Odd Coincidence

     On the day the Olympics begin, I got word that a client who was a three time Olympian has been approved for Social Security disability benefits. I'm not making this up.

Your Name Doesn't Have To Be Atticus Finch

     Most claimants caught up in the Eric Conn mess in Kentucky and West Virginia have received decisions from Administrative Law Judges (ALJs). About half have won. The Appeals Council is fast-tracking appeals from those who were denied. There are many claimants now in need of representation in federal court. There will be several hundred of these cases.
     Let me address some concerns that attorneys might have about taking on these cases:

• 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's nothing odd about these disability claims. Like other Social Security disability claims some are stronger than others but they're not phony.
• There are good arguments that can and should be made on the merits of individual cases.
• There are strong arguments that can be made concerning Social Security's methods. Social Security is simply assuming that there is fraud or similar fault in each of these cases. The claimant cannot see the evidence upon which this determination was made. They were not allowed to contest the determination of fraud or similar fault. ALJs were forbidden to consider this issue. The claimants were compelled to prove all over again that they were disabled. Important medical evidence was excluded from consideration and the claimant could not 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 from what Social Security is doing right now in other cases. 
• Claimants were not allowed to prove that they became disabled at a date later than the prior ALJ decision approving their claim except through a new claim. Most of the claimants caught up in this became sicker as time went on. I've looked at the statute involved and I can't even figure out what argument that Social Security can make on this issue.
• This is going to be a mess for the District Court in Kentucky where most of these cases will be heard. They're going to be deluged with hundreds of these cases. Are those District Court judges really prepared to slog through these cases, one by one? They're going to be strongly tempted to find a way to get these cases off the docket quickly. The easiest way to do that is to remand. How can I predict this? I was around for the huge wave of terminations in the early 1980s. That's what happened then.

     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 maryg[@]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.

AARP Leaving ALEC

     After AARP's membership rebelled, AARP's leadership has decided to withdraw its support from the American Legislative Exchange Coucil (ALEC), a sinister Koch Brothers front organization that has worked for privatization of Social Security. The fact that AARP ever supported ALEC is a sign of just how far AARP is from being a supporter of Social Security.

This Sounds Like A Sting Operation

     From a press release:

On August 2, 2016 a Federal Grand Jury in the District of Puerto Rico returned a 16-count indictment charging one doctor, Americo Oms-Rivera, his secretary Mayte González Muñoz, and Francisco Cabrera Alvarado, a former Social Security Administration (SSA) employee, for fraud in the application process for SSA disability insurance benefits in Puerto Rico, announced United States Attorney for the District of Puerto Rico, Rosa Emilia Rodríguez Vélez. ...

The indictment alleges that on or about September 24, 2013, Person A was introduced to Oms-Rivera to discuss his intentions of applying for disability insurance benefits. During said meeting, Oms-Rivera informed Person A that he/she needed to seek treatment for a period of five to six months before the paperwork was submitted to SSA. Oms-Rivera told Person A that once Person A’s disability benefits were approved, he would take a percentage of the check as payment.  The scheme involved, among others, the following acts alleged in the indictment:

• On or about January 14, 2014, Person A had the first medical appointment with Oms-Rivera. During this visit, Person A informed the doctor that he/she was interested in obtaining SSA disability insurance benefits. Person A reported that his/her medical conditions were high blood pressure and migraines from time to time. In response, Oms-Rivera prescribed Prozac, a non-controlled narcotic, used for depression and panic disorders and Restoril, a Scheduled IV narcotic used to treat insomnia symptoms.
  

• Person A made additional visits to Oms-Rivera for purported medical treatment. During these visits, Oms-Rivera and Person A discussed the disability application process and Oms-Rivera prescribed Prozac, a non-controlled narcotic, used for depression and panic disorders; Restoril, a Scheduled IV narcotic, used to treat insomnia symptoms; Ambien, a Scheduled IV narcotic, used to treat insomnia; and Xanax, a Scheduled IV narcotic, used to treat anxiety and panic disorders.
  

• Oms-Rivera and defendant González-Muñoz referred Person A to Cabrera, a former SSA employee who worked as a non-attorney representative. Cabrera assisted Person A in his application for SSA disability insurance benefits.
  

• On May 21, 2014, Cabrera met with Person A in order to assist him/her to fill out the Adult Function Report, SSA Form 3373. During said meeting, Cabrera coached Person A as to what to write in the form in order to get Person A’s disability benefits approved.
  

• On June 10, 2014, González charged Person A $600 for the Psychiatric Medical Report and $1,440 for backdating his/her medical file and creating 24 fictitious medical appointments.
  

• On or about October 22, 2015, the Psychiatric Medical Report signed by Oms-Rivera was submitted to SSA indicating that Person A was totally disabled to return to work as of that date or in the near future. In the Psychiatric Medical Report, Oms-Rivera falsely represented to SSA that Person A’s first medical visit was on October 15, 2013. Oms-Rivera further reported a total of approximately 11 fictitious appointments that never took place. This was done to create the appearance of a longer history of medical treatment.

Going To Hell In A Handbasket

     Below is Social Security's Hearings Caseload Analysis Report for the first nine months of fiscal year (FY) 2016, which began on October 1, 2015. This was published in the newsletter of the National Organization of Social Security Claimants Representatives (NOSSCR). That newsletter is not available online.

     Here are some signs of just how badly things are going:

• The adjusted case receipts for the nine month time period were 746,300. The dispositions were 662,522. This means they were only able to handle 89% of the workload they received.
• They had 977,736 cases pending at the beginning of the FY and 1,121,267 cases pending as of the end of June (actually June 24, which the agency treats as the end of June). That's a 15% increase in the backlog.
• Look at the bizarre stops and starts in overtime. It went from 109.75 hours in November 2015 to 48,924.74 hours in December but then declined to 85.5 hours in March. Why? Social Security surges its overtime as soon as it gets an appropriation. That number then rapidly declines as the money starts to run out. It's boom or bust.
• Take a look at the note at the bottom. The Senior Attorney program only disposed of 732 cases in this nine month period! This is ridiculous. It's less than the productivity you'd get from two Administrative Law Judges. That number of Senior Attorney decisions could be multiplied by 100 without having causing harm. All that would happen is that the sickest claimants, the ones who will certainly be approved anyway, would be approved more quickly. The Senior Attorney program has been subjected to such extreme limitations that it cannot function. It's a waste of resources. Don't tell me that agency management cares about the backlog. They know well that the Senior Attorney program could be a huge help in holding down backlogs but they either don't care or they're adopted the attitude of many Congressional Republicans that the only good disposition of a Social Security disability claim is a denial.

Click on report to view full size

Listings Extended

     From today's Federal Register:

We are extending the expiration dates of the following body systems in the Listing of Impairments (listings) in our regulations: Musculoskeletal System, Cardiovascular System, Digestive System, and Skin Disorders. We are making no other revisions to these body systems in this final rule.

Proposed Regs On Representatives Coming Soon

     Social Security's proposed Rules of Conduct and Standards of Responsibility for Appointed Representatives have already cleared the Office of Management and Budget (OMB). It only took a little over a month. Some change was made in the proposal while it was pending at OMB but we'll probably never know what. The proposed regs should appear in the Federal Register in the near future. Remember, it's just proposed regulations.

     By contrast, the final regs that would change the mental impairment Listings are still pending at OMB. They were submitted on May 23.

     

    

Two Factor Identification Not Working Well So Far

     As of yesterday Verizon customers couldn't receive the text messages they need to access Social Security's online systems.