Posts Tagged With: congress

How To Win Your Social Security Disability Claim? Simple, Find The Right Judge.

Disability Claim Denied? Find the Right Judge

Nine percent of the judges who hear appeals grant benefits 90% of the time, costing taxpayers tens of billions.

To all parties involved in a trial, the slam of a gavel should indicate that justice has been served. Unfortunately, this is often not the case with Social Security Disability (SSDI and SSI) appeals. A system designed to serve society’s vulnerable has morphed into a benefit bonanza that costs taxpayers billions of dollars more than it should. The disability trust fund will become insolvent in 2016, and Congress would be wise to begin much needed reform.

A disability applicant whose claim is rejected during the Social Security Administration’s (SSA) first two stages ( before State Disability Determination Services)  can appeal the decision to administrative-law judges (ALJ). These judges must impartially balance the claims of the applicant against the interests of taxpayers.

Over the past decade judicial impartiality has declined significantly, as many administrative-law judges uncritically approve most claims. In 2008 judges on average approved about 70% of claims before them, according to the Social Security Administration. Nine percent of judges approved more than 90% of benefit requests that landed on their desks.

Do nine out of every 10 applicants appealing denied claims need societal support? There are reasons for skepticism. The data show that judges who are generous in granting benefits are consistently generous over time—which is suspicious, since each year they should hear a random set of new cases. The more discerning judges—those who award benefits less than 90% of the time—are more unpredictable from year to year.

(Photo: Getty Images/Illustration Works)

If the judges with award rates topping 90% are removed from the data, the rate of denial increases by 2%-3% annually. That amounts to 98,000 claims from 2005-11. Assuming an average lifetime award of $250,000, taxpayers would have saved $23 billion over those six years had the worst judges left the bench. If we lower the threshold to exclude judges with award rates north of 85%, these savings increase to $41 billion.

Former Social Security Commissioner Michael Astrue, who took office in 2007, made much-needed changes. Incompetent incumbents saw their influence diluted by new judges drawn from fresh candidate lists. Judicial decisions are now randomly reviewed to ensure that the court remains impartial and fair to taxpayers. Judges were limited to hearing 1,000 cases a year (the figure has since been lowered to 700), and individuals are allowed only one disability application at a time.

Mr. Astrue’s reforms have produced good results. In 2011 judges with award rates exceeding 90% heard a mere 4% of all cases, a 63.6% decline from 2008. But Mr. Astrue’s term expired in 2013, and these changes can easily be undone, either intentionally by future administrators, or unintentionally as bad habits slip back into the system.

His program to increase accountability and judicial turnover should be made permanent. Congress should also institute 15-year term limits for judges, who currently enjoy lifetime tenure, to ensure that fresh legal minds are joining the stale judicial aristocracy. A term of a decade and a half is long enough to insulate judges and prevent undue political influence.

The system faces a huge backlog, made worse by claimants who play adjudication roulette, filing and then withdrawing appeals in hopes of drawing a generous judge. Congress can limit this gamesmanship by allowing only one application per claimant in a three-year period. Because judges must marshal more documentation for a denial than an approval, they have an incentive to grant benefits to keep the system chugging along. The agency can fix this by further limiting the number of cases each judge must decide to 500 from 700.

The system is further complicated because even if a claimant has legal counsel, the judge must advocate on the claimant’s behalf. This dual role should be ended. Most claimants—85%—now have third-party representation. These professionals should be held responsible for getting supporting materials into court expeditiously and completely so the record can be closed in a timely manner.

Even under better legal rules, judges will still face rigid and outdated guidelines for granting benefits. The framework they must follow—known as the Medical Vocational Grid (known as The Listings)—is formulaic to the point of senselessness. For instance, the bar to benefits approval is lower for someone who doesn’t speak English, on the theory that it is difficult to find a job without the language. But that English rule is also applied to claimants from Puerto Rico, where the language of business is Spanish.

These guidelines (in The Listings) also do not give due consideration to actual labor market experience, dictating a looser approval standard for someone with only a high-school degree, even if the person has succeeded in the labor force for decades.

The framework (of The Listings) was developed in the late 1950s, for the previous generation’s workforce, and hasn’t been updated since 1978. Decades ago workers ages 50 or 55 might have been considered retiring, but this is no longer generally the case. Novel job-training programs also make it easier than ever for workers to move into new fields and make up for low levels of education, and new disability criteria would account for these changes.

These solutions would begin to deliver meaningful reform to Social Security disability awards. They can restore dignity and efficacy to a troubled system.

(BY Mark J. Warshawsky And Ross A. Marchand, March 8, 2015) 

(Mr. Warshawsky is a visiting scholar at the Mercatus Center of George Mason University and a former member of the Social Security Advisory Board from 2006 to 2012. Mr. Marchand is a first-year economics graduate student at George Mason University.)

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How Incorrect Can Politically Correct Be?

"Mine is a world of incomprehensible shad...

“Mine is a world of incomprehensible shadows”. Severely retarded mentally and physically, she never spoke, was stunted and probably never walked. She was one of a quarter of the world’s children at risk of iodine deficiency, known to be the world’s leading cause of preventable mental retardation. (Photo credit: Wikipedia)

The Social Security Administration (SSA) has proposed changing the terminology it uses in its regulations and its materials. The SSA proposes changing the term mental retardation” to “intellectual disability.” The Administration has proposed making these changes because it thinks that its current terms can be offensive to some people and that these terms carry negative connotations.

All references to “mental retardation” are being changed

More than two years ago, Congress required that the term “intellectual disability” be used in place of “mental retardation” in all federal health, education and labor policy. This requirement did not apply to the Social Security Administration, however.

In early 2013, the SSA finally moved to follow the lead of Congress. “Advocates for individuals with intellectual disability have asserted that the term ‘mental retardation’ has negative connotations, has become offensive to many people, and often results in misunderstandings about the nature of the disorder and those who have it,” said the SSA in the proposed rule  (NPRM) published in the Federal Register.

The 30-day public comment period on the proposed rule has just passed, and it looks as though the rule will move forward. When it is finalized, all references to “mental retardation” within the SSA’s Listing of Impairments and other rules will be changed to “intellectual disability.”

Also, “mentally retarded children” will be replaced with “children with intellectual disability.”

The language changes are not meant to alter the way SSD claims are evaluated for individuals with developmental disabilities.

Intellectual disability is just one of many mental issues that can entitle you to Social Security Disability benefits. Depression, anxiety, bipolar disorder, schizophrenia, obsessive compulsive disorder and post-traumatic stress disorder are examples of other mental health issues that can lead to a disability finding.

Political correctness, or politically correct (PC) is a term which denotes language, ideas, policies, and behavior seen as seeking to minimize social and institutional offense in occupational, gender, racial, cultural, sexual orientation, certain other religions, beliefs or ideologies, disability, and age-related contexts, and, as purported by the term, doing so to an excessive extent.

Widespread use of the term politically correct and its derivatives began when it was adopted as a pejorative term by the political right in the 1990s, in the context of the Culture Wars. Writing in the New York Times in 1990, Richard Bernstein noted “The term ‘politically correct,’ with its suggestion of Stalinist orthodoxy, is spoken more with irony and disapproval than with reverence. But across the country the term p.c., as it is commonly abbreviated, is being heard more and more in debates over what should be taught at the universities.” Bernstein referred to a meeting of the Western Humanities Conference in Berkeley, California, on “‘Political Correctness’ and Cultural Studies,” which examined “what effect the pressure to conform to currently fashionable ideas is having on scholarship”. Bernstein also referred to “p.c.p” for “politically correct people,” a term which did not take root in popular discussion.

Within a few years, this previously obscure term featured regularly in the lexicon of the conservative social and political challenges against curriculum expansion and progressive teaching methods in US high schools and universities. In 1991, addressing a graduating class of the University of Michigan, U.S. President George H. W. Bush spoke against “a movement [that would] declare certain topics ‘off-limits,’ certain expressions ‘off-limits’, even certain gestures ‘off-limits'” in allusion to liberal Political Correctness. The most common usage here is as a pejorative term to refer to excessive deference to particular sensibilities at the expense of other considerations. The converse term “politically incorrect” came into use as an implicit term of self-praise, indicating that the user was not afraid to ignore constraints associated with political correctness.

The central uses of the term relate to particular issues of race, gender, disability, ethnicity, sexual orientation, culture and worldviews, and encompass both the language in which issues are discussed and the viewpoints that are expressed. Proponents of the view that differences in IQ test scores between Blacks and whites are (primarily or largely) genetically determined state that criticism of these views is based on political correctness.

Examples of language commonly referred to as “politically correct” include:

  • Intellectually disabled” in place of “Mentally Retarded” and other terms
  • “Gay” in place of “homosexual” and other terms
  • “Sexually dysfunctional” in place of “perverted” and other terms
  • “Sex care provider” in place of “prostitute” and other terms
  • African American” in place of “Black,” “Negro” and other terms
  • Native American” (United States)/”First Nations” (Canada) in place of “Indian”
  • “Gender-neutral” terms such as “firefighter” in place of “fireman,” police officer in place of policeman.
  • Terms relating to lack of various common human abilities, such as “visually impaired” or “hearing impaired” in place of “blind” or “deaf”
  • “Caucasian culturrally-challenged” in place of “white trash” and other terms
  • “Undocumented alien” in place of “illegal immigrant” and other terms
  • “Economically unprepared” in place of “poor” and other terms
  • “Sanitation engineer” in place of “janitor” or “garbage man” and other terms
  • “Near-life experience” in place of “abortion” and other terms
  • “Youth group” in place of “gang” and other terms
  • “Senior citizen” in place of “old person” and other terms
  • “Holiday”, “winter” or “festive” in place of “Christmas”

In the United Kingdom, “political correctness gone mad” is a catchphrase associated with the conservative Daily Mail newspaper.

In a more general sense, any policy regarded by the speaker as representing an imposed orthodoxy may be criticized as “politically correct.”

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ObamaCare Is Dead In The Water

 

ObamaCare was a poorly conceived and is a constitutionally deficient statute. The Supreme Court’s ruling upholding the law has simply made it worse. In the future, that decision is likely to be seen as a prime reason that the federal court judges should just judge and never legislate—even in the cause of rescuing an otherwise unconstitutional law from oblivion.

In the ObamaCare ruling, the Supreme Court correctly held that Congress could not impose the individual mandate as a constitutional regulation of interstate commerce and that Congress could not constitutionally use its spending power to coerce the states to expand Medicaid.

Rather than strike down the law, however, the court construed the insurance-purchase mandate and its penalty as a “tax” on the failure to have health insurance. The justices also interpreted the Medicaid-expansion requirements as optional—permitting states to opt out of these provisions while staying within the traditional Medicaid program. Given that interpretation, the court’s majority upheld the statute as constitutional.

The court’s determination to preserve ObamaCare through “interpretation” has exacerbated the law’s original flaws to the point that it has become palpably unworkable. By transforming the penalties for failing to comply with the law’s requirements into a “tax,” the court has given the public a green light to ignore ObamaCare’s requirements when it is economically beneficial. Law-abiding individuals, who might otherwise have complied with the law’s expensive purchase mandate to avoid being subjected to financial penalties, can simply now choose to pay a tax and not sign up for coverage. There is certainly no stigma attached to simply paying a tax, and noncompliance with the law’s other requirements—such as those imposed on employers—is arguably made more attractive on the same basis. This effect fundamentally undercuts Congress’s original purpose, which was to expand health-care coverage to the greatest number of people, not to improve federal revenues.

Similarly, having reviewed the likely costs and benefits, states are now taking advantage of the court-granted flexibility. Seven states, including Texas, Mississippi and Georgia, have so far opted out of the Medicaid-expansion provisions, and eight (with more certain to come) are refusing to create the insurance exchanges, leaving this to a federal bureaucracy unequipped to handle these new administrative burdens. As a result, a growing number of low-income Americans will be unable to obtain the free or cost-effective insurance that Congress originally meant them to have, although they remain subject to the mandate-tax.

On December 7, New Jersey Governor Chris Christie vetoed legislation establishing a state-run health insurance exchange. This was just after he had visited President Obama at the White House to discuss Superstorm Sandy cleanup costs. Governor Christie said he blamed President Obama for failing to provide answers that he needed to make a fiscally sound decision on the best way to comply with the ObamaCare law.

States have until December 14th to decide whether to establish a state-based exchange. They have more time to decide whether to partner with the federal government or to let federal bureaucrats design and run the state exchange. ((Santi, Angela, Christie Vetoes ObamaCare, Washington Times, Dec. 7, 2012)

Policy problems aside, by transforming the mandate into a tax to avoid one set of constitutional problems (Congress having exceeded its constitutionally enumerated powers), the court has created another problem. If the mandate is an indirect tax, as the Supreme Court held, then the Constitution’sUniformity Clause(Article I, Section 8, Clause 1) requires the tax to “be uniform throughout the United States.” The Framers adopted this provision so that a group of dominant states could not shift the federal tax burden to the others. It was yet another constitutional device that was simultaneously designed to protect federalism and safeguard individual liberty.

The Supreme Court has rarely considered the Uniformity Clause’s reach, but it cannot be ignored. The court also refused to impose meaningful limits on Congress’s power to regulate interstate commerce for decades after the 1930s, until justices began to re-establish the constitutional balance in the 1990s with decisions leading up to the ObamaCare ruling this summer. And although the court has upheld as “uniform” taxes that affect states differently in practice, precedent makes clear that a permissible tax must “operate with the same force and effect in every place where the subject of it is found,” as held in the Head Money Cases (1884). The ObamaCare tax arguably does not meet this standard.

ObamaCare provides that low-income taxpayers, who are nevertheless above the federal poverty line, can discharge their mandate-tax obligation by enrolling in the new, expanded Medicaid program, which serves as the functional equivalent of a tax credit. But that program will not now exist in every state because, as a matter of federal law, states can opt out. The actual tax burden will not be geographically uniform as the court’s precedents require.

Thus, having transformed the individual mandate into a tax, the court may face renewed challenges to ObamaCare on uniformity grounds. The justices will then confront a tough choice. Having earlier reinterpreted the mandate as a tax, they would be hard-pressed to approve the geographic disparity created when states opt out of the Medicaid expansion. But that possibility is inherent in a scheme that imposes a nominally uniform tax liability accompanied by the practical equivalent of a fully off-setting tax credit available only to those living in certain states. To uphold such a taxing scheme would eliminate any meaningful uniformity requirement—a result that the Constitution does not permit.

(The Opening For a Fresh ObamaCare Challenge, Rivkin, David B. and Casey, Lee A.p; WSJ, Dec. 6, 2012)

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Take The Money $$$ And Run!

Take The Money $$ and Run!

by London Steverson on Wednesday, March 21, 2012 at 2:11pm ·

Monthly Social Security benefits claimed at age 62, rather than 65, are reduced by about 20 percent. The goal of the reduction is to ensure that early retirement does not result in any additional cost to the system. When the reduction was set over 50 years ago, a worker claiming at 62 received benefits for about 20 percent longer than someone claiming at 65. Since then, life expectancy has risen, so that claiming at 62 today means receiving benefits for only 15 percent longer. How can a 20-percent reduction still be right?

The original legislation creating the Social Security program did not allow workers to claim benefits before the program’s eligibility age of 65. In 1956, however, Congress gave women the option to retire as early as age 62 on a reduced monthly benefit, so that married women, who were typically younger, could retire and claim benefits at the same time as their husbands. Congress made the option available to all women, so as not to discriminate against unmarried women. Congress extended the same option to men in 1961, during a recession that made early retirement an attractive policy response.

In 1960 the average life expectancy at age 65 was about 15 years; therefore a worker who claimed at 62, as opposed to 65, collected benefits for three additional years or 20 percent longer (18 years /15 years). If an individual were receiving benefits for 20 percent longer, the only way to keep the cost constant would be to pay 20 percent less each year.

Life expectancy at 65 has increased significantly in the last 50 years. It is now 20 years,    so the worker who claimed at age 62 instead of age 65 would receive benefits for 15 percent longer (23 years/20 years). So why shouldn’t the benefits be reduced by 15 percent to keep costs constant?

The answer is that the cost to the government of providing benefits early is the difference in the present value of expected lifetime benefits starting at age 62 and at age 65. That calculation means that the cost depends on interest rates as well as life expectancy. Real interest rates have increased since 1960, and higher rates shrink the cost of a benefit stream claimed at 65 more than a benefit stream claimed at 62.

The rise in interest rates has largely offset the increase in life expectancy. Calculating the cost of lifetime benefits using the interest rate the Social Security Administration projects over the long-term, 2.9 percent, the cost of benefits claimed at 62 would be 96 percent of the cost of benefits claimed at 65. It suggests that the reduction for early retirement is a little high, but not bad.

In short, the actuarial reduction factor for early retirement, set by Congress over 50 years ago, has proved to be remarkably durable. Despite rising longevity and changes in interest rates, the cost of lifetime benefits claimed at 62 remains reasonably close to the cost of lifetime benefits claimed at 65

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Social Security Judges Under Fire

Social Security Judges are under fire from Congress which recently discovered how much they are paying out in benefits. In a recent series of articles in the Wall Street Journal and other media, judges are being focused on for approving every disability case that comes before them. (http://online.wsj.com/article/SB10001424052702303654804576347790598676096.html; http://online.wsj.com/article/SB10001424052748704681904576319163605918524.html; http://www.sltrib.com/sltrib/news/51934862-78/disability-security-social-judges.html.csp; http://www.alternet.org/newsandviews/article/592475/wall_street_journal_tries_to_smear_west_virginia_judge_over_social_security_rulings?page=entire; http://www.huntingtonnews.net/4769; ). Some in Congress are wondering why we need to pay a judge $167,000.00 a year to rubber-stamp every case that comes before him. A lawyer at the GS-9 level making $40,000.00 a year or less could do the same and save millions of dollars a year. The Law of Averages says that even a trained chimpanzee would be right about half the time, and he would work for peanuts.
Americans seeking Social Security disability benefits will often appeal to one of 1,500 administrative law judges (ALJ) who help administer the program. In the first half of 2011, 27 ALJs awarded social security benefits 95% of the time because of pressure from Commissioner M. Astrue. Nationwide over 100 ALJs are approving 9 out of every 10 cases that come before them. The cases they fail to approve are likely to be approved by the Appeals Council, which works for the Commissioner. Senate and House Committees are investigating the issue. Approving all cases without even reviewing the file is called “paying down the backlog”. Judges are under pressure to move cases quickly in order to clear a backlog of 730,000 pending cases. The pressure comes directly from the Commissioner of Social Security. This is one of the things that I discuss in detail in the book “socialNsecurity”, available at http://judgelondonsteverson.com; and I put it in proper perspective. Having spent about 20 years observing the competing forces that produce a judge who reverses 100% of his cases, while another reverses less than 10%, I have a better handle on this issue than a reporter who writes a sensational article. Much of my insight and explanation of the competing forces is spelled out in my book “socialNsecurity, Confessions of a Social Security Judge”. Anyone looking for more historical and recent statistics on this subject along with an explanation of how the system works can find easy readable information in my book.

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