Proposed Regs On Unsuccessful Work Attempts And Expedited Reinstatement

     From a notice to be published in the Federal Register tomorrow (footnotes omitted):

... Under our current rules , we evaluate the success of a work attempt by its duration. We look at work attempts lasting less than 3 months and those lasting between 3 and 6 months. We consider work of 3 months or less to be a UWA [Unsuccessful Work Attempt] if the claimant or beneficiary stopped working or reduced the work and earnings below the SGA [Substantial Gainful Activity] earnings level because of the claimant or beneficiary’s impairment, or because of the removal of special conditions which took into account the claimant or beneficiary’ s impairment and permitted the claimant or beneficiary to work. In contrast, t o qualify as a UWA, we require the work attempt to last between 3 and 6 months to meet the same conditions for work attempts lasting 3 months or less and to also meet several additional conditions. The claimant or beneficiary must also have : (1) been frequently absent from work because of his or her impairment, (2) performed the work unsatisfactorily because of his or her impairment, (3) worked during a period of temporary remission of his or her impairment, or (4) worked under special conditions essential to his or her performance and those conditions were removed.

We propose to revise 20 CFR 404.1574(c), 404.1575(d), 416.974(c), and 416.975(d) to remove the additional conditions that we use when evaluating a work attempt in employment or self-employment that last s between 3 and 6 months . We propose to use the current 3-month standards for all work attempts that are 6 months or less. This change would apply to Social Security Disability Insurance (SSDI) and SSI claimants and beneficiaries....

Currently, our regulations state that individuals are not eligible for EXR [Expedited Reinstatement] if they perform SGA during the month in which they apply for EXR . ... 

We propose to revise 20 CFR 404.1592c and 416.999a to allow previously entitled individuals to request EXR in the same month they stop performing SGA. ...

     Note that this is only a proposal. The public will be able to comment on it. Social Security must consider the comments. This is unlikely to become final until some time next year.

It's A Mess

     The Louisville Courier-Journal has an article on the 136 volunteer lawyers from 25 states helping Eric Conn's former clients whose Social Security disability benefits are threatened.

Whistleblower Or Crank?

     Ronald Klym, an employee at the Social Security hearing office in Milwaukee, has been placed on administrative leave and told to leave the office after discussing problems and delays at his office with an online media source. So, is this dastardly retaliation against a brave whistleblower who revealed dark secrets? Well, the wrongdoing Klym revealed was that there is a big backlog of cases awaiting hearing at the Milwaukee hearing office and that the office had transferred out some cases to be heard by Administrative Law Judges at other offices. In case you don't know, big backlogs are the rule at Social Security hearing offices and transferring cases to be heard by other offices is nothing unusual. Klym has previously claimed a hostile work environment at Social Security and made a complaint about a union representative. He had previously worked at the IRS and had gotten in trouble there for similar whistleblowing. You have to wonder whether Klym is more of a crank than an heroic whistleblower.

Social Security Plan To Remove Some Cases From ALJs

     From Huffington Post:

The Social Security Administration is quietly changing how it handles some appeals from Americans who’ve sought disability benefits.

The changes are part of an effort to chip away at an unprecedented backlog of unresolved claims, one that’s left some people waiting more than 500 days for a decision.
“With over 1.1 million people waiting for a hearing decision, we are in the midst of a public service crisis,” SSA spokesman Mark Hinkle said in an email. “For some people this results in a wait of over 17 months to receive a hearing decision, which we concede is unacceptable service.” ...

It’s the later stages of appeals where the SSA has made changes. Nearly 30,000 disability claims per year get sent back down, or “remanded,” to the appeals council or to administrative law judges for reconsideration. Now, these remands will instead be heard at the council level by administrative appeals judges who don’t have the same independence from the SSA that administrative law judges do.

Another 10,000 or so cases being taken away from ALJs include situations where people have returned to work after receiving disability benefits and the agency believes they’ve been overpaid. ...

Sen. James Lankford, an Oklahoma Republican who believes the disability program is rife with fraud, will hold a hearing on the new appeals policy next week, his office said.
“These proposed changes break with decades of practice, run contrary to well established interpretation of the Social Security Act, and depart from the SSA’s own regulations,” Lankford said in a letter to the agency last month. “The possibility that such actions could invite large-scale, costly, and protracted litigation from affected claimants is very troubling.”

     The idea that switching these cases to Administrative Appeals Judges (AAJs) could help Social Security's backlog situation is preposterous. It's too few cases to have a significant effect and the Appeals Council has enormous backlogs of its own. At best, you decrease ALJ backlogs slightly by increasing backlogs at the Appeals Council dramatically.
     I would attribute this to three factors:

• Social Security management distrusts ALJs.
• Social Security management prefers centralizing anything it can centralize.
• The number of federal court appeals of Social Security decisions is increasing rapidly. With Democratic appointees filling the federal courts, the rate of remands is only going to increase. You can deter this by making it harder to win on remand which you can do by switching the remands to people who can be made to follow orders.

     I don't understand how this would work as a practical matter unless video hearings are forced on claimants. There would be too few cases to send AAJs roaming around the country.

     By the way, don't expect anything to happen quickly on this. Social Security can't do this without adopting new regulations and they can't do that in less than a year. A new Administration may decide to kill this off. For that matter, this Administration may kill this off. I have my doubts that there has been even an informal OK of this by the White House.

Man Jailed For Threatening Personnel At Social Security Field Office

     From some television station in Cleveland that prefers to hide its call letters on its website:

Charges have now been filed against a man who has been in the Cleveland jail under investigation by Homeland Security. Investigators accuse Ramong Frett of threatening to kill a guard and others at a Social Security office on Shaker Boulevard. Police say he also “threatened four Federal Police Officers…and families of officers…”.

     It's just my personal peeve but why do television stations hide their call letters? "Fox 8" isn't a real name. Undoubtedly, there are a number of Fox affiliates across the country on channel 8.

Two Congressional Hearings Scheduled

     The Senate Finance Committee has scheduled a hearing for May 11 on the renomination of Charles Blahous II and Robert Reischauer to be public trustees of the trust funds. Perhaps the annual report on the trust funds will be released in time for the hearing.

     The Senate Homeland Security and Governmental Affairs has scheduled a hearing for May 12. Here's their blurb on the hearing:

This hearing will focus on the independence of federal agency judges and the due process afforded to individuals appearing before them.  Recently the Social Security Administration (SSA) has proposed removing two classes of adjudicatory hearings from the purview of Administrative Law Judges (ALJ) and transferring them to Administrative Appeals Judges and Attorney Examiners within SSA’s Appeals Council. This change would impact tens of thousands of cases and must be justified. In this hearing, we aim to examine the current ALJ issues at SSA and the broader issues of independence and agency control of officials who conduct administrative hearings throughout the federal government.

     My understanding is that this transfer would affect only non-disability cases. I'm not sure of the point other than, perhaps, a desire to make sure that few overpayments get waived. Some ALJs believe this is a first step towards doing away with independent ALJs. I don't think that's an achievable goal in any political environment I can imagine.

Most Popular Baby Names

     Hot off the presses, here is Social Security's annual list of the most popular baby names for last year:

Most Denied Disability Claimants Don't Go Back To Work -- Many Just Keep Appealing And Reapplying Until They Get Approved

     From a recent report by Social Security's Office of Inspector General:

We randomly sampled 275 cases from about 190,900 that ALJs [Administrative Law Judges] initially denied in FY [Fiscal Year] 2011. At the time of our review, 79 claimants (29 percent) were receiving benefits, and another 36 (13 percent) were still awaiting a decision on a new application or appeal for disability benefits. Seventy-five claimants (27 percent) reported earnings in Calendar Year 2011 or later, of which about half reported annual earnings between $12,400 and $66,700. In general, these earnings exceeded a threshold used by SSA [Social Security Administration] to determine eligibility for disability benefits. Another 63 claimants (23 percent) were not receiving Agency benefits or reporting earnings. However, some in this category had unsuccessfully appealed or reapplied. The final 22 claimants (8 percent) either were deceased or had unique situations, such as Medicare-only benefits, incomplete records in SSA systems, or children receiving benefits because of a parent’s status.