Final Mental Regs Coming

     The Social Security Administration has submitted Revised Medical Criteria for Evaluating Mental Disorders final regulations to the Office of Management and Budget (OMB). These had appeared in the Federal Register as proposed regulations on August 19, 2010.
     Below are some excerpts from the proposed regulations.  I've added comments in brackets:

• The proposed paragraph B3 criterion is the same as the current paragraph B3 criterion, “maintaining concentration, persistence, or pace,” except that we propose to change “or” to “and.” This would not be a substantive change in the paragraph B3 criterion, but only a clarification of the overall requirement. [Going from a requirement of meeting one criteria to a requirement of meeting three criteria is not a substantive change?]
• One of the provisions from §416.926a(e) that we are including in this definition explains that “marked” is the equivalent of functioning we would expect to find on standardized testing with scores that are at least two, but less than three, standard deviations below the mean. ... A person whose functioning is two standard deviations below the mean is in approximately the second percentile of the population; that is, about 98 percent of the population functions at a higher level. [Social Security is trying to put a 2% cap on the percentage of the population that can be found disabled by mental illness? About 1.1% of the population suffers from schizophrenia. About 1-3% of the population suffers from mental retardation. If we are limiting the listings to the bottom 2% of the population in terms of mental functioning, we are talking about a group that is either in long term care or is not far from needing it.]
• Currently, we have an interagency agreement with the Clinical Research Center to explore the possibility of using International Classification of Functioning domains in predicting disability. [Sounds like Social Security is looking for some simple testing instrument to determine disability.]
• ID/MR [Intellectual Disability/Mental Retardation] is often demonstrated by evidence from the period before age 22. However, when we do not have evidence from that period, we will still find that you have ID/MR if we have evidence about your current functioning and the history of your impairment that is consistent with the diagnosis, and there is no evidence to indicate an onset after age 22.
• In 12.05C, the term “severe” has the same meaning as in §§404.1520(c) and 416.920(c). Your additional impairment(s) must cause more than a slight or minimal physical or mental functional limitation(s); it must significantly limit your physical or mental ability to do basic work activities, as we explain in those sections of our regulations and §§404.1521 and 416.921. The limitation(s) must be separate from the limitations caused by your ID/MR; for example, limitation in your ability to respond appropriately to supervision and coworkers that result from another mental disorder or in your physical ability to walk, stand, or sit. If your additional impairment(s) is not "severe" as defined in our regulations, your ID/MR will not meet 12.05C even if your additional impairment(s) prevents you from doing your past work because of the unique features of that work. [Wait a minute! Are we trying to redefine what is meant by the term "severe impairment" so that something can prevent past work but not be severe -- using the mental impairment listings to redefine an important concept that appears elsewhere in the regulations? Please tell me that Social Security does not really want to reopen the non-severe impairment can of worms.]

     There's no way of knowing what modifications Social Security has made before submitting final regulations to OMB. Normally, Social Security makes no more than minor changes in wording. It's always been my impression that absent overwhelming outside pressure Social Security only tries to please its internal audience when it writes regulations.

A Little Update On A DOT Replacement -- Don't Expect It Soon

     The National Association of Disability Examiners (NADE), an organization of the personnel who are involved in making initial and reconsideration determinations on Social Security disability claims, has issued its Spring 2016 newsletter.
     The newsletter includes a summary of a meeting that NADE officials had with Gina Clemons, Social Security's Associate Commissioner for the Office of Disability Policy. Here's an excerpt from NADE's writeup of the meeting:

The new OIS [Occupational Information System] will include many occupational descriptors similar to those adjudicators currently use in the DOT [Dictionary of Occupational Titles]. The DOT contains discrete and well-established descriptions of the physical demands of occupations, but it does not provide information on the mental and cognitive requirements of occupations. The agency hopes to include mental and cognitive data elements in the OIS. However, this would be part of a separate BLS 9Bureau of Labor Statistics] collection, so they are working hard to determine the most useful mental and cognitive elements before BLS performs further testing in this area. The agency’s goal is to have this new tool (without the mental and cognitive data elements) ready for use by 2019.

Appeals Council Seldom Grants An Exception

     The most recent issue of the newsletter of the National Organization of Social Security Claimants Representatives (NOSSCR), which is not available online, has an article prepared by Social Security's Office of Appellate Operations Staff on the exception process at the Appeals Council. Generally, a claimant may not file a new claim for disability benefits while an old claim is pending at the Appeals Council. However, there is an exception process where there is evidence of a new critical or disabling condition. Here's a table from the article showing just how infrequently the agency finds grounds for an exception:

     Does it seem outrageous to you that any claimant could file a new claim while an old one is pending at the Appeals Council? What do you think about the fact that the Appeals Council sits on most cases for well over a year and often over a year and a half yet denies review something like 80% of the time? It almost seems like the delay is intentional, just to make taking a case to the United States District Court less appealing. Whether it's intentional or not, that's the effect. I don't think that's appropriate.

And Yet We Have A Five Month Waiting Period For Social Security Disability Benefits And A 29 Month Waiting Period For Medicare For The Disabled

     From the Associated Press:

Two-thirds of Americans would have difficulty coming up with the money to cover a $1,000 emergency, according to an exclusive poll released Thursday ... 

Seventy-five percent of people in households making less than $50,000 a year would have difficulty coming up with $1,000 to cover an unexpected bill. But when income rose to between $50,000 and $100,000, the difficulty decreased only modestly to 67 percent.

Even for the country's wealthiest 20 percent — households making more than $100,000 a year — 38 percent say they would have at least some difficulty coming up with $1,000.

Social Security To Track Disability Claims Related To Flint Water Contamination

     The Social Security Administration has decided to start tracking disability claims related to the lead contamination in the Flint, MI water supply. They're not going to treat the claims differently; just track them.

About That Priority Processing At The Appeals Council -- No One At The Appeals Council Seems To Know Anything About It

     I posted some information that Social Security had given to the National Organization of Social Security Claimants Representatives (NOSSCR) about a plan for the Appeals Council to give priority in the processing of the cases of certain claimants. The most important category in the plan is claimants 55 and older.

     I've noticed and others in my firm have noticed that despite this plan claimants 55 and older don't seem to be getting any special treatment at the Appeals Council. We're starting to ask questions. Here's a note that one legal assistant at my firm put in our database concerning her inquiry about one client:

05/19/16: TC [Telephone Call] to the AC [Appeals Council] and spoke to ____ who told me the case is pending in branch ____. I told her about the new list that NOSSCR has put out this month for expediting AC cases and this case meets that list since the clt is over 55yo. She didn't know anything about it and transferred me to the supervisor, ______. Spoke to her at length and she pulled it up on the blog [this blog] and said they haven't been told anything about it and she doesn't even know how to flag a case for these reasons.

She's going to speak to the Council Ombudsman, Terry Jensen about this and call me back

Stealing From The Disabled

     From the Tampa Bay Times:

The former chief financial officer of a program for disabled people admits in a court paper that he and others diverted $617,435 in Social Security payments, raiding client personal accounts for a decade to cover operating expenses.

Frank Pannullo, 69, is the third employee of the now-defunct Hillsborough Association for Retarded Citizens to enter into a federal plea agreement. ...

HARC, which had been renamed the Hillsborough Achievement and Resource Centers before it closed in 2013, ran group homes and community programs, caring for people with disabilities such as Down syndrome or Alzheimer's disease. ...

Residents had individual bank accounts. Each month, HARC deducted $637 for expenses, leaving the rest behind.

But if accumulated savings topped $2,000, clients were at risk of losing need-based Supplemental Security Income.

So HARC put away the excess in a separate, pooled account that collected about $617,435 over the course of 10 years. ...

Not long after the account's 2001 creation, Pannullo and the CEO began taking money out of it to feed HARC's operating fund, according to the plea agreement. ...

Hearing On Social Security Information Systems

     The House Committee on Oversight and Government Reform will hold a hearing at 9:00 on May 26 on Social Security's information systems. No further details are available at this point other than that this is a hearing before the whole committee.