Social Security Means What It Says -- Until It Becomes Inconvenient

     From Emergency Message 16036 recently issued by Social Security:

A. What is the purpose of this Emergency Message? This emergency message clarifies the following sentence in Social Security Ruling 83-20 – Titles II and XVI: Onset of Disability (SSR 83-20), “At the hearing, the administrative law judge (ALJ) should call on the services of a medical advisor when onset must be inferred.” 

B. What is the background behind this Emergency Message? There has been confusion as to whether the above-quoted sentence in SSR 83-20 imposes a mandatory requirement on an ALJ to call on the services of a medical expert when onset must be inferred. 

C. Does SSR 83-20 impose a mandatory requirement on an ALJ to call on the services of a medical expert when onset must be inferred? No, SSR 83-20 does not impose a mandatory requirement on an ALJ to call on the services of a medical expert when onset must be inferred. 

Instead, the decision to call on the services of a medical expert when onset must be inferred is always at the ALJ’s discretion. 

Direct all questions to your hearing office management chain or the Office of Appellate Operations Executive Director’s office, as appropriate.

Unsuccessful Work Attempt Regulations Improved

     This is Social Security's summary of new rules it recently published in the Federal Register:

The final rules at 20 CFR 404.1574(c), 404.1575(d), 416.974(c), and 416.975(d) remove the additional conditions that we used when we evaluated a work attempt in employment or self-employment that lasted between 3 and 6 months and use the current 3-month standard for all work attempts that are 6 months or less. Under these rules, ordinarily, work you have done will not show that you are able to do substantial gainful activity if, after you worked for a period of 6 months or less, your impairment forced you to stop working or to reduce the amount of work you do so that your earnings from such work fall below the substantial gainful activity earnings level. The new rules at 20 CFR 404.1592c and 416.999a allow a previously entitled individual to request EXR [Expedited Reinstatement] in the same month they stop performing SGA [Substantial Gainful Activity].

     The new rules are effective on November 16, 2016, except for the Expedited Reinstatement changes which are effective on April 17, 2017.

Tiny COLA

     The annual Cost Of Living Adjustment (COLA) for Social Security benefits for this year is only 0.3%. For the average recipient of benefits this is less than $4 a month. For the vast majority of beneficiaries this increase will be completely taken away by the increase in Medicare Part B premiums.

OIG Report On Hearing Backlog Initiatives

     Social Security's Office of Inspector General (OIG) recently issued a report on the agency's numerous and varied attempts to reduce its hearing backlog, none of which is working very well.

OIG Report On PASS Plans

     From a recent report by Social Security's Office of Inspector General (OIG):

PASS [Plan for Achieving Self-Support] is an employment support program designed to help disabled individuals return to work. Congress established the PASS program as part of the original Supplemental Security Income (SSI) legislation in 1972, and the program went into effect in 1974. Congress intended employment support provisions, such as PASS, to provide disabled beneficiaries with the assistance needed to move from benefit dependence to independence. The legislative history also indicates that Congress expressed a “. . . desire to provide every opportunity and encouragement to the blind and disabled to return to gainful employment.” ...

SSA did not have sufficient information to evaluate the success of its PASS program . Nevertheless, the Agency was not effectively managing the program. For example, SSA lacked basic data on PAS S program participation, costs, and outcomes. In addition, SSA had not evaluated the PASS program’s impact on the di sability rolls . Finally, SSA did not routinely monitor the PASS program or conduct quality control reviews.

Internal control weaknesses leave the PASS program vulnerable to misuse . For example, PASS program guidelines were broad and vague . In addition, there were no limits on PASS benefits, such as caps on expenditures, time limits to complete work goals, or restrictions on the number of PASS work goals a disabled individual may have. Further , some individuals exploit ed the program by misusing PASS benefits to obtain items or services that were unrelated to their work goals....

     My experience with PASS is that it is ridiculously difficult to get a PASS plan approved. Maybe OIG just wants Social Security to effectively repeal PASS by making it literally impossible to get a plan approved.
     Of course, no matter how PASS is administered it's not going to have a significant effect upon the number of people drawing SSI. It's just part of the Congressional fantasy world where SSI recipients will stream off the disability rolls if we just give them enough encouragement. Hint to Congress: It's really tough to get on SSI disability benefits, so tough that very, very few on the benefits have any realistic hope of ever returning to work no matter what anyone does to help them.

NADE Newsletter

     The National Association of Disability Examiners (NADE), an organization of the personnel who make initial and reconsideration disability determinations for Social Security has issued its most recent newsletter, full of summaries of presentations that Social Security management personnel made at a NADE conference.

One Judge Holds Terminations Of Benefits For Eric Conn Clients Unconstitutional

     A United States District Court judge has held that Social Security's termination of disability benefits for Eric Conn's former clients is unconstitutional. Don't think this is resolved. Two other judges on the same court have upheld the terminations. The issue now heads to the Court of Appeals. Interestingly, the judge who found the terminations to be unconstitutional, Thapur, is on Donald Trump's announced list of possible Supreme Court nominees, not that he's likely to have a chance to use that list.

     I'm sorry to be so late posting this but I've been off the net while traveling.

New Somatoform Listing

     From Social Security's new mental impairment Listings effective January 17, 2017:

12.07 Somatic symptom and related disorders (see 12.00B6), satisfied by A and B

     A. Medical documentation of one or more of the following:

          1. Symptoms of altered voluntary motor or sensory function that are not better explained by another medical or mental disorder;

        2. One or more somatic symptoms that are distressing, with excessive thoughts, feelings, or behaviors related to the symptoms; or

      3. Preoccupation with having or acquiring a serious illness without significant symptoms present.

AND

     B. Extreme limitation of one, or marked limitation of two, of the following areas of mental functioning (see 12.00F):

          1. Understand, remember, or apply information (see 12.00E1).

          2. Interact with others (see 12.00E2).

          3. Concentrate, persist, or maintain pace (see 12.00E3).

          4. Adapt or manage oneself (see 12.00E4).