NADE Newsletter

     The National Association of Disability Examiners (NADE), an organization for those who make initial and reconsideration determinations on disability claims for Social Security, has released the Winter Edition of its newsletter.

A New Spammer Wrinkle

     I received this alarming report anonymously:

We have an office ... that began being inundated with calls yesterday, resulting from spoofers using the FO [Field Office] GI [General Information?] line in caller ID.

Several of the calls received today related to the  spoofing  report that when the public answers the call, a recording comes on and tells them their SSN [Social Security Number] has been suspended.  If they want more information, they can push  1.  

When they push 1, their call is actually routed to the field office GI line. The FO staff conjectures that this in essence sets up a three-party call with the perpetrator muted and listening in.  In other words, the spoofers are directing someone to our office in hopes SSA staff would ask the public identifying questions to check to see if their SSN has been suspended while they listen to the call.

Low Profile Guy Nominated To Low Profile Position

     The White House has announced that William G. Dauster has been nominated to be a public member of the Board of Trustees of the Social Security Trust Funds. Dauster is a lecturer at the University of Pennsylvania. He has served in various staff positions in the Senate and White House. I'd call this a ceremonial position except that there really isn't any ceremony involved. Social Security's Office of Chief Actuary prepares the annual report on the Trust Funds. The Trustees sign off on it. I suppose someone in this position could ask questions of the Actuary or issue public pronouncements but I doubt that anybody would care. The position is little more than a formality.

He'll "Always Protect" Social Security Until He Doesn't

     From the Washington Examiner:

President Trump said during his State of the Union address that he would "always protect" Medicare and Social Security, despite saying just last month that he would be open to cutting the entitlement programs.

In late January, during an interview with CNBC at the World Economic Forum in Davos, Switzerland, when Trump was asked if cuts to entitlements would ever be in consideration, he answered yes.

“At some point, they will be,” Trump said, before highlighting U.S. economic growth. “At the right time, we will take a look at that."

Trump went on to suggest that he would consider cutting spending on Medicare, the federal government's healthcare program for the elderly.

“We’re going to look,” he said.

During his State of the Union speech on Tuesday, however, he said the opposite.
"And we will always protect your Medicare, and we will always protect your Social Security. Always," he said. ...

Trump Administration Completes Action On Inability To Communicate In English Rule

     The Office of Management and Budget (OMB) has completed its review of Social Security's proposed final rule which will remove inability to communicate in English as a criteria in disability determination. The rule was approved and should be published in the Federal Register in the near future.

A Novel Legal Standard

     Social Security will publish an Acquiescence Ruling to Hicks v. Commissioner in the Federal Register tomorrow. This has to do with the reviews of Eric Conn cases.

     They intend to apply it only in the 6^th Circuit. Here’s what I believe is the key language:

Our adjudicators will decide whether there is a reason to believe that fraud or similar fault was involved in providing evidence in the individual’s case. We define a “reason to believe” as reasonable grounds to suspect that fraud or similar fault was involved in the application or in the provision of evidence. The “reason to believe” standard requires more than a mere suspicion, speculation or a hunch, but it does not require a preponderance of evidence. Adjudicators may make reasonable inferences based on the totality of circumstances, such as facts or case characteristics common to patterns of known or suspected fraudulent activity. For us to disregard evidence, it is not necessary that the affected beneficiary or recipient had knowledge of or participated in the fraud or similar fault.

     I don't ever recall seeing a legal standard of more than a hunch but less than a preponderance. My gut feeling is that such a standard can't be constitutional.

ALJ Union Goes To Court To Challenge Federal Services Impasses Panel

     From Government Executive:

A union representing administrative law judges at the Social Security Administration on Thursday asked a federal appeals court to halt an impasses panel's proceedings with the agency, after the panel and another labor-management entity failed to respond to a constitutional challenge.

Last October, the Social Security Administration declared an impasse in negotiations over a new contract with the Association of Administrative Law Judges, following a combined six months of negotiations and mediation, and asked for the Federal Service Impasses Panel to assert jurisdiction over the proceedings.

Later that month, the union objected to the impasses panel getting involved, arguing that the way its members are appointed is unconstitutional. The union’s argument echoes multiple ongoing lawsuits that claim that given the power granted to the impasses panel, as well as lack of oversight and parties to appeal its decisions, the Senate must confirm panel members, in accordance with the Appointments Clause of the Constitution.

But in January, the impasses panel asserted jurisdiction and declined to acknowledge the union’s objections. The union then filed a motion to the Federal Labor Relations Authority requesting a stay of proceedings and that the FLRA issue a decision on the merits of its constitutional challenge. Since then, the FLRA has not even acknowledged receipt of the union’s requests, while the impasses panel has set a Feb. 7 deadline for the union to submit its last best offers on the eight contract articles before the panel. ...

The Trump administration last November sought to blunt legal challenges to the impasses panel’s makeup by issuing a presidential memorandum delegating the president’s authority to fire panel members to the Federal Labor Relations Authority. Legal experts have doubted whether the memorandum would hold up to scrutiny, describing it as “diametrically opposed to the letter and the spirit” of the law establishing both panels. ...

Probation For Threatening To Blow Up Field Office

     From Michigan Live:

U.S. District Judge Thomas L. Ludington on Thursday, Jan. 30, sentenced Latashya L. Brooks to two years of probation. While on probation, Brooks must participate in a mental health treatment program, take all prescribed medications, and submit to psychological evaluations as directed by her probation officer. 

Brooks in October appeared in the federal courthouse in downtown Bay City and pleaded guilty to interstate communication to make a bomb threat. The charge is punishable by up to 10 years’ imprisonment, a fine of $250,000, and three years of supervised release.

The plea agreement stated Brooks’ sentencing guidelines were one year to 18 months. Court records show Judge Ludington departed downward from the guidelines due to Brooks’ “limited mental conditions,” “reduced mental capacity,” and it being her first criminal conviction. 

The agreement states that Brooks was upset over the Social Security Administration withholding things from her checks. On May 3, she called the administration office at 611 E. Genesee St. in Saginaw and spoke with an employee. 

During the call, Brooks threatened to “blow up your (expletive)ing building and accept the consequences,” the plea agreement states. When the employee told Brooks she should not threaten government buildings, Brooks replied that she didn’t care and would “do the time,” the document states. ...