Merry Christmas

Looks Like This Plan Didn't Work

     In an effort to make it more difficult for claimants to object to video hearings, Social Security adopted new rules on June 25, 2014 requiring claimants to object to a video hearing shortly after asking for a hearing, long before they would know whether the agency would actually want to schedule a video hearing for them. The agency expected this would increase video hearings from 28% to 30% of their cases. See the table below from Social Security's Financial Report for 2015 for what actually happened. You may have to click on the table to be able to read it.

A Message To OIG

     I have asked to receive e-mail notification from Social Security's Office of Inspector General (OIG) when they issue new reports.  In the last couple of weeks I've started receiving this message whenever I try to access one of their reports:

This Connection is Untrusted

You have asked Firefox to connect securely to oig.ssa.gov, but we can't confirm that your connection is secure.

Normally, when you try to connect securely, sites will present trusted identification to prove that you are going to the right place. However, this site's identity can't be verified.
What Should I Do?

If you usually connect to this site without problems, this error could mean that someone is trying to impersonate the site, and you shouldn't continue.

This site uses HTTP Strict Transport Security (HSTS) to specify that Firefox only connect to it securely. As a result, it is not possible to add an exception for this certificate.

     What have you got against Firefox, OIG? Maybe I should ask, what's wrong with your security, OIG? In any case, if OIG wants users of Firefox, which is a lot of people, to access its reports, it's going to have to get its internet act together. Apart from OIG, I don't know that I've ever seen this message, so OIG, you've really gone out of your way to be inaccessible.

More Than 600 Commit Suicide In Britain As Result Of Disability Reviews

     Recipients of social security disability benefits in the United Kingdom are being subjected to "work capability assessments" and many are being cut off benefits. Researchers at the universities of Oxford and Liverpool have done a study showing that there is an increased risk of suicide among those subjected to these "work capacity assessments." There may have been more than 600 extra suicides as a result of the "work capacity assessments" done so far.

US Attorneys Don't Think Much Of OIG's Referrals For Criminal Prosecution

From Social Security's Financial Report for 2015. OIG is Social Security's Office of Inspector General

Did This Court Understand What Social Security Is Doing To Eric Conn's Former Clients

     From the ruling in the case brought against the Social Security Administration (SSA) by Eric Conn's former clients:

... During the appeals process, however, the plaintiffs can challenge the SSA’s determination that fraud might have been involved in their applications for benefits. ...[T]he plaintiffs know exactly what the SSA is doing and can challenge the suspicion of fraud during the appeals process ...

     However, Social Security's staff instructions say that "... the claimant may not appeal the agency's statutory mandate to disregard evidence based on OIG [Office of Inspector General] referrals of information ..." How is a claimant going to challenge the finding of fraud when Social Security's staff instructions say that finding can't be challenged? Did this court understand what is going on?

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?