Setback In Kentucky And West Virginia

     A motion for preliminary injunction was filed to prevent the Social Security Administration from going ahead with its plan to make almost 1,500 Social Security disability recipients in Kentucky and West Virginia who had been represented by Eric Conn prove all over again that they are disabled. After what I consider an extraordinary delay the District Court has denied the motion. The agency is free to continue with its plan without making any showing of evidence that there was fraud or similar fault involved in these claimants being awarded benefits. Everyone will just assume the evidence exists.

     I would remind everyone who is sure that there must be strong evidence of fraud or similar fault that no criminal charges have been brought against Mr. Conn, no disciplinary action has been brought against him by the Kentucky Bar and he is still free to represent claimants before the Social Security Administration. How can that be if the evidence against him is strong? Charges aren't true just because you saw them on 60 Minutes. And no one has accused these claimants of doing anything wrong. They just hired the wrong lawyer.

Should I Worry About My Clients Being Thrown Into This Briar Patch?

     The Clinical Neuropsychologist, a scientific journal, has published Official Position of the American Academy of Clinical Neuropsychology Social Security Administration Policy on Validity Testing: Guidance and Recommendations for Change. This is their summary of the paper:

The milestone publication by Slick, Sherman, and Iverson (1999) of criteria for determining malingered neurocognitive dysfunction led to extensive research on validity testing. Position statements by the National Academy of Neuropsychology and the American Academy of Clinical Neuropsychology (AACN) recommended routine validity testing in neuropsychological evaluations. Despite this widespread scientific and professional support, the Social Security Administration (SSA) continued to discourage validity testing, a stance that led to a congressional initiative for SSA to reevaluate their position. In response, SSA commissioned the Institute of Medicine (IOM) to evaluate the science concerning the validation of psychological testing. The IOM concluded that validity assessment was necessary in psychological and neuropsychological examinations (IOM, 2015 ). Objective : The AACN sought to provide independent expert guidance and recommendations concerning the use of validity testing in disability determinations. Method : A panel of contributors to the science of validity testing and its application to the disability process was charged with describing why the disability process for SSA needs improvement, and indicating the necessity for validity testing in disability exams. Results : This work showed how the determination of malingering is a probability proposition, described how different types of validity tests are appropriate, provided evidence concerning non-credible findings in children and low-functioning individuals, and discussed the appropriate evaluation of pain disorders typically seen outside of mental consultations. Conclusions : A scientific plan for validity assessment that additionally protects test security is needed in disability determinations and in research on classification accuracy of disability decision.

     I notice that this is the "Official Position" of the American Academy of Clinical Neuropsychology but it makes reference to the National Academy of Neuropsychology. In addition there are the American Board of Professional Psychology which certifies neuropsychologists, the American Board of Clinical Neuropsychology, the International Neuropsychological Society and the Society for Clinical Neuropsychology. There aren't that many neuropsychologists in the U.S. There may not be 50 in my state, North Carolina. Why do neuropsychologists have so many professional organizations? What is the standing of the American Academy of Clinical Neuropsychology? I don't know. I can say that one of the eight co-authors of this "Official Position" derives at least part of his income from one of the tests that the authors of this report recommend. That's revealed at the end of the report itself. I can also say that widespread use of validity testing by Social Security would create a lot of business for psychologists. It doesn't prove that what they're saying is wrong but it is best to keep in mind that the financial interest of some psychologists is at stake here.
     You might expect me to oppose validity testing but I'm not sure what to think. If anything, I suspect it might help claimants. As a practical matter, at the initial and reconsideration levels of review of Social Security disability claims, Social Security is applying a near conclusive presumption that claimants alleging disability due to pain, intellectual disability or mental illness are malingering. Those claims aren't being approved at those levels except in the most extreme cases. It's not quite like that when these cases get before Administrative Law Judges but there's still a significant bias against claimants who have these problems. I suspect that many claimants who complain of pain, intellectual disability or mental illness would test out as "valid" on the tests being recommended and would be approved more quickly.
     I'm old enough to have been around when the grid regulations were introduced. There was great fear then that those regulations would result in fewer disability claims being approved. What actually happened was that more disability claims were approved.
     Should I worry about my clients being thrown into this briar patch?

People Who File Disability Claims Rarely Go Back To Work, Even If Denied

Gotta Go After That Waste, Fraud And Abuse

     From The Columbian:

MEDFORD, Ore. — Wanda Ames was elated when she received a letter from the Social Security Administration over what she thought was a one-time increase on her disability check. 

“At first I was happy,” the 56-year-old Medford woman said. “I thought they were giving me extra money. I thought I was going to get 260 extra dollars.” 

For someone who lives on $766 a month from Social Security plus $350 for food stamps, the small windfall would have been a big help, especially as she worries that she and her husband may lose their modest west Medford house because they can’t afford the payments. Her 55-year-old husband, Michael, is unemployed and looking for work. 

But when Ames read the Sept. 30 letter a little more carefully, she discovered she actually owed Social Security $260.40, apparently as the result of a payment made to her mother when Ames was a child more than 40 years ago. 

The letter from Social Security warned her that her December check would be reduced, which she said would be a major blow to her pocketbook.

“If it isn’t one bomb, it’s another,” she said. 

Ames, who has spinal arthritis and other health issues, found out she’s not the only one to receive letters from Social Security about decades-old bills. 

“Of course, it’s not an isolated situation,” said Dorothy Clark in the Social Security press office. Clark said she didn’t have specifics on the number of letters the agency has sent out for back payments.

     The law requires that Social Security do this. Congressional Republicans seem to lack interest in changing the law.

In Memory

What's Ahead On The Budget Front?

     My understanding is that the Bipartisan Budget Agreement recently passed by Congress and signed into law by the President will allow total domestic discretionary spending, which includes Social Security's administrative budget, that will be almost identical to the total provided for by the President's proposed budget for Fiscal Year (FY) 2016, which began on October 1, 2015. 

     The Bipartisan Budget Agreement just sets the total amount for all domestic agencies. The amount each agency gets must be determined by individual appropriations acts. Those are still to come. Social Security and other agencies are currently operating on a continuing funding resolution which runs for about another month.

     The President's budget proposal can only be a rough guide for what to expect when an appropriation is finally passed but Social Security's administrative budget isn't a contentious matter so the President's budget may not be too far off what is to come. The President's proposal was for about a 5% increase in Social Security's operating budget, taking it to $12.8 billion. This contrasts with $11.8 billion in the House appropriations bill and $11.6 billion in the Senate appropriations bill that were under consideration prior to the Bipartisan Budget Agreement.

     My hope is that the Social Security Administration will use as much of the extra money as possible to hire new employees. I know that it takes time to hire and train new employees. Every time the agency hires new people I wince because I know they're going to make mistakes which will take time to correct. Using overtime would reduce, or perhaps I should say, stabilize backlogs more quickly. However, the agency needs more employees for the long haul. We keep going through a boom and bust cycle every year. Part of the year there's little or no overtime. Backlogs go up. Part of the year there's money for overtime and backlogs go down or at least hold steady. On the whole, backlogs keep rising. This can't keep going on. I know that agency management worries about having to furlough new employees but how likely is that? Appropriators seem to try hard to avoid furloughs. Really, which politician wants to be responsible for furloughs at Social Security? The agency would function so much better with several thousand more employees.

Social Security Headcount Climbs Back To 2012 Level

     The Office of Personnel Management (OPM) has just posted updated figures for the number of employees at the Social Security Administration as of the end of the second quarter of 2015:

• June 2015 65,666
• March 2015 64,432
• December 2014 65,430
• September 2014 64,684
• June 2014 62,651
• March 2014 60,820
• December 2013 61,957
• September 2013 62,543
• June 2013 62,877
• March 2013 63,777
• December 2012 64,538
• September 2012 65,113
• September 2011 67,136
• December 2010 70,270
• December 2009 67,486
• September 2009 67,632
• December 2008 63,733
• September 2008 63,990

Veterans Day 2015