An Attack On Social Security ALJs

     Richard Pierce of the George Washington University Law School has a "fair and balanced" piece in Regulation, a Cato Institute periodical. A few highlights:

The 1,400 administrative law judges (ALJs) who work for the Social Security Administration are making a significant contribution to the economic problems the United States is now experiencing. ...

If we are to believe ALJ decisions, the incidence of permanent disability in the U.S. population has more than doubled since 1970. That belief is beyond implausible. ...

The decision to allow an applicant to appeal two negative decisions made by two examiner/medical adviser teams to an ALJ and to allow an ALJ’s decision to grant an application for benefits that has been rejected twice by the bureaucracy to become final must be based on the belief that ALJ decisions are more likely to be accurate than decisions made by two independent examiner/ medical adviser teams. There is no basis for that belief, however, and many reasons for the contrary belief. ...

The executive branch of government is powerless to address the growing problem of ALJs’ unwarranted commitment of billions of dollars to undeserving applicants for disability benefits....

Most of the dubious grants of benefits by ALJs are attributable to findings that an applicant suffers from nonexertional restrictions, such as mental illness or pain, that are so severe that he cannot perform the functions of any job available in the U.S. economy. It follows that we could eliminate the problem simply by amending the statute to eliminate nonexertional restrictions as a potential qualifying impairment. ..

We could save scores of billions by removing all of the ALJs who now decide appeals from SSA decisions that deny disability benefits....

[T]he present method of SSA disability decisionmaking is clearly unconstitutional.

Death Master File Altered -- You Just Can't Win

     Social Security's Death Master File (DMF), a public record of the names and Social Security numbers of individuals whom Social Security believes to have died, has come under criticism lately. There have been many names on the DMF of individuals who are very much alive. These individuals have lost Social Security and other government benefits until the problem is resolved, a process that can take months. They have also suffered problems as non-governmental entities such as banks treat them as deceased. There is also the threat of identity theft.

     Social Security has responded to the criticism by altering the DMF. Social Security will no longer accept state death records as proof of death. 

     Unfortunately, this will inevitably lead to an increased problem of Social Security checks and direct deposits continuing to be sent to deceased individuals. Most of the families of those involved will return the money but not all. I can easily predict a round of investigations and Congressional hearings on this fraud at some point in the future.

     By the way, the first people to notice the change in the DMF were genealogists. They make extensive use of the DMF.

Interesting

From a solicitation notice posted by Social Security under the title Real Time Access to Investigative Data via BlackBerry Smart Phone Devices:

The Social Security Administration has a requirement for a web based solution to provide real-time access to agents in the field about a variety of investigative data that will be used to identify persons with a history of violence or other issues, such as gun ownership or outstanding warrants.

NJ Ethics Opinion On Pay Per Lead

     Some Social Security attorneys use pay per lead advertising. A pay per lead outfit has a web presence that includes a contact form. A person fills out a form indicating an interest in talking with an attorney about a Social Security case. The pay per lead outfit immediately sends the information to one or more law firms -- for a price. The law firm or firms then contact the prospective client and seek to represent him or her. For an attorney, pay per lead advertising falls into a gray area ethically. Attorneys are forbidden to pay for referrals but attorneys who use pay per lead advertising argue that it is little different than pay per click advertising which is generally accepted as ethical. Most state bars have not ruled on pay per lead. The recent, somewhat tortured opinion of the New Jersey Committee on Attorney Advertising on this issue may be of interest to attorneys dealing with this issue.

From The NOSSCR Conference

I am attending the conference of the National Organization of Claimants Representatives (NOSSCR) this week. Today was the general session. Glenn Sklar, Social Security's Deputy Commissioner for the Office of Disability Adjudication and Review, Patricia Jonas, the Executive Director of the Office and Appellate Operations and Nancy Shor, NOSSCR's Executive Director, spoke. My summary of their remarks runs to more than 1,000 words. Rather than posting a piece of that length here, I have posted it on my firm's website. Of particular interest, at least to me, was what Sklar said about targeted reviews of "outlier" Administrative Law Judges (ALJs), Lisa DeSoto's new job and concerns about Republican efforts to hold the Disability Trust fund hostage.

ACUS Wants To Help

From a Request for Proposals issued by the Administrative Conference of the United States (ACUS):

The study should particularly address the following issues: ...

• The impact of SSA’s treating physician rules on the role of courts in reviewing SSA disability decisions. The study should consider measures that SSA could take to reduce the number of cases remanded to it by courts.
• The role of the SSA Appeals Council in reviewing cases to reduce any observed variances in ALJ’s decisional outcomes, hearing lengths, and application of agency policies. Legal and empirical consideration should be given to the efficacy of an expansion of the Appeals Council’s already existing authority to conduct more focused reviews of ALJ decisions; how the Appeals Council can select cases for review; when review should take place (i.e. pre- or post-effectuation); and the scope and manner of review. 
• Additional measures that SSA could take to identify and address issues posed by “outlier” ALJs, in order to reduce the observed variances, and to reduce other irregularities and improve quality in ALJ decisions. ... 

The Conference will provide a consulting fee of $15,000 for the study plus a budget for expenses.

The White Flag

This is from a notice that Social Security is posting in the Federal Register tomorrow:

We recently decided to eliminate our current procedures for questioning corporate officers’ and self-employed individuals’ allegations of retirement. We have found that, over the long term, questioning retirement allegations has made no significant difference in Trust Fund outlays. By eliminating our questionable retirement procedures, we will reduce the public burden, save our scarce administrative resources, and increase the efficiency of the retirement determination process.

Since we are eliminating our current procedures for questioning corporate officers’ and self-employed individuals’ retirement allegations, the SSRs that relate to those procedures are no longer needed. Therefore, we are rescinding SSR 66-18c and SSR 91-1c as obsolete.

 This is an open invitation to fraud. Self employed individuals between 62 and full retirement age can make completely transparent arrangements to pretend to be retired while continuing to work full time. Social Security will give them early retirement benefits without any questions. However, if you are an employee, forget it. You either retire for real or suffer major reductions in any early retirement benefits. I know it's been almost impossible to police this but completely giving up!

Quiz Answer

Question: How long does a claimant who has been overpaid by Social Security have to request waiver of the overpayment?

Potential answers:

• 20 days
• 60 days
• 180 days
• There is no time limit

Correct answer: There is no time limit. I can give no link to authority on this because no time limit is set by statute, regulation or otherwise. I cannot link to something that does not exist. There is a 60 day time limit to request reconsideration of the fact of the overpayment -- that is to challenge the existence or amount of the overpayment but that is separate from a waiver request.