New Ruling On Medical Equivalence

     From Social Security Ruling 17-2p, which will be published in the Federal Register on Monday:

At the hearings level or at the AC [Appeals Council] level when the AC issues its own decision, the adjudicator is responsible for the finding of medical equivalence [to a Listing]. The adjudicator must base his or her decision about whether the individual’s impairment(s) medically equals a listing on the preponderance of the evidence in the record. To demonstrate the required support of a finding that an individual is disabled based on medical equivalence at step 3, the record must contain one of the following:

     1. A prior administrative medical finding from an MC [Medical Consultant] or PC [Psychological Consultant] from the initial or reconsideration adjudication levels supporting the medical equivalence finding, or

     2. ME [Medical Expert] evidence, which may include testimony or written responses to interrogatories, obtained at the hearings level supporting the medical equivalence finding, or

     3. A report from the AC’s medical support staff supporting the medical equivalence finding.

No Telework For An ALJ Unless They Schedule 45 Hearings A Month

     Obtained from the ALJ Discussion Forum:

Date: February 15, 2017

To: All HOCALJs [Hearing Office Chief Administrative Law Judges]

From: Patrick Nagle /s/
Chief Administrative Law Judge
Office of the Chief Administrative Law Judge

Robert Jandrlich /s/
Associate Commissioner
Office of Executive Operations and Human Resources

Subject: UPDATE: Telework Requests for IFPTE/AALJ [union that represent ALJs and staff attorneys] Employees – INFORMATION

This guidance applies to all Office of Disability Adjudication and Review bargaining-unit employees covered by the National Agreement between the Social Security Administration, Office of Disability Adjudication and Review, and the Association of Administrative Law Judges, International Federation of Professional and Technical Engineers, AFL-CIO & CLC (IFPTE).

In accordance with Article 15, Section 5A of the 2013 SSA/ODAR-AALJ/IFPTE National Agreement, all administrative law judges (ALJs) who wish to participate in the agency’s telework program should submit their requests and schedules to you by February 28, 2017. You should approve or deny the telework requests by March 14, 2017. ALJs who receive approval for their requests may begin to work their new telework schedules on the first full pay period in April, which begins April 2, 2017.

When reviewing your ALJs’ requests for telework for this next 6-month period, please keep in mind the guidance that we have previously provided regarding what constitutes a “reasonably attainable” number of hearings, and the considerations you should take into account to make that determination. That guidance is contained within the Telework Guidance for HOCALJs document and the Reasonably Attainable Guidance, both of which are in the HOCALJ Telework Guidance library. Judge Bice’s September 2016 guidance stated that an average of 45 to 50 scheduled hearings per month would constitute a “reasonably attainable” number of hearings for the October 2016 through March 2017 telework period. Even prior to the implementation of this telework expectation, ALJs were regularly conducting a minimum of 50 hearings per month and this is a reasonable expectation for all ALJs. Therefore, for this upcoming telework period, April 1, 2017 to September 30, 2017, we will maintain that an average of 50 scheduled hearings per month is a “reasonably attainable” number of hearings.

Please remember that our expectation for all ALJs, teleworking and non-teleworking, is that they issue 500 to 700 legally sufficient dispositions per year; their scheduling of hearings should therefore be commensurate with this goal. To that end, please review carefully the Reasonably Attainable Guidance as you consider an ALJ’s telework request, and please take into account those circumstances that apply to that ALJ. If no such circumstances apply, an average of 50 hearings a month will be considered to be a “reasonably attainable” number of hearings. An ALJ who does not meet this expectation may have his/her telework restricted.

Please continue monitoring cases in judge-controlled status that may be “seriously delinquent.” You will find further guidance on addressing delinquent cases in the Addressing Delinquent Cases folder in the HOCALJ Telework Guidance library.

SIGN 10 days or greater
EDIT 30 days or greater
ARPR/ARFL and ALPO/ALFL 30 days or greater

As a reminder, effective October 9, 2015, Judges must use the Virtual Private Network (VPN) software on their device for all Telework. If an ALJ does not comply with this requirement, he/she is no longer eligible for telework and must wait until the next request period to apply for telework.

Before removing an ALJ from telework, please have a collegial conversation and explain the importance of using technology/the laptop as part of telework. You may consult with your regional attorney or labor and employee relations specialist for the next steps and to ensure we are addressing these issues consistently.

If you have any questions, please contact _____________, in the Division of Quality Service, at (888) 238-_______ ext. _________

Former SSA ALJ Sentenced To Jail For Trading Sex For Benefits

     From the Alabama Media Group, which is probably a newspaper or group of newspapers:

A former Alabama Social Security Administration judge was sentenced to federal prison today for trading social security benefits for sex.

Paul Stribling Conger Jr., 73, was sentenced to 12 months and one day in prison by U.S. District Judge Virginia Hopkins. Because of the additional one day, he will be eligible for early release. ...

Court documents show in 2013, Conger was presiding over the hearing of a claimant who was approved for Supplemental Security Income (SSI) monthly payments and benefits. The claimant, who is only identified in records by her initials T.M., approached Conger in Nov. 2013 about receiving her retroactive benefits in a lump sum of about $10,000.

The two then engaged in a sex act and other sexual contact that day at the federal courthouse in Tuscaloosa, documents show. T.M. and Conger remained in contact by phone, and Conger invited her to return to the courthouse later that month. She didn't go back. ...

Members Of Congress Ask That Social Security Be Exempted From Hiring Freeze

     Fifty members of the House of Representatives have written a letter to the President urging that the Social Security Administration be exempted from the hiring freeze he ordered for most of the federal government. They're all Democrats so they probably won't even get an acknowledgment letter in response.

Congressional Hearing On Rep Payees

     There will be another Congressional hearing tomorrow on representative payees at Social Security. 

     I'm a bit mystified. There have been no important developments concerning representative payees. There's no clear path to Social Security doing a better job with representative payees even if they had the manpower to do so, which they don't. It's messy. It's always been messy. It's going to remain messy. It's unlikely this will attract media attention or lead to significant legislation. What's the point of the hearing?

Waiting In The Heartland

     From the Kansas City Star:

The tumors and cysts that blinded Barbara Sales in her left eye and, years ago, lodged in her brain have robbed her of far more than her sight and memory. ...

Three seizures forced Sales, 53, a former Lenexa resident, to lose a job she’d hoped to get full time. Her maladies and medications, treatments for a rare genetic disease, have made her short-term memory so faulty that she once drove 100 miles in the wrong direction before realizing her mistake. ...

Despite these difficulties, one question has for four years consumed the thoughts of this college-educated woman who worked full time for 25 years while raising her daughter as a divorced, single mom.

Why is it taking the government so long to decide whether she is eligible to receive Social Security disability?

“This is not right,” Sales said, coming to tears. “This is not what we pay into Social Security for. This is not the American dream. This is certainly not what I went to college for.”

Sales’ situation goes to the heart of problems that have plagued the Social Security Administration for years: Underfunded and overwhelmed, it operates with a workforce that has remained all but flat for more than 20 years in the face of a rising population and an explosion of disability applications. ...

“Eight thousand people died during fiscal year 2016 who were waiting for a (disability) hearing,” [Lisa] Ekman [of the National Organization of Social Security Claimants Representatives, NOSSCR) said. “That’s 23 people a day, almost one an hour to get a hearing. … We see people who lose their homes. We see people who are evicted. We see people who can’t afford to pay for medications, who become very debilitated while they wait. It creates people who are homeless.” ... 

When fiscal 2017 began in October, the number of first-time claims that had not been processed from the year before stood at more than 560,000, according to the Office of the Inspector General’s semi-annual report to Congress.

The backlog of cases being reconsidered, waiting to be heard by an administrative law judge, ballooned from 700,000 in 2010 to more than 1.1 million cases at the end of June 2016, the report showed.

In that same period, the average processing time it takes to see and get a decision from a judge has stretched from 426 days to more than 530 days. ...

Read more here: http://www.kansascity.com/news/local/article139229938.html#storylink=cpy

Read more here: http://www.kansascity.com/news/local/article139229938.html#storylink=cpy

Read more here: http://www.kansascity.com/news/local/article139229938.html#storylink=cpy“Eight thousand people died during fiscal year 2016 who were waiting for a (disability) hearing,” Ekman said. “That’s 23 people a day, almost one an hour to get a hearing. … We see people who lose their homes. We see people who are evicted. We see people who can’t afford to pay for medications, who become very debilitated while they wait. It creates people who are homeless.”

Read more here: http://www.kansascity.com/news/local/article139229938.html#storylink=cpy

Read more here: http://www.kansascity.com/news/local/article139229938.html#storylink=cpy

Read more here: http://www.kansascity.com/news/local/article139229938.html#storylink=cpyThree seizures forced Sales, 53, a former Lenexa resident, to lose a job she’d hoped to get full time. Her maladies and medications, treatments for a rare genetic disease, have made her short-term memory so faulty that she once drove 100 miles in the wrong direction before realizing her mistake.

Read more here: http://www.kansascity.com/news/local/article139229938.html#storylink=cpyDespite these difficulties, one question has for four years consumed the thoughts of this college-educated woman who worked full time for 25 years while raising her daughter as a divorced, single mom.
Why is it taking the government so long to decide whether she is eligible to receive Social Security disability?
“This is not right,” Sales said, coming to tears. “This is not what we pay into Social Security for. This is not the American dream. This is certainly not what I went to college for.”
Sales’ situation goes to the heart of problems that have plagued the Social Security Administration for years: Underfunded and overwhelmed, it operates with a workforce that has remained all but flat for more than 20 years in the face of a rising population and an explosion of disability applications.

Read more here: http://www.kansascity.com/news/local/article139229938.html#storylink=cpy“Eight thousand people died during fiscal year 2016 who were waiting for a (disability) hearing,” Ekman said. “That’s 23 people a day, almost one an hour to get a hearing. … We see people who lose their homes. We see people who are evicted. We see people who can’t afford to pay for medications, who become very debilitated while they wait. It creates people who are homeless.”

Read more here: http://www.kansascity.com/news/local/article139229938.html#storylink=cpy“Eight thousand people died during fiscal year 2016 who were waiting for a (disability) hearing,” Ekman said. “That’s 23 people a day, almost one an hour to get a hearing. … We see people who lose their homes. We see people who are evicted. We see people who can’t afford to pay for medications, who become very debilitated while they wait. It creates people who are homeless.”

Read more here: http://www.kansascity.com/news/local/article139229938.html#storylink=cpy

OMB Director Wants To Cut Social Security Disability

     From CBS News:

Office of Budget and Management Director Mick Mulvaney said Sunday [on Face the Nation] that President Donald Trump’s budget is cutting costs in the administration ...

As for entitlements, Mulvaney said Mr. Trump’s budget is consistent with his promise not to take away anyone’s Social Security or Medicare -- and drew attention to programs such as Social Security Disability Insurance as potential areas that could be cut.

“Let me ask you a question, do you really think that Social Security Disability Insurance is part of what people think of when they think of Social Security?” he asked. “I don’t think so. It’s the fastest-growing program, it grew tremendously under President Obama, it’s a very wasteful program and we want to try and fix that.”

     Mulvaney may not think that Disability Insurance Benefits is part of Social Security but history suggests that most Americans do. Any Congressman who votes to cut Social Security disability is going to face political ads accusing them of cutting Social Security. And, no, cuts in Social Security disability won't be bipartisan.
     Mulvaney also said that as a way of saving money OMB is not providing business cards to its employees. They have to pay for them personally, if they want them. Is this going to end up with all public employees treated like teachers who have to buy their own supplies?

OIG Report On ALJ Oversight

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

A claimant can appeal an ALJ’s [Administrative Law Judge's] decision to deny or dismiss a disability case. Claimants file these appeals through a request for review to SSA’s AC [Appeals Council] in the Office of Disability Adjudication and Review (ODAR). If the AC grants a review of the case, it will issue a fully favorable, partially favorable, or unfavorable decision; or it may remand the case to an ALJ. If the AC does not grant a case review, the earlier decision remains unchanged. 

ODAR tracks the AC’s decision on every appealed case and calculates a quality performance measure for each ALJ. The decision agree rate represents the extent to which the AC concludes the ALJ decisions were supported by substantial evidence and contained no error of law or abuse of discretion justifying a remand or reversal. At the time of our review, the national agree rate goal for ALJ decisions was 85 percent. The national dismissal agree rate goal for ALJ dismissals was 72 percent, but less than 6 percent of the AC workload related to dismissals. ...

... Regarding the 11 ALJs whose decision agree rates were 65 percent or lower for 3 consecutive years, we found ODAR managers had taken action to improve the quality of their decisions. Five ALJs had undergone a focused quality review, three were scheduled for this type of review, and one had been nominated to undergo a review. Of the remaining two ALJs, one had undergone a regional quality review, and the other was scheduled for a one-on-one counseling session with the Regional Chief ALJ. A focused quality review involves an in-depth review of a sample of an ALJ’s decisions to ensure the decisions are policy compliant and legally sufficient. If managers find a pattern of error-prone cases, they offer advice on how to correct errors and determine whether the ALJ should take additional targeted training. Three of the five ALJs who underwent focused quality reviews had completed targeted training.

     Note that there is no similar system for tracking remands and reversals by the federal courts. I think some interesting patterns would be seen if that were studied.