose 2,500 employees through attrition.
• In 2011, eight new hearing offices will be opened, including August, GA, Columbus, MO, Franklin, TN, Reno, NV, and Tacoma, WA. Eight offices that were planned will not be opened, including El Paso, TX, Marquette, MI, Muncie, IN, and St. Paul, MN.
• About 4.5% of initial claims will be paid either through Quick Disability Determination and Compassionate Allowance.
• The Tallahassee Teleservice Center is on hold.
• There is limited overtime.
• Information technology investments are on hold.
• About 50,000 DDS denials will be reviewed by Quality Review.
• There are 538 certified non-attorney representatives. There will be an examination in 2011. The Agency is looking for a contractor. The Agency is working on regulations for certifying non-attorney representatives.

Judge Thomas I. Vanaskie, Court of Appeals for the Third Circuit. 

• District Judge Robert W. Pratt introduced Judge Vanaskie 
• Judge Vanaskie discussed the Third Circuit's case of Capato ex rel. B.N.C. v. Comm'r of Soc. Sec., 631 F.3d 626 (3d Cir. 2011).
• Stated that he knew of four cases involving videoconference. He provided citations for two. Below are quotes from them:
• Kirby v. Astrue, 731  F. Supp. 2d 453, 457 (E.D. N.C. 2010) (“This Court finds as a matter of law that an ALJ cannot impeach the credibility of a claimant, nothing else appearing, based on his or her personal impressions, such as how often a claimant shifts positions, or moves around during a hearing conducted via video conference. There could be any number of reasons for such movement by a claimant and there is no one valid interpretation as to why a claimant was sitting in a certain manner or continuously standing up that an ALJ can use to impeach the claimants credibility.”).
• Holliday v. Astrue, No. 05-CV-1826 (DLI)(VVP), 2009 WL 1292707, at *11 (E.D. N.Y. May 5, 2009) (“The transcript hearing indicates that Plaintiff appeared via video teleconferencing equipment before an ALJ who presided from Virginia. (R. 35, 156-57.) The Court notes that Plaintiff was notified in advance of the hearing that video teleconferencing equipment would be used, and apprised of her right to object to the use of such equipment, as required by 20 C.F.R. § 404.938(b). (R. 35.) Even so, construing Plaintiff's pro se pleadings and papers `to raise the strongest arguments that they suggest,’ Triestman, 470 F.3d at 474, the Court finds that the use of teleconferencing equipment here may have been especially prejudicial, since it may have impaired the ALJ's ability to (1) observe the existence and severity of Plaintiff's lesions; (2) make proper credibility determinations; and (3) evaluate whether Plaintiff was intoxicated at the hearing, thus rendering her unable to knowingly waive her right to an attorney. On remand, in determining whether Plaintiff will be appearing at the hearing in person or via teleconferencing equipment, the ALJ should consider whether the need to assess these factors prevents the use of teleconferencing equipment in this case.”).

Eileen Sweeney Award

NOSSCR gave the Eileen Sweeney Award for public service to:

• Daniel Devine
• Richard Morris

Glenn Sklar, Deputy Commissioner for Disability Adjudication and Review

• There is a fifth National Hearing Center in St. Lous.
• There are now 1,400 ALJs. There is a historically high attrition rate for ALJs. Fifty have left this year.
• ODAR wants ALJs to meet “pace,” i.e., dispose of 500-700 cases per year. At present, three quarters of ALJs on “pace.”
• There is a 5-2 ratio of “new” cases to “old” cases.
• No Hearing Office has an average processing time of greater than 500 days.
• Less than a dozen Hearing Offices have average processing times of greater than 450 days.
  8,000 invitations have been sent to representatives for eFolder access. 4,700+ representatives have eFolder access.
• There will be access to the eFolder at the Appeals Council in the summer of 2011.
• There will be case status summary access in eight to nine months (winter 2012).
• In FY 2011, there will be 130,000 video hearings.
• There are 841 hearing rooms with video equipment, and 317 desktop video units.
  There have been 5,300 RVP hearings (hearings in the representative’s office) to date. There are 28 certified representatives. At present, a DSL line is used. There will be a national rollout this year for IP-based RVP.
• $300 million has been cut from information technology.
• The Agency is on the “cusp” of furloughs.
• ODAR is in a slightly better position than the Agency generally.
• All temporary remote sites will be closed after scheduled hearings are held. Some temporary remote sites will be made permanent remote sites.
• There is a “full freeze” in the field offices. There will be no information technology innovation for representative fee payment.
• There is no routine provision of CDs to representatives who have electronic access.
• It is OK to use a stamp to complete Form 1696s. 

Nancy Altman, Co-Director, Social Security Works, 

•  Spoke about Social Security solvency.
• There is a petition to be signed.

Nancy Shor, Executive Director NOSSCR

• The Disability Insurance Trust Fund will not run out of money in 2018. Money will be reallocated from the Retirement Trust Fund to the DI Trust Fund.
• It appears that where a representative signed up for electronic access matters. If a representative signed up for electronic access at a Hearing Office, CDs are not sent to the representative. If a representative signed up for electronic access at an SSA "event," e.g., a NOSSCR conference, CDs are sent. CDs should be provided upon request to all representatives.
• NOSSCR wants to know about problems with encyrpted CDs and using Electronic Records Express.
• NOSSCR is aware that an entire representative's staff wants to use electronic access, but the agreement for such access restricts access to the representative him- or herself.
• The Senior Attorney Advisor program will be extended to August 9, 2013.
• The disability program will not go away. See what the response was to Rep. Ryan's plan for Medicare. A "knife cannot successfully be put" into the "heart" of the disability program.
• NOSSCR has asked Social Security's Office of General Counsel to consider using a standard language for addressing debt collection issues after Ratliff.