ALJ Levinson Removed From Job

    Social Security wanted to fire Administrative Law Judge Michael Levinson of Macon, GA for some very unjudicial conduct. The Merit Systems Protection Board (MSPB) has jurisdiction over this kind of matter. An MSPB ALJ decided to suspend Levinson from his job as an ALJ for 2 years and to downgrade him in rank. Both Levinson and Social Security appealed to the full MSPB which changed Levinson's penalty to what Social Security wanted, firing.

    It's a tiny minority of ALJs who behave as Levinson did but we have to get them out of their jobs. I'm shocked that the MSPB ALJ thought that anything less than firing was appropriate. The behavior here was way beyond the pale.

    By the way, Levinson approved claims at a somewhat higher rate than most ALJs. Would things have proceeded differently if Levinson had a low allowance rate?

The Appropriations Situation

 

    From Yahoo News:

As Republicans start laying out their proposals for what spending to cut next year, Social Security Administration employees are warning that their budget could mean longer wait times and potentially dire circumstances for beneficiaries.

In a letter to the House Appropriations Committee, the American Federation of Government Employees — a union representing hundreds of thousands of government employees — said that the GOP's proposed funding levels would "devastate the agency's ability to serve the American public."

Republicans on the committee released their Labor, Health and Human Services, Education, and Related Agencies Appropriations Bill last week, including a $183 million cut to the Social Security Administration.

The union warned that the already underfunded agency could see its standing issues, like long wait times for accessing benefits and long lines at its offices, only worsen. As of June 2023, the average wait time for callers to Social Security's customer service and information number was a little over 43 minutes, per the Social Security Administration's data. ...

    I think that we should not worry too much about what the House Appropriations Committee is doing now. The bill they're working on is absurd for many, many reasons that go way beyond Social Security. I'm not sure the bill could get a majority vote in the House of Representatives. It's a non-starter with the Senate and the President. A government shutdown would be a far superior outcome. Nothing like that bill is going anywhere.

    I see three possible outcomes:

• Republicans eventually decide to vote out an appropriations bill based upon the previous agreement between the President and the Speaker of the House. Differences are sorted out between the Senate and House and the President signs the bill. We don't seem to be heading in this direction.
• There's no agreement on a Labor-HHS appropriations bill (which includes Social Security's administrative budget) and we see endless continuing resolutions for the entire fiscal year. This hurts Social Security but there are worse possibilities. I think this is the most likely outcome but what do I know?
• There's no agreement and the House of Representatives is so dysfunctional that it can't pass a continuing resolution so there's a government shutdown. This would be politically disastrous for Republicans but, hey, if you're a Republican members of Congress from a district that Donald Trump carried by 30 point in 2020 (like most House Freedom Caucus members), what do you care? Your constituents expect you to be as obstreperous as possible. They're in the "Keep Government Out Of My Medicare" camp.
  

Why Is Gail Ennis Still In Office?

Gail Ennis

     From the Washington Post:

A top Senate Democrat is demanding answers from Social Security’s embattled watchdog about allegations of low productivity, poor morale and retaliation against whistleblowers in her office.

In an 11-page letter sent this week, Senate Finance Committee Chairman Ron Wyden (D-Ore.) said his committee had received complaints from current and former employees in the watchdog division of a hostile work environment, hiring abuses, misuse of federal money and “falling productivity.”

“I write to express my concerns regarding your performance as Inspector General,” Wyden wrote. “It is paramount that the Office of Inspector General cultivates and maintains a workplace free of harassment, intimidation, or retaliation.” ...

SSA And Labor Union Come To Agreement

     From Government Executive:

The Social Security Administration and the nation’s largest federal employee union on Wednesday announced that they had reached a preliminary agreement to update a portion of their collective bargaining agreement and extend the deal until 2029 ...

Although labor-management relationships at federal agencies often vacillate between collaborative and oppositional depending on which political party controls the White House, Social Security management has had a reputation for having at best strained relations with the agency's unions regardless of who’s in charge. And the first two years of the Biden administration were no exception, with officials from the American Federation of Government Employees frequently sparring with management over issues like post-COVID-19 reentry to traditional office spaces, training and benefits aimed at retaining employees during the agency’s ongoing staffing crisis. ...

The updates include a number of immediate tweaks to current policies as well as an avenue for the parties to work collaboratively to find long-term solutions to improve working conditions.

Key to the effort is the establishment of new union-management cooperation councils, both on the national level and for each agency component with a corresponding AFGE council. At the national level, the parties will meet six times a year and each council will be co-chaired by agency senior leaders and AFGE officials. ...

On training, which employees and union officials have complained currently consists primarily of “self-paced” training documents and webinars and leaves new employees ill-prepared for their complex workloads, the contract immediately requires management to provide adequate time to attend and complete sessions, including learning about policy changes that may be transmitted to employees via email, and adds a follow-up survey for employees to take six months after a session. Those surveys will then help the new cooperation councils develop a new training regimen that Couture said he hoped would leverage hybrid work technology to create virtual classroom learning. ...

Now Now. Not Later. Not Ever.

 

    When we're rushed, we cut corners and we make more mistakes than usual. Social Security employees are rushed. They're cutting corners. They're making lots of mistakes. They're putting off difficult work. Even in the best of times, there are some things which didn't get done properly to begin with that need to be corrected but in these terrible times there are many, many of these.

    The stress on Social Security employees isn't going away. They will remain overburdened indefinitely. My firm asks them to straighten out their mistakes but they don't have time to do it. It's getting to the point that I think the work isn't going to get done now. It's not going to get done later. It's never going to get done, at least not in the foreseeable future. 

    What kinds of mistakes or omissions am I seeing? Let me list a few:

• Claimant's monthly benefits are authorized but nothing is done about paying the back benefits or attorney fees.
• Claimant receives a small payment that is apparently their back benefits but it seems far too low. No award certificate is issued so the claimant and attorney can't figure out whether there has been a mistake.
• There's what I call a phantom windfall offset. Claimant filed an SSI claim which was quickly denied on income or resources. When the Title II claim is approved, no back benefits are paid because they're waiting on payment of the SSI benefits so they can do the windfall offset. Meanwhile, no back benefits or attorney fees are paid.
  
• A field office employee makes one telephone call to a claimant about implementing SSI benefits. They can't leave a message so they immediately deny the claim for failure to cooperate. (They're supposed to make repeated efforts to contact the claimant and those who may be able to help, such as the claimant's attorney but that takes time, so they just get the claim off their desk by denying it.)
• A fee petition is approved. That's a little unusual so it doesn't get paid.

    This is a depressing, discouraging situation for an attorney like me who wants to help his clients and who wants to receive the fees he's entitled to for helping them.

    Social Security is undergoing enormous stress. I think it's fair to say it's falling apart. Asking employees to work harder isn't going to solve the problem. The systems updates and IT changes the agency is making hardly help at all. Making employees come into the office every day would make little or no difference. The only solution is a lot more employees, like 10,000 more, but that might cost another billion dollars or so a year so it's out of the question now.

    I don't think the message is getting through to the public or members of Congress about just how bad things are.

    My only suggestion is that the agency should start closing many small field offices, which will mostly be in areas represented in Congress by Republicans. The administration needs to turn a deaf ear to the howls of protest from Republican members of Congress. You get the service you pay for. What's going on now is unsustainable.

What A Contrast

     Michael Ponsor, a Senior U.S. District Court judge in Massachusetts, has written an op ed for the New York Times titled A Federal Judge Asks: Does the Supreme Court Realize How Bad It Smells?    

    Ponsor relates a couple of incidents from his time on the bench. Once he was having a casual conversation with an attorney who mentioned that he had two tickets to a Major League baseball game that he couldn't use. He asked if Judge Ponsor would like them. Even though he would have loved to take his young child to the game, Ponsor said no even though there was a good chance that the tickets wouldn't be used if he didn't take them. He later talks about another case:

... I issued a decision reversing the Social Security Administration’s denial of disability benefits to an older plaintiff. I was in our clerk’s office one day when the man and his wife approached me with a package. He had a woodworking hobby, and inside the package was an exquisitely crafted oak pencil case with bronze hinges. My ruling had made a big difference for them, and they wanted to extend this modest, personal gesture of gratitude. Again, they were obviously not being underhanded. Their lawsuit was over, and this was probably the last they would ever see of me. Nevertheless, as my police officer friends tell me, the road to perdition starts with a free cup of coffee. As politely as I could, I turned the pencil case down. It still pains me to remember their embarrassed, crestfallen faces. ...

    Contrast Judge Ponsor's appropriate behavior with that with some Supreme Court Justices who have accepted costly vacations and other valuable considerations from people whom they knew had an interest in the work of the Court. Ponsor's the kind of judge I know. Clarence Thomas (to pick the most prominent example) is something else.

    If you're an attorney and you're thinking, "What Justice Thomas has done is wrong but he's a reliable right wing vote on the Supreme Court so we can't force him out of office while a Democrat is in the White House", what is wrong with you? What Thomas has done is what judicial corruption looks like. You know that as well as me. You'd be apoplectic if a Justice appointed by a Democrat had done this and I'd be with you.  We can't accept this behavior from any Supreme Court justice, ever.

Can We All Agree That Fraud Is Almost Non-Existent In Social Security Disability Claims?

    The Buffalo News has posted the first of a two part article on the delays and difficulties involved in getting approved for Social Security disability benefits. Here's a small excerpt:

... “I do think some legitimate claimants have been hurt by some of the efforts to crack down on fraud, after the Eric Conn case,” said Som Ramrup, president of the American Association of Administrative Law Judges.

Ramrup said she believes the actual amount of fraud in the applications “is infinitesimal.”

“The government acts as though the amount of fraud is much higher,” Ramrup said.

Michael J. Astrue, who headed the SSA under President George W. Bush, told The News he believes “less than 1%” of disability claims are fraudulent. ...

    Let's stop over-reacting to the Eric Conn case. It was a weird, one-off scandal. Nothing like it is likely to ever happen again.

SSA Issues Long Covid Guide For Docs

     In conjunction with the Department of Health and Human Services, Social Security has created Long COVID: A Guide for Health Professionals on Providing Medical Evidence for Social Security Disability Claims. I had low expectations when I first opened this and was still underwhelmed.