Pushback On New Rule

Cheryl Sawyer, working with her physical therapist

     From the Daily Hampshire Gazette:

She had been struggling to keep a job for months.

Southampton resident Cheryl Sawyer had a degree from a two-year college and about 10 years of experience climbing the ranks of retail. She had worked consistently throughout her adult life, priding herself on never being dependent on anyone else.

But then, in 2013, pain began to take over her life, pain that would eventually be diagnosed as multiple sclerosis.

Sawyer couldn’t stand for long. She couldn’t lift. She couldn’t bend. Soon, she began having muscle spasms. After being let go from a job for the fourth time, she decided to apply for Social Security Disability Insurance benefits.

“I always enjoyed working, and I felt like I was contributing,” Sawyer said. “I felt like I was doing something. Now I’m trapped.”

 Like millions of other people in the United States, Sawyer waded through the Social Security disability application process ...

Most applicants for SSDI are denied, and the few who are approved wait on average 18 months to receive benefits after they apply for them.

And that was before a major rule change took effect in March in the way Social Security disability claims are processed ...

The change lets administrator law judges weigh evidence in an applicant’s file however they see fit, instead of being forced to give the most weight to the opinion of an applicant’s doctor. ...

The SSA states on its website that one reason for the change giving judges more leeway in their rulings is a belief that it is inappropriate for adjudicators to be forced to take a certain medical opinion as true. ...

Critics of the new rule say a judge can now give more weight to other evidence in an application, including the opinions of doctors or consultants connected to SSA who meet an applicant once or sometimes never at all. In addition, as part of the rule change, judges no longer have to tell applicants how they weighed evidence when making their decision....

      In the last couple of years, it seemed like Social Security tried to publish any anti-claimant regulation that had floated around the agency in recent years. This one almost certainly dates back to the time that Michael Astrue was Commissioner. There were good reasons it hadn't been published before. I'd be willing to bet that some folks at Social Security warned that this one would backfire, turning a minor problem into a huge one. Just think about it. The federal courts interpret the Social Security Act in a certain way. The agency doesn't like this interpretation. Social Security doesn't try to take the issue to the Supreme Court. Instead, the agency tries to overrule the federal courts by adopting new regulations. How do you think that looks to a federal court? How likely is it that a federal court will meekly accept being overruled by an agency? If you say that of course they will, you aren't even trying to understand how federal judges think. My opinion is that this new rule was peak arrogance by Social Security and we know what often follows arrogance.

Settlement Concerning One Consultative Physician

     Social Security has settled a class action lawsuit concerning the agency's usage of Dr. Frank Chen to do consultative medical examinations in disability claims. Chen was alleged to have supplied Social Security with "grossly deficient reports [that] were based on cursory examinations (often lasting ten minutes or less), referenced tests that were never performed, and were inconsistent with plaintiffs’ medical records." The agency kept using Chen despite knowing of problems with his examinations and twice warning him. Many of those who were denied disability benefits after being examined by Dr. Chen will now get redeterminations.

I'm Expecting To See Lots Of Remands On This Issue

     The Department of Veterans Affairs found a vet disabled. Social Security doesn't think they need to give any explanation why they disagreed and found him not disabled. In fact, to my ears, they sound a bit arrogant about it.  This may sound reasonable to some at Social Security. Those of us who represent claimants think the agency has picked a fight it probably won't win in federal court. If you think it's clear that the agency will win on this issue, I'd suggest you take a step back and try to look at this from the perspective of a federal judge. And saying that federal judges just don't understand Social Security doesn't get you anywhere.

     By the way, yes, I know, this guy probably got some bad advice. Overestimating the strength of one's hand can be a problem for both sides.

Long Lines In San Antonio

From a San Antonio television station: 

A closed Social Security office in San Antonio is causing long lines throughout the area. 

"We were here for about 2 hours, maybe a little bit more than that,” said Ruby Toombes a Social Security visitor. 

“We currently have three offices in San Antonio and we looked at two different waiting times: wait times for persons who come in for an appointment and wait times for persons who do not have an appointment,” said Veronica Taylor a spokesperson for Social Security. “The average wait time of the offices for persons who have an appointment is 10 minutes. The average wait time of the offices for persons who do not have an appointment is 41.” 

According to local residents at the location along Isom Road, one visit can take several hours. ...

A Vicious Piece From The Washington Post

     Some excerpts from a Washington Post article:

... [H]e saw Tyler’s father, Dale McGlothlin, a former coal miner living on disability, holding a sign along the side of the road. “Need donations to help to feed my family,” it said.

Hess pulled over. He offered him food, then told him he could do him one better: Would he like a job? McGlothlin, whose arms had been damaged in the coal mines and who hadn’t worked in more than a decade, declined the offer, and Hess drove off, outraged.

Living at the center of an opioid crisis, and in the aftermath of a decades-long surge in the nation’s disability rolls, Hess had long perceived a resistance to work. He had seen it when he couldn’t find anyone to hire who could pass a drug test and had a driver’s license. Or when someone complained they couldn’t find work, and he knew fast-food restaurants were hiring. Or when he saw someone claiming a disability despite having what he thought was a mild condition. He would come away thinking he worked 60 hours a week — despite a thyroid condition, despite two bankruptcies, despite the depressed local economy — not because he felt like it but because that was who he was. And now here was another person who didn’t want to work — he wanted a handout, a concept that so angered Hess that his Facebook profile picture was an outstretched palm with a large red strike across it. ...

... Sheila rested a hand on Tyler’s right knee, ashed a cigarette into a soda can and looked out the window. She had wanted something more for him, something other than what she felt most days: shame. She knew how she must look, in her pajamas and mismatched socks, to people who work. She knew what they must say about her disability: It’s only anxiety, only depression. Why couldn’t she work? Why did she buy soda and cigarettes when they needed food? How could she afford the Internet and cable TV bills on a $500 monthly disability check? She would sometimes consider how she would answer. She would say that cigarettes and soda make hard days a little easier. That television is just about her only connection to a world that hasn’t seemed to want her anymore. But it’s simpler to say nothing at all, so she rarely leaves the house now. ... 

Then she was gone, and he was alone, thinking she was wrong — he had tried to find jobs, after all — but also thinking she was right. Why couldn’t he get a job? Was he to blame? Maybe people were right when they told him tattoos would turn off employers. He also could have walked through the snow that day McDonald’s had fired him — it was less than a mile from his house — but he hadn’t done that, either. And when his father told him to hold a sign [to beg], he could have refused, but he hadn’t. ...

Duplicate SSN Problems

     There are cases where the Social Security Administration (SSA) has assigned more than one Social Security Number (SSN) to an individual. This can happen intentionally because the person is fleeing domestic violence or is in a witness protection program. It can also happen by mistake. My impression is that it's extremely rare for individuals to accidentally be issued multiple SSNs these days but decades ago it wasn't so rare. I have memories of seeing cases where one individual had been issued three or four SSNs but I haven't seen that sort of thing in decades. It's only a small percentage of number holders who have multiple numbers. However, because hundreds of millions of SSNs have been issued, there are about 4.9 million people with multiple SSNs.
     When SSA becomes aware of one individual having multiple SSNs, the records are supposed to be cross-referenced in the agency's Numident database to prevent payment mistakes.

     Social Security's Office of Inspector General (OIG) has done a study on how the agency is dealing with these multiple SSN cases. Here are some excerpts (footnotes omitted):

... We identified more than 5,000 instances where, contrary to Agency policy, SSA appeared to simultaneously issue monthly OASDI [Old Age, Survivors and Disability Insurance] benefits and/or SSI [Supplemental Security Income] payments to individuals under both of their cross-referred SSNs. SSA systems did not automatically identify and consider payments issued under one SSN when determining eligibility for, or computing the benefit amounts paid, under the cross-referred SSN.

Our review of 534 instances ... indicated that, in most cases, it appeared the numberholders simultaneously receiving payments under multiple cross-referred SSNs were not the same individuals, and SSA had cross-referred the SSNs in error. However, in about 20 percent of the cases, it appeared SSA had issued both payments to the same individual. ...

We also identified over 13,000 instances where SSA continued paying beneficiaries after it recorded death information on their cross-referred SSNs. ...  [M]ost of the individuals receiving the payments were not the same individuals whose death information appeared on the cross-referred SSNs, and SSA had cross-referred the SSNs in error. However, in 6 percent of the cases, it appeared that SSA had assigned both cross-referred SSNs to the same individual. Based on our sample results, we estimate SSA issued about $115.4 million in improper payments to 930 deceased beneficiaries after it input death information on their cross -referred SSNs. If the Agency does not correct these errors, we estimate it will issue $13.7 million in additional improper payments over the next 12 months.

Finally, we identified approximately 2. 7 million additional instances not involving SSA payments where SSA input death information on a numberholder’s Numident record for 1 SSN but did not input the death information on the numberholder’s cross-referred SSN(s). ... [A]pproximately 97 percent of these cross- referred SSNs belonged to the same individuals. Therefore, we estimate SSA had death information for more than 2 million deceased numberholders that it did not input into the Numident. As a result, SSA erroneously excluded more than 2 million deceased numberholders’ SSNs from the DMF. ...

     This is one of those things where you could say that millions of dollars have been wasted. I'd say it's one of those things that shows that administering benefit payments to 67 million people is far more complicated than most people would think. Social Security will do some things to try to address this problem but there will always be problems to find because Social Security is just so big.

The House Budget Resolution

     Below is the language from the House Draft Budget Resolution (starts on page 104) concerning Social Security:

(b) POLICY ON SOCIAL SECURITY. — It is the policy of this concurrent resolution that the House should work in a bipartisan manner to make Social Security solvent on a sustainable basis. This concurrent resolution assumes, under a reform trigger, that —

(1) if in any year the Board of Trustees of the Federal Old-Age and Survivors Insurance Trust Fund and the Federal Disability Insurance Trust Fund annual Trustees Report determines that the 75-year actuarial balance of the Social Security Trust Funds is in deficit, and the annual balance of the Social Security Trust Funds in the 75th year is in deficit, the Board of Trustees should, no later than September 30 of the same calendar year, submit to the President recommendations for statutory reforms necessary to achieve a 75-year actuarial balance and a positive annual balance in the 75th year, and any recommendations provided to the President must be agreed upon by both Public Trustees of the Board of Trustees;

(2) not later than December 1 of the same calendar year in which the Board of Trustees submit its recommendations, the President should promptly submit implementing legislation to both Houses of Congress including recommendations necessary to achieve a positive 75-year actuarial balance and a positive annual balance in the 75th year, and the majority leader of the Senate and the majority leader of the House should introduce the President’s legislation upon receipt;

(3) within 60 days of the President submitting legislation, the committees of jurisdiction should report a bill, which the House or Senate should consider under expedited procedures; and

(4) legislation submitted by the President should — 

(A) protect those in or near retirement;

(B) preserve the safety net for those who count on Social Security the most, including those with disabilities and survivors;

(C) improve fairness for participants;

(D) reduce the burden on and provide certainty for future generations; and

(E) secure the future of the Disability Insurance program while addressing the needs of those with disabilities today and improving the determination process. 

(c) POLICY ON DISABILITY INSURANCE. — It is the policy of this concurrent resolution that the House should consider legislation on a bipartisan basis to reform the Disability Insurance program prior to its insolvency in 2028 and should not raid the Social Security retirement system without reforms to the Disability Insurance system. This concurrent resolution assumes reform that—

(1) promotes opportunity for those trying to return to work;

(2) ensures benefits continue to be paid to individuals with disabilities and their family members who rely on them;

(3) prevents a 7 percent across-the-board benefit cut;

(4) legislation submitted by the President should — 

(A) protect those in or near retirement; 

(B) preserve the safety net for those who count on Social Security the most, including those with disabilities and survivors;

(C) improve fairness for participants;

(D) reduce the burden on and provide certainty for future generations; and

(E) secure the future of the Disability Insurance program while addressing the needs of those with disabilities today and improving the determination process.

(d) POLICY ON SOCIAL SECURITY SOLVENCY. — It is the policy of this concurrent resolution that any legislation the House considers to improve the solvency of the Disability Insurance Trust Fund must also improve the long-term solvency of the combined Old Age and Survivors Disability Insurance Trust Fund.

     Some comments:

1. Seventy-five years is a very long time. Securing Social Security for 75 years into the future would require either dramatic cuts in Social Security benefits, significant tax increases or some combination of the two. How likely is it that a Republican controlled Congress would enact tax increases? No, this is Republicans trying to find a way to cut Social Security.
2. This includes the idea that the public will accept cuts in Social Security if we just "protect those in or near retirement."  Republicans have been pushing this idea for decades but the public hasn't been buying it -- at all. By this point, the faith of Republican leaders that this plan will work is pathetic.
3. Even though the draft resolution calls for no cuts in Social Security benefits for those in or near "retirement" it would be almost impossible to apply this to disability benefits. Accomplishing the goals of this resolution without "raiding" the retirement trust fund and without raising taxes would require dramatic cuts in disability benefits for those already on benefits unless there was some draconian limit on the number of people going on disability benefits. I don't know how you'd achieve this kind of savings without something like that 7% across the board cut.
4. Note that this draft doesn't say exactly what should be done. It just demands that the President and other Congressional committees do something. The resolution keeps saying what others "should" do. What if they don't actually do what this resolution says they "should" do? This is not a rhetorical question. Trump is unlikely to propose cutting benefits or raising taxes. The votes won't be there to report a bill out of committee that would do either. It's a bigger non-starter than enacting Trumpcare. This is a wistful statement of what Republicans in Congress would really love to do if they didn't have to worry about those pesky voters back in their districts.

A Press Release

FOR IMMEDIATE RELEASE

The Acting Inspector General of Social Security, Gale Stallworth Stone, is warning citizens about a new Social Security Administration (SSA) employee impersonation scheme.  SSA and its Office of the Inspector General (OIG) are receiving reports from citizens across the country about phone calls from an individual posing as an SSA employee.  The caller attempts to acquire personally identifiable information from victims to then edit the victims’ direct deposit, address, and telephone information with SSA.

Acting Inspector General Stone warns citizens to be cautious, and to avoid providing information such as your SSN or bank account numbers to unknown persons over the phone or internet unless you are certain of who is receiving it.  “You must be very confident that the source is the correct business party, and your information will be secure after you release it,” Stone said.

See the full advisory at the OIG website.