The Real Social Security Disability Fraud?

     Steve Berenson of the Thomas Jefferson School of Law has written for the DePaul Journal for Social Justice about what he considers The Real Social Security Disability Fraud(s).

Treasury Deliberately Delaying Payment Of Social Security Benefits

     Here's a note that a legal assistant at my firm made of a conversation she had with Social Security's Representative Call Center (RCC) in Baltimore about why one of the firm's clients hadn't been paid her back benefits:

TC [Telephone all] RCC (877) 626-6363. It [the client's money] was released to the Treasury Dept. on the 23rd and she said every month the Treasury has a date that they stop processing cks until the 1st of the next month; this month it was 18th. So all the claims they processed will not be released until April 1st.  She said this has been going on for some time and the cut off is usually in the 20s of the month but for some reason this month it was earlier.

     Oddly, one person posted a comment on this blog yesterday saying that they had heard the same thing.
     Let me explain one thing. The Social Security Administration doesn't write checks or initiate direct deposits of Social Security benefits. That's done by the Department of the Treasury. All Social Security does is certify to Treasury that the payments should be made.
     I had long suspected that Treasury was deliberately delaying payments at the end of each month.  Generally, neither my firm nor our clients get paid Title II Social Security benefits in about the last week of each month, then there's a surge in payments early in each month as the money that was held up at the end of the preceding month is released. Payments under Title XVI, Supplemental Security Income, don't seem to be affected. It's only Title II benefits that are affected. What I don't understand is why Treasury is doing this. It seems inappropriate to me.

You Do Know We Can Read This, Don't You?

     From an newly amended section of HALLEX, Social Security's manual for hearings and appeals:

When determining disability, the Social Security Administration (SSA) will use each of the age categories applicable to a claimant during the period for which SSA is determining whether the claimant is disabled. SSA will not apply the age categories mechanically in a borderline age situation. If a claimant is within a few days to a few months of reaching an older age category (hereinafter “higher age category”), and using the higher age category would result in a determination or decision that the claimant is disabled, SSA will consider whether to use the higher age category after evaluating the overall impact of all the factors of the case. ...

If the administrative law judge (ALJ) decision is supported by substantial evidence, including the findings regarding the existence of a borderline age situation and whether to apply a higher age category, and there is no other basis for granting review present, the Appeals Council (AC) will deny review.

When denying review is appropriate but the ALJ did not expressly state in the decision that he or she considered a borderline age situation and whether to apply a higher age category, the AC will add the following language to the “What We Considered” section in the denial notice:

We considered the borderline age situation in this case, and we found that the factors in the record do not support application of the higher age category.

     The first paragraph is standard Social Security policy. There's nothing objectionable about it. The rest is apparently based upon the theory that the only thing that matters isn't what you actually did; it's what you said you did. How can the Appeals Council say that the Administrative Law Judge (ALJ) "considered" an issue when the ALJ said nothing about the issue? How can the Appeals Council say that it "considered" an issue when it tells the world upfront that it isn't really going to "consider" the issue; it's just going to say it "considered" the issue.
     This newly amended section is about checking off boxes. You couldn't have a clearer statement of the agency's cookie cutter approach to justice.
     The ironic thing is that the language quoted above will be cited to the courts as evidence that Social Security's "considered" language is a lie. More cases will be remanded, not fewer.

ALJ Register Open!

     The Office of Personnel Management (OPM) has posted the job announcement for the position of Administrative Law Judge (ALJ) at Social Security. If you are interested in applying, you need to start making your application immediately. The announcement will close on April 8.

Oh The Irony

     The United States Court of Appeals for the Second Circuit has affirmed two District Court decisions that held that Binder and Binder is barred from suing the Social Security Administration because the agency refused to pay attorney fees after the claimants that Binder and Binder had represented had their debts discharged in bankruptcy. The Court ruled that sovereign immunity barred the lawsuits. Of course, the irony here is that Binder and Binder is itself now in bankruptcy.

The Never Ending Disaster Of The Windfall Offset

     I'll explain below but this is just awful. It's no surprise to me but it's still awful. From a recent report by Social Security's Office of Inspector General (OIG):

We continue to find that SSA [Social Security Administration] needs to improve controls to ensure it accurately and timely pays OASDI [Old Age, Survivors and Disability Insurance] benefits withheld pending a windfall offset determination. We estimate that 

• 13,141 beneficiaries’ windfall offset actions were not processed and therefore SSA withheld about $113.2 million in OASDI benefits, of which we estimate approximately $ 71.9 million was payable to these beneficiaries, and
• 19,587 beneficiaries’ windfall offset actions were correctly processed but not in a timely manner; therefore, these beneficiaries did not promptly receive about $195.2 million in OASDI ben efits .

In addition, SSA incorrectly processed the windfall offset determinations for five beneficiaries. As a result, SSA improperly withheld $12,775 in OASDI benefits for these beneficiaries. Finally, SSA did not take corrective actions for 50.6 percent of the beneficiaries we identified during our 2011 audit.

     Let me explain. Supplemental Security Income (SSI) benefits are based, in major part, on how much income you had during a month. What about months in which you are approved after the fact for both SSI and Disability Insurance Benefits (DIB) which are not based upon income? You didn't receive the DIB at the time but the law requires that the SSI benefits be reduced as if you had. That's the Windfall Offset. It may not sound that complicated but it is. It's been an enormous mess for Social Security even since it was enacted. The agency has made two separate efforts to implement software to automate the windfall offset. Both were expensive failures. My recollection is that the cost of the last software failure was over $100 million. The process remains a thorn in Social Security's side. It involves co-ordination between Social Security field offices where SSI benefits are computed and authorized and Social Security payment centers where DIB is computed and authorized. The process is tedious and highly error prone as this report shows. How error prone? So error prone that even after OIG pointed out that the agency had made a mistake, that half the time the agency still failed to correct the mistake! Note that the mistake is always to fail to pay claimants all the money they're due in a timely manner.
     I think that agency management has long since thrown up its hands and decided not to even bother to try to improve the situation. Why bother? It's only the claimants that are being hurt. This Congress won't complain about that. Even past Democratic Congresses didn't complain because they didn't understand the problem.
     If you think this is all way too technical to bother thinking about, look at the charts below. Over half the time, Social Security fouls up the windfall offset. Once they foul it up it's often years before they get it straightened out, if they ever do.

A Forum On Extreme Limitations In The Ability To Focus

     From a post on Social Security Administration Matters, the agency's blog:

Gathering and assessing medical evidence is a key part of how we make our decisions. On Wednesday, March 30, we will host our next National Disability Forum, Developing and Assessing Medical Evidence for Extreme Limitations in the Ability to Focus on Tasks.

     The blog post doesn't say how one can participate in this forum. It does say that one can share ideas on the agency's IdeaScale website or as a comment on the blog itself. A graphic says that the forum will be held at the National Education Association in Washington. 

More Than 60 Million Draw Social Security Benefits

     From CNS News:

The number of people receiving benefits from the Social Security Administration topped 60,000,000 for the first time at the beginning of 2016.

In December 2015, according to data published by the Office of the Chief Actuary of Social Security, the Old-Age and Survivors Insurance and Disability Insurance Trust Funds paid benefits to 59,963,425 beneficiaries. In January 2016, that increased to 60,084,225, and in February 2016 to 60,199,914.