Jun 29, 2018

New Rules Of Conduct For Attorneys

     The Social Security Administration is publishing final Rules of Conduct and Standards of Responsibility for Appointed Representatives in the Federal Register on Monday. You can read them today. The new rules will be effective 30 days after publication. Here are some excerpts:
... A representative should not withdraw after we set the time and place for the hearing ... 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: 
(i) The representative’s employee or any individual contracting with the representative drafted, prepared, or issued the medical or vocational opinion; or 
(ii) The representative referred or suggested that the claimant seek an examination from, treatment by, or the assistance of, the individual providing opinion evidence. ...
Disclose to us immediately if the representative discovers that his or her services are or were used by the claimant to commit fraud against us....

What's Going On With The Saul Nomination?

     On April 13 President Trump nominated Andrew Saul to become Commissioner of Social Security. The average time for the Senate to clear Trump's nominations has been 85 days. It's already been almost that long but no hearing has been scheduled on the Saul nomination.
     I have to note a couple of things before we start speculating too much about the fate of the Saul nomination. The President nominated Charles Rettig to become Commissioner of the IRS on January 24. There was no hearing on that nomination until June 28. The other thing is that Saul actually received two nominations. One is for the current term of Social Security Commissioner which expires in January 2019. The other nomination is for a full six year term as Commissioner beginning in January 2019. Don't they have to wait until closer to the start date for the term to vote on confirming him to that six year term? What determines that? Statute? Senate rules? Tradition? The Senate Finance Committee may just be waiting until it can take up both of Saul's nominations.

Jun 28, 2018

A Couple Of Questions

     I've been giving thought to the recent Supreme Court opinion in Lucia v. SEC, which held that Administrative Law Judges (ALJs) at the Securities and Exchange Commission were unconstitutionally appointed. I keep coming back to a couple of questions.
  • Why does Social Security want to keep a record of the cases pending administratively in which the claimant has objected to the ALJ on Lucia grounds?
  • Why hasn't Social Security tried to limit the scope of its potential Lucia problem by having the Acting Commissioner appoint each of its ALJs and ratifying their actions?
     What can the agency do with records of Lucia objections? The only thing I can come up with is that the agency is considering making an issue preclusion argument, i.e., that a claimant can't get a new hearing on Lucia grounds unless they made an objection while the case was pending administratively. I don't think an issue preclusion argument would work for a couple of reasons. First, the Supreme Court decided in Sims v. Apfel  that issue preclusion generally doesn't apply in the Social Security context. Second, this would be a weird context to apply issue preclusion because Social Security has announced publicly that neither the ALJs nor the Appeals Council will consider Lucia arguments. If the agency isn't interested in making issue preclusion arguments, what are they up to? Is the point that even though the issue preclusion argument won't work that it might buy time for the agency?
     The question of why Social Security hasn't tried to mitigate its Lucia problem by having the Acting Commissioner appoint each of the ALJs may take us to a darker place. The issue in Lucia was that the appointments clause of the Constitution requires that "inferior officers" be appointed either by the President or by the head of a department. ALJs have been appointed through a process that hasn't involved the President or the heads of departments. Once the Supreme Court agreed to hear Lucia, the Securities and Exchange Commission and many other agencies that employ ALJs quickly decided to have the heads of the agencies appoint each of their ALJs so that the Lucia problem would be limited to old cases. Social Security didn't do that. It still hasn't done that even in the wake of Lucia. I don't know Social Security's General Counsel but I'm pretty sure he or she is a competent lawyer so I'm pretty sure that he or she advised the Acting Commissioner to mitigate the problem by appointing each of the agency's ALJs. That hasn't happened. Why? I guess you could blame it on general fecklessness by the Acting Commissioner or, more likely, the White House, since the Acting Commissioner probably deferred to the White House.  Alternatively, you could guess that there has been high level consideration of using Lucia as a pretext to replace all of Social Security's ALJs with non-ALJ hearing officers Think Mick Mulvaney, the head of the Office of Management and Budget, who tried to convince Trump that he could attack Social Security disability since it was really welfare, not Social Security. The agency could give each ALJ a notice that he or she is being riffed but that they can keep a job if they'll agree to accept a new, non-ALJ hearing officer position appointed by the Acting Commissioner. The new job would lack the protections of independence afforded ALJs. In the short run, I'd think that most ALJs would have no alternative but to take that offer, even if they immediately started looking for other work. I hate to rattle people's cages but this seems like a possibility. I think it would lead to chaos but the Trump White House isn't big on thinking through the consequences of its decisions.

Jun 27, 2018

Members Of Congress Oppose Field Office Closures

     A group of more than one hundred members of Congress have sent the President a letter asking that he stop closing Social Security field offices.

They Say You Should Write About What You Know

     From Let's Close More Social Security Field Offices by Elizabeth Bauer published by Forbes:
Social Security advocates have been sounding the alarm:  Republicans, stymied in their efforts to cut benefits in the overall Social Security program, have set their sights on the program's administrative budget, leaving frail elderly ladies travelling endlessly and waiting for hours on end for their turn in the line at the Social Security field office. ...
[V]irtually all tasks associated with Social Security Old Age benefits can be done online.  You can view your benefit statement, apply for Social Security retirement or disability benefits and Medicare, update your address or direct deposit information, and more.  Many of the Social Security applicants or recipients ... do not actually need to come to the office at all, but we're told that we can't expect the elderly to use computers so they need to have the in-person option preserved for them.  However, most retirees have family members who are able to help and of those who don't, all of the same sort of institutions (public libraries, townships, even the local VFW) that came to the aid of Obamacare "exchange" users or provide other services to the elderly, should certainly be able to help these individuals, which in turn would have the further benefit of providing a means to further connect up older Americans to the internet, whether it's e-mail or online bill-pay or other benefits. ... 
After all, certain of these tasks [applying for survivor or SSI benefits] must be done in-person at field offices (or by mail with the attendant risk of lost documents) solely due to the need to verify the authenticity of certain documents.  Perhaps this is more complex than I imagine, but it hardly seems like something that requires a Social Security specialist's skills to do; surely it would be a win-win situation for individuals to be able to have a local governmental unit verify the authenticity of the document prior to forwarding photocopies or document scans onward. ... 
SSI benefits are so complex to administer that their cost is 9% of the overall benefits paid out (compared to 0.3% for old age/survivors and 1.8% for disability), but SSI recipients, who are overwhelmingly under-65s who qualify by reason of disability, generally qualify for other state or federal benefits as well, and other agencies are already involved in providing them services, which means that closer coordination, with a focus on return to (or entry into) the workforce, could only benefit them. ...
     If I looked at her other writings I might find that Ms. Bauer has also said "Let them eat cake!"

Jun 26, 2018

A Flea On The Back Of A Buffalo

     The Supreme Court has agreed to hear Biestek v. Berryhill, a Sixth Circuit Social Security case presenting the issue:
Whether a vocational expert’s testimony can constitute substantial evidence of “other work,” 20 C.F.R. § 404.1520(a)(4)(v), available to an applicant for social security benefits on the basis of a disability, when the expert fails upon the applicant’s request to provide the underlying data on which that testimony is premised.
      What is it exactly that the Vocational Expert (VE) is supposed to reveal to me? As a general matter, VEs aren't researchers. They don't have research, either published or unpublished, that they have done that they can reveal to me. They're basing their testimony on the Dictionary of Occupational Titles (DOT) and generalized experience. One can ask questions like "Which factories did you visit to observe this job?" but I'm not sure where any answer to that question gets you.
     More important, concentrating on the issue presented in Biestek is like focusing one's attention on a flea on the back of a buffalo -- while one is being trampled by the buffalo. The enormous issue is the use of the DOT itself. The data in it is more than 40 years old! Everyone knows it's way out of date and quite unreliable yet the Social Security Administration keeps using it as a foundation for disability determination. The DOT isn't the issue presented in Biestek but it's hard to see how the Supreme Court can fail to notice it.

How Soon Might We Get A Supreme Court Decison On Whether Social Security's ALJs Are Constitutional?

     I've been trying to think through the question of how soon the Supreme Court might act on a case presenting the issue of whether Administrative Law Judges (ALJs) at the Social Security Administration, as currently hired, are constitutional. The normal process would be for cases to be filed in District Courts presenting the issue. The District Courts would issue decisions. The parties who lost in District Court would appeal the decisions to the Courts of Appeals. Once a few Courts of Appeals have acted on these cases, there would be a split, that is different Courts coming to different conclusions. The Supreme Court would then grant a writ of certiorari (cert) in one of the cases to resolve the issue. If this process is followed, there probably won't be a Supreme Court opinion on the issue until sometime in 2020.
     There are some ways this process could be speeded up. While it usually does, the Supreme Court doesn't have to wait until there's a split between different Courts of Appeals. It could take the first case on this issue decided by one of the Courts of Appeals. However, I don't think that would speed up things very much. If these cases proceed in the traditional manner there will be enough of them that this issue will probably come up in several Courts of Appeals around the same time and my guess is that there will quickly be a split. 
     The Supreme Court doesn't have to wait for a decision from a Court of Appeals. It can grant cert directly on a case that has just been decided by a District Court. However, it is exceptionally rare for that to happen. If the Solicitor General, who represents the federal government before the Supreme Court, asks for it, maybe, but this may not be the sort of thing that the current Solicitor General would regard as that urgent.
     What I really wonder is whether one or more of the Courts of Appeals will raise the issue of Social Security ALJ constitutionality sua sponte, this is, of the Court's own volition, in cases already pending in the Courts of Appeals on other issues, asking the parties to brief the Lucia issue and then deciding it even though the argument had not been presented to the District Court. If that happens, we could see action from the Supreme Court by this time next year. It's certainly unusual for one of the Courts of Appeals to raise an issue sua sponte but this is an exceptional situation. The judges of the Courts of Appeals are well aware of the urgency to get the issue resolved, far more so than Supreme Court justices. At any given time there are probably several hundred Social Security cases pending in the Courts of Appeals. Even if most judges of the Courts of Appeals wouldn't want to take up this issue sua sponte, wouldn't there be enough who would to get this argued and decided in some of the Courts of Appeals by late this year? That's what it would take for the Supreme Court to decide upon the issue next year. Would Social Security's attorneys even object to a Court of Appeals panel wanting to take this issue up sua sponte? They also have an interest in getting this decided soon. This might make for some interesting oral arguments in Social Security cases. One thing to note is that there are few oral arguments in the U.S. Courts of Appeals during the summer. The judges are still working but they hold few oral arguments during the summer. We may not see the sua sponte issue coming up until September. If you've got an oral argument coming up in the next three months in a Court of Appeals in a Social Security case, you'd better be ready in case the question is asked. However, I would note that even if some of the Courts of Appeals take this issue up sua sponte, there may still not be enough time to get this before the Supreme Court in time to get a decision by this time next year. Some of the Courts of Appeals would have to act pretty quickly to get this issue on the Supreme Court's docket in time. Maybe it's just wishful thinking on my part to believe it's possible. 

Jun 25, 2018

Social Security's First Public Response To Lucia

     The Social Security Administration has issued a revision to the Emergency Message it had released on the Lucia case prior to the Supreme Court's opinion. The revision adds little other than this: "The Office of the General Counsel (OGC), in consultation with the Department of Justice, is reviewing the [Lucia] decision to determine whether, and to what extent, it may affect SSA. We expect to issue additional instructions after OGC completes its review."
     While most of us didn't think the Supreme Court would really do it, we all knew it was possible. Wouldn't you expect that there would have been some contingency planning? Of course, the White House should have been coordinating such contingency planning across all federal agencies but the current White House seems uninterested in such sort of nuts and bolts governing and is highly preoccupied with other matters.

Final Regs On Representation Of Claimants Approved

     The Office of Management and Budget has concluded its review of regulatory changes proposed by the Social Security Administration titled Revisions to Rules of Conduct and Standards of Responsibility for Appointed Representatives. This is the final review. The agency may now publish this as final regulations.
     We won't know what is in the final regulations until they're published, which will probably happen in the near future. Here's what I wrote at the time these regulations were first proposed:
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?

Jun 24, 2018

An Unexpected Result

     From Correlation Patterns between Primary and Secondary Diagnosis Codes in the Social Security Disability Programs, Social Security Administration, Office of Retirement and Disability Policy, ORES Working paper 113:
... [D]isorders of the back and affective/mood disorders are by far the two most common impairments overall, together accounting for a disproportionately high share of the diagnoses (32.4% combined ... [T]he estimated correlation between the two diagnoses is small, but it is both negative and statistically significant (a −0.062 posterior mean with a t-statistic of −10.5). This finding appears to conflict with a popular perception: that affective/mood impairments and disorders of the back are two relatively “subjective” medical diagnoses with a “suspiciously” high degree of association. ...

Jun 23, 2018

Fresno's Hearing Backlog

     Fresno has the longest backlog of claimants awaiting a hearing on their Social Security disability claim in California. The local paper is noticing.

Jun 22, 2018

Your Move, Social Security

     I wrote this back in January in response to the upcoming oral argument in Lucia v. SEC, on the issue of Administrative Law Judge constitutionality:
There is an urgent need for at least the Acting Commissioner of Social Security to issue an order appointing each of the current ALJs and ratifying any actions they may have previously taken. The SEC has long since done this. The Department of Labor did it this week. I think it would be far safer if the President were to issue such an order. The Constitution talks only of department heads having the power to appoint inferior officers. SSA isn't a department. Yes, there's a reasonable argument that the framers of the Constitution were using the word "department" in a more generic way than it is currently used in the federal government; that they meant something more like "agency." Maybe the courts will buy that but maybe doesn't seem good enough to me with so much at stake. We need to move to Defcon 1 on this.
     Social Security didn't need me to tell them this. I'm virtually certain their in-house attorneys were saying the same thing. They may have been getting the same advice from the Department of Justice. However, they did nothing. Perhaps the problem was the lack of a proper acting Commissioner. Maybe they asked the President to do something or tell them what to do and he didn't. You may have noticed that the Trump White House isn't a well-oiled governing machine. Who knows what happened internally at Social Security? (If you're an insider who knows, I'd be interested in hearing from you.) In any case, they did nothing.
     How long is it going to take Social Security to respond to the Lucia decision? Will their response just be wishing and hoping that the Supreme Court ultimately draws a distinction between SEC ALJs and SSA ALJs? They might but I wouldn't bet on it.
     At the absolute least, we need for the President to sign an order appointing each of Social Security's current ALJs and ratifying their actions to this point. We need at least a backup plan for immediately converting Social Security's ALJs to some other job title where they can be fired at will. Perhaps, we need to go to that forthwith.
     I'd very much prefer to keep independent ALJs who are hired in much the same way as before and who can only be removed with great difficulty but a situation where Social Security has to redo every hearing held over a several year time period while it's in the middle of hiring new people to hold hearings would be an unimaginable catastrophe. Non-ALJ hearing officers wouldn't be the end of the world.
     By the way, the same problem exists with the Administrative Appeals Judges at the Appeals Council. They're civil service too.
     Also, this problem won't wait until a new Commissioner is confirmed. I don't know when a confirmation hearing is coming up. I don't know what the chances are that Mr. Saul will be confirmed. There are certainly reasons for Senators of both parties to be concerned about him.

OMB Proposals For Social Security

     From the Social Security part of government reorganization plan (page 127) recently issued by the Office of Management and Budget (OMB), which is part of the White House:
Eliminate In-Kind Support and Maintenance and the Holding Out Policy for SSI 
This proposal simplifies administration of the Supplemental Security Income (SSI) program and reduces improper payments. The proposal eliminates the counting of In-Kind Support and Maintenance (ISM) in lieu of a flat rate benefit reduction for adults living with other adults. The proposal also ends the intrusive and burdensome “holding out” policy, which currently reduces benefits for couples that present themselves as married to the community. 
Eliminate Services to Claimant Representatives 
This proposal would eliminate the Federal Government as the middleman in the relationship between applicants and the representatives they voluntarily hire. It would eliminate administration of fee agreements, fee petitions, and claimant representative travel. The current workload is expensive, error prone, and not SSA’s core mission. In FY 2016, SSA spent about $122 million on the activity, but collected only about $30 million (due to a statutory fee cap) to reimburse the trust funds. The $30 million collected is not currently part of SSA’s administrative resources. ... 
Eliminate SSI Dedicated Accounts 
This proposal facilitates financial independence by eliminating dedicated accounts for past-due benefits to SSI youth recipients. It also reduces the administrative burden of monitoring expenses from dedicated accounts. ... 
Additional Footprint Reduction 
SSA continues to find ways to increase real property efficiency and reduce the size of its real property portfolio. SSA will continue to co-locate offices, consolidate space while merging components, and ensure space savings when implementing telework.
     Note that none of this other than the "Footprint Reduction" can be implemented without legislation and that's not likely to happen and closing offices is certainly unpopular.

Delays In South Jersey

     The South Jersey Times isn't happy with the lengthy delays in processing Social Security disability claims:
Between the poles of allowing fraudulent Social Security disability applications to proceed unfettered, and holding up benefits from the deserving during an excruciatingly long process, there must be a "sweet spot" for regional Social Security Administration offices.
Whatever is going on, the South Jersey office is not hitting that sweet spot. ...
Average waits for a decision there are, stunningly, the third longest among the nation's 168 offices. ...
So why isn't this being treated by Congress or the public as a scandal ... ? ... [T]here's that little twinge of concern within most of us that injured, working-age non-veterans who ask for government benefit checks might really be trying to pull one over on Uncle Sam.
It happens, of course. We love watching videos of "injured" middle-aged guys who say they can't work, working the dance floor or shooting hoops in the driveway.
The Supplemental Security Income/disability process, which can result in multiple denials until someone finally the hires "right" lawyer, creates even more suspicion. For years, SSI payments were derisively known in some down-and-out areas as "crazy checks," obtained -- not always honestly -- by citing psychological disorders.
Large-scale commercial fraud, like the $550 million conviction of a Kentucky country lawyer and a plea from his administrative law-judge accomplice, requires monitoring of waves of unusually easy benefit approvals from the same jurisdiction. But how hard is it to separate these odd patterns from individual cases with no apparent irregularities? ...

Jun 21, 2018

SEC ALJs Unconstitutional

     The Supreme Court decision in Lucia v. SEC is out. ALJs, at least at the SEC, have been found unconstitutional. The decision leaves wide open the question of whether Social Security ALJs are constitutional. Social Security is not discussed at all in the opinion. You can find a distinction if you want in the fact that SEC ALJs hear adversary adjudications but I don't know if that's going to be enough.
     There's going to be an eruption of litigation concerning ALJs at every agency that employs them. Indeed, there will also be litigation over non-ALJ adjudicators across the federal government, including Social Security -- think Administrative Appeals Judges at Social Security's Appeals Council.
     We might wish that Social Security would defend the constitutionality of its ALJs but that is far from certain. The Trump Administration may have more general aims and Social Security ALJs may get caught in the crossfire.
     This is a seminal moment in the history of administrative law in this country.

Paying Bounties

     From an Emergency Message that the Social Security Administration (SSA) released yesterday:
... On July 2, 2018, SSA will mail a one-time advance notice to participating correctional and mental health reporters and facilities to inform them of a recent legislative change to Title XVI incentive payments. ...
Social Security Act requires that the institution enter into a written agreement with SSA. ... 
Beginning August 09, 2018, the legislation effective date, the Prisoner Update Processing System (PUPS) will pay incentives using the new Title XVI incentive payment rules for inmate admission information that result in the suspension of monthly benefits to our SSI recipients. The new Title XVI incentive payment rules provide the following: 
For every Title XVI recipient we suspend due to the inmate information provided, we will pay the institution:
  • $400 for information received within 15 days of the confinement; or
  • $200 for information received after 15 days but within 90 days after confinement. 
We will continue to pay for inmate information for our Social Security beneficiaries as we normally do under our current incentive payment law: 
For every Title II beneficiary we suspend due to the inmate information provided, we will pay the institution:
  • $400 for information received within 30 days of the confinement; or
  • $200 for information received after 30 days but within 90 days after confinement. ...

Jun 20, 2018

Disability Claims Decrease

     From the New York Times:
The number of Americans seeking Social Security disability benefits is plunging, a startling reversal of a decades-old trend that threatened the program’s solvency. It is the latest evidence of a stronger economy pulling people back into the job market or preventing workers from being sidelined in the first place.
The drop is so significant that the agency has revised its estimates of how long the program will continue to be financially secure. This month, the government announced that the program would not run out of money until 2032, four years later than its previous estimate last year. Two years ago, the government had warned that the funds might be depleted by 2023.
In addition to stronger economic growth, the drop reflects newly tightened standards for eligibility and the increasing number of baby boomers who are leaving the program because they have become eligible for Social Security retirement benefits and Medicare. ...

Social Security Bill To Be Marked Up Tomorrow

     The House Ways and Means Committee will be marking up a very minor Social Security bill tomorrow having to do with the coverage of Indian Tribal Council members.

Jun 19, 2018

Facebook Use Of Social Security Numbers Draws Concern

     From CT News Junkie (whatever that is):
New rules that Facebook has adopted regarding political ad buys have raised concerns within the House Ways and Means Social Security Subcommittee where John Larson is the ranking Democrat.
The panel has sent a letter to Facebook CEO Mark Zuckerberg expressing reservations that the social media company plans to collect the last four digits of Social Security numbers of those purchasing political ads on its web platform.
“Given the bipartisan concerns about the problem of identity theft, including the risk associated with SSNs being stolen, it is important for us to understand how these numbers will be used and how they will be protected,” wrote Larson and Texas Republican Sam Johnson, who chairs the panel. ...

Onlike AC Appeals

     An announcement from the Social Security Administration:
We are pleased to announce a new online process for filing a Request for Review of an Administrative Law Judge (ALJ) hearing decision or dismissal (i520). 
The new online i520 process accepts both medical (disability) and non-medical (non-disability) appeals of an ALJ hearing decision or dismissal. 
There are many benefits to using the new i520. 
  • Requests for review at the Appeals Council can be filed online. 
  • The online appeals application is simple, convenient, and secure; it guides claimants and their appointed representatives through every step of the process, including uploading any necessary documentation. 
  •  The HA-520 and documents are automatically routed to the correct branch in the Office of Appellate Operations, which improves the appeals process. 
 While the preferred method for filing a Request for Review is the new online i520 process, we will continue to accept requests by mail or fax. Please be sure not to submit multiple review requests by filing online and also by mail or fax, as it could delay processing. Additionally, please note that this new online process cannot be used to request an extension of time to file a civil action, Federal court review, or an ALJ decision in a case remanded by a Federal court. 
We encourage you to share this information with your colleagues.

Jun 18, 2018

Why Does It Take So Long To Get A Hearing?

     Senator Cory Booker wants to know why it takes so long to get a Social Security hearing. When I started practicing Social Security law in 1979 it took about three months to get a hearing. It's now taking about a year and a half for my clients. It's over a year almost everywhere and around two years in some places. Why? The answer I give my clients is that Social Security isn't given enough money to hire the personnel it would take to do it faster. There are things Social Security could do even with its current staffing such as taking its foot off the the brake pedal on senior attorney decisions but anything that would be perceived as helping claimants is out on the question in the current political environment.

Jun 17, 2018

Who Knew? Limit On Social Security Card Replacement

     I've still got the yellowed Social Security card I got when my mother took me to the local Social Security office at age 16 to get a Social Security number. In those days you didn't get a Social Security number or card at birth; only when you needed to get one to take a job.  It's a good thing I've not been in the habit of losing my Social Security card because Forbes reports that there's a cap on the number of times you can get a new card without jumping through a lot of hoops.

Jun 16, 2018

SSA Implements Trump Ordered Attacks On Unions

     From Joe Davidson at the Washington Post:
Enforcing President Trump’s crusade against federal labor organizations, his lieutenants at two large agencies have opened new fronts against government unions. 
The Department of Housing and Urban Development (HUD) wants to evict all union offices from agency facilities, while the Social Security Administration (SSA) plans to “revise” 21 points in its union contract. ... 
Referring to executive orders issued by Trump, a June 5 letter from Social Security to AFGE gives “notice of the Agency’s decision to implement all three Orders effective July 9, 2018,” even as it couches the decision as a proposal. 
That letter provides a list of 21 contract items Social Security wants to change, including office space, employee rights, child care, elder care, equal opportunity, leave, training, health, safety, performance, discipline, grievance procedures, promotions — almost anything anyone can imagine. ...

Jun 15, 2018

House Committee To Consider Social Security Appropriation

     A subcommittee of the House Appropriations Committee is scheduled to consider a large appropriations bill for fiscal year (FY) 2019 today. That FY begins on October 1, 2018. This bill includes the Social Security Administration's Limitation on Administrative Expenditures (LAE), which is, in effect, the appropriation for Social Security. Here's some highlights of the chairman's "mark" (beginning at page 142). That's the subcommittee's starting point:
  • LAE $12,422,045,000
  • "$100,000,000 shall remain available through September 24, 2020, for activities to address the disability hearings backlog within the Office of Hearings Operations" but any of this not expended by the end of FY 2019 (September 30, 2019) must be spent on IT and telecommunications. This all comes out of the LAE.
  • "[N]ot more than $1,683,000,000 to remain available through March 31, 2020, is for the costs associated with continuing disability reviews ... or the cost of co-operative disability investigation units, and for the cost associated with the prosecution of fraud in the programs and operations of the Social Security Administration by Special Assistant United States Attorneys ..." Again, this comes out of the LAE.
     The LAE proposed is slightly higher than the $12.393 billion proposed by President Trump but still only marginally higher than the figure for the current FY of $12.236 billion. It probably won't be enough to even keep up with inflation. It's less than what Social Security was given in FY 2017, $12.482 billion.

Jun 14, 2018

Social Security To Address Workplace And Domestic Violence

     From a notice published by the Social Security Administration in today's Federal Register:
... In accordance with the Privacy Act (5 U.S.C. § 552a) , we are issuing public notice of our intent to establish a new system of records entitled, Social Security Administration Violence Evaluation and Reporting System (SSAvers) (60-039). On April 18, 2012, President Obama issued the memorandum, Establishing Policies for Addressing Domestic Violence in the Federal Workforce, which directed the Office of Personnel Management to issue guidance to all departments and agencies to create policy that addressed domestic violence, sexual assault, and stalking. Because of this guidance, we developed the Workplace and Domestic Violence policy and program. 
We established SSAvers as part of this policy and program to record, review, investigate, and respond to allegations of workplace and domestic violence affecting our employees and contractors. ...
SSAvers will capture and house information regarding alleged incidents of workplace and domestic violence filed by SSA employees and SSA contractors, and will allow SSA’s Crisis Advisory Team (CAT) to review and respond to the reported allegations. Due to the investigatory nature of information that we will maintain in this system of records, we propose this rule to add SSAvers to the list of SSA systems that are exempt from specific provisions of the Privacy Act pursuant to 5 U.S.C. 552a(k)(2). ...

Jun 13, 2018

Two Social Security Rulings Rescinded

     From a notice published by Social Security in the Federal Register (footnote omitted):
   ... In accordance with 20 CFR 402.35(b)(1), we give notice that we are rescinding the following SSRs [Social Security Rulings]: 
  • SSR 96-3p: Titles II and XVI: Considering Allegations of Pain and Other Symptoms in Determining Whether a Medically Determinable Impairment is Severe.
  • SSR 96-4p: Titles II and XVI: Symptoms, Medically Determinable Physical and Mental Impairments, and Exertional and Nonexertional Limitations.
These SSRs are unnecessarily duplicative of SSR 16-3p Titles II and XVI: Evaluation of Symptoms in Disability Claims, which was applicable on March 28, 2016 , published in the Federal Register on March 16, 2016, 81 FR 14166. SSR 16-3p, a more comprehensive statement of our policy on symptoms, explains how we evaluate the extent to which alleged symptoms limit an adult’s ability to perform work-related activities and a child’s ability to function effectively in an age-appropriate manner. ...

Jun 12, 2018

Social Security Employee Arrested

     From the Daily Herald of suburban Chicago:
A Montgomery woman has been indicted on charges that she pocketed at least $680,000 while working as a claims specialist for the Social Security Administration.
Officials said Ann Aroste, 42, faces five counts of wire fraud and five counts of aggravated identity theft in connection with five instances between August 2013 and May 2018, according to an indictment filed in federal court Thursday.
According to the indictment, Aroste began working for the Social Security Administration in April 2008 as a claims specialist processing and approving applications for social security benefits. Authorities said Aroste used her position to approve fraudulent applications for survivor benefits for people she falsely claimed had been married to deceased workers. Those five fraudulent claims resulted in at least $680,000 being paid by the U.S. Treasury Department to bank accounts Aroste controlled, officials said.
Officials said Aroste was arrested Monday morning and pleaded not guilty at an arraignment hearing later Monday afternoon.
Each count of wire fraud can carry a sentence of up to 20 years in prison, and each count of aggravated identity theft is punishable by a mandatory two- year prison sentence after a conviction.
     I assume the Montgomery where this woman lives is in Illinois.

Social Security Operating Budget Under Consideration

     From the Center on Budget and Policy Priorities (CBPP):
The House Appropriations Labor, Health and Human Services, and Education Subcommittee may consider this week its 2019 funding bill, which funds the Social Security Administration (SSA) — and, when it does, it needs to continue the recent progress in reversing years of damaging cuts to SSA’s budget.
SSA’s operating budget fell nearly 9 percent between 2010 and 2018, after adjusting for inflation — even as the number of beneficiaries (including retirement, survivors, and disability benefits) grew by nearly 15 percent. The 2011 Budget Control Act’s (BCA) tight annual caps on defense and non-defense discretionary spending drove extremely tight SSA budgets, undermining its customer service by forcing it to close field offices, shorten office hours, and cut staff.
Policymakers increased SSA funding earlier this year, a step in the right direction but not nearly enough to make up the ground SSA has lost since 2010. The 2018 Bipartisan Budget Act raised the BCA budget caps for fiscal years 2018 and 2019, and policymakers responded by boosting SSA’s 2018 operating budget by $480 million or 4.5 percent.  However:
  • More than half the increase, $280 million, will go for much-needed information technology improvements, which will fund about 40 percent of SSA’s multi-year IT modernization plan.
  • Another $100 million will help address the nearly 1-million-case backlog in disability appeals by letting the agency hold roughly 50,000 more hearings.
  • Just $100 million of the increase will go toward front-line service for Social Security, Supplemental Security Income, Medicare, and the other programs SSA supports.  SSA needs over three times this amount simply to keep up with fixed costs like rent and employee health insurance.
So even with the increased funding, SSA is still struggling to keep up with rising demands, and its customer service problems continue. The agency has started another round of field office closures, prompting bipartisan concern in Congress. ...

Jun 11, 2018

Pending Hearing Requests Dropping

     From a recent presentation by Teresa Gruber, Social Security's Deputy Commissioner for Hearings Operations at a conference of the National Organization of Social Security Claimants Representatives (NOSSCR):
Click on image to view full size

Jun 10, 2018

NAS To Get $20.5 Million Contract

     From a contracting notice published by Social Security:
The Social Security Administration (SSA) intends to issue a sole source contract with cost reimbursement task orders ... to the National Academy of Sciences (NAS) for a period of 5 years beginning on or around September 30, 2018. The NAS will set up Committees of medical, vocational, and other experts having expertise in fields such as, internal medicine, pediatrics, oncology, otolaryngology, ophthalmology, endocrinology, physical medicine and rehabilitation, occupational therapy, physical therapy, orthopedic surgery, industrial and organizational psychology, psychiatry, developmental-behavioral pediatrics, neurology, cardiology, vocational rehabilitation, health care case management, social sciences, education and health care and workplace economics. The Standing Committee will continue work necessary to maintain an essential capability for theoretical analyses of research, relevant evidence and clinical practices in physical medicine, psychiatry, and rehabilitation medicine.
... The size standard is $20.5M....
     The National Academy of Sciences is not a governmental agency. It's a private non-profit that largely functions as a beltway bandit seeking out this sort of contract.

Jun 9, 2018

Congressman Wants Some Answers

     From a press release:
U.S. Rep. French Hill (R-AR) chastised the Social Security Administration (SSA) for reportedly overpaying Social Security Disability Insurance (SSDI) beneficiaries by billions of dollars for several years and then permanently waiving billions more in overpayment debt. And the congressman wants an update.
In a May 31 letter sent to SSA Acting Commissioner Nancy Berryhill, Rep. Hill requested that she provide responses to three questions, including the exact totals for what SSA has overpaid to SSDI beneficiaries and for waived overpayment debt from fiscal year (FY) 2014 to the present.
The congressman’s letter also served as official congressional notice to Berryhill that the SSA was receiving the most-recent Golden Fleece Award for its wasteful use of American taxpayers’ dollars. ...
     I've got a modest proposal. How about no overpayment waivers in Hill's district with Social Security giving out Hill's phone number to his constituents who want an explanation?

Jun 8, 2018

Arlington Field Office Still Closing

     The Arlington, VA Social Security field office is still closing despite Congressional pressure. It's in an area whose population is rapidly increasing. Social Security tried to blame the closing on a lack of rentable office space in the area but local leaders say that's ridiculous. The agency failed to follow its own protocols for closing a field office, blindsiding local leaders.

Jun 7, 2018

If You Were Hoping For Evidence That Eric Conn Is Suffering, Here You Go

     From the Lexington, KY Herald-Leader:
Eric C. Conn, who fled the country to avoid prison after committing fraud on a grand scale in his legal practice, pleaded guilty Monday in a deal that will keep him behind bars for up to 27 years. ...
Conn, wearing a green jail jumpsuit, handcuffs and a leg chain, walked slowly into the courtroom.
It appears being behind bars has drained Conn ...

Conn’s hair appeared more gray than when the FBI brought him back to Kentucky in December, and there was no energy in his voice as he answered Reeves’ questions, unlike his firm tone in prior appearances.
Conn — 57 by his account, but listed as 58 by the government — fidgeted and appeared to shake during the hearing, and seemed to wince at times.
Reeves asked him at one point if he was in distress, and Conn said he was in pain but was okay to continue.
Conn didn’t describe the source of his pain, but told Reeves he takes anti-anxiety medication. His plea mentions that he might ask to serve his sentence at a medical facility. ...

Read more here: http://www.kentucky.com/news/state/article212475189.html#storylink=cpy

Read more here: http://www.kentucky.com/news/state/article212475189.html#storylink=cpy

Jun 6, 2018

Statistical Report From OHO

     From the newsletter (not available online) of the National Organization of Social Security Claimants Representatives (NOSSCR):
Click on image to view full size
     Note all the overtime at OHO.

Jun 5, 2018

DI Trust Fund Makes Big Stride In One Year

     A Social Security press release (emphasis added):
The Social Security Board of Trustees today released its annual report on the long-term financial status of the Social Security Trust Funds. The combined asset reserves of the Old-Age and Survivors Insurance and Disability Insurance (OASDI) Trust Funds are projected to become depleted in 2034, the same as projected last year, with 79 percent of benefits payable at that time.
The OASI Trust Fund is projected to become depleted in late 2034, as compared to last year’s estimate of early 2035, with 77 percent of benefits payable at that time. The DI Trust Fund will become depleted in 2032, extended from last year’s estimate of 2028, with 96 percent of benefits still payable.
In the 2018 Annual Report to Congress, the Trustees announced:
  • The asset reserves of the combined OASDI Trust Funds increased by $44 billion in 2017 to a total of $2.89 trillion.
  • The total annual cost of the program is projected to exceed total annual income in 2018 for the first time since 1982, and remain higher throughout the 75-year projection period. As a result, asset reserves are expected to decline during 2018. Social Security’s cost has exceeded its non-interest income since 2010.
  • The year when the combined trust fund reserves are projected to become depleted, if Congress does not act before then, is 2034 – the same as projected last year. At that time, there will be sufficient income coming in to pay 79 percent of scheduled benefits.
“The Trustees’ projected depletion date of the combined Social Security Trust Funds has not changed, and slightly more than three-fourths of benefits would still be payable after depletion,” said Nancy A. Berryhill, Acting Commissioner of Social Security. “But the fact remains that Congress can keep Social Security strong by taking action to ensure the future of the program.”
Other highlights of the Trustees Report include:
  • Total income, including interest, to the combined OASDI Trust Funds amounted to $997 billion in 2017. ($874 billion from net payroll tax contributions, $38 billion from taxation of benefits, and $85 billion in interest)
  • Total expenditures from the combined OASDI Trust Funds amounted to more than $952 billion in 2017.
  • Social Security paid benefits of more than $941 billion in calendar year 2017. There were about 62 million beneficiaries at the end of the calendar year.
  • The projected actuarial deficit over the 75-year long-range period is 2.84 percent of taxable payroll – slightly larger than the 2.83 percent projected in last year’s report.
  • During 2017, an estimated 174 million people had earnings covered by Social Security and paid payroll taxes.
  • The cost of $6.5 billion to administer the Social Security program in 2017 was a very low 0.7 percent of total expenditures.
  • The combined Trust Fund asset reserves earned interest at an effective annual rate of 3.0 percent in 2017.
The Board of Trustees usually comprises six members. Four serve by virtue of their positions with the federal government: Steven T. Mnuchin, Secretary of the Treasury and Managing Trustee; Nancy A. Berryhill, Acting Commissioner of Social Security; Alex M. Azar II, Secretary of Health and Human Services; and R. Alexander Acosta, Secretary of Labor. The two public trustee positions are currently vacant.
View the 2018 Trustees Report at www.socialsecurity.gov/OACT/TR/2018/.

Trustees Report Coming

     The House Social Security Subcommittee has scheduled its annual hearing on the annual report of the Social Security trustees for June 7 at 11:00. Don't expect any surprises either in the report or in the reactions of the members of Congress.

Jun 2, 2018

OIG Report On Overpayment Collection

     From a recent report by Social Security's Office of Inspector General (OIG):
SSA [Social Security Administration] attempts to fully and immediately recover an overpayment. If a full refund is not possible, SSA may withhold part or all of the individual’s monthly benefit, or create an installment plan when the individual is no longer receiving benefits. Under an installment plan, the individual agrees to refund the overpayment through monthly payments. SSA negotiates the repayment agreement and establishes the payment’s due date. 
We identified 12,269 individuals where the Recovery of Overpayments, Accounting and Reporting system indicated SSA was attempting to recover the overpayment through an installment agreement. However, for all these overpayments, the most recent installment- related action was before June 2016. At the time of our audit, these individuals owed SSA almost $88.3 million in overpaid benefits. ...
For the 12,269 debtors we reviewed, the overpayment record showed the last installment- related action occurred 11 months to 32 years before June 2016. ...
     A couple of points:
  • Is it appropriate for Social Security to be trying to collect 32 year old debts? How many of these debts are similarly ancient? Why is there no statute of limitations?
  • OIG seems unconcerned with the costs of collection. Is it cost effective to use expensive debt collection methods for small debts, especially at a time of staffing shortages? Reading OIG reports you might think Social Security is mainly a debt collection agency.

Jun 1, 2018

A Criminal Genius At Work

     Eric Conn's preposterous little escape to Central America has cost him dearly. His sentence went up from 12 years to 27.
     By the way, you might wonder what we in the Social Security bar thought about Conn back when he was practicing. The thing is that no one seemed to know the guy. When he got in trouble there were a lot of Social Security attorneys asking "Who's he?" The attorneys with larger practices mostly know or know of each other but not Conn. He was off on his own island. Everybody's reaction was "Why would you do that? Keep your nose clean and do your job and you can make a living and sleep at night." If you're trying to make a fortune practicing law, you've chosen the wrong career.