The "Augmentation Strategy"

     From the statement of Teresa Gruber, Social Security's Deputy Commissioner for Disability Adjudication and Review, to the Senate Committee on Homeland Security and Governmental Affairs yesterday:  

The cases targeted for the augmentation strategy represent only 3.6 percent of our hearings pending and the non-disability cases often involve issues that ALJs [Administrative Law Judges] do not typically encounter.

A small number of AAJs [Administrative Appeals Judges] and staff will specialize in adjudicating the non-disability issues, thus freeing up critical ALJ resources to handle disability hearings. But I want to be clear. Although the augmentation strategy is consistent with the Act and our regulations, this is a temporary initiative aimed at addressing a current need – bringing wait times down to 270 days. It allows us to use highly qualified adjudicators, whom we have thoroughly vetted, as we continue with our extraordinary efforts to hire more ALJs. The augmentation strategy is not part of a plan to replace ALJs in our hearings process.

The augmentation strategy is based on longstanding agency regulations. Since the beginning of the Social Security hearings process in 1940, our regulations have authorized the members of the Appeals Council to hold hearings. Under our current regulations, the Appeals Council has the authority to remove a pending hearing request from an ALJ, hold the hearing, and issue the decision. Moreover, nothing in our existing regulations precludes the Appeals Council from holding a hearing in a case that is before it on request for review or on remand from a Federal court.

When a claimant is dissatisfied with an ALJ hearing decision, she can appeal to the Council. Thus the second set of cases are a subset of cases already before the Council – cases where the Council could have completed action on the appeal but have generally remanded back to the ALJ. Under the augmentation strategy, the Council will complete the action on the case and issue the final decision, thus preventing an additional workload from returning to the hearing offices and freeing ALJs to hold hearings on other cases. The sole objective of this strategy is to increase capacity to hold more hearings and issue decisions so that we can, collectively, reduce the time people and their families are waiting for a decision.

     How can hiring AAJs to do non-disability hearings possibly help more than hiring ALJs? The AAJs will have to spend a large part of their time roaming around the country, far more than ALJs who are already located around the country. I would guess that their productivity will be half that of ALJs. I know that Social Security complains that the Office of Personnel Management (OPM) won't give them a bigger roster from which to select ALJs yet there are hundreds of names on the roster now and a new roster is coming. Why take as extreme a step as Social Security is planning? How is this going to look in a few years when a study is done comparing productivity of ALJs and AAJs?

Never Heard Of This Happening Before

     From the St. Louis Post-Dispatch:

The Social Security Administration has taken away the benefits of about 70 police officers at Lambert-St. Louis International Airport after determining they are not eligible due to an agreement the state of Missouri signed 65 years ago.

Sen. Claire McCaskill says the agency is misreading the agreement, but a Social Security spokesman said that the agency determined that the airport officers are St. Louis police as defined by the agreement, and that the state of Missouri “never requested Social Security coverage for this position.”

The airport security workers will be refunded the amount of money they have paid into the system through the years, according to an aide for McCaskill, D-Mo. But because they have been defined as St. Louis police officers by the Social Security Administration, they will also be ineligible for Social Security, and they face a murky fix on how to make up the loss of benefits.

McCaskill, in a letter Tuesday to Acting Commissioner of Social Security Carolyn Colvin, said that she believed the benefits were removed because of an incorrect reading of a “218 agreement” that Missouri and the Social Security Administration signed in 1951.

That agreement defined which local government workers would be covered under Social Security, and which would receive retirement benefits from Missouri. It was signed before airport security was necessary, a spokesman for McCaskill said. ...

     I don't understand how Social Security can correct the earnings records to take down the quarters of coverage. Normally, they can't go back more than 3 years, 3 months and 15 days to correct an earnings record. There are exceptions to that time limit in 42 U.S.C. §405(c)(5) but I don't see one that would apply to this situation.

Who Cares Who The Public Trustees Are?

     The Senate Finance Committee is holding a hearing today on the re-nominations of Charles Blahous and Robert Reischauer to stay on as public trustees of the Social Security Trust Funds. 

     Michael Hiltzik has written a column in opposition to the Blahous nomination on the grounds that Blahous has been consistently hostile to Social Security throughout his public life. Blahous thinks benefits are too high, he opposed extending the Disability Trust Fund, he was a major figure in former President George W. Bush's campaign to partially privatize Social Security, he constantly warns that the Trust Funds are running out of money but opposes any plan for them other than wholesale benefits cut as soon as possible, etc.

     I would agree with Hiltzik's opposition to the Blahous re-nomination except for the facts that the public trustees have no power and Blahous' efforts over the years, maybe decades, to undermine Social Security have been worse than useless. Support for Social Security has never been stronger. If anything former President George W. Bush's politically disastrous plan to partially privatize Social Security which Blahous promoted, helped demonstrate just how popular Social Security is.

     So go ahead, keep Blahous as a public trustee. He can't do any harm. As far as I'm concerned, he can use whatever podium you can get to spout his fear-mongering. Nobody cares what he thinks other than some of his fellow Republicans and probably not even a majority of them.  Even Republican officeholders who agree with him are terrified of actually following through on his ideas.

Inconsistencies In Paying Benefits To Representative Payees

     Many recipients of benefits paid by the Social Security Administration are eligible for more than one type of benefit. One example would be a widow entitled to retirement benefits based upon her own earnings and widows benefits based upon the earnings record of her late husband. If a representative payee is appointed to manage funds for the retirement benefits you'd think that the representative payee would also be managing the widows benefits. Social Security's Office of Inspector General (OIG) did a recent study to determine whether Social Security was being consistent in paying benefits through representative payees in situations where claimants are eligible for more than one type of benefit. They found much inconsistency. Tens of millions of dollars a year are being paid directly to individuals whom the agency has already found to be incapable of handling money.

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.