That Study That Supposedly Shows The New Musculoskeletal Listings Will Have Little Net Effect Was Done Four Years Ago And Wasn't Done By The Actuary

      Social Security's Chief Actuary has released a very brief memo on its finding that the new musculoskeletal Listings will have almost no net effect upon the number of disability claims approved. I don't understand why it took so long to release this. The memo includes this paragraph: 

To assist in estimating the effects of the final rule, SSA conducted a case study in 2017covering approximately 1,400 initial DDS-level decisions made in 2015. In comparing determinations of these sample cases using the prior criteria and new criteria, a small number of determinations were expected to change from allowance to denial under the new rule, primarily because their case files do not contain all of the medical evidence required under the new rule.

     So it's not really the Chief Actuary's office that did this study. It was actually done by the people who proposed these new Listings and it was done based upon an earlier version of the Listings rather than the final version.

     Why is the Chief Actuary putting this out as if his office did it and as if it was based upon the actual Listings adopted?  I know why Social Security management would want this coming from the Chief Actuary. He has credibility. Current management doesn't. I don't know why he would put his name on a study his office didn't do. I don't think this is going to age well. 

     And, oh yeah, I'd like to see the actual study itself instead of some brief summary of it.

They Say They Want Your Input

      From an announcement by Social Security in the Federal Register (footnotes omitted):

... The Evidence Act requires Federal agencies to develop ``a systematic plan for identifying and addressing policy questions relevant to the programs, policies, and regulations of the agency.'' This plan, referred to as a Learning Agenda, offers the opportunity for us to use data in order to address the key questions we want to answer to improve our operational and programmatic outcomes and to establish strategies to develop evidence to answer important short-and long-term strategic and operational questions. We seek public comments to inform the development of our Learning Agenda. ... 

Through this RFI [Request For Information], we are asking interested persons, including stakeholders across public and private sectors who may be familiar with or interested in the work of our agency, for input on evidence-building activities that inform important priorities for our agency, including those that are related to the President's broader priorities that are available at https://www.whitehouse.gov/priorities/. We also seek input on future projects that will advance our mission. ...

Finally Some New Numbers On Attorney Fee Payments

     Social Security used to post numbers each month showing the amount of fees paid by claimants for representation before the agency but that stopped at the end of 2019. I never gave up. I kept going back to the website expecting that the agency would eventually update the numbers. My patience has been rewarded. They have finally updated the numbers all the way through last month.

     For 2019, 390,809 fees were paid for a total of $1,214,557,861. The average fee paid per case was $3,107.80. 

     For 2020, 360,493 fees were paid, down 8% from 2019. The total fees paid were $1,081,523,523 down 11% from 2019. The average fee paid in 2020 was $3,000.12, down 3% from 2019.

     For the first quarter of 2021, 77,754 fees were  paid with the monthly average number down 14% from 2020. The total fees paid for the first quarter were $262,694,679 with the monthly average down 10% from 2020. The average fee per case was $3,121.31, up 4% from the 2020 average. However, I would caution about drawing too many conclusions when comparing the first quarter of 2021 with 2020. There are many fluctuations in payments from quarter to quarter and quarters aren't the same length.

     In any case, it's no exaggeration to say that those of us representing claimants are hurting. Our costs have gone up with inflation but our average fee per case is either down or stagnate while our total fees are down considerably.

     Whenever I post anything about attorney fees I always get sneering responses that essentially go "Well, why don't you just give up representing Social Security claimants?" The answer is that some attorneys have already given up representing Social Security claimants and many more are wondering what they should do. There's no doubt that representing workers compensation or personal injury clients pays better than Social Security. Those of us who specialize in representing Social Security clients have invested a lot of time and money developing our practices and are reluctant to give them up but that won't last forever. The end of the pandemic will help but only so much. This field of practice was in decline before the pandemic. I've already heard a report that it's hard to find a Social Security attorney in the state of Kansas. Expect that to spread without an increase in the fee cap.

     By the way, I wonder why these numbers were finally updated now.

EM On Covid-19

      Social Security has issued an Emergency Message on the evaluation of Covid-19 disability claims. It's long but don't expect anything that's really new. I don't fault them; it's too early. About the only thing that I see that's even halfway new is a statement that individuals who have had extended stays in intensive care usually require an extended period of rehabilitation before they can return to work. That seems obvious but I don't recall ever seeing that from Social Security and I can recall non-Covid cases where Social Security failed to take this into consideration.

Covid Long Haulers And Social Security Disability

     From an article in U.S. News & World Report concerning Covid-19 long haulers and disability benefits:

... Last June, Democratic U.S. Reps. John Larson of Connecticut – who chairs the House Ways and Means Social Security Subcommittee – and Danny Davis of Illinois, who chairs the Worker & Family Support Subcommittee, called on the Social Security Administration to collaborate with the National Academies of Sciences, Engineering, and Medicine on how to evaluate the long-term impact of COVID-19 on people's ability to work, which SSA agreed to do.

"While I'm encouraged that SSA is moving forward with this examination of what needs to be done to support long haulers, I do not have confidence in Andrew Saul leading the agency," Larson said in an emailed statement to U.S. News, referencing the Social Security Administration commissioner tapped by former President Donald Trump. "I will continue to push SSA and monitor their work to make sure we are supporting those most affected by COVID-19 who may need Social Security Disability." ...

Social Security Halts No-Match Letters

     A press release:

Today, House Ways and Means Committee Chairman Richard E. Neal (D-MA), Social Security Subcommittee Chairman John B. Larson (D-CT), and Oversight Subcommittee Chairman Bill Pascrell, Jr. (D-NJ) released the following statement regarding Social Security Administration (SSA)’s decision to halt sending “no-match” letters, also known as Educational Correspondence (EDCOR) notices:

“We welcome SSA’s announcement that it will stop the harmful practice of sending no-match letters to employers with certain discrepancies in their W-2 records. Two years ago, we strongly condemned SSA’s decision to send these letters out in the first place because they disproportionately imperil immigrants and threaten workers’ privacy. No-match letters have been shown to be wholly ineffective in correcting wage records and are not a cost-effective use of SSA’s limited resources. Today, we reiterate that the agency is prohibited by law from using its funds for any purpose other than administering Social Security, such as immigration enforcement. While we are glad to see SSA finally do the right thing and stop sending these letters, it is unfortunate that SSA Commissioner Andrew Saul chose to send these harmful letters for two years, inflicting significant harm on many affected workers.”

In June 2019, Chairmen Neal and Larson, along with former Oversight Subcommittee Chairman, the late John Lewis (D-GA), sent a letter to Commissioner Saul opposing SSA’s decision to restart sending no-match letters. Specifically, the members cited their concerns that the letters may lead to the firing of U.S. citizens and work-authorized immigrants, that they may result in the unauthorized sharing of tax data, and that they were a poor use of SSA’s scarce resources. 

      You will notice the contrast drawn, implicitly, to the pious statements from Social Security that they were forbidden to help the IRS with stimulus checks until the IRS ponied up money for the costs of producing the lists of those eligible because the funds appropriated for Social Security could only be used for administering Social Security and not helping with stimulus payments. However, when the Trump Administration asked for Social Security's help with immigration enforcement, Social Security apparently saw no such obstacle.

     It's past time for the House Ways and Means Committee, the whole Committee, to hold an oversight hearing and force Andrew Saul to answer questions under oath.

Saul Vows To Hang On

     From the Baltimore Sun:

Three months after Donald Trump left office, unions and congressional Democrats say the man he left in charge of the vast Social Security system is making it harder for millions of Americans to get disability benefits and is undermining federal workers’ rights.

Andrew Saul, 74, one of the few remaining holdovers from the Republican president’s administration, told The Baltimore Sun through a spokesman that he intends to lead the Baltimore County-based Social Security Administration until his term ends in January 2025. ...

Saul’s defenders say he has been the subject of unwarranted criticism that is politically motivated.

“I just don’t see any case” for firing Saul for neglect or malfeasance, said Andrew Biggs, a resident scholar at the conservative American Enterprise Institute. ...

     You may recall that when Andrew Biggs was a Social Security employee he thought it was OK for him to go around the country with then President George W. Bush campaigning for the partial privatization of Social Security.

Criticism For Social Security's Reliance On Accurint

      From Mismatched and Mistaken: How The Use Of An Inaccurate Private Database Results In SSI Recipients Unjustly Losing Benefits by Sarah Mancini, Kate Lang and Chi Chi Wu of the National Consumer Law Center:

... In fiscal year 2018, the Social Security Administration (SSA) began using a data set from LexisNexis (Lexis) called Accurint for Government on a widespread basis to determine whether recipients of needs-based government assistance had unreported real property that could dis-qualify them from the receipt of such benefits.

Since the advent of SSA’s use of the Accurint for Government (Accurint) product, advocates representing individuals receiving Supplemental Security Income (SSI) benefits have reported significant problems with clients being falsely accused of owning real property. People who rely on SSI to survive have received letters from SSA suspending their benefits or assessing an overpayment based on supposedly owning real property that puts them over the resource limit. Often the suspension letter does not even identify the alleged real property at issue. Too often, the data relied upon is inaccurate. Vulnerable SSI recipients, who are by definition either disabled or elderly and extremely low income, must attempt to prove a negative—prove that they do not own the real property—to the satisfaction of the employees in their local SSA office. And even worse, they may lose their benefits or face an offset for alleged overpayment during that appeal process, depending on the timing of their appeal.

Lexis appears to be attempting to evade the Fair Credit Reporting Act (FCRA), by inserting a disclaimer at the bottom of its promotional website stating, “Accurint for Government is not a consumer report (as defined in the Fair Credit Reporting Act) and may not be used for any purpose permitted by the FCRA.” This type of disclaimer is part of a wave of businesses attempting to skirt coverage of the FCRA by disclaiming any intent to provide a “consumer report.” By claiming that Accurint for Government is not a consumer report, Lexis is attempting to dodge the FCRA’s requirements to adhere to certain standards of accuracy, and SSA is trying to avoid requirements to provide notices to consumers before taking any adverse action based on information contained in the report. If the FCRA applies, consumers would have the right to dispute inaccurate information contained in the report and have it investigated and corrected by LexisNexis.

 SSA claims that it does not use the data from LexisNexis to deny or suspend benefits without independent verification, but that the data is used only to establish a lead. SSA employees are supposed to conduct an investigation to determine whether the SSI recipient owns the real property. Reports from advocates around the country refute this assertion. ...

 Many of the examples shared with National Consumer Law Center and Justice in Aging involved false real property matches. ... A Bengali SSI recipient in New York had her benefits suspended and an  $11,000 overpayment assessed against her based on real property in Florida that was in fact owned by her sister, with a similar name. ... 

Other examples involved properties that were connected with the recipient at some point, but should not have disqualified the recipient because they were transferred away many years ago or were worth less than the allowed amount ...

Accurint is returning a “match” based on a first and last name only. ... 

     I can't say that I've seen Accurint problems but I have certainly seen problems over the years with inaccurate valuations of real estate. Here are a couple of examples of Social Security going off the deep end with theoretical values of real estate:

• "Heir property" that has no real value. For example, the claimant owns a 1/8 undivided interest in a house. The only way to obtain value out of the house would be to force what is called a partition sale but the claimant lacks funds to hire a lawyer to force a partition sale. This sort of situation usually ends up with the house being sold for unpaid property taxes.
  
• Unsaleable life or remainder interest. For example, the claimant has been willed a life interest in a rundown house that is uninhabitable. In theory, the claimant could sell her life interest but who wants to buy a life interest in an uninhabitable house with the length of ownership determined by the length of someone else's life?

      Yes, I know how to handle these cases. Tell the claimant to list their interest in the property for sale and the property disappears as far as Social Security is concerned but that requires knowledge that the average claimant lacks.