Expect Disability Claims And Expect That Social Security Will Turn Them Down

      From The City:

The illness was supposed to last for three weeks, doctors told her.

But weeks four through six of COVID-19 were the worst for Holly MacDonald. Her low-grade fever morphed into an all-around fatigue. She began having trouble speaking.

And when she stood up, her legs and feet turned purple.

“I’d walk too far and then I’d need to be in bed for three days,” said MacDonald, who is 29 and lives in Crown Heights. She had to take administrative leave from her job at a nonprofit where she builds social-media campaigns.

A month after getting sick in early March, MacDonald was back in the ER, frustrated as she tried to convince her doctors she was mired in her second month of what, she’d been told, was a three-week respiratory virus.

She’s still not fully recovered. MacDonald is one of upwards of 70,000 New Yorkers struggling with unexplained long-term symptoms of COVID-19, according to a range of estimates provided by several New York City-area doctors and hospitals contacted by THE CITY.

“The hidden number could be more,” said Dr. Zijian Chen, who directs Mount Sinai’s Center for Post-COVID Care. “We’re looking at patients who are still testing positive day to day, so this is a population that’s going to continue to grow.” ...

In some cases, patients say, their doctors don’t believe them. ...

These “long-COVID” cases, as the Mount Sinai center describes them, appear to occur randomly — there’s no demographic category that is more likely than another to be struck.

Patients come in reporting fatigue, shortness of breath and difficulty thinking clearly. In some cases, the symptoms arrived months after the worst of COVID illnesses were over. ...

     Note the part about "their doctors don't believe them." If physicians can't explain the reasons for a patient's symptoms, they tend to dismiss the symptoms as if they were imaginary. A few examples: post-polio syndrome, sero-negative rheumatoid arthritis, multiple sclerosis, interstitial cystitis, irritable bowel syndrome, fibromyalgia, complex regional pain syndrome, etc. Of course, by now many of these are taken seriously and some were taken seriously all along, such as MS, but there's no good way to tell from medical tests how badly the disease is affecting the sufferer. Social Security has historically just turned down disability claims filed by people with such problems for the most part. I expect the same for claimants with chronic health problems related to Covid-19. I hope the volume is small because I hope that given a little more time most people with these post-Covid-19 symptoms will get better but I'm really expecting a good number of these cases.. We'll see.

GAO Study Requested

      The Chairman of the House Social Security Subcommittee plus the Chairman of the Subcommittee having jurisdiction over the SSI program have asked the Government Accountability Office (GAO) to perform a study on service delivery at Social Security during the pandemic.

     That's fine but I'd prefer a hearing.

Agency Actions After Huntington

      Social Security's Office of Inspector General (OIG) has issued a report on Agency Actions After the Huntington Fraud Scheme. This refers to the agency's hearing office in Huntington, WV.  That office has jurisdiction over the area in Kentucky where Eric Conn practiced. The report talks about efforts made to make sure there were no other such schemes. Spoiler alert, there weren't any others. They found some things going on in Ft. Lauderdale and Harrisburg that shouldn't have been going on but those were management issues, not anything criminal. In fact, the bizarrely exceptional nature of what Conn did was one of the reasons the scheme went on as long as it did. No one in management could believe that such a preposterous scheme would be attempted.

     Social Security went well beyond making sure there were no other such schemes. The agency made a deliberate attempt to influence Administrative Law Judge decision. Here are some excerpts from the report concerning those efforts -- footnotes omitted:

... In our FY 2012 report, we identified the 12 ALJs who had the highest allowance rates and the 12 who had the lowest allowance rates. The majority of the staff we interviewed attributed the variance in allowance rates to ALJs’ decisional independence and discretion when interpreting the law, as well as the demographics of the populations in the hearing offices’ service areas. In a FY 2017 we found the majority of the 24 outlier ALJs who had the highest and lowest allowance rates were no longer among the outlier ALJs because they were no longer working at the Agency or their allowance rates changed. ...

 In a November 2014 report, we identified 44 outlier ALJs (about 4 percent of the average number of ALJs available in the Agency) who had 700 or more dispositions and had allowance rates of 85 percent or higher in any 2 FYs between 2007 and 2013. We conducted a sample review of favorable decisions issued by the 44 ALJs and concluded they improperly allowed disability benefits in some cases. SSA took administrative action on 15 of the 44 ALJs. ...

According to SSA, “ . . . [when] identifying outlier ALJs, OHO management (at all levels) use internal [management information] MI reports to review trends in Appeals Council remand rates, hearings held per month, hearings scheduled/hearings held, anomalous rates of favorable/unfavorable dispositions, length of time in certain docket statuses, and whether there has been a focused review for policy compliance."

 When OHO managers identify an outlier ALJ, local hearing office managers may address issues with the ALJ to resolve performance. At any time, the HOCALJ may request support from regional and Headquarters ALJ performance teams for guidance, including receiving support from a Triage Assessment Group. The Group meets bi-weekly to evaluate the facts of each ALJ performance situation, including relevant management information and other documentation. The Group provides guidance for the Regional Chief ALJ and HOCALJ to take action regarding an outlier ALJ. The HOCALJ may assign an ALJ a mentor, require that an ALJ take additional training, or issue directives to correct performance. If the outlier ALJ continues having performance issues, OHO'S Office of Chief ALJ considers further action in consultation with SSA's Office of General Counsel. ...

FY 2011, the Division of Quality began conducting pre-effectuation reviews of randomly selected favorable hearing decisions before SSA made any payments to claimants. ...

 SSA regional office employees conduct in-line quality reviews on a sample of hearing draft decisions to ensure the draft decisions are both policy-compliant and legally sufficient before employees submit the drafts to ALJs for signature. In-line quality review findings allow managers to provide feedback to ALJs when their decision writing instructions affect, contribute to, or cause legal sufficiency, quality, or policy-compliance errors. If hearing office managers begin to see recurring errors, they may determine training is needed for some or all of the hearing office staff and ALJs on those issues. SSA developed the in-line quality review program in 2009. Initially, SSA implemented the program in a limited number of regions because of hiring restrictions. However, in FY 2014, the Agency officially launched the program nationwide. In February 2017, SSA’s Office of the Chief ALJ informed us that the regional in-line quality reviews were temporarily suspended because of other critical work. ...

 One of the CARES initiatives is Updating Decision Writing Tools and Templates, which SSA developed as part of its approach to ensuring policy compliance and national consistency in the tools its employees use to make and prepare draft decisions. Another quality assurance initiative in the CARES plan the Agency-developed is the Insight program. SSA uses Insight to identify policy compliance and internal consistency errors in hearing decisions to improve the consistency and timeliness of the disability adjudication process.45 In response to our April 2019 report,46 SSA developed metrics to conduct an analysis that showed a 31-percent reduction in quality flags for decisions where employees used Insight compared to when they did not. ...

 OHO managers began monitoring national and individual ALJ agree ratesin FY 2011 to assess the level of policy-compliant, legally sufficient decisions. However, it did not set a goal until FY 2013 when OHO management established an 85-percent quality expectation goal for decisions and a 65-percent goal for dismissals.47 The decision agree rate represents the extent to which the Appeals Council concludes the ALJ decisions were supported by substantial evidence and contained no error of law or abuse that would justify a remand or reversal. ALJs who have below average agree rates may receive additional training, mentoring, and counseling and, in some cases, may be subject to further review. ... [footnotes omitted]

     I know that some of this was directed at reducing the number of technical mistakes made and that's a good thing. However, it's been obvious that the whole process has been strongly tilted towards reviewing the decisions of ALJs who approve more claims than most. ALJs who approve only very few claims have drawn little or no attention. I'm not sure that the agency has even tried hard to reduce the number of technical mistakes. To give an example, if a claimant fails to appear for the hearing (in normal times) but the attorney does, the ALJ has some options but dismissing the request for hearing isn't one of them. However, ALJs commonly do dismiss in this situation. The Appeals Council will quickly remand these cases but they shouldn't happen. The regulations are clear. How much attention has Social Security paid to preventing mistakes like this? Not much that I can tell but they've sure succeeded in convincing ALJs that something bad will happen to them if they approve too many claims.

Will It Hold Up On Appeal?

      From The Advocate:

A federal court ruled Friday that the Social Security Administration’s blanket denial of Social Security survivor’s benefits to same-sex spouses who were prevented from marrying is unconstitutional.

The ruling came in the case of Helen Thornton, a resident of Washington State who sought to claim survivor’s benefits based on her 27-year relationship with Marge Brown, who died in 2006, six years before same-sex couples in the state had the right to marry. Brown had a more extensive work record than Thornton, who supplements her own modest Social Security income by taking care of animals, notes a press release from Lambda Legal, which represented Thornton along with attorneys from the firm of Nossaman LLP.

Thornton applied for the benefits in 2015, shortly before she would have been eligible to receive them at age 60. But the SSA turned her down because she and Brown had not been legally married, even though state law prevented them from marrying. She filed suit in 2018 in U.S. District Court for the Western District of Washington.

On Friday, a judge in that court, James L. Robart, ruled that denial of the benefits violated the U.S. Constitution. He also certified the case as a national class action, meaning others who have sought the benefits and been denied simply because they were unable to marry their partner will have an avenue to claim them. ...

Caseloads Continue To Dwindle -- For Now

      This was obtained from Social Security by the National Organization of Social Security Claimants Representatives (NOSSCR) and published in its newsletter, which is not available online to non-members. It is basic operating statistics for Social Security's Office of Hearings Operations. Click on the image to view full size.

     By the way, obviously backlogs continue to dwindle but what happens when the Covid-19 pandemic ends? We all hope that's coming early next year as a result of a vaccine. Is there a backlog of claims that people have deferred filing because of office closures? We know that backlogs have increased at the initial and reconsideration levels. How much will receipts increase at OHO as that backlog is worked down? For that matter, will it be worked down? Will a possible change of Presidential Administrations matter? Will there be many new claims as a result of chronic health problems caused by Covid-19 itself? I don't know the answers to these questions but one way or another the circumstances we see at the moment won't last. There's a very real chance that there will be a dramatic increase in new requests for hearing next year. Work down that backlog while you can.

 

I Haven't Seen This One Before

      From a press release:

A Las Vegas resident pleaded guilty in federal court yesterday to fraudulently obtaining nearly $1.2 million in Social Security Administration (SSA) and Department of Veterans Affairs (VA) benefits, announced U.S. Attorney Nicholas A. Trutanich for the District of Nevada. ...

According to court documents, Montano [the defendant] — who was the branch manager of a bank in Las Vegas — received information about two accounts with large balances and no activity:

• The first account (Account A) was held by a Las Vegas resident who was receiving SSA retirement benefits. The individual passed away in February 1997. The SSA was not notified about the individual’s death, and benefits continued to be paid into the account.
  
• The second account (Account B) was held by a Las Vegas resident who was receiving both SSA retirement benefits and VA benefits. The individual passed away in June 2011. Neither the SSA nor the VA was notified about the individual’s death, and benefits continued to accumulate in the account.
  
•  Through a bank computer, Montano ordered debit cards for both accounts, using them to withdraw cash — which he either spent or deposited into his personal bank account — and to make purchases for his personal use and benefit. In addition, Montano ordered and wrote checks (for his personal use) for Account B. Montano also used his authority as a branch manager to authorize a $35,000 cashier’s check from Account B. He then used the funds to buy a luxury car, which he has agreed to forfeit to the United States. 
  
• In total, between August 2015 and June 2020, Montano fraudulently obtained: (a) approximately $436,686.80 in SSA benefits to which he was not entitled; and (b) approximately $757,985.88 in VA benefits to which he was not entitled. ...

Social Security's Chief Actuary Responds To Concerns Of GOP Senators

      Some Democratic Senators asked Social Security's Chief Actuary what the effect would be upon the Social Security Trust Funds if the President's proposal to end the F.I.C.A. tax that supports the Trust Funds is ended, without any replacement. Trump didn't say that this would be without a replacement but he didn't specify a replacement. The response, of course, is that the Trust Funds would quickly run out of money and be unable to pay benefits. The Chief Actuary's response has now appeared in campaign ads.

     Some Republican Senators took offense at this and sent the Chief Actuary a letter complaining about his letter. I'd say they should blame the President for making a bone-headed proposal that would inevitably sound foolish in a TV ad. Responding to Congressional inquiries is part of the Chief Actuary's job. He can't very well say "I'm not going to answer your question because the answer would make the President sound foolish and irresponsible and I don't think he meant to sound that way."

     The Chief Actuary has now responded. Here's part of the final paragraph of the letter:

... While it is never desirable for the Office of the Chief Actuary to engage in matters with political implications, it appears that this is unavoidable to a degree, as long as we are asked to provide objective and factual answers to questions posed by members of Congress. Our answers have always been as direct and objective as possible, and we regret that even clear answers may be taken out of context or used for purposes other than intended. ...

Supreme Court Asked To Hear Case On SSI For Puerto Rico

      The United States Solicitor General has petitioned the Supreme Court for a writ of certiorari to review the First Circuit Court of Appeals decision in U.S. v. Vaello-Madero. That means they are asking that the Supreme Court hear the case. In Vaello-Madero the First Circuit held that it is unconstitutional to deny SSI benefits to U.S. citizens who reside in U.S. territories such as Puerto Rico. 

     It is almost certain that the Court will hear the case but first the other side gets a chance to respond to the cert petition and then both sides get time to prepare briefs on the merits before the Court places the case on its argument calendar. I don't know how long this takes but I would guess it wouldn't be argued until after Inauguration Day, which is only a little over than four months away. By that time there could be a new President and a new Solicitor General who might view the case differently than the Trump Administration. Of course, it's uncertain that there will be a new President and, if so, whether that would make a difference in the government's position in this case. It would be possible for a new Solicitor General to ask the Court to dismiss the case. The new Solicitor General could go ahead with the oral argument and disavow the government's previously filed brief. Maybe they continue to defend the constitutionality of the statute. I don't know how things like this have been handled in the past when there's been a change of Administration or whether there have been situations quite like this in the past.