Social Security Bulletin

     Social Security has released the May 2012 issue of the Social Security Bulletin, the agency's scholarly publication.

ALJs Forbidden To Search Online For Info About Claimants

     From the Washington Times:

The Social Security Administration last month told its disability-claims judges they are no longer to seek out information from websites when deciding cases — taking away a tool some of those judges say would help in uncovering fraud. ...

Social Security’s ban covers all Internet sites, including social media such as Facebook.


But Sen. Tom Coburn, Oklahoma Republican and a top taxpayer watchdog, said avoiding the Internet means giving up a valuable anti-fraud weapon — one that he said even federal courts have relied upon in some disability cases.


“If an individual claims to be disabled, and then publicly posts a picture participating in a sport or physical activity on a social media website, such information should be used by [adjudicators] to determine if the claimant was truly disabled,” Mr. Coburn wrote in a letter last week to Social Security Commissioner Michael J. Astrue.

      The problem with Administrative Law Judges (ALJs) searching social media sites for information on a claimant is what lawyers call ex parte evidence, that is evidence that the ALJ receives without the claimant's knowledge. Deciding a case on ex parte evidence is a serious matter. It goes beyond simply making a mistake. It's a denial of due process. Of course, it would be possible to see something online, send the claimant and his or her attorney a copy of what you saw and allow them to respond, which makes it acceptable but it's way to easy to forget to give the claimant a chance to respond.  The problem with banning this is that it may just drive it underground.

From The NOSSCR Conference -- III

     And finally, Eric Schnaufer advises me that the National Organization of Social Security Claimants Representatives gave its Eileen P. Sweeney Distinguished Service Award to James Williams and Stella L. Smetanka. Congratulations to both.

From The NOSSCR Conference -- II

     Here are some more of Eric Schnaufer's notes, lightly edited by me, on the general session at the National Organization of Social Security Claimants Representatives (NOSSCR) conference:

NOSSCR Executive Director Nancy Shor discussed the increase in disability applications. They were to due to (1) increased coverage by, e.g., school teachers, (2) more women with insured status, (3) increased retirement age, (4) Baby Boomers, (5) weak economy, (6) decline in health insurance coverage, and (7) LTD [Long Term Disability] and state plans that require applying for disability benefits.

She presented the data SSA Chief Actuary Steve Goss presented to the National Academy of Social Insurance on "Why Are More People Claiming Disability Insurance and What Should Be Done About It?"

She and others from NOSSCR met with Commissioner Astrue recently regarding the new policy of withholding the identity of an ALJ [Administrative Law Judge]  until the day of a hearing. Ms. Shor reported that the Commissioner would not change the policy. He considered the policy important. Ms. Shor communicated to the Commissioner objections to the policy nonetheless. Among other things, the Commissioner stated that if representatives forum shopped to avoid low-allowance-rate ALJs, then unrepresented claimants might disproportionately have their claims adjudicated by such ALJs. Ms. Shor communicated that the Agency should punish a representative who did something improper instead of relying on the name-removal policy. Ms. Shor stated that NOSSCR was addressing name-removal policy on Capital Hill. Ms. Shor mentioned that attorney David Camp was seeking to obtain the name of an ALJ revealed via the Freedom of Information Act.

Apart from the meeting with the Commissioner, Ms. Shor stated that NOSSCR is implementing a campaign to inform the public about the disability programs. The membership will receive an opt-in/opt-out choice with respect to receiving information about the campaign.

Ms. Shor explained that the media had turned “180 degrees” in three years, from seeking evidence about individual claimants adversely affected by the hearing backlog to investigating purported waste and fraud.

Ms. Shor stated that, by report, new ALJs were being trained that their role is “policy compliance” and that might account for the allowance rates of some new ALJs.

Ms. Shor explained that the worst case scenario for the disability trust fund is payment of eighty-six percent of benefits.

NOSSCR Staff Attorney Barbara Silverstone addressed new electronic filing requirements. She stated that even if a representative did not file electronically a reconsideration or rehearing request, that a fee would still be withheld. She explained that if the screen shows “System Limitations” upon attempted filing of a reconsideration or hearing request, that means that a paper request must be filed. The representative did nothing wrong. For example, if the prior determination on was partially favorable, a paper reconsideration or hearing request must be filed. For example, for determinations made prior to 2010 for which SSR [Social Security Ruling] 91-5p issues are relevant, a paper reconsideration or hearing request must be filed.

Ms. Silverstone noted that a representative may not click the button to submit an application online. The claimant must click the button. It is a violation of the standards of conduct to click the button for the claimant.

SSA OGC [Office of General Counsel] will investigate “egregious trends” by a representative not to file electronically. If a representative does not file electronically once or twice, that is not a problem. It is a violation of the standards of conduct not to file electronically when required to do so.

Ms. Silverstone noted several best practices suggested by SSA.

• When faxing documents, include a cover page with the claimant’s name and SSN [Social Security Number] and the number of pages of the document. Each page of the document should have the claimant’s SSN and the page number and page range, e.g., “page 2 of 4 

• Do not submit both electronic and duplicate paper documents. 

• The SSA-3441 [an appeal form] should be filed with the appeal document. SSA [Social Security Administration] wants a representative to explain the appeal in the SSA-3441. The 250-character limit in the appeal document itself is thus not a problem.

NOSSCR Government Affairs Director Ethel Zelenske summarized information that will appear in the April 2012 NOSSCR Forum.

• Appeals Council Ombudsperson T. Jensen’s “new” fax number is (703) 605-8691. 

• Status inquires at the Appeals Council should not be made to the Branch handling the request for review, but to the Congressional and Public Affairs. (877) 670-2722. That entity will hire more staff. The Branch personnel are being reassigned to other duties. 

• Do not use hearing-level bar codes at the Appeals Council.  Bar codes will automatically be sent with any request for an extension of time that is made with the request for review itself. The Appeals Council will automatically grant an extension of time made with the request for review. 

• The recording of the hearing will be available via ERE [Electronic Records Express] at the close of 2012. 

• There is an e-mail contact for court remands more than six months old. (See April 2012 Forum.)
• Status reports are not available at the Appeals Council, but they might be in the future.

From The NOSSCR Conference -- I

     The National Organization of Social Security Claimant's Representatives (NOSSCR) is having a conference in Philadelphia this week. Unfortunately, I am unable to attend. Eric Schnaufer was kind enough to take notes on the general session this morning. We'll start out with his notes, which I have edited slightly, on the presentation of Professor Harold Krent, the Dean of the Law School at the Illinois Institute of Technology Chicago-Kent School of Law:

Prof. Harold Krent spoke about his investigation for the ACUS [Administrative Conference of the United States], but not on behalf of the ACUS. The ACUS has not deliberated. The goal was for ACUS deliberations before the end of the calendar year. But that may not be possible. Krent stated that would have a draft in the late summer. His report will be sent to the ACUS and SSA. Then the ACUS will deliberate.

His investigation focuses on understanding inconsistencies in ALJ [Administrative Law Judge] adjudication, the character of ALJ hearings, and judicial review. He will not address State-agency adjudication or the Medical-Vocational Guidelines.

Prof. Krent will investigate whether various factors impact ALJ allowance rates: the pool of claims from the State agencies, the underlying health and poverty of the region, a “small town” bias, the elimination of reconsideration, etc. The statistical analysis is “very difficult.” The differential allowance rates on their face do not tell the “whole story.”

Prof. Krent stated that the Agency has not studied the differential allowance rates for VTC [Video Tele-Conference] and in-person hearings, if any. The significance of VTC hearings for the correctness of adjudication is unknown. Prof. Krent stated that there was no procedural due process right to in-person hearing. Prof. Krent believed that VTC was the “wave of the future.” (Prof. Krent was sympathetic to the Agency’s name removal policy. The Agency was “adamant” about this policy. It prevents “forum shopping.”)

Prof. Krent stated that the Agency has no data on whether allowance rates are associated with particular MEs [Medical Experts] and VEs [Vocational Experts]. The Agency does not track outcomes by the name of the ME or VE.

The Agency does not know how long hearings last or the correlation between the length of the hearing and the result. The CALJ [Chief Administrative Law Judge] should investigate the consistency of the length of hearings.

Prof. Krent stated that the recent public discussions had reduced the allowance rates.  Thus the publication of allowance rates were “not such a bad thing.”  The CALJ should address low and high allowance rate ALJs.

Prof. Krent does not know whether the newer ALJs with Agency experience adjudicate claims differently than longstanding ALJs with more “trial” experience.

Prof. Krent suggested that the Agency provide ALJs with generalizations about adjudicative outcomes given claimant characteristics.

In federal court, the fifty-percent relief rate was consistent over many years. Federal courts grant relief for new evidence in only five percent of cases. The top two reasons for granting relief in court are the treating-source rule and inadequate consideration of mental limitations in terms of functional capacity. There is significant variation from district court to district court in terms of relief.

The Appeals Council is looking at 2,000 cases per year post-effectuation. There were more errors in favorable than unfavorable decisions.

Burlington Office Closure Unpopular

     The Burlington, NC Social Security Social Security field office was recently closed. The Burlington  Times-News reports that a meeting was arranged between local officials and Social Security's District Manager to discuss the closure. The District Manager was first concerned that there be no public forum. Even after he was assured that this was just a private meeting with local elected officials, according to the paper, he failed to show up.

     I note that there is no indication in the article that the reporter tried to contact the Social Security district manager to get his response. It would be normal practice, and simple courtesy, for a reporter to do so. It is not difficult to imagine that the District Manager failed to show because of a simple misunderstanding -- as in, "I knew you were trying to set up something. I told you I could be there but you never got back to me to say that the meeting was definitely on."

     In any case, this demonstrates just how sensitive office closures can be. 

     Speaking as someone who lives not that far from Burlington and who has relatives living on the outskirts of Burlington, this closure seems nutty. The population in that area is growing rapidly. That's obvious to anyone who passes by Burlington on I-85.

Social Security Subcommittee Schedules Hearing On Information Technology

     The House Social Security Subcommittee has scheduled a hearing for May 9 on the state of information technology at Social Security. The press release strongly suggests that the point of the hearing is to pressure the agency "to establish a strategic vision for its information technology investments and develop a long-term plan to improve customer service." I suppose that the underlying premise here is that the future will be bright for Social Security once there is a "long-term plan" for information technology taking over customer service at Social Security. That may sound good if you are a member of Congress or a Congressional staffer, especially if you have spent time listening to government contractor lobbyists, but at ground level it's absurd. There's no amount of money or planning that's going to accomplish the feat of improving customer service at Social Security in the absence of adequate staffing. Some things must be done be people and there's a lot of that at Social Security.
     By the way, why is it that no one ever looks back at the project to transition to electronic files for disability cases? A hell of a lot of money was spent on that information technology project and a hell of a lot of money is still being spent on it. What has been the payoff? Has customer service been improved? Can anyone demonstrate productivity gains? I'm pretty sure that if all that money had been spent on keeping an adequate staff at Social Security that customer service would have been much better over the 11 years and would remain much better as far as one can see into the future. Technology is great but it can only take you so far.
     The press release for the hearing does indicate that Social Security's national computer center project is coming in significantly under budget. I guess this means that Social Security's operating budget must be cut.

Americans Concerned About Retirement Income

From Gallup: