New Mental Impairment Listings Approved But Won't Be Published Until December

     The Office of Management and Budget (OMB) has finished reviewing Social Security's proposed amendments to the agency's Listings on mental illness and intellectual disability and has approved them. The Listings are a major part of Social Security's policies on evaluating mental illness in disability claims. 

     The process that produced this dates all the way back to 2003. This particular draft was first published in 2010. 

     This proposal has been extremely controversial. Normally, new regulations are published in the Federal Register within a week or two after OMB approval. They come into effect thereafter. However, Social Security recently told the National Organization of Social Security Claimants Representatives (NOSSCR) that it was not planning to publish the revisions to the mental impairment Listings until December. This strongly suggests to me that the agency knows the new mental impairment Listings will be controversial and wishes to put off releasing them until after the election. They want to dump them in the Federal Register during the holiday season with the transition to a new administration underway. 

     I've been representing Social Security disability claimants since 1979. Disability claimants suffering from mental illness are being treated the worst now that they're been treated since about 1983. Claimants with intellectual disability are being treated worse now than at any time in my career. I expect the new Listings will try to crystallize the current restrictive policies. What a legacy for Carolyn Colvin.

Not Happy About Being Number One

      From WSOC-TV:

Thousands of people nationwide seeking disability assistance are waiting months, or even years, for Social Security to hear their cases.

The Charlotte review office has the biggest backlog of all the 170 offices across the nation.

The latest numbers show that Charlotte has 14,456 pending cases. People wait an average of 622 days for their appeals to be heard, almost 100 days more than the national average.

Randy van Hoosan's wife has multiple sclerosis and said that four years ago she realized she couldn't work anymore.

When she applied for disability, she was denied. He said she appealed in October 2014, but almost two years later she's still waiting for her appeal to be heard.

The couple filed bankruptcy in December. They said they lost their house, a car and "just live day to day." ...

They contacted U.S. Sen. Richard Burr's office and got a letter back last month, saying they should expect to wait another 18 to 24 month. ...

Wisconsin ALJ Taken Off Regular Duties Because Of Comments About Claimants

     From the Milwaukee Journal Sentinel:

Administrative law judge John H. Pleuss has been removed from the list of judges within the computer system at the Social Security’s Madison Office of Adjudication and Review, and all of his 60 cases through the end of 2016 have been reassigned, according to two whistle-blowers from the administration and a copy of the list provided to the Milwaukee Journal Sentinel. ...

Pleuss described disability claimants in his notes using shorthand phrases such as "very black, African looking woman (actually a gorilla-like appearance),” “buxom,” and "attractive; looks innocent,” the Milwaukee Journal Sentinel and a conservative website, Wisconsin Watchdog, have reported. ...

Although Pleuss remains at the Madison office in some capacity, office director Laura Hodorowicz and group supervisor Wayne Gentz have both been removed from the hearing office and its directory, according to Holland, lead case technician Machelle Keller and a copy of the directory provided to the Journal Sentinel. ...

     Pleuss was approving 55% of the cases he heard.

That Two Factor Authentication Fiasco Was Even Worse Than You Thought

     Last month Social Security introduced two factor authentication for its online systems. Claimants would have to enter a password and then enter a second passcode delivered to them via a text message in order to enter Social Security's online systems. Social Security had to beat a hasty retreat two weeks later as senior citizens protested that they didn't have text access.

     As embarrassing as the two factor authentication seemed, the reality was even worse. Computerworld reveals that in the same month that Social Security introduced two factor authentication, the National Institute of Standards and Technology warned federal agencies not to use two factor authentication.

     Social Security is still requiring two factor authentication for attorneys using its online systems. Can we now dispense with that?

Happy Labor Day

Let Me Tell You A Story

     Let me tell you about a client. I'll change a few minor details to protect her identity but nothing that affects the account in a material way. We'll call my client Greta. Greta's mother was a German national. Her father was a U.S soldier stationed in Germany. Greta's mother didn't marry Greta's natural father. However, Greta's mother later married another U.S. soldier and moved to the United States with Greta when Greta was four. Greta hasn't been back to Germany since. She doesn't remember being there. She wonders whether a trip back to Germany would rekindle some memories. She speaks no German. She went to school in the United States. She got a Social Security card. She worked in the United States. She married and had children in the United States. She never tried to register to vote because she just wasn't interested. She never tried to get a passport because she didn't have the money to travel outside the country. There was never a problem until Greta applied for Social Security retirement benefits. At that point, it was discovered that Greta wasn't a citizen. What's more, she didn't have a green card. Although Greta came to the United States legally, she had become an illegal immigrant because the proper steps hadn't been taken to regularize her immigration status. This amazed Greta. She knew she was born in Germany but thought she had become an American citizen when she was a child. That's what should have happened. It would have been easy but her parents never did what they needed to do. While Greta has enough quarters of coverage to get Social Security retirement benefits, she can't be paid until Greta sorts out her immigration status with the Immigration and Naturalization Service (INS). This will be done. INS isn't being difficult. They're sympathetic. They agree that she deserves a green card. She may even be entitled to citizenship without the normal formalities because she was brought to the United States as a child by her U.S. citizen stepfather. However, the INS is slow. Sorting this out will take well over a year.

     Donald Trump wants to throw all illegal immigrants out of the country. At the moment Greta is an illegal immigrant. Do you want to round up Greta, put her in detention and then deport her to Germany? Do you want to punish her for the negligence of her parents more than 50 years ago? Greta wasn't born in Mexico but what if she had been and had been brought to the U.S. by a stepfather who was a U.S. citizen? Would that affect how you feel about the situation?

CCD Opposes NPRM On Medical Evidence

     The Coalition for Citizens with Disabilities (CCD), the largest umbrella group of organizations involved in advocating for persons with disabilities, has submitted comments on Social Security's Notice of Proposed Rule-Making (NPRM) on ensuring program uniformity at Social Security. CCD opposes the changes for these reasons (which are elaborated on in the CCD letter):

1. Creating an arbitrary deadline for the submission of evidence is inconsistent with the statutory and regulatory duties of the Commissioner to fully develop the record and inconsistent with the duties of claimants to submit all evidence as required in 20 C.F.R. §404.1512 and §416.912.

2. Excluding material evidence is administratively inefficient and will increase appeals to the Appeals Council and to federal court.

3. The proposed rule ignores the reality that testimony, and sometimes new evidence, is routinely introduced at or after ALJ hearings, and claimants and representatives need the opportunity to respond.

4. Serious problems and inconsistencies exist with the implementation of the 5 business day rule in Region I.

Charlie Binder Has An Objection

     Below is a letter I have received from an attorney representing Charlie Binder. You can click on each thumbnail to see it full size.

     Binder is objecting to my post Proposed Rules Of Conduct For Appointed Representatives where I wrote that "This [proposal regulation] is just overkill. I'm not Eric Conn or Charlie Binder. Don't treat me like them. I don't deserve it." Binder feels that I have accused him of certain conduct that the proposal would ban and that I am associating him with the allegedly criminal behavior of Eric Conn. 

     I have no problem saying that I have no knowledge that Charlie Binder or anyone else at Binder and Binder has done anything illegal and that I don't know that this proposal would have any more effect upon Binder and Binder than it would have on my firm.  It would not have taken a three page letter from Binder's attorney to get me to say this. A simple e-mail from Binder himself would have been enough.

     My point in using the names of Eric Conn and Charlie Binder was not to say that their behavior has been the same or similar. My point was to express my concern that each, for different reasons, has generated negative attitudes towards Social Security attorneys on the part of upper Social Security management. I am concerned that these negative attitudes are behind recent Social Security regulatory actions. The issues at Binder and Binder, while not criminal, are magnified in importance by the prominence of that entity. I thought about going through the issues at Binder and Binder but decided there was no point. Almost all my readers already know enough about Binder and Binder to have their own opinions.

     The ironic thing is that Charlie Binder doesn't like to be lumped together with Eric Conn. I don't like being lumped together with either Conn or Binder.