Regulations On Evaluation Of Medical Evidence Advance

     The Office of Management and Budget (OMB) has cleared Social Security's proposed final regulations on evaluation of medical evidence. Here is the agency's summary of the regulations:

We are proposing several revisions to our medical evidence rules. The proposals include redefining several key terms related to 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 would conform our rules with the requirements of 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.

      These may now be published in the Federal Register. However, the Administrative Procedure Act provides that the regulations cannot come into effect for at least 30 days after publication. There will be a new President by then. We do not know for sure what the new President will do but it's a good bet that all regulations which have been approved but which have not yet come into effect will be put on hold pending review by the new administration and that review may not be complete until there's a new Commissioner. It's not that these new regulations are likely to be unpopular with the new administration but it may still take months before they come into effect and they might be modified. But, then again, who knows what to expect out of the Trump Administration?

EAJA Payments Escalating Rapidly

     When Social Security issues a final administrative decision denying disability benefits, a claimant may bring a civil action in United States District Court to appeal from the decision. If the claimant prevails in federal court and the court determines that Social Security's position wasn't "substantially justified" the court can order the Social Security Administration to pay attorney fees under the Equal Access to Justice Act (EAJA). As you can see below, Social Security's EAJA payments have been escalating rapidly in recent years.

Fiscal Year	Total Payments
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
2016	$40,045,962.42

     I think there are at least three factors causing this. Social Security's Administrative Law Judges are turning down more claimants than in the past. Social Security is more willing to defend weak denial decisions than in the past. The courts became less conservative as a result of President Obama's appointments.

An Inconsistency?

     Social Security's Listings for systemic lupus erythematosus, systemic vasculits, systemic sclerosis, polymyositis, dermatositis, undifferentiated and mixed connective tissue disease, innume deficiency diseases apart from HIV/AIDS, HIV/AIDS, inflammatory arthritis, and Sjögren’s syndrome all contain the following criteria

  ... one of the following at the marked level:

1. Limitation of activities of daily living.

2. Limitation in maintaining social functioning.

3. Limitation in completing tasks in a timely manner due to deficiencies in concentration, persistence, or pace.

     This language is also part of the current mental impairment Listings but those Listings will be replaced by new criteria in a couple of weeks and that language isn't in the new mental impairment Listings. Did Social Security mean to leave the old criteria in place for these rheumatic disorders or did they just miss it? I'm thinking the former since they did alter similar child's rheumatic disorder Listings to track with the new child mental impairment Listings but I don't know. I'm not sure that it matters that much since I've seen no sign that Social Security is paying attention to the mental effects of rheumatic disorders, regardless of the Listings.

Lawsuit On Student Loan Collection Practices

     From Market Watch:

For about a year, Hector Rodriguez lost a portion of his limited income, including in some months, a portion of his much-needed Social Security disability benefits over a student loan that was eligible for forgiveness.

Rodriguez, an army veteran, took out student loans in the 1970s to attend college, but he ultimately had to drop out due to frequent hospitalizations and later defaulted on the debt, according to a lawsuit he filed against multiple government agencies earlier this month. In 1973, he was diagnosed with schizophrenia. He began receiving Social Security disability benefits shortly thereafter and has received them continuously ever since.

Rodriguez’s disability was so severe that he qualified to have his student loans wiped away through what’s known as a total and permanent disability discharge (TPD). And yet, in 2013, he received a notice from the government indicating that the feds planned to garnish a portion of his disability benefits to pay off his student loan, according to his lawsuit. The notice never indicated that a disability discharge might be a possibility and when he spoke to the government-hired debt collector responsible for his loan he or she never provided that information even though he informed them that he was disabled, he claims.

Shortly thereafter, the government began taking $177 out of his $1,184 disability check. ...

But the Department of Education is working to make it easier for borrowers who qualify for a disability discharge to receive it. Earlier this year, the agency cross-referenced its records with those of the Social Security administration and identified nearly 400,000 borrowers who qualified for a discharge — about 100,000 of which were at risk of losing their tax refunds or Social Security benefits over the debt — and sent them a letter inviting them to apply for one. The agency also began suspending disability benefit offsets in cases where it’s clear the borrower has a medical condition that won't improve, according to the recent GAO report....

NADE Newsletter

     The National Association of Disability Examiners (NADE), an organization of the personnel who make initial and reconsideration determinations on Social Security disability claims, has issued a Special Edition of its newsletter.

Happy New Year

Social Security Employee Pleads Guilty

     From the Times of San Diego:

A Social Security Administration employee who accepted payments and had the authority to waive money owed to the government by overpaid beneficiaries pleaded guilty Thursday to stealing money orders and depositing them into his own checking account.

Josue Edgardo Castro, of San Ysidro, faces up to 10 years in prison and a fine of up to $250,000 when he is sentenced April 3 in U.S. District Court in San Diego.

Castro admitted that on at least 21 occasions, he accepted money orders meant for the Social Security Administration, smuggled them out of the office, and deposited them in his personal bank account.

In addition, Castro admitted that on at least nine separate occasions, he waived outstanding balances that were due to Social Security from overpaid beneficiaries in order to conceal that he had stolen their attempted repayments.
In all, Castro admitted stealing more than $5,700 in money orders and costing the Social Security Administration more than $9,000 due to the overpayment waivers he entered to hide his crimes. ...

Man Arrested For Bringing Pistol Into Social Security Office

     A man was arrested yesterday after bringing a pistol into the Social Security field office in Mobile, AL.