Appeals Council Has To Work An Extra Hour

     Due to inclement weather, Social Security's offices in the Baltimore area are opening four hours late today. However, the Appeals Council, which is in Falls Church, VA, is supposed to follow the guidance of the Office of Personnel Management, which has decided upon opening federal offices in the D.C. area three hours late.

Secret Law

     From Emergency Message EM-16006, issued by Social Security on February 12: 

To ensure consistent pooled trust reviews and pooled trust precedents across regions, we are providing further guidance to field office (FO) technicians, regional trust reviewer teams (RTRT), and regional trust leads (RTL) on reviewing pooled trusts and establishing pooled trust precedents in the Supplemental Security Income Trust Monitoring System SharePoint Repository for Precedents (SSITMS SharePoint). ...

IMPORTANT: Do not share copies of trust precedents, Regional Chief Counsel (RCC) opinions and other materials in the SSITMS SharePoint precedent file with the public, attorneys, or non-SSA personnel. The only publicly available precedents are available in the PS section of Program Operations Manual System (POMS) on our website. ...

     The agency has established a repository of precedents that it refuses to share with the public. Does anybody else find this inappropriate? Is this consistent with the principle of open government?

Is Disability A Sign That One Has Not Been Blessed By God?

     Last month I wrote about the common view that having the "right mental attitude" would allow one to conquer all obstacles in life. In my experience, this view causes many to believe that having the "right mental attitude" will prevent disability. Those who are disabled aren't so much sick as they are lacking in the "right mental attitude." Many disabled people wrongly blame themselves for lacking the courage to overcome illness.

     Kate Bowler writes elegantly in today's New York Times about the religious foundation for the notion than the "right mental attitude" can overcome all. The prosperity gospel, which preaches the idea that bad thoughts and a lack of faith in God cause sickness and poverty, has spread far and wide in our society from its beginnings around the turn of the 20th century. This gospel is now expressed in the single word, blessed. Those who are blessed will prosper while those who are not blessed will suffer. To obtain such blessing, one must have faith and work hard. As Bowler writes, blessed "is a perfect word for an American society that says it believes the American dream is based on hard work, not luck."

     Bowler, as a scholar, writes knowingly of the prosperity gospel that she has been studying for years but her words have a deeper poignancy. She is a 35 year old wife and mother who has recently been diagnosed with Stage 4 cancer. 

     Here's some of what Bowler writes:

The prosperity gospel tries to solve the riddle of human suffering. It is an explanation for the problem of evil. It provides an answer to the question: Why me?...

The prosperity gospel popularized a Christian explanation for why some people make it and some do not. They revolutionized prayer as an instrument for getting God always to say “yes.” It offers people a guarantee: Follow these rules, and God will reward you, heal you, restore you. ...

The prosperity gospel holds to this illusion of control until the very end. If a believer gets sick and dies, shame compounds the grief. Those who are loved and lost are just that — those who have lost the test of faith. In my work, I have heard countless stories of refusing to acknowledge that the end had finally come. An emaciated man was pushed about a megachurch in a wheelchair as churchgoers declared that he was already healed. A woman danced around her sister’s deathbed shouting to horrified family members that the body can yet live. There is no graceful death, no ars moriendi, in the prosperity gospel. There are only jarring disappointments after fevered attempts to deny its inevitability.

The prosperity gospel has taken a religion based on the contemplation of a dying man and stripped it of its call to surrender all. Perhaps worse, it has replaced Christian faith with the most painful forms of certainty. The movement has perfected a rarefied form of America’s addiction to self-rule, which denies much of our humanity: our fragile bodies, our finitude, our need to stare down our deaths (at least once in a while) and be filled with dread and wonder. At some point, we must say to ourselves, I’m going to need to let go. ...

When Will They Ever Learn?

     From a "Policy Futures" paper by Kathleen Romig for the Center on Budget and Policy Priorities (CBPP):

The October 2015 budget agreement extended the solvency of the Social Security Disability Insurance (DI) trust fund into 2022 and renewed the Social Security Administration’s (SSA’s) authority to conduct demonstration projects, allowing the agency to test ideas to encourage work among DI beneficiaries and applicants.  This creates an opportunity to build further evidence on the efficacy of various ideas to encourage work among this population. 

New demonstrations will likely produce only limited results, however.  SSA has conducted many work-incentive experiments over the past 25 years, and none has led to a significant number of beneficiaries earning enough to support themselves and leave DI.  This result should not come as a surprise.  DI’s eligibility criteria are strict.  Few DI beneficiaries are able to work.  Still fewer are likely to be able to return to self-supporting work on a sustained basis. ...

TABLE 1

SSA Work-Incentive Experiments Have Shown Only Limited Results
Demonstration	Years	Description	Effects
Benefit Offset National Demonstration (BOND)	2009-2017	Testing a $1-for-$2 benefit offset for earnings above SGA level, with additional work supports for “Phase 2” beneficiaries	Small effects on earnings (Phase 2 only) Increased benefit payments
Accelerated Benefits Demonstration	2004-2011	Provided health care to DI beneficiaries during 24-month waiting period for Medicare, with additional medical and work supports for “AB Plus” beneficiaries	Improved health outcomes Negligible effect on employment For AB Plus, greater use of return-to-work services, but some evidence employment effects are temporary
Mental Health Treatment Study	2003-2011	Provided medical and employment supports to beneficiaries with schizophrenia or affective disorders	Improved employment and earnings Improved mental health status No impact on earnings above SGA No impact on benefits
Benefit Offset: Four-State Pilot	2003-2009	Replaced “cash cliff” with a $1-for-$2 offset for earnings above SGA level, with additional work supports	Small increase in earnings above SGA No effect on mean earnings No effect on employment Effects varied by participant subgroup
Youth Transition Demonstration	2001-2014	Waived SSI income and asset rules, provided state-designed employment and education supports for young DI and SSI beneficiaries	Little to no effect on employment and earnings SSA periodically revisiting outcomes
Ticket to Work	1999-present	Provides vocational rehabilitation and work support from employment networks (Ticket to Work is a change in law, not a demonstration)	Increased use of return-to-work services Little effect on employment Little effect on benefits
State Partnership Initiative	1998-2006	Tested variety of state-designed interventions, including Medicaid waivers and employment services for DI and SSI beneficiaries	Small and mixed effects on employment No effect — or negative effect — on earnings
Project NetWork	1991-1999	Offered intensive outreach, work-incentive waivers, and case management services to DI and SSI applicants and recipients	Small short-term effect on earnings No effect on benefits

Attorneys Needed For Fee-Generating Federal Court Cases

     Claimants caught up in the Eric Conn mess in Kentucky and West Virginia are now receiving decisions from Administrative Law Judges (ALJs). About half are winning. The early signs are that the Appeals Council is fast-tracking appeals from those who were denied. Claimant are receiving decisions from the Appeals Council in less than a month. If things continue on the current track there will be hundreds of claimants needing an attorney for the federal court cases in the next three or four months.

     These are fee-generating cases. Once the ALJ denies the claim, the interim benefits stop. There's also the possibility of fees under the Equal Access to Justice Act (EAJA).

     There are attorneys available to serve as local counsel.

   Social Security is not suggesting that any of these claimants participated in Eric Conn's questionable behavior. They've done nothing wrong. Taking on one of these cases doesn't involve an attorney in a complicated criminal matter.

     There are good arguments that can and should be made on the merits of individual cases but there are extremely strong arguments that can be made in all cases concerning Social Security's methods. Social Security is simply assuming that there is fraud or similar fault in all of these cases. The claimant cannot see the evidence upon which this determination was made. They are not allowed to contest the determination of fraud or similar fault. ALJs hearing these cases are forbidden from considering this issue. The claimants are compelled to prove all over again that they were disabled. Important medical evidence is excluded from consideration and the claimant cannot contest this. The process is completely different than what Social Security has done in the past in cases involving allegations of fraud or similar fault. For that matter, it's completely different than what Social Security is doing right now in other cases. Also, claimants are not allowed to prove that they became disabled at a date later than the prior ALJ decision approving their claim. Most of the claimants caught up in this became sicker as time went on. Even if an ALJ holding a hearing now doesn't think the claimant was disabled at the time he or she went on benefits originally, the ALJ might want to approve the claim as of a later date. I've looked at the statute involved and I can't even figure out what argument that Social Security could make on this issue. It seems clear cut to me that Social Security can't do this.

     If you're interested in getting involved in these fee-generating cases in federal court, contact Mary Going at Appalachian Research and Defense Fund (AppalRed) at mary[@]ardfky.org. Of course, there aren't any brackets in her real e-mail address. I just put them in there so she doesn't get so much spam.

The Social Security Disability Waterfall Chart 2015

Hard Numbers On Hearings And Decisions For Eric Conn's Former Clients

     From WSAZ:

Information released Tuesday reveals a clearer picture on the number of people in Eastern Kentucky and the surrounding area fighting to keep their social security benefits, who are actually winning their cases.

Rep. Hal Rogers released the numbers to our sister-station, WYMT. The data shows about half of the disability recipients who have gone through a hearing to re-determine their eligibility have lost their benefits.

In May 2015, 1,770 people received letters stating their benefits were suspended. 246 of those individuals were able to provide sufficient medical evidence to avoid the hearing process altogether.

The remaining 1,484 people must have a hearing before an administrative law judge.
Hearings have be held for 356 of those people. 173, received a favorable judgment. 107 of those individuals were represented by an attorney during the hearing .

The other half, 183, received an unfavorable judgment. 83 of those people were represented by an attorney.

SSA officials were not able to tell Rogers how many of these people "defaulted" by not responding in any meaningful way or show up to their scheduled hearing.

Government Wants Into Lawsuit Against Conn

     From the Associated Press:

The federal government wants to get involved in a whistleblower lawsuit against Eastern Kentucky disability lawyer Eric C. Conn.

Media outlets report attorneys with the U.S. Department of Justice Civil Division filed a motion Tuesday in federal court asking to "partially intervene for a good cause." ...

According to Tuesday's motion, government involvement is warranted in the whistleblower lawsuit because the public needs to be assured a taxpayer-funded program is administered with transparency. ..