Proposed New Regs On Medical Evidence Coming

    The Office of Management and Budget (OMB) has cleared a set of proposed new regulations on medical evidence considered in Social Security disability claims. Below is the agency's brief description of the proposal. We won't know exactly what's in the proposal until it's published in the Federal Register, which should happen soon. Remember it's only a proposal. A new administration can change it significantly or can it.

We are proposing several revisions to our medical evidence rules. The proposals include redefining several key terms related to evidence, explaining what is and is not evidence, revising our list of acceptable medical sources (AMS), revising how we consider and articulate our consideration of medical opinions and prior administrative medical findings, revising who can be a medical consultant (MC) and psychological consultant (PC), revising our rules about treating sources, and reorganizing our evidence regulations for ease of use. These proposed revisions conform with the Bipartisan Budget Act of 2015 (BBA), reflect changes in the national healthcare workforce and in the manner that individuals receive primary medical care, simplify and reorganize our rules to make them easier to understand and apply, allow us to continue to make accurate and consistent decisions, and emphasize the need for objective medical evidence in disability and blindness claims.

The Biggest Doofus

     Eric Conn is facing a malpractice lawsuit filed on behalf of a class of 1,487 of his former Social Security clients. It's been going on for some time now. However, as of a few days ago, Conn still hadn't notified his malpractice insurance carrier, even though he was facing a hearing on the case.  I know that if you're facing criminal prosecution some civil things might fall between the cracks, but this is still hard to fathom.

    If you want to think that all Social Security attorneys are crooks and that Conn just got caught, I can't stop you, but I can tell you that everything about the Conn fiasco seems incredibly weird to me. I have trouble believing the allegation of bribery because the Administrative Law Judge (ALJ) he is alleged to have bribed was approving almost all claims anyway, not just for Conn's clients but for everyone's clients. Why bribe a man to do something he was going to do anyway? I have trouble believing that an ALJ would be able to assign to himself large numbers of one lawyer's cases and then approve them. That couldn't be hidden and is so obviously improper that there would be many people who would send complaints up the line. It would be like making a daily trip to a Walmart store, picking up a big screen TV and walking out the door with it without stopping to pay for it. You might get lucky and get away with that for a day or two but not day after day. There would be too many people watching. We'll see how the prosecution goes but as I've said before, to me Conn looks more like a doofus than a criminal mastermind. His failure to notify his malpractice insurance carrier is more proof of how big a doofus he is.

Last Call For Single Decisionmaker

     From a notice that Social Security is publishing in the Federal Register tomorrow:

We are announcing the extension of tests involving modifications to disability determination procedures authorized by 20 CFR 404.906 and 416.1406. These rules authorize us to test several modifications to the disability determination procedures for adjudicating claims for disability insurance benefits under title II of the Social Security Act (Act ) and for supplemental security income payments based on disability under title XVI of the Act. This notice is our last extension of the “single decisionmaker” test, as we will phase out the test until elimination in 2018 . This notice also extends the separate “prototype” test.

She Was Right

     The Washington Post is reporting on an 80 year old woman who has been living on the D.C. streets for 16 years complaining that she couldn't get Social Security to straighten out her benefits. It turns out she was right. Social Security did owe her money. They've just paid her $99,999 and probably owe her more. Yes, if you know much about Social Security, it's obvious that she should have done things differently but people make dumb Social Security mistakes all the time and this woman has a better excuse than most. Despite the lady's protestations to the contrary, it's obvious that she has serious psychiatric problems. The bigger issue is that Social Security field offices often fail people like this who need extra help. That would happen some even with good staffing but it becomes more frequent when staffing is as tight as it is now. The consequences of failing to adequately serve people who have special needs can be terrible.

EAJA Payments Doubled In Five Years

     After a Social Security disability claimant gets denied, appeals, gets denied again, appeals again, has a hearing and gets denied again, appeals again and is denied one last time by the Social Security Administration he or she can file a civil action in United States District Court saying that Social Security's final decision was in error. There are several thousand of these civil actions each year. If the claimant wins outright in District Court, which doesn't happen much, or if he or she succeeds in getting the case remanded for a new hearing, which happens a lot, Social Security will probably be liable for the claimant's federal court attorney fees under the Equal Access to Justice Act (EAJA). Social Security has to release a report on EAJA payments. Here's the numbers for recent years.

 

Year	Amount
2010	$19,743,189.12
2011	$21,668,646.47
2012	$24,666,171.13
2013	$27,720,951.87
2014	$31,637,462.36
2015	$38,132,381.48

Taking Claims Over The Phone Is Tough

     A view from someone who takes social security disability claims over the telephone:

This morning I spoke to a cancer patient, a woman with kidney failure, and a young man who had just lost the mother of his children. Each of them thought I was trying to help them. I wasn’t really though, because helping them would take longer than 23 minutes. ...

These are people who need my help to navigate the complex claims system so that they can get a meagre payout. They’re often vulnerable and desperate by the time they reach me. My job is to fill in a new claim form for [benefits] based on the information people give me and then send that form off to the benefit centre where the claim is processed. ...

[F]or me, the only thing that’s really important is how long each call takes. We are measured on our average handling time (known as AHT) and if this slips beyond 23 minutes per call we face performance management, which is code for “you’ll get in trouble”. This involves anything from stern words and increased micro-management from your line manager right up to written warnings and dismissal. ...

[W]e staff are singularly ill-equipped to actually offer any help or support. I have had absolutely no training in how [disability] benefits work. I don’t know what happens when I send a claim to be processed, so I can’t answer any questions about what will happen next or when somebody will get a payment....

  [T]here is no break between calls, the headset beeps again immediately and this time it’s a woman with kidney failure. I’m failing her too, and afterwards I will fail the bereaved young father, and this afternoon there will be more and more people I fail to help. And this will continue presumably until the government finally finds a way to do away with benefits entirely, at which point our sick and disabled people will be left with nothing, not even my hurried 23 minutes of script.

     If something didn't seem quite right when you read this (notice the use of "centre"?), it's because the woman who wrote this works for the British equivalent of the Social Security Administration.

To No One's Surprise Trump Lies About Social Security

     From the Washington Post:

The Donald Trump campaign released its first political ad of the general election, focused on immigration. It begins with a hypothetical situation of what immigration would look like under Democrat Hillary Clinton’s America. 

The narrator says: “In Hillary Clinton’s America, the system stays rigged against Americans. Syrian refugees flood in. Illegal immigrants convicted of committing crimes get to stay. Collecting Social Security benefits, skipping the line. Our border open. It’s more of the same, but worse.”  

Is the claim about undocumented immigrants collecting Social Security benefits accurate? ...

Unauthorized immigrants, who are not granted any deferred-action status, are not eligible to receive Social Security benefits or any other federal means-tested benefits. But they pay taxes and pay into the Social Security system. 

Even though the majority of unauthorized immigrants can’t collect the benefits, they paid about $12 billion into the cash flow of the Social Security program in 2010, according to the Social Security actuary. (Some undocumented immigrants could theoretically collect benefits — illegally — if they’ve overstayed their visas or falsely obtained a Social Security number.) That means the U.S. government gets far more than it pays out when it comes to unauthorized immigrants. ...

Privatized Chilean Social Security System Not Working So Well These Days

     From Michael Hiltzik at the Los Angeles Times (emphasis added):

Promoters of privatizing the U.S. Social Security system have never tired of holding up Chile’s privatized program as an example of how this can make workers rich. The trick is that they never ask ordinary Chilean workers and retirees how they feel about it.

That may be because they know what the answer would be. It was visible last month in the streets of the capital, Santiago, where crowds estimated at 100,000 to 200,000 marched to demand reform. ...

The Chilean program was promoted relentlessly by its creator, Jose Pinera, who got himself a sinecure at the Cato Institute [a right wing think tank in the United States, not Chile] out of the deal. From there he fed American conservatives’ fantasies of “an obvious free market solution that works,” he wrote for a Cato audience in 1997. (In that same article he declared that “America’s Social Security system will go bust in 2010.” Umm, no.) He boasted of how he single-handedly “decided to undertake a structural reform [of Chile’s bankrupt retirement system] that would solve the problem once and for all.” ...

Pinera and his fans talked up the Chilean workers’ apparent gains during the system’s early years, when it seemed to be delivering double-digit returns and lavish pensions to its lucky beneficiaries. What the promoters never much emphasized was how the program actually had been made to work. As I explained in a 2005 book, everyone entering formal employment after 1981 was required to deposit 10% of earned wages into individual accounts managed by a handful of investment companies appointed by the Pinochet regime. Workers enrolled in the old system were goaded into abandoning it by cuts in existing benefits. Chile financed the transition by draining its large government surplus. An unprecedented bull market in Chilean stocks did the rest. 

But the seams soon showed. The World Bank determined that fees charged by those favored investment firms consumed fully half the pension contributions of the average worker retiring in 2000. The government surplus disappeared, and those outsized stock market gains faded away.