Senate Budget Would Dramatically Cut Social Security Administrative Funding

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NOSSCR Response To SSR 17-4p

     The National Organization of Social Security Claimants Representatives (NOSSCR) has responded to Social Security Ruling 17-4p.

COBRA Only Disability Claim?

     From a recent addition to Social Security's Program Operations Manual Series (POMS):

Claimants do not have to meet the non-disability requirements for Title II (e.g., insured status or an onset date more than 5 months before full retirement age (FRA)) or Title XVI (e.g., income or resources) to qualify for the additional 11 months of health care benefits under COBRA. ...

To extend health care coverage under COBRA based on disability, the individual must:

• File for disability benefits (Title II, Title XVI, or concurrent) with COBRA extension, or

• File for COBRA extension only. ...

     I've never seen any of these claims. I can't imagine many are filed.

They Keep Piling On

     The Washington Post has added one more piece to its series stigmatizing Social Security disability benefits recipients.

Can They Do This?

     Here's something from the preamble to Social Security Ruling (SSR) 17-4p:

Through SSRs, we make available to the public precedential decisions relating to the Federal old-age, survivors, disability, supplemental security income, and special veterans’ benefits programs. We may base SSRs on determinations or decisions made at all levels of administrative adjudication, Federal court decisions, Commissioner’s decisions, opinions of the Office of the General Counsel, or other interpretations of the law and regulations. 

Although SSRs do not have the same force and effect as statutes or regulations, they are binding on all components of the Social Security Administration. 20 CFR 402.35(b)(1).

     The SSR specifically says that it does not have the same force or effect as a statute or regulation. It only talks about it being binding upon the Social Security Administration itself. Doesn't this say on its face that it doesn't bind members of the public?
     The Administrative Procedure Act (APA) says that regulations, which have the force and effect of law, can only be adopted after a cumbersome process which requires publication of the proposed regulation in the Federal Register, allowing the public to comment on the proposed regulation and considering those comments before final adoption. Presidential orders also require that proposed and final regulations be submitted to the Office of Management and Budget, which is part of the White House, for approval before publication in the Federal Register. The APA provides that the notice and comment procedure applies to all rules other than "interpretative rules, general statements of policy, or rules of agency organization, procedure, or practice." That's why the preamble quoted above is attached to all SSRs. Isn't the fact that regulations can bind the public the reason why the APA requires notice and comment? Binding the public is the role of statutes and regulations, not SSRs.
    I don't think this SSR passes muster under the APA. I know the agency is trying to address conduct it has good reason to consider obnoxious but there are limits. Would Social Security really try to discipline someone based upon the contents of a mere ruling?

How Much Does Motherhood Cost Women in Social Security Benefits?

     From the abstract of How Much Does Motherhood Cost Women in Social Security Benefits?, a study by Matthew S. Rutledge , Alice Zulkarnain and Sara Ellen King:

• The lifetime earnings of mothers with one child are 28 percent less than the earnings of childless women, all else equal, and each additional child lowers lifetime earnings by another 3 percent.

• When examining Social Security benefits, the motherhood penalty is smaller than the earnings penalty. But mothers with one child still receive 16 percent less in benefits than non-mothers, and each additional child reduces benefits by another 2 percent.

• The motherhood penalty is almost negligible among women receiving spousal benefits, but mothers who receive benefits on only their own earnings histories see significantly lower Social Security income.

And Down We Go

      The Office of Personnel Management (OPM) has posted updated figures for the number of employees at the Social Security Administration -- and the downward trend continues:

• June 2017 61,592
• March 2017 62,183
• December 2016 63,364
• September 2016 64,394 
• December 2015 65,518
• September 2015 65,717
• June 2015 65,666
• March 2015 64,432
• December 2014 65,430
• September 2014 64,684
• June 2014 62,651
• March 2014 60,820
• December 2013 61,957
• September 2013 62,543
• December 2012 64,538
• September 2012 65,113
• September 2011 67,136
• December 2010 70,270
• December 2009 67,486
• September 2009 67,632
• December 2008 63,733
• September 2008 63,990

New Social Security Ruling And It's Something Else

     From Social Security Ruling 17-4p to be published in the Federal Register tomorrow:

... We expect individuals to exercise their reasonable good faith judgment about what evidence “relates” to their disability claims. Evidence that may relate to whether or not a claimant is blind or disabled includes objective medical evidence, medical opinion evidence, other medical evidence, and evidence from nonmedical sources. ...

[W]e expect representatives to submit or inform us about written evidence as soon as they obtain or become aware of it. Representatives should not wait until 5 business days before the hearing to submit or inform us about written evidence unless they have compelling reasons for the delay (e.g., it was impractical to submit the evidence earlier because it was difficult to obtain or the representative was not aware of the evidence at an earlier date). In addition, it is only acceptable for a representative to inform us about evidence without submitting it if the representative shows that, despite good faith efforts, he or she could not obtain the evidence. Simply informing us of the existence of evidence without providing it or waiting until 5 days before a hearing to inform us about or provide evidence when it was otherwise available, may cause unreasonable delay to the processing of the claim, without good cause, and may be prejudicial to the fair and orderly conduct of our administrative proceedings. As such, this behavior could be found to violate our rules of conduct and could lead to sanction proceedings against the representative. ...

We will evaluate each circumstance on a case-by-case basis to determine whether to refer a possible violation of our rules to our Office of the General Counsel (OGC) . For example, in accordance with the regulatory interpretation discussed above, we may refer a possible violation of rules to OGC when:

• a representative informs us about written evidence but refuses, without good cause, to make good faith efforts to obtain and timely submit the evidence;

• a representative informs us about evidence that relates to a claim instead of acting with reasonable promptness to help obtain and timely submit the evidence to us;

• the representative waits until 5 days before a hearing to provide or inform us of evidence when the evidence was known to the representative or available to provide to us at an earlier date;

• the clients of a particular representative have a pattern of informing us about written evidence instead of making good-faith efforts to obtain and timely submit the evidence; or

• any other occasion when a representative’s actions with regard to the submission of evidence may violate our rules for representative. ...

     I do not know if there is any practical way to notify the Social Security Administration immediately of the existence of new medical evidence. Am I supposed to send Social Security a notice about each visit my client has with a physician? Am I required to separately obtain a report on each physician visit? This appears to impose a duty upon an attorney to obtain every piece of medical evidence concerning a client -- including the hundreds, if not thousands, of pages of records generated by each hospitalization. The Ruling says we can't just inform Social Security of the existence of evidence. We have to obtain it and there is no limit upon this duty. How reasonable is this?

     I know there's some people that Social Security wants to put out of business. They probably deserve to be put out of business but this is over the top. No one will be able to strictly comply with this. No one.