Didn’t See This Coming

      More on this tomorrow but take a look at what has to be the weirdest personnel memorandum in Social Security history.

Goodbye, Trump

 

Job Opening

      My law firm is seeking to hire an associate attorney to replace an attorney who is leaving. (We're definitely not expanding!) The job is in Raleigh but the person hired could start from elsewhere since we're all working from home at the moment due to Covid-19. Social Security experience required.

    To apply, send a resume to charles@hall-rouse.com.

Emergency Message On Seila Law

     From Emergency Message EW-21002:

This emergency message provides guidance to administrative law judges (ALJs) and Appeals Council (AC) members regarding objections and arguments based on a recent Supreme Court decision, Seila Law LLC v. Consumer Financial Protection Bureau, 140 S. Ct. 2183 (2020). This message also provides instructions in the Case Processing and Management System (CPMS) and the Appeals Review Processing System (ARPS) for flagging cases in which claimants or representatives raise such objections or arguments.

On June 29, 2020, the Supreme Court of the United States ruled on the constitutionality of the structure of the Consumer Financial Protection Bureau (CFPB). The Supreme Court held, based on circumstances regarding the CFPB, that the CFPB’s leadership by a single director, removable by the President only for inefficiency, neglect of duty, or malfeasance, violated constitutional separation of powers principles. The Supreme Court further held that the for-cause removal provision was severable from the remainder of the CFPB statute.

At our ALJ hearings and AC levels, although the Supreme Court’s decision did not directly address the Social Security Administration (SSA), some claimants and representatives have raised arguments citing Seila Law to challenge the constitutionality of SSA’s structure or the authority of the agency or adjudicator to act on their claim. Such constitutional contentions, when properly presented in agency proceedings, may be preserved for judicial review. Agency adjudicators facing objections that invoke Seila Law should consider and address whether the claimant wishes to withdraw his or her hearing request and whether the ALJ should disqualify himself or herself. We provide guidance on such issues in this EM. ...

 C. What should an adjudicator do if a claimant or representative raises an objection under Seila Law?

1. Challenge Made at the Hearing Level

If a claimant or representative presents an objection invoking Seila Law at the hearing level (whether orally at the hearing, in writing before or after the hearing, or both), the ALJ should consider several questions, set forth below, and document the ALJ’s consideration of these questions in the hearing decision as appropriate.

(1) Is the claimant seeking to withdraw his or her request for a hearing?
a. Under 20 C.F.R. §§ 404.957(a) and 416.1457(a), an ALJ may dismiss a request for a hearing at any time before the notice of the hearing decision is mailed, when the claimant withdraws the request orally on the record at the hearing or in writing.
b. The ALJ should consider whether the claimant’s objection seeks to withdraw his or her request for a hearing.
i. If the claimant’s objection expresses an intention to withdraw the request for a hearing, the ALJ should properly develop the request by following the guidance in HALLEX I-2-4-20.
ii. If the claimant’s objection does not express the intention to withdraw the request for a hearing, it would be appropriate to indicate in the hearing decision that, while the claimant objected to the proceeding based on separation of powers principles, the claimant did not ask to withdraw his or her request for a hearing as permitted under 20 C.F.R. § 404.957(a) or §416.1457(a) (or both); that the claimant appeared at the hearing; and that the ALJ accordingly issues a decision on the claim.
(2) Is the claimant asking the presiding ALJ to withdraw from the case in favor of another agency adjudicator?
a. ALJs have a duty to consider objections to the ALJ presiding in the case. See 20 C.F.R. §§ 404.940, 416.1440. Under the regulations, an ALJ shall not conduct a hearing if he or she is prejudiced or partial with respect to any party or has any interest in the matter pending for decision. See SSR 13-1p. If the ALJ finds withdrawal appropriate, another ALJ will be appointed to conduct the hearing.
b. The ALJ should consider whether the claimant’s objection seeks the ALJ’s disqualification and withdrawal in favor of another agency adjudicator.
i. If a claimant’s objection seeks the presiding ALJ’s disqualification and withdrawal on grounds specific to the presiding ALJ (such as prejudice or partiality), the ALJ shall either address the objection in the decision or withdraw, as appropriate under regulatory guidance. See HALLEX I-2-1-60.
ii. If a claimant’s objection does not seek the presiding ALJ’s disqualification and withdrawal on grounds specific to the presiding ALJ (such as prejudice or partiality), the ALJ should indicate in the hearing decision that the claimant has not challenged the presiding ALJ’s qualifications in a manner that is specific to the presiding ALJ (such as prejudice or partiality), and that the ALJ accordingly conducted the hearing and hereby issues a decision on the claim.
(3) Is the claimant objecting to the ALJ’s authority to render an unfavorable decision on the claim (but not to render a favorable decision on the claim)?
a. Governing regulations provide that the ALJ shall look fully into the issues at a hearing, and, based on a preponderance of the evidence offered at the hearing or otherwise included in the record, issue a written decision giving the findings of fact and the reasons for the decision. 20 C.F.R. §§ 404.944, 404.953(a), 416.1444, 416.1453(a).
b. If a claimant’s objection expresses a view that, because of separation of powers principles, the ALJ lacks authority to deny the claim, it would be appropriate for the ALJ to indicate in the hearing decision that regulations governing the ALJ’s duties and responsibilities require the ALJ to decide a claim, whether favorably or unfavorably, based on the evidence of record. ...

     This is an obvious attempt to intimidate claimants and their attorneys to prevent Seila Law objections. It implies, but doesn't state, that favorable decisions might be overturned if the Supreme Court holds that the position of Commissioner of Social Security is unconstitutional. It doesn't allow ALJs or the Appeals Council to actually consider Seila Law objections on the merits but if they don't raise such objections, the agency will argue in court that they waived them. This puts ALJs in the position of playing litigation games with claimants. This is unworthy of the Social Security Administration. 

     By the way, there was no need for this Emergency Message if Andrew Saul was about to resign as Commissioner.

To Remember

 

The Problem Of The U.S. Mail

      Social Security’s regulations assume that any notices they mail to claimants will be received within five days. I think many of us have recently had personal experiences with the unreliability of the U.S. mail. For example on January 4 I received a package that was sent to me by U.S. mail on December 4. As another example, well into the new year I was still receiving Christmas cards mailed to me a week or more before Christmas. For another example, I’ve already had at least one payment I mailed received late even though it was mailed more than a week before the due date. You can add your own examples. 

     There is only a limited time given to file appeals from adverse Social Security decisions. There is only an extremely short time given to ask for interim benefits when a person is told they are no longer disabled. I think it’s time for Social Security to revisit its assumptions about mail service. 

Major Employee Fraud

     From a press release:

Cheikh Ahmet Tidiane Cisse, age 45, of Baltimore, Maryland, pleaded guilty today to federal charges of theft of government property and aggravated identity theft, in connection with a scheme in which Cisse filed fraudulent claims for Social Security benefits using fictitious identities and the identities of actual individuals, and attempted to collected over $236,000.  ...

Cisse was employed by the Social Security Administration (SSA) as a Claims Specialist in SSA’s Office of International Operations.  Cisse admitted that between July 2018 and March 2019, he filed fictitious claims for benefits using stolen identities and identity documents he obtained through the course of his employment with SSA in order to steal or attempt to steal over $236,000 from SSA.

According to his plea agreement, as part of his job, Cisse was responsible for reviewing the identity documents of social security claimants living abroad, such as passports, marriage certificates, and identity cards.  Cisse then created new, fictitious identities in SSA's database, often using information from the foreign identity documents he reviewed, which were issued social security numbers (SSNs).  Cisse used the fictitious identities to file fraudulent claims for social security divorced spouse survivor's benefits against actual deceased individuals, directing the benefits payments to debit cards or bank accounts he opened in the names of the fictitious identities using the identity documents he obtained through his employment.  Cisse sometimes provided his home address for that of the fictitious claimants, but also provided an address in Quebec, Canada, that corresponded to a mail forwarding service to which he subscribed, making it appear as if the fictitious claimants lived abroad.  Through this mail forwarding service, Cisse received mail associated with the scheme, including genuine social security cards in the names of the fictitious identities and benefits payments. ...

Devastating Effects From Field Office Closures

      From an op ed by Jonathan Stein and David Weaver in the New York Times:

At a time when the pandemic has hit the disabled and elderly the hardest, they also face the erosion of a critical income lifeline, Supplemental Security Income (S.S.I.). The program has collapsed during the pandemic: From July to November 2020, the Social Security Administration awarded benefits to about 100,000 fewer individuals compared with the same period last year. In July 2020 the agency distributed just 38,318 new awards — the fewest in 20 years of available data.

At this rate, more than 230,000 low-income disabled and elderly Americans will miss out on vital cash benefits and access to health care (via Medicaid, which S.S.I. recipients generally qualify for) in one year. ...

The immediate cause of this ongoing crisis is the closure of Social Security’s network of 1,200 field offices during the Covid-19 pandemic. Generally, the agency does not take online applications for S.S.I. benefits, leaving these disabled and elderly people with one primary service option: calling its overburdened general phone line. Further, the field offices were a source of information and assistance for millions of Americans, many challenged by cognitive, learning, language and poverty-related issues. ...

Even before this crisis, two-thirds of those who completed the initial 23-page application for the program failed to qualify under the current burdensome disability and means tests. ...

Social Security executives are aware of the existing and pandemic-era challenges and are making good-faith efforts to address them, including a rare and laudatory engagement with claimants’ advocates. But these important steps by the agency are undermined by an effort to close the doors to hundreds of thousands of claimants during a time of economic collapse and labor market contraction. ...

The S.S.I. elderly and disabled await Jan. 20, and a Biden White House that understands their plight.

U.S. v. Vaello-Madero Relisted

     United States v. Vaello-Madero, the case on the constitutionality of denying SSI to U.S. citizens who live in Puerto Rico, has been relisted by the Supreme Court, meaning that the Court will consider again on Friday whether to schedule the case for oral arguments. My understanding is that relisting like this is common in cases that the Court eventually agrees to hear. However, it would also be possible for the Court to summarily reverse the decision below without an oral argument. 

     If the Court does decide to hear the case, there is the issue of when it gets heard. The Court's argument calendar for this term is nearly full. If it gets heard in this term, we get an opinion by early July at the latest. The Court's new term always begins on the first Monday in October so if it gets pushed into the next term we're not likely to get an opinion before early 2022.

"Bold Vision"?

      From Policy Pillars and Priorities: A Bold Vision for a Legislative Pathway Toward Health and Economic Equity issued this month by Richard Neal, the Chairman of the House Ways and Means Committee:

... The framework we present here is Ways and Means Committee Democrats’ plan to make our nation a more just and equitable place. ...

Congress must do more to help American families, especially minority families, have a secure and dignified retirement. Social Security provides the foundation of retirement security, and its benefits must be strengthened and improved, particularly for low-wage workers. Social Security disability benefits must be protected against harmful attacks.  ...

Policy Approaches 

•Strengthen and improve Social Security benefits, particularly for low-wage workers 

•Protect Social Security disability benefits from harmful regulations and other attacks designed to reduce access to benefits ...

     As far as Social Security goes, that's all there is in this document. Note that there's no legislative action even suggested as far as Social Security disability benefits go and only the vaguest suggestion that something unspecified might be done more generally to "strengthen and improve Social Security benefits." SSI isn't even mentioned.

     Perhaps I shouldn't be critical. Perhaps this is meant to be something similar to the vapid "mission statements" that many corporations and organizations pointlessly struggle to put out but, honestly, I don't see even a hint of boldness in this document, at least as far as Social Security is concerned.