Media scare about future of disability programs

Some of you may have seen an article in your local paper late last week announcing that the Social Security disability program is in financial peril.  Many papers picked up an article by the Associated Press which suggests that the disability program is being overrun by people who have been rendered unemployed by the recent economic downturn. The article describes a “stampede for benefits” and cites a Congressional Budget Office report that shows that the funds set aside for the disability program are set to expire in 2017.

This article may obviously alarm disability recipients, claimants and their loved ones. I don’t think there is reason to panic however. The article makes passing reference to the fact that Congress can act to make sure the program is properly funded. This is explained in greater detail by the Congressional Budget Office report itself:

CBO projects that the DI trust fund will be exhausted in 2017 and that the OASI trust fund will be exhausted in 2040. Once a trust fund’s balance has fallen to zero and current revenues are insufficient to cover the benefits that are specified in law, the corresponding program will be unable to pay full benefits without changes in law. The DI trust fund came close to exhaustion in 1994, but that outcome was prevented by legislation that redirected revenues from the OASI trust fund to the DI trust fund. In part because of that experience, it is a common analytical convention to consider the DI and OASI trust funds as combined. CBO projects that, if legislation to shift resources from the OASI trust fund to the DI trust fund was enacted, the combined OASDI trust funds would be exhausted in 2038.

In plain English, this means that the disability trust fund can be replenished by the retirement trust fund just as it has been before.  The only fear is that Congress will not act rationally and take the necessary steps to shore up the disability programs.  This projected shortfall in the disability trust fund has been known for quite a while. I recall being at a seminar in 2010 at which a congressional staffer spoke about this problem. She made it sound as if a forgone conclusion that Congress would direct that revenues be diverted from the retirement trust fund to assist the disability program.

The AP article is troubling in one other way. It focuses too greatly on the recent economic problems as the reason for the increase in disability benefit claims and recipients. As explained by Attorney Charles Hall on the Social Security News Blog (citing a piece written by Kathy Ruffing at the Center on Budget and Policy Priorities): “The reasons for the increase in the number of people drawing Social Security disability benefits are primarily the aging of the baby boom population, the increase in the number of women in the work force and the increase in the full retirement age.” The AP article makes passing reference to the aging-baby boomers, but ignores these other causes and chooses instead to focus the blame on the ailing economy.

Study shows fibromyalgia improved by Tai Chi

Because we represent so many Social Security disability and SSI claimants suffering from fibromyalgia, I find any news on the disease of interest. This morning’s New York Times contains an interesting article reporting a study in the New England Journal of Medicine that suggests the martial art form Tai Chi may be an effective therapy for fibromyalgia:

Although the study was small, 66 patients, several experts considered it compelling because fibromyalgia is a complex and often-confusing condition, affecting five million Americans, mostly women, according to the Centers for Disease Control and Prevention. Since its symptoms can be wide-ranging and can mimic other disorders, and its diagnosis depends largely on patients’ descriptions, not blood tests or biopsies, its cause and treatment have been the subject of debate.

“We thought it was notable that The New England Journal accepted this paper, that they would take fibromyalgia on as an issue, and also because tai chi is an alternative therapy that some people raise eyebrows about,” said Dr. Robert Shmerling, clinical chief of rheumatology at Beth Israel Deaconess Medical Center in Boston, co-author of an editorial about the study.

“Fibromyalgia is so common, and we have such a difficult time treating it effectively. It’s defined by what the patient tells you,” he added. “It’s hard for some patients’ families and their doctors to get their head around what it is and whether it’s real. So, that these results were so positive for something that’s very safe is an impressive accomplishment.”

Recent studies have suggested that tai chi, with its slow exercises, breathing and meditation, could benefit patients with other chronic conditions, including arthritis. But not all of these reports have been conclusive, and tai chi is hard to study because there are many styles and approaches.

More news coverage of new Madison hearing office

Saturday’s Wisconsin State Journal ran this article about the new Madison hearing office.   Last week I discussed a Milwaukee Journal Sentinel article that had additional information.

Milwaukee Journal Sentinel reports on wait in Wisconsin

This morning’s Milwaukee Journal Sentinel contains this article on the wait time for disability determinations in Wisconsin. It notes that the long delay in hearings in Madison has led to the addition of new judges and a new office in Madison:

[Social Security Commissioner Michael] Astrue said that the Social Security office in Madison is being upgraded from a satellite office to a full hearing office, which along with the Milwaukee site gives the state two full offices for hearing appeals. As part of the upgrade, the number of administrative law judges hearing appeals in Madison will triple, going from two to six, he said.

In addition, the Mount Pleasant, Mich., office will also start handling some Wisconsin appeals. By next year, these steps will start to relieve some of the burden on the Milwaukee office and drive down wait times statewide, Astrue said.

The article also discusses the state furlough of employees at the Wisconsin Disability Determination Bureau, which is a source of contention between SSA and the state government:

Disability claims in Wisconsin are first decided by the state Disability Determination Bureau, which also handles initial appeals before sending cases on to federal offices for a second round of appeals. The Determination Bureau is run by the state but paid for with federal money.

Astrue renewed his criticism of a decision by Gov. Jim Doyle’s administration to furlough the bureau’s federally paid workers amid the state budget crisis, even though it doesn’t save the state anything. Astrue said the furloughs increases wait times for disabled applicants for benefits and on Friday he unveiled federal legislation that would ban the practice by states like Wisconsin.

Officials in the Doyle administration have defended their action, saying they are furloughing all state workers because it would be unfair to exempt any group of employees. Stephanie Smiley, a spokeswoman for the state Department of Health Services, said that despite the furloughs, Wisconsin has been bucking the national trend by whittling down its own backlog of people waiting for an initial decision on disability benefits.

State figures show the average wait time for applicants so far this year has decreased to 72 days from 108 days for the same period last year. At the same time, the national average for state offices so far this year rose to 90 days from 80 days last year.

But Astrue said that one reason Wisconsin is making progress is because the federal government has stepped in to help by transferring some cases out of the state.

With regard to cases at the hearing level, I have noticed a significant decrease in the wait times for cases at the Milwaukee hearing office.  Milwaukee ODAR has taken over its Green Bay case load and continues to move the cases along at a good pace.  The cases from the Fox Valley continue to be handled by the hearing office out of Santa Barbara, California.

With respect to cases pending at the DDB, I have seen a large number of my cases sent to SSA’s offices in Baltimore for disability determinations, rather than being assigned to DDB in Madison.

Employees misclassified as independent contractors often denied SSDI

Today’s New York Times includes an article about the Obama administration’s effort to crack down on employers who improperly classify some employees as independent contractors.  These employees receive IRS Form 1099s rather than W2s.  The result is that the employer avoids having to make payroll tax contributions towards Social Security and Medicare, as well as having to avoid labor and worker’s compensation laws. 

I strongly support this crackdown because one of the often overlooked consequences of this is that these misclassified employees  – particularly low wage earners — are often uniformed and do not pay payroll taxes on their own.  When they don’t, they do not contribute to the Social Security trust fund and do not earn quarters of coverage.  If they have worked for a significant period of time as an independent contractor, they often lose (or never acquire) coverage under the Social Security disability program.  A person who may have considered themselves an employee for years may become disabled and discover that they are not eligible to draw from the benefit pool from which other properly-classified workers receive benefits.  Even if they still do qualify because of quarters of coverage earned at other jobs, their benefit amount is likely to be significantly reduced because of the lack of contributions during the period of employment as an independent contractor.  These misclassified employees are thus left to rely on the Supplemental Security Income (SSI) program which has strict income and asset limitations and usually much smaller payments.

New ALJ database published by Delaware newspaper

I have previously given the link to a database showing the statistics for denials and approvals of claims by Social Security Administrative Law Judges published by the Portland Oregonian.  Recently, The News Journal, a Delaware newspaper, has run a feature on the lack of uniformity in decision making by ALJs. The paper’s website includes another database sortable by state and showing the statistics for the judges from each hearing office.

Article on surge in disability claims on msnbc.com

There is an interesting article on msnbc.com entitled Job Losses Send Disability Claims Soaring. It explains how the convergence fo aging baby-boomers with the poor economy has led to a rise in the level of Social Security Disability claims. Further increases in tne near future are epxected.

$250 Stimulus Package Payment Questions Answered

Charles Hall at the Social Security News blog has put together this very helpful Q & A post on the $250 stimulus package payment that will be paid to Social Security recipients.

AARP article on backlog

AARP’s website today posted an article entitled Working Longer – Not an Always an Option about the long wait involved in applying for Social Security disability benefits.  It may be of  interest to those waiting for a hearing themselves.   Although it tells of some horror stories of people waiting for benefits, it also indicates that the average waiting time is decreased to 480 days.    As I’ve posted recently, the average processing time in Wisconsin is far in excess of 480 days.

Database of Administrative Law Judge statistics

Recently the Portland Oregonian used a Freedom of Information Act request to get access to statistics on the productivity, approval and denial rates of the ALJs who hear Social Security disability cases nationwide.  It has published a searchable database online at its website.  This has caused quite a buzz among the Social Security disability bar.  

I caution claimants not to read too much into the statistics without consulting an attorney.  A particular judge’s tendencies as reflected by the statistics is not a reliable gauge of how he or she will rule in a particular case.  Each disability case rises and falls on its own merit.  In my opinion, the quality of the medical evidence and the preparedness of the claimant and counsel can be more important than the judge assigned to the case.  Just because a case has been assigned to a judge with a high denial rate does not mean a claim is doomed.  Nor should a claimant whose case is assigned to a judge with a high percentage of favorable decisions be overly optimistic.

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