A Basic Question

     Why does the online claim form for Supplemental Security Income disability benefits used internally by Social Security request the date that disability began? You can't get benefits until the month after the month you file the claim. An alleged onset date prior to the date of the claim is meaningless. Yes, I suppose an alleged onset date before a prior denial is an implied request to reopen but the claimant can always make an express request to reopen. I keep getting Administrative Law Judges being concerned about an SSI alleged onset date that goes back several years and I have to keep saying we regard that as of no consequence, that we'll amend to the date of the claim since it makes no difference. But why does the form even request an alleged onset date? The paper form, which is rarely used these days, doesn't request an alleged onset date so why should the computer based form?

Arlington, VA Field Office To Close

     One of the justifications that the Social Security Administration uses for closing field offices is population shifts. It may be painful but areas that lose population do stand to lose offices. However, now comes word that Social Security is closing its field office in Arlington, VA. Not only is Arlington not losing population, its population went up by 13% between 2010 and 2017. This is a sign of how serious Social Security's appropriations problem is. Forget the happy talk about how their appropriation just went up. That's all earmarked for contractors. Otherwise, the agency didn't get enough to cover inflation. They're still starved for the operating funds needed to keep field offices open.

Social Security Employee Sentencted For Role In Immigration Fraud

     From the Sacramento Bee:

A longtime Social Security Administration employee has been sentenced to four years and nine months in prison for her participation in an immigration fraud conspiracy. ... 

 Nelli Kesoyan, 46, of Rancho Cordova was sentenced Friday in federal court in Sacramento for conspiring to make false statements in a matter related to naturalization and citizenship and to obstruct, impede, or influence a pending agency proceeding, and for falsifying government records, according to a U.S. Attorney's Office news release. She was convicted in January following a four-day jury trial. ...  

 Evidence was presented during Kesoyan's trial that she had abused her position as a claims representative with the Social Security Administration in Sacramento by creating false documents and falsifying government records in an attempt to help Movsesyan commit fraud in two naturalization applications. ...

Social Security Seeking Applications For Retirement and Disability Research Consortium

     A notice from the Social Security Administration:

The Social Security Administration's Office of Research, Evaluation, and Statistics is seeking competitive applications for a Retirement and Disability Research Consortium (RDRC). The RDRC is an extramural social science research program on matters related to retirement and disability policy funded by SSA through 5-year cooperative agreements. 

The announcement is available on Grants.gov and may be accessed directly at https://www.grants.gov/web/grants/view-opportunity.html?oppId=303915. Applications are due June 8, 2018. 

     Currently, there's a Disability Research Consortium composed of  Mathematica Policy Research's Center for Studying Disability Policy and the National Bureau of Economic Research's Disability Research Center and a Retirement Research Consortium composed of Boston College, the University of Michigan, and the National Bureau of Economic Research. I don't know if this announcement is a sign that Social Security is planning a consolidation or some other change.
     In my opinion, it's all a waste of money anyway. I've never seen any of this research affect Social Security policy or practice. I wish academics all the best but I see no point in the Social Security Administration giving them public subsidies at a time when there are lines out the doors at the agency's field offices. I should say that this research is required by the agency's appropriations. The agency has no choice but to fund it.

Safer To Keep It Confidential

     From a recent Emergency Message issued by the Social Security Administration:

On May 5, 2018, the Division of PolicyNet Management (DPM) will implement PPS Release 1.0. PPS is the Agency application for authoring, editing, approving, and publishing policy and instructional documents to PolicyNet. ...

     Is PolicyNet available to the public? Of course, not. If you tell the public what the policy is, they're going to complain when the agency doesn't follow its own policy or they might complain that some of the policies are illegal or stupid. Besides, most of PolicyNet is really boring and the public won't be interested in most of it. A small amount of PolicyNet would be things Social Security really does have to keep secret, like how it spots identity theft. It's safer to keep it all confidential. 
     Come on, this is the public's business the agency is doing. Keeping policy secret if you don't have to is wrong. You could say the same things about POMS, the agency's general manual, but somehow the agency has survived just fine with POMS being available to the public.

An Overpayment In Atlanta

     From an Atlanta television station:

... After fourteen years with no problems, the agency admits it made a mistake and they want her to pay them back to the tune of almost a quarter million dollars, and 63 year old Jamella Hall doesn't have it. ...

Documents show the Social Security Administration determined in 1998 that Hall qualified for disability benefits, which never exceeded $1,600 a month. But in September of 2017, after 14 years with no problems, the  agency notified Hall she should have been paid $215,000 less and the agency would be taking back $436 dollars a month for 493 months. That's 41 years. ...

Records show Hall was given 60 days to request an appeal. But one year later, she's still waiting and the disabled former teacher's monthly benefits have diminished to $1. Her sister, who's been footing the bills, says they're almost bankrupt. ...

After repeated efforts to get answers, the giant agency's regional communications director declined to comment stating privacy laws. But the director did apologize for the inconvenience to Hall and stated her issue would be addressed.

One week later, Hall was told her payments would be resumed. ...

  There's no way for me to tell what happened in this case. In general, this is my list of priorities in dealing with an overpayment case:

1. Why was the claimant overpaid? 
2. Is Social Security correct is saying there is an overpayment? (I've had a couple of cases over the years where by the time we got through, Social Security admitted that not only was there no overpayment, they owed the claimant money!) 
3. Is the overpayment correctly computed? (The amount is usually incorrect; not sometimes, usually.)
4. Is it too late to appeal the fact of the overpayment?
5. Does the claimant qualify for waiver of the overpayment?
6. Even if the claimant doesn't qualify for waiver, is there a dependent on the account who was overpaid? Dependents almost always get waiver even if the primary beneficiary is a really bad actor.
7. Social Security is not supposed to be trying to collect on an overpayment until there's a reconsideration determination on the fact of the overpayment and/or waiver of the overpayment, which are two separate matters. Make sure they don't.
8. If we're past reconsideration, work out a repayment schedule so they don't seize all the monthly benefits while we're waiting for an Administrative Law Judge decision or appeal beyond that level. (Obviously, this woman needed this advice a long time ago.)
9. In the unlikely event the claimant has the money to make a lump sum payment of the overpayment, they'll give the claimant a discount. As much as this overpayment is, they'd probably take less than 50%.

     In other words, there's a lot an attorney can do in overpayment cases. Unfortunately, few of these claimants can pay a fee and there's no practical way for an attorney to represent a claimant on a contingent fee basis. Also, because attorneys can seldom get a fee from an overpayment case, most attorneys don't know how to handle the cases.

     By the way, this overpayment goes back quite a few years. It's very possible that this is one of the cases where a claimant reported return to work but Social Security made no record of it. This used to happen a lot until Congress ordered that Social Security create a system for recording reports of return to work. That's right. At one time Social Security lacked any system for recording reports of return to work which led to large numbers of overpayments that weren't the fault of the claimant.

Raising Full Retirement Age Is A Bad Idea

     From Michael Hiltzik, writing for the Los Angeles Times:

Washington wonks love to portray raising the retirement age for Social Security as a painless "fix" for the program's finances. ...

But a new study punctures this argument with stark data showing that within the average there are winners and losers — mostly distinguished by household earnings and wealth. The analysis comes from the Social Security actuaries, who showed in a study released last week that mortality rates among people 62 and older are inextricably linked to lifetime earnings. The higher the earnings, the lower the mortality rate. ...

What the actuaries found is that lifetime earnings are a powerful predictor of mortality. As Kathy Ruffing of the Center on Budget and Policy Priorities points out, among men ages 65 to 69, those in the lowest 20% of lifetime earnings (less than $22,400 a year) had death rates more than three times as high as those in the top 20% (annual earnings of $74,356 or more). Specifically, the lowest-income group had a mortality rate 65% higher than the average of all men ages 65 to 69, while the highest-earning had a rate 39% less than the average. ...

As we've written before, these factors help to explain why proposals to raise the retirement age tend to come from well-nurtured policy wonks comfortably ensconced in Washington think tanks, or from members of Congress assured of a decent government pension after they leave office. ...

Scheme To Cut Social Security To Pay For Family Leave Criticized

From Michael Hiltzik writing for the Los Angeles Times:

The idea of government-sponsored paid family leave is gaining popularity at the state level and in Washington, where Sen. Marco Rubio (R-Fla.) and Ivanka Trump are "strategizing" to bring more Republicans into the fold. Sens. Joni Ernst (R-Iowa) and Mike Lee (R-Utah) are said to be interested.

It's a good idea that would finally bring the United States into line with every other high-income nation on Earth, as a recent analysis by the Urban Institute points out. But the Urban Institute also observes that the Rubio-Trump idea for financing the program through Social Security is a terrible idea. It would not only undermine Social Security's fiscal condition, but change the very nature of Social Security in ways that will harm the millions of Americans who depend on it for their retirement.

Given that Republicans have had the knives out for Social Security since its inception in 1935, that outcome may even be deliberate. We'll take the charitable view of the Rubio-Trump idea, and assume that undermining Social Security would be an unintended consequence of their idea. But if they're blind to the consequence, it may only be because Republicans as a party wouldn't really care if Social Security as we know it disappeared. ...

The idea is to allow mothers and fathers to take up to 12 weeks of paid leave for the birth or adoption of a child, and repay the benefit by delaying their Social Security at retirement or accepting a long-term cut in their Social Security checks. ...

Final Rules Of Conduct Regs Go To OMB

     Even without a confirmed or even acting Commissioner of Social Security, the agency is asking the Office of Management and Budget to approve Revisions to Rules of Conduct and Standards of Responsibility for Appointed Representatives. These would final regulations. Perhaps, they contemplate a new Commissioner being confirmed by the time OMB finishes its work. We cannot know what is in these final regulations. We know that final regulations on this subject had been submitted to OMB near the end of the Obama Administration but were withdrawn just before inauguration. Here's what I wrote at the time the regulations were proposed on August 16, 2016:

The summary provided by Social Security includes a sentence that seems to encapsulate their approach: 

The changes to our rules are not meant to suggest that any specific conduct is permissible under our existing rules; instead, we seek to ensure that our rules of conduct and standards of responsibility are clearer as a whole and directly address a broader range of inappropriate conduct

     Social Security thinks it's important to point out that there's no representative conduct that they find permissible but plenty they want to forbid because they believe it's inappropriate? That certainly suggests as attitude.

     Here's a couple of excerpts from the proposal:

A representative should not withdraw after a hearing is scheduled unless the representative can show that a withdrawal is necessary due to extraordinary circumstances, as we determine on a case-by-case basis. ...

Disclose in writing, at the time a medical or vocational opinion is submitted to us or as soon as the representative is aware of the submission to us, if: ...

• (ii) The representative referred or suggested that the claimant seek an examination from, treatment by, or the assistance of the individual providing opinion evidence.

     Why would these be a problem? 

     As to the withdrawal provision, the agency insists on recognizing only individual lawyers as representing claimants, not law firms. Prohibiting the substitution of one attorney for another after a hearing is scheduled makes it difficult for a law firm to properly allocate its resources and makes it easy for individual attorneys employed by a firm to pick up and leave their firm with the files of their clients after the firm has spent large sums of money on the cases over the many months or years that the firm has represented the claimants. I don't know what the point of this is other than to harass law firms. Let me anticipate the response from a government employee. "Law firms don't spend much money on Social Security cases -- only a few dollars obtaining medical records -- so that's no big deal." Anyone who thinks this has never run a law firm. Law firms spend almost all of their money on salaries and other overhead. The problem is that a law firm may spend thousands of dollars on the office overhead associated with a case only to see an attorney waltz away at the last minute pocketing the entire fee. Is it unreasonable for a law firm to try to make this difficult? What exactly is the problem with a law firm substituting one attorney for another after a hearing is scheduled? It doesn't delay anything. 

     As to the requirement that attorneys notify Social Security if they suggest medical treatment, if I tell my client that he or she ought to get in psychiatric treatment, I'm supposed to disclose this to Social Security if the psychiatrist later offers an opinion? What if I tell my client to get back to the doctor he or she used to see? Am I supposed to carefully track the advice I give clients about medical treatment?

SCOTUSblog Summary Of Lucia Oral Argument

     Ronald Munn, a law professor at Columbia, has written a summary for SCOTUSblog of yesterday's Supreme Court oral argument in Lucia v. SEC on the issue of whether Administrative Law Judges, at least at the Securities and Exchange Commission, are constitutional. Here are some excerpts:

... Although the argument ranged broadly, four distinct threads provide a good overview. The first is sympathy for the development of an independent and merit-based civil-service system. Breyer, for example, plainly approached the case from the premise that the Constitution could accommodate that system. ...

More expansively, Justice Elena Kagan seemed viscerally sensitive to the importance of maintaining the independence of adjudicators from political influence. ...

A second thread, almost diametrically opposed to the first, is evident in the emphatic view of Roberts that the APA’s [Administrative Procedure Act's] effort to “insulat[e]” judges from the elected executive derogates directly from the Constitution’s requirement of accountability. ...

A third thread noted the odd circumstances of the challenge to this particular group of appointments, which argues that the existing judges were unduly biased despite the civil-service methodology of their appointment. It seemed troublesome both to Kagan and to Justice Anthony Kennedy that a shift to appointment by the commission itself would, if anything, produce judges who were even less independent than the judges that Lucia challenges. ...

If that summary captured the entire argument, I might have expected a strong majority to rule in favor of the existing appointments, perhaps with a dissent from Roberts and Justices Clarence Thomas and Neil Gorsuch. But to complete the picture I have to mention a fourth and final thread: the strong sense that the court’s prior decisions all but compel a ruling invalidating the challenged appointments. The basic point is that the activities of the officers here are similar to the activities considered by the Supreme Court in its 1991 decision in Freytag v. Commissioner, which held that “special tax judges” of the Tax Court qualified as officers for purposes of the appointments clause....

Even Kagan, who plainly shared Metlitsky’s concerns about fostering an independent civil service, found it hard to swallow Metlitsky’s attempt to distinguish Freytag. ...

I would, though, add two closing observations. First, the justices seem to view this as a case likely to have broad implications. Mark Perry (appearing on behalf of Lucia to challenge the appointments) tried repeatedly to limit the breadth of his argument to a small group of only 150 administrative law judges scattered around the federal government, suggesting that the court’s decision would apply only to cases of wholly adversarial adjudication – a group from which he pointedly tried to exclude Social Security adjudications. ...  Second, if any of my readers are thinking that the “originalist” camp is likely to accept these appointments, I would mention that the only comment of the often-voluble Gorsuch during the oral argument was a question about what the appropriate remedy would be if the existing appointments are held unconstitutional. ...

In sum, the defenders of the administrative state are not entirely out of the woods. Although some of the justices are sympathetic to the goals that motivate independent appointments, it is not at all clear that five of them will agree that those goals pass muster under the constitutional framework the court’s decisions establish.

Lucia Transcript Available

     The transcript is now available for the Supreme Court argument in Lucia v. SEC, concerning whether Administrative Law Judges, at least at the Securities and Exchange Commission are constitutional.

     Update: If I were going to guess based upon reading the transcript, I’d predict a 5-4 decision holding the SEC ALJs constitutional with the following split but that guess is only worth what you're paying for it.

Unconstitutional

Roberts (clearly)

Kagan (hard to read because she treated the oral argument as if it were a law school class)

Thomas (of course, he never speaks during oral arguments so I'm making an assumption here)

Gorsuch (had taken this position in a related case while on the Court of Appeals)

Constitutional

Alito (surprise -- but I may misread him since his problem may only be that he didn't like the tests proposed by the attorneys arguing the case)

Sotomayor (concerned about practicalities)

Ginsberg (concerned about practicalities)

Kennedy (concerned about practicalities)

Breyer (concerned about practicalities)

     I'd guess that if there are swing votes, they will be Kagan and Alito, which is weird to contemplate.

     One thing that should be a problem for any Justice is that no one had a bright line test. The attorneys arguing the cases said they had bright line tests but none of the Justices seemed impressed with those tests. 

     It was good that four justices were definitely concerned about practicalities although sobering that four others didn't seem concerned.

     Anyway, read the transcript and tell us what you think.

Social Security Expanded To 500 Million Workers

     From The Economic Times of India:

The Prime Minister’s Office (PMO) has given its approval to the labour ministry proposal on universal social security cover for 500 million workers, including those in the farm sector, seeking to start the process of putting in place a more secure welfare net a year before the general election.

The finance and labour ministries will work out the details of the scheme that will require nearly Rs 2 lakh crore [2 trillion rupees or $30 billion dollars but doublecheck my math -- a lakh is 100,000 and a crore is 10,000,000 in the Indian numbering system while a rupee is worth $.015] when fully rolled out for the lower 40% of the country’s total workforce.

The remaining 60% of the workforce is expected to make contributions out of their own pocket, either fully or partially ...

The labour ministry has proposed a comprehensive social security system to provide retirement, health, old-age, disability, unemployment and maternity benefits to the 500 million workers. ...

     India gets universal health care coverage before the United States?

Social Security Protests In Nicaragua Leave Nine Dead

From the Associated Press:

Nicaragua’s government says it is willing to negotiate over controversial social security reforms that have prompted protests and deadly clashes this week. 

Vice President, first lady and government spokeswoman Rosario Murillo says nine people have been killed in the unrest. She calls the protests “cruel.” 

Dozens of others have been injured or arrested in the chaos in various cities across the Central American nation. ...

     Update: Now more than 25 dead. 

Presenting Officer In Use In U.K.

     The United Kingdom has disability benefits as part of its social security system. There are many, many differences between their disability benefits and those in the United States but one way that they are similar is that claimants may have hearings on their cases, before Administrative Law Judges in the United States and before tribunals in the U.K. Those hearings are somewhat different in that the Department for Work and Pensions (DWP) may be represented at the hearing by a "presenting officer." That's a concept that's been proposed in the past in the U.S. Here's some excerpts from a recent article about the presenting officers in the U.K.:

DWP has finally released information that shows that the presenting officers (POs) it sends to personal independence payment (PIP) appeals must report back to their bosses afterwards on whether they persuaded the tribunal not to grant an enhanced PIP award.

The same applies for those sent to employment and support allowance (ESA) appeals, with POs having to tell their managers whether they persuaded the tribunal not to award the claimant eligibility for the ESA support group. ...

Marsha de Cordova, Labour’s shadow minister for disabled people, yesterday (Wednesday) described DWP’s admission as “truly appalling”. ...

[The author of this piece] has been in contact with a DWP civil servant working on the PIP “frontline” – who is also a former PIP case manager – who has warned that POs are being given the “target” of stopping enhanced PIP payments. ... 

The minister for disabled people, Sarah Newton, said last November that DWP was “recruiting, training and deploying” about 150 POs to attend PIP and ESA tribunals “in order to present the Secretary of State’s case and support the First tier Tribunal in arriving at the right decision”. ... 

“A PO is not there to prevent an award being changed, but to ensure that the award is correct. ..." ...

Lucia Case To Be Argued Monday

     Lucia v. SEC, concerning whether Administrative Law Judges (ALJs), as currently appointed, are unconstitutional, at least at the SEC, will be argued before the Supreme Court on Monday. Ronald Mann gives an argument preview for SCOTUSblog. Here are some excerpts:

... On the merits, the argument that the appointments are invalid is a powerful one, largely because the activities of ALJs are so similar to the activities considered by the Supreme Court in its 1991 decision in Freytag v. Commissioner, which held that “special tax judges” of the Tax Court qualified as officers for purposes of the appointments clause.  Like the ALJs involved here, those officers supervised trial-like proceedings, formed an evidentiary record and reached preliminary decisions in the matters before them. If the justices decide to take seriously the opinion and analysis in Freytag, then the challenge here will have a great deal of credibility.

The strongest argument in support of the existing arrangement is that the judges here are not officers because nothing that they do is actually effective as a decision of the SEC until the SEC approves it – the ALJ decisions are only tentative and have no effect until the SEC acts. [Note that unlike SEC ALJs, Social Security ALJs do make final decisions. If the Supreme Court decides the case on this point, Social Security ALJs will be at risk.] ...

The oral argument may be crucial here. Several of the justices have stated in previous cases that they regard ALJs generally as officers subject to the appointments clause (Justice Anthony Kennedy, by his joinder in the Freytag opinion, and Justices Stephen Breyer, Ruth Bader Ginsburg and Sonia Sotomayor in more recent decisions). If those four maintain that view, it will be difficult for Metlitsky [arguing that the ALJs are constitutional] to find five votes to uphold the status quo. I would watch particularly for the reaction of Justice Elena Kagan, whose scholarly background is likely to give her a strong reaction to the competing interests. ...

     Of course, there's no live broadcast of the oral argument. The Supreme Court will release an audio recording of the argument but not until next Friday. However, a written transcript of the oral argument will be released sometime Monday.

GAO Report Pans Idea Of Mandating Increased Private Disability Insurance

     Some right wing "think tanks" have been promoting the notion that mandatory private disability benefits could somehow substitute for or augment Social Security disability benefits. I wouldn't call the ideas even half baked. It's been more like vague notions. The proponents of these ideas got Senator Orrin Hatch to ask the Government Accountability Office (GAO) to do a report on their ideas, to the extent that GAO could even identify what the ideas were. Predictably, the GAO report wasn't encouraging for these reasons:

• Insurers told GAO that is was unclear how expanding PDI [Private Disability Insurance] would affect PDI premiums and the impact this would have on enrollment.
• Employers told GAO they were concerned about potential additional requirements or administrative burdens that would be placed on them if PDI were expanded.
• Employee and disability advocacy groups told GAO they were concerned about whether PDI expansion would provide standard services or employee protections currently available under SSDI, especially with respect to PDI expansion proposals that would replace SSDI for 2 year.

     One enormous problem is that long term disability insurance (LTD) as we know it is reduced by the amount that Social Security pays. That means that LTD just pays the full rate until a claimant is approved by Social Security and then supplements the Social Security disability benefits thereafter. There's only a handful of LTD recipients who never get approved for Social Security disability benefits and continue to receive the full unreduced LTD payment indefinitely. Making LTD the primary payor would completely change the insurance product and make it much, much more expensive. It's never been clear to me whether the think tank proponents of private disability insurance understand just how different what they're asking for would be from any product that exists now. The LTD carriers might like to get big contracts for helping Social Security administer its disability benefits programs but I've never seen evidence that the LTD carriers actually want to be the insurers. Apparently, that's what GAO heard directly from the insurance companies.

Man Threatens To Blow Up Social Security Office

     From Palos Patch (whatever that is and wherever it is):

A Bridgeview man threatened to blow up a social security office because he wasn't happy with the service he was receiving, reports said. Michael Perelka, 48, was charged with disorderly conduct. According to police, Perelka was talking to a customer service representative at 10718 S. Roberts Road around 2 p.m. Police said he started to yell, "I'll blow this place up." Perelka has a May 31 court date in Bridgeview.

This Is What's Getting Funded At Social Security

     From Federal News Radio:

The Social Security Administration is approximately six months into what will likely be a five-year effort to modernize the agency’s aging IT infrastructure. Sean Brune, chief program officer for IT modernization at SSA, said many of the planned upgrades revolve around services used by the general public. This fiscal year, Brune said, the agency will focus on improving communications and existing services.

“We’re currently working to put all of our online services behind that secure online portal … my Social Security,” he said on Federal Insights: IT Modernization. “We encourage all members of the public to establish their personal my Social Security account. That will then allow, prospectively, a member of the public to see all the relevant services for their circumstance.”

These could include filing claims, checking claims status, services for representative payees.

Enhancing its public offerings will involve more mobile digital services. Brune said the agency has been building responsive design into all new services to detect when portal users are on mobile devices.

IT modernization also includes updating the disability claims processing application — to help SSA cut down on the backlog — and enhancing cybersecurity. With two secure data processing centers, Brune said the agency is covered in that regard. ...

     Of course, this is not unimportant work. The problem is that it's being done at the expense of service to the public today. Lines are present outside field offices and phone calls aren't being answered while staffing dwindles.

One For Two Or Why Service Is Still Going To Suck Even With A Bigger Appropriation

     Chuck Shumer of New York, the Democratic leader in the Senate, is pushing for better service at Social Security. He's right to do so. Wait times at the agency's field offices and on the agency's 800 number service are awful. However, you might wonder why he wouldn't be satisfied with the fact that the agency just got a boost in its funding.

     Think about this, though. I'm told that, at least in the field offices, they're only being allowed to hire one employee for two employees who leave. I would appreciate news about what's going on at Social Security's teleservice centers and payment centers. I suspect they're getting much the same treatment.

     The field offices are getting lots of overtime authorized but overtime only takes you so far. Even with lots of overtime you're going to get less work done as your workforce dwindles.

     How is it that field office staffs are being cut even though the appropriation has gone up? First, that appropriation didn't go up that much. It came on the heels of several years where appropriations failed to keep up with inflation. Second, Congress directed that the vast majority of the increase in funding go to information technology. This sort of thing goes back at least to former Social Security Commissioner Barnhart during the George W. Bush administration. Republicans in Congress and in the Executive Branch have wanted to make sure that any increase in administrative funding for Social Security goes not to hiring employees but to contractors.

     I believe that the Republican preference for contractors over employees has several bases. I think that, at best, Republicans in Congress and in the Executive Branch are indifferent to service at Social Security. Consciously or unconsciously they seem to be of the "cut it until it bleeds and then complain about the bloodstains" mentality. Bad service helps undermine public support for what they regard as the original sin of the New Deal. In general, they're hostile to government employees who are perceived as Democrats and partial to contractors who are perceived as Republicans. They're also naive about service at Social Security. They think that field office and 800 number service is unnecessary, that people will just switch to doing their business with Social Security over the internet if we quit babying them. This comes from visualizing Social Security as just processing people onto retirement benefits. They don't get that helping people file retirement claims is only a part of the workload at the field offices. Most of what they do is work on disability, survivor and Supplemental Security Income claims, which are vastly more complicated than retirement claims and many of the claimants they're working with are seriously impaired. There's no practical way to reduce much less eliminate the need for field office service or 800 number service at any foreseeable time in the future.
     I'd like to find out who made that one for two decision. Was it made at Social Security? At the Office of Management and Budget (my guess)? In the White House?

Fake News About Social Security

     There's fake news being spread about Social Security. Whether it's from Russia or produced here in the United States, it was certainly produced with malicious intent. No, there's no "Article 54" of Obamacare that will reduce Social Security benefits by 30% so the money can be given to undocumented immigrants!

Social Security Bill Signed Into Law

     From a press release issued last Friday:

Today, President Trump signed into law the Strengthening Protections for Social Security Beneficiaries Act of 2018 (H.R. 4547). Introduced by Ways and Means Social Security Subcommittee Chairman Sam Johnson (R-TX) and Ranking Member John Larson (D-CT), this bipartisan legislation will modernize the representative payee program so that it will better protect Social Security beneficiaries who are unable to manage their own benefits. ...

Specifically, the Strengthening Protections for Social Security Beneficiaries Act of 2018 will:

• Strengthen oversight of representative payees by increasing the number of performance reviews of payees, requiring additional types of reviews, and improving the effectiveness of reviews;
• Reduce the burden on families by eliminating the requirement to file the annual accounting form for representative payees who are parents living with their children or who are spouses;
• Protect the most vulnerable beneficiaries through improved information-sharing by requiring the Social Security Administration (SSA) to identify whether a beneficiary is in foster care and reassess whether the payee is appropriate, and by directing the SSA to study how better to coordinate with Adult Protective Services and with state guardianship courts;
• Enhance personal control by allowing beneficiaries to make a designation of their preferred payee in advance, and improve payee selection by requiring the SSA to assess the appropriateness of the order-of-preference list it uses to select payees;
• Limit overpayment liability for children in the child welfare system; and
• Ensure that no beneficiary has a barred payee by codifying the policy that bans individuals with certain criminal convictions from serving as payees (including individuals currently serving as payees) and prohibiting individuals who have payees from serving as a payee for others.

I Hope Andrew Saul Doesn't Endorse This

     Andrew Saul, President Trump's nominee for Commissioner of Social Security, was on the board of trustees of the Manhattan Institute for Policy Research. He's off now but I can't tell when he joined or left that board.
     Here's an excerpt from a recent op ed by a Senior Fellow at the Manhattan Institute with my comments in brackets.

The American polity recently tore itself apart debating the morality of adding $1.5 trillion in tax cuts to the national debt. Yet the $82 trillion avalanche of Social Security and Medicare deficits that will come over the next three decades elicits a collective shrug. Future historians — and taxpayers — are unlikely to forgive our casual indifference to what has been called “the most predictable economic crisis in history.” ...

Politicians brush aside the issue by promising easy fixes. Tax the rich? Doubling the 35 and 37 percent tax brackets to 70 and 74 percent would close just one-fifth of the long-term Social Security and Medicare shortfall. Even seizing all annual income earned over $500,000 would not come close. [These are damned lies. The long term Social Security deficit is 2.83% of taxable payroll. You can solve most of the long term financing problem simply by eliminating the FICA earnings cap.] ...

In reality, balancing the long-term budget without reforming Social Security and Medicare (and fast-growing Medicaid) would require either nearly doubling income-tax rates across the board or eliminating nearly every remaining federal function. [There's no way around it. This is a preposterous lie.] ...

[T]here’s the argument that Social Security and Medicare represent an unbreakable, unamendable promise to the elderly, consequences be damned. Of course, today’s teenagers never signed up for this budget-busting deal. Besides, benefits have been repeatedly expanded far beyond what current retirees were promised while working.

Those reasonably claiming “I just want the benefits I earned!” should be considered allies for reform. Setting lifetime Social Security and Medicare benefits equal to the net present value of each person’s lifetime contributions to the systems — and not a penny more — would eliminate most of the long-term shortfall. ...

More realistically, Social Security can be addressed by gradually raising the eligibility age and more aggressively means-testing benefits for wealthy retirees. [Actually, these measures wouldn't do nearly as much good as eliminating the FICA cap. However, a 0.25% tax on financial speculation with revenues going to the Social Security trust funds would solve 93% of the long term shortfall. ] ...

     It's not fair to blame or credit Mr. Saul for everything written by a person who works for a "think tank" merely because he was at one time on that think tank's board of trustees but this may be the most obviously deceptive, intentionally misleading piece on Social Security financing that I've ever read and I've read a lot. It's ridiculous on its face and it's not the only obnoxious piece produced by the Manhattan Institute. I hope that Saul repudiates this sort of thing.

Lucia Case And Robert Mueller

     From the Los Angeles Times:

The Supreme Court is set to hear a seemingly minor case later this month on the status of administrative judges at the Securities and Exchange Commission, an issue that normally might only draw the interest of those accused of stock fraud.  

But the dispute turns on the president's power to hire and fire officials throughout the government. And it comes just as the White House is saying President Trump believes he has the power to fire special counsel Robert S. Mueller III. 

Trump's Solicitor Gen. Noel Francisco intervened in the SEC case to urge the high court to clarify the president's constitutional power to fire all "officers of the United States" who "exercise significant authority" under the law. ... 

Peter Shane, a law professor at the Ohio State University, called Francisco's argument a "radical proposition," and one that goes beyond what is at issue in the case. The justices said they would focus only on how the SEC in-house judges are appointed. But Francisco is asking them to go further and rule on the "removal" issue. 

"The solicitor general is obviously trying to goad the court into a broad statement about the removability of all officers of the United States," Shane said. "Were the court to make any such statement, it would surely be cited by Trump as backing any move by him to fire Mueller directly." ... 

Francisco's defense of broad presidential power is likely to win favor with Chief Justice John G. Roberts Jr. and the court's other conservatives. In 2010, Roberts spoke for a 5-4 majority that struck down a provision in the Sarbanes-Oxley Act, which created an independent public accounting board at the SEC whose members could be fired only for "good cause." 

Roberts said shielding these "officers of the United States" from presidential control was unconstitutional. "Since 1789, the Constitution has been understood to empower the president to keep these officers accountable — by removing them from office, if necessary," he wrote in Free Enterprise Fund vs. Public Company Accounting Oversight Board. ...

Social Security Claims, Awards And Number In Payment Continue To Decline

From Social Security's Office of Chief Actuary

Better Call Saul: New Commissioner Nominated

     From the White House:

President Donald J. Trump today announced his intent to nominate the following individuals to key positions in his Administration:

Andrew M. Saul of New York, to be Commissioner of Social Security, for the remainder of a six year term expiring January 19, 2019 and for an additional six year term expiring January 19, 2025.  Mr. Saul is currently a partner with Saul Partners, L.P. His previous business positions include: Chairman of the Board of Cache, Inc., President of Brooks Fashion Stores, Inc., and President of BR Investors. His previous public service includes tenures as Chairman of the Federal Retirement Thrift Investment Board and Vice Chairman of the Metropolitan Transportation Authority. Presently, he is a Commissioner for Westchester County, New York. Mr. Saul’s philanthropic involvement includes serving as Vice Chairman of the Mt. Sinai Health System in New York City, Vice Chairman of the Icahn School of Medicine at Mt. Sinai, a Trustee of the Metropolitan Museum of Art, and a Trustee for the National Gallery of Art in Washington, DC. He is a former board member of the United Jewish Appeal Federation of New York. Mr. Saul is a graduate of the Wharton School of Finance at the University of Pennsylvania, and serves on its Board of Overseers.

     Here's Saul's bio from Wikipedia. This must have been prepared by Saul or someone working for him.
     Is it possible for him to be confirmed now for a term that doesn't begin for nine months?
     Trump is also making the following nomination for Deputy Commissioner:

David Fabian Black of North Dakota, to be Deputy Commissioner of Social Security for the remainder of a six-year term expiring January 19, 2019.  Mr. Black currently serves as the White House Senior Advisor at the Social Security Administration.  He served as SSA’s General Counsel from October 2007 until July 2015.  From 2004 through 2007, he served as the Deputy Assistant Secretary in the Department of Education’s Office for Civil Rights.  Mr. Black is a Lieutenant Colonel in the U.S. Army Reserve where he deployed to both Afghanistan and Iraq in support of the Global War on Terrorism and earned a Bronze Star Medal.   Mr. Black holds a J.D. from the University of Minnesota and a B.A. in political science, summa cum laude, from the University of North Dakota.

Who Do You Sue And How Much Can The Attorney Get Paid If That Suit Is Successful?

     One minor issue caused by the absence of a confirmed or even acting Commissioner of Social Security is who do attorneys sue when they sue Social Security after a claimant has been denied. The statute says to sue the Commissioner. Normally, we sue the Commissioner or Acting Commissioner by name.
     The Solicitor General, who represents the federal government, including Social Security, before the Supreme Court, faced this issue recently in making a filing before the Supreme Court. Here's how they titled the case:

RICHARD ALLEN CULBERTSON, PETITIONER v. NANCY A. BERRYHILL, DEPUTY COMMISSIONER FOR OPERATIONS, SOCIAL SECURITY ADMINISTRATION

     By the way, this was a response to a petition for a writ of certiorari, that is a request that the Court hear a case. The Solicitor General is supporting the petition, which means that it probably will be heard. The issue in the case is:

Whether 42 U.S.C. 406(b)(1)(A) establishes that 25% of a claimant’s past-due benefits under Title II of the Social Security Act is the maximum aggregate amount of attorney’s fees that may be charged for representing the claimant in both administrative and court proceedings under Title II [of the Social Security Act].

Now We Know What Happened To Conn's Files

Files stored in Conn's former office

     One nagging issue with the redeterminations of disability for Eric Conn's former clients is the files that Eric Conn kept on his clients. While Conn may not have done that much development of medical records on his clients surely some fell into his lap, brought in by his clients. Did he bother to give any of this to Social Security? There had been reports that Conn had burned many files. However, recently photos and videos surfaced showing the client files still in his former offices.
     A local media outlet contacted the Department of Justice concerning those files. This is an e-mail from an attorney with the Department of Justice in response to that inquiry:

Sorry for the delayed reply. It is inaccurate to report that the United States is moving forward with the redetermination process while simultaneously denying claimants access to the records needed to appropriately litigate their claims. It is also inaccurate to report that the Justice Department advised individuals that the files were destroyed. The U.S. government has not forfeited Conn’s law office yet. Those proceedings are pending before the Court. Therefore, the Justice Department does not have custody of the law office and have neither the authority to admit or deny anyone from entering the property. Moreover, the contents of the law office, including the claimant files, are not subject to forfeiture, thus, the United States does not and will not possess or have access to the claimant files. However, the Department is assisting in the process of having a receiver appointed by the Kentucky Bar Association, who has constructive possession of the files, to gain actual possession of the files, and return them to clients for their SSA redetermination hearings.

     By the way, it's long settled law that the files that an attorney keeps on his or her clients don't belong to the attorney but to the clients. It's the same with medical records maintained by physicians.

Oh, The Hypocrisy

     From Michael Hiltzik writing for the Los Angeles Times:

One would have thought that after saddling the U.S. economy with a tax cut costing $1.5 trillion over 10 years, conservatives and their patrons in corporate America would soft-pedal the usual attacks on Social Security, Medicare and Medicaid. 

One would be wrong. 

Recently, the drumbeats for cuts in social insurance benefits have been sounding louder. As is traditional, the call for cutbacks is placed in the context of concern about rising federal deficits. ... 

The politicians unsheathing their paring knives for Social Security and Medicare undoubtedly are hoping that Americans' memories are short — that when they claim that it's social programs like these that are driving the deficit, no one will recall that the single biggest driver of red ink is that tax cut delivered to the very members of society who needed help the least.

Why Do These Regional Differences Persist?

     Social Security has posted an updated dataset giving the average processing time at each of its hearing offices. Here's the list of the offices with the top ten longest processing time, in days:

• San Juan 864
• National Hearing Center Chicago 820
• New York 772
• Buffalo 764
• Bronx 760
• Philadelphia 756
• National Hearing Center Falls Church 755
• Queens 738
• South Jersey 736
• Miami 725

     Note that using the average number may understate the problem. Cases that are quickly dismissed because a request for hearing was filed too late go into that average. The typical case that actually goes to hearing will take longer than the stated average.

     Here's a list of the top ten shortest processing time, again in days:

• Providence 325
• Boston 352
• Houston North 360
• Manchester 375
• Portland, ME 400
• Dallas North 428
• Oklahoma City 431
• Fort Smith 434
• Springfield, MA 434
• Middlesboro 436

     It looks like things are going very nicely in Social Security's Boston Region, which has five of the top ten best offices, while things are going very badly next door in Social Security's New York region, which has six of the top ten worst offices. Why such big differences between regions? I thought that once we had video hearings these differences would go away.

Cage Match Looming In Lucia?

     The National Law Review reports on what it calls a "cage match" possibly looming before the Supreme Court in the Lucia case on the constitutionality of Administrative Law Judges.

NADE Newsletter

     The National Association of Disability Examiners (NADE), an organization of the personnel who make disability determinations at the initial and reconsideration levels for Social Security, has posted its Spring 2018 newsletter.

I'm Not Buying It

     Workers comp insurers are trying to dispute the widely held belief that they've been increasingly successful in shifting the costs of workplace injuries on to Social Security and Medicare. I'm not buying it. It's obvious at ground level that they're able to settle cases for vastly less than the true costs of lost wages and future medical care.

Milwaukee Fighting Back

     The controversy over the closing of a Social Security field office in Milwaukee isn't going away.

Why Does Social Security Need To Capture Biometric Data?

     From a contracting notice recently posted by the Social Security Administration:

The Social Security Administration (SSA) is seeking a commercial off-the-shelf (COTS) eyetracker software tool that will allow SSA to measure and collect users' eye position and eye movements to expand on the dynamic of our usability and user testing studies. The eye tracking system will increase our capability to capture biometric data that we are currently lacking and allow us to incorporate the biometric layer into our results analysis. In addition to the usability testing, eye tracking system can also be used in market research.

     I'm not the only one who finds this kind of creepy.

Probably Wasting Their Time

     The Chairman of the House Ways and Means Committee as well as the Chairmen of that Committee's Social Security and Human Resources Subcommittees have written President Trump to urge that he nominate a new Social Security Commissioner.

     I think it will be difficult to find anyone other than a career employee willing to be nominated now. The term of office ends in mid-January 2019. By the time anyone could be confirmed, their term would almost be at an end. Confirmation to a new term thereafter might be difficult, especially if Democrats gain control of the Senate. That's unlikely but not out of the question.

     There's also the problem that Social Security is wildly unpopular with prominent Republicans. It may be difficult to find someone interested in the job who wouldn't be insistent on attacking the benefits programs he or she is supposed to be administering. However, almost no Senate Republicans would want such an unpopular crusade.

     Finally, there's the general problem that few people want to work in Donald Trump's Administration. It's an incoherent mess very possibly based upon near traitorous conduct, not to mention that Trump treats people dreadfully.

     I'd suggest a recess appointment of a caretaker Commissioner. That can be done quickly without confirmation. It's good until the beginning of the next Congress. Of course, doing that would require that Trump have some interest in governing instead of just dispatching absurd tweets in response to Fox and Friends.

Brutal Backlog

     From the Washington Post:

Robert Steers of Southington, Conn., was an Army captain who served in Afghanistan. He also served his country looking for contraband with the Transportation Security Administration.

Now, he’d like to get decent service from the Social Security Administration.
But, as many Americans know, this can be an exasperating experience, filled with endless waits and growing frustration. ...

Steers applied in April 2012 and was denied. To appeal, he requested a hearing with an administrative law judge (ALJ) in May 2013. It took almost two years to be denied again in March 2015. After appealing to federal court, his case was sent back to the administrative law judge in December 2016.

It is now April 2018 — six years after his initial application — and Steers is still waiting to find out if he’ll get the insurance. ...

“I think SSA does not have the staff it needs,” said Iván A. Ramos, Steers’s lawyer in Hartford, Conn. “When you call a hearing office, nobody answers the phone, and when you go to the office you just stand in front of an empty window until someone finally shows up to help you. Many of my clients have trouble paying for food and shelter while they wait for their disability claims to be processed. Seeing what many of my clients and their families have to go through, just to get a hearing, has become the hardest part of my job.” ...

Staffing and service issues have plagued Social Security for years, and President Trump’s proposed budget for fiscal 2019 would make things worse. The disability hearing process can be particularly vexing because there are too few administrative law judges, who hear appeals, and they have too few support staff members. ...

And You're Calling Her Confused?

From The Daily Telegraph of Temple, TX:

Dear Annie: I came to the United States back in the late 1980s. My husband at the time suddenly abandoned me and my two children. We entered a legal separation agreement in 1990 and eventually divorced in the early 2000s. ...

The reason I am writing this letter is because my ex-husband has been collecting Social Security from the United States under my name for the past year. I understand that this is legal to do. However, my ex-husband does not live in the United States and he’s using a false address of residence. He has only come to the United States in the past two years to file for Social Security, update his driver’s license and renew his passport. ...

My goal is to make this matter known. I am not looking for him to repay me any child support. My question, though, is how can we give someone Social Security without looking more in depth to his background? How is he proving that he’s a resident of the United States, for example? If someone is collecting Social Security through an ex-spouse, then why aren’t we checking to see if they paid all their child support? He’s currently lying to the federal office and benefiting on my behalf. ...

Dear Used and Confused: You can report Social Security fraud through the Social Security Administration website (https://www.ssa.gov/) or by calling the SSA at 1-800-269-0271. It sounds as though your husband has disqualified himself from receiving benefits in many ways. Also note that anyone who owes $2,500 or more in child support is not eligible to receive a U.S. passport. Talk to a lawyer about procuring the back pay of child support as well as preventing your husband from fraudulently claiming your SS benefits.

     It's certainly appropriate to report Social Security fraud but there are a few problems with this answer. First, it's not fraud to receive U.S. Social Security benefits while living in another country. In fact, there's about half a million people living outside U.S. borders who receive U.S. Social Security benefits and, no, you don't have to be a U.S. citizen to do so. Second, the writer should have told this woman that child support can be withheld from Social Security benefits. Third, the ex-husband getting benefits on the account doesn't reduce the benefits going to this woman. Whatever he gets is on top of what she gets, not subtracted from it. If she's smart, she can use him getting benefits on her account to collect the child support she's owed but not unless she gets better advice than this.

Briefs Filed In Lucia Case

     All of the amicus briefs, 23 of them, have been filed in Lucia v. S.E.C., the case pending before the Supreme Court on the question of whether Administrative Law Judges (ALJs), as presently appointed, are constitutional, at least at the S.E.C.
     Many readers will be interested in the amicus brief filed by the National Organization of Social Security Claimants Representatives (NOSSCR). It argues that if the Supreme Court is going to find S.E.C. ALJs unconstitutional, it should distinguish Social Security ALJs on the grounds that the cases they hear are non-adversarial. That's the argument NOSSCR pretty much has to make.
     The amicus brief that I like best is one filed by a group of 29 law professors who teach and write about administrative law. That brief calls upon the Supreme Court to be pragmatic. It gives a wider and deeper administrative law perspective largely absent from all the other briefs filed in the case. Here are a couple of excerpts:

The Court’s holding and approach in this case have major implications for the adjudicative structure of the federal government. If the Court were to apply the Tenth Circuit test [that found ALJs to be unconstitutional] to the five SEC ALJs as the basis for a holding that they are inferior officers, federal courts would be required to apply the same test to the 1,926 ALJs who perform analogous functions at other agencies. And it would almost certainly trigger similar challenges to decisions made by the thousands of non-ALJ adjudicators (often referred to as administrative judges or AJs) who perform analogous functions at other agencies. Together, ALJs and AJs preside at hearings in millions of adjudications each year.

If, as seems likely, that iterative process yielded a series of holdings that many thousand federal employees with responsibilities that include presiding at hearings are inferior officers, federal courts would then have to decide what to do about the cases that have been the subject of hearings presided over by those unconstitutionally appointed officers. Courts would also have to decide whether the statutory restrictions on removal of the members of this large new class of inferior officers are constitutional, an issue not before the Court in this case. The point, however, is that the stakes are sufficiently high to justify a judicial approach that preserves as much as possible the congressional design to check agency power through the use of ALJ. ...

The claims that SEC ALJs are biased in favor of the agency echo the widespread claims of bias that provided the impetus for Congress’s decision to enact the APA [Administrative Procedure Act, which led to the creation of the ALJ position]. That statute reduced significantly the potential for ALJ bias in the process of presiding over agency adjudications. Ironically, the claims of bias spawned by the SEC’s decision to bring some enforcement actions before ALJs, rather than federal district judges, have been coupled with the argument that SEC ALJs should be appointed by the agencies where they preside and should be removable at will by the agencies where they preside. 

It is hard to imagine a worse fit between an alleged problem in decision-making and a proposed remedy for that problem. If this Court makes a decision that cascades into a legal regime in which agencies have greater discretion in the process of appointing ALJs and have the discretion to remove ALJs without establishing any cause for removal, it will have eliminated many of the safeguards against pro-agency bias that Congress incorporated in the APA and that this Court praised as important mechanisms to protect the due process rights of the private parties who participate in agency hearings. That, of course, would increase the risk that SEC ALJs will make decisions that reflect pro-agency bias in their roles as presiding officers. ...

National Disability Forum

     From the Social Security Administration:

Social Security’s National Disability Forum is April 18 at 1100 New York Avenue in Washington D.C. The Disability Forum gives all interested stakeholders an opportunity to share their unique insights on topics of particular interest to Social Security. This allows an exchange of ideas early in the process and directly with policy makers.

With the theme of Financial Independence: Directing the Management of One’s Social Security Benefits, the forum will serve as a listening session that brings public awareness to disability and retirement policy stakeholders. Through this dialogue, we will gain insight into how our representative payee policy affects the disability and retirement communities we currently serve and the potential affect it may have in the future.

You and your clients can learn more at www.socialsecurity.gov/thirdparty/whatsnew.html.

Phishing Scheme Aimed At Social Security Disability Recipients

     From a television station that wants to be known as "News 6":

Florida residents who receive Social Security disability benefits are being targeted by imposters who claim their accounts have been hacked and  their SSN assets have been frozen. ...

Acting Inspector General Gale Stallworth Stone issued a statement on March 2 saying in part, “This phishing scheme is targeting unsuspecting persons for the purpose of Social Security benefit theft or identity theft.” ...

American Greed: Eric Conn

     CNBC will be airing an episode of its series American Greed dealing with the weird case of Eric Conn tonight at 10:00 pm Eastern and Pacific. 

     I've heard a rumor that someone is working on a separate documentary film on Conn.

Happy Easter!