We have heard little from Andrew Saul since he was sworn in as Commissioner of Social Security. Below are some of the decisions he'll have to make in coming months in addition to the obvious staffing decisions he must make. I'm sure there are other items on his plate, particularly in Informational Technology, but I'm not familiar enough with those to write about them.
What To Do About Hicks v. Commissioner of Social Security
- Social Security twisted its rules to cut off benefits for as many of Eric Conn's former clients as possible. The 6th Circuit Court of Appeals ruled against the agency on November 21, 2018. Ever since then the Solicitor General and Social Security have been "considering" whether to ask the Supreme Court to hear the case. I doubt that they are seriously considering that. I think they've just been stalling until a new Commissioner was confirmed because it's hard to decide how to implement the decision of the Court of Appeals. They can't stall much longer.
What To Do About Cases Pending At The Appeals Council Which Were Decided Prior To Lucia v. SEC And An Objection Has Been Made To ALJ
- The Supreme Court decided last year that Administrative Law Judges (ALJs) as then appointed were unconstitutional. Social Security changed the way ALJs were appointed to adjust to this decision but there are thousands of cases still pending at the Appeals Council that were heard before the Lucia opinion. The agency has suggested that they want to avoid remanding all these cases for new hearings with different ALJs by having the Appeals Council issue new decisions on its own. This is arguably illegal and probably impractical. A decision on this can't be delayed much longer.
Proposed Regulation That Has Been Published For Comments And Can Now Be Made Final
- Removing inability to communicate in English as a factor in determining disability. Anti-immigrant proposals are very popular with Republicans these days but Saul will poison his relationship with Congressional Democrats if he goes ahead with this one and they have the power to make his life difficult.
Proposed Regulations That Have Not Yet Been Published For Comments
- Considering social media in determining disability. Unpopular with many in Congress, including Republicans.
- Revising evaluation of vocational factors in determining disability (probably increasing age categories in grid regulations). Go ahead with this one and you've made a declaration of war on Congressional Democrats.
- Hearings held by Administrative Appeals Judges. Nobody knows exactly what this one is but if it's what I think it is -- trying to get rid of independent ALJs -- it's going to be unpopular with all Democrats and many Republicans in Congress.
Stance On Employee Unions
- The Trump Administration has taken an extremely aggressive and antagonistic stance on federal employee unions. Social Security has followed suit. Democrats on the House Ways and Means Committee are already pressuring Saul to soften Social Security's approach. Will he be a loyal Republican and continue the harsh anti-union stance or does he modify it to avoid conflict with Congressional Democrats who can make his life difficult? His message to agency staff suggests that he'll soften the anti-union stance.
Process For Appointing New ALJs
- The old process for appointing ALJs was found unconstitutional. What will the new process be?
- This one may be wishful thinking on my part. The cap on fees that may be charged for representing Social Security claimants hasn't been raised since February 9, 2009. By any normal standard it's way past time to increase it. However, I'm not sure that the organizations that represent those who represent claimants have been able to generate any real pressure to increase the cap.
17 comments:
What a slacker! 9 whole days and he hasn't done any of those things!!! I am outraged!!! Offended!!!! I demand action on all of those things with no thought or consideration just action!!! 9 DAYS!!!! What a disgrace!!!!
Dude. He's just summarizing the issues that he will be dealing with.
While we are thinking wishfully, how about revoking representative travel reimbursement.
So should the Fee Cap be adjusted to match the COLA of SSDI recipients? While it doesn't match the true rate of inflation, it seems like it would be a better sell to Congress and would at least allow for some increase most years.
Not ideal, but better than nothing.
@2:13PM. Yes, that seems like a workable concept but first we need to raise the cap based on that for the past 10 years it has not been adjusted.
1:33 PM, who peed in your cheerios? ALJs get to sit in their cushy offices playing dial-a-judge all day, while I put 30,000 miles per year on my Camry covering hearings in Timbuktu. I damn well earn that travel reimbursement.
I am a veteran Social Security Disability attorney of 40 years. I am in favor of doing away with the travel reimbursement. Travel should be a cost of doing business. I believe (I imagine five posters will correct me if I am wrong and even if I am right) that the reimbursement was put in place to encourage representation of claimants. In my early days of disability practice (1979 to the present) attorneys did not want to take disability cases. After I had transitioned from real estate law to disability many of my attorney friends told me that there was no money in disability. I told them that that is exactly what I want you to believe. I would like to see the reimbursement revoked to discourage the so-called national television/internet firms. I am in favor of local representation. Also, there is no need now to encourage representation, most claimants have no problem finding an attorney to represent them.
Last week SSA requested and received an extension of time to file a cert petition in Hicks - new deadline is 7/29/19. Saul v. Hicks, No. 18A1319
Anon 3:48. I appreciate your being the game for 40 years. I have been it since the mid 2000s. I have worked for large national disability firms and local firms, some good some bad. The key is good representation.
When I did work for the big firms and traveled around, the local firms (and some ALJs) were miffed. Seems like they wanted all the local claimants and did not care to know if the actual national rep was good or not. They just presumed they were not without any evidence.
About the travel reimbursement, I too put over 20K on my car per year. I see it as like a badge of honor, like I am a pseudo truck driver. But not sure why another attorney would protest about reimbursement for another attorney?
When ALJ's are in travel status for an entire week they need to complete a minimum amount of hearings. With rep travel the Rep can show up for one hearing and get reimbursed for travel, then again the next week for one hearing and be reimbursed again. There are some rules in place to encourage more local reps but they are out of date.
@4:21
I think 3:48's point was that travel reimbursement lowers the cost of representation to the point that less cost-efficient (i.e. national) firms are able to try and represent claimants and 3:48 believes these firms are not adequately representing claimants. So 3:48 is proposing doing away with the travel reimbursement in an attempt to remove the incentive for larger firms to get out of the business. Also, 3:48 asserts local representation is appropriate and there is no longer a need to provide an incentive as to representation, which 3:48 believes is why travel reimbursement first began.
I disagree. 1, national firms farm out claims to local representatives, so getting rid of travel reimbursement will not fix anything. 2, any help the Administration can provide in subsidizing the cost of representation is welcome. Representation costs money and with more funds, more efforts can be made to ensure the record is fully developed. 3, the remaining national firms weathered the past two decades were award rates experienced a massive decrease. They are not going to leave because SSA stops paying a hundred dollars or so per claim. 4, travel reimbursement was started to assist claimants in reaching the hearing site because claimants should be afforded due process, and an in-person hearing (at least historically) is of significant due process concern. It made sense to extend that benefit to the claimant's representative because not doing so would be a disincentive as to representation, which is also a due process concern.
Nobody pays me to drive to work every day.
To the folks that propose getting rid of the travel reimbursement because "there are plenty of attorneys." I can see that in areas that have legal markets, but there are plenty of areas of the country with remote hearing sites and claimants who don't live near any major legal market. Good luck getting attorneys to represent those people if they have to bear the complete cost of travel for a case they will only maybe win.
Attorneys don't get paid travel reimbursements to handle matters in State or Federal Courts. If it's not cost effective to drive some where then don't represent that person. Claimant's have no difficulty finding representation (assuming they have a valid claim).
Love ya @8:43
The travel reimbursement is so low and takes so long to get that I usually don't bother with it. I don't think it's a factor in the decision to take a case.
I am 3:48 from above. Please note that there are already limits on the travel reimbursement. The limit is based on distance from the hearing office to the furthest point in the counties covered by that hearing office. That distance has to be at least 75 miles. I know of at least one hearing office that does not have an reimbursement. There probably are others. The hearing office I know about is the Seven Fields OHO in Mars, PA. Mars, PA is in Southern Butler County, about 20 miles north of Pittsburgh. That office covers several counties north of Pittsburgh like Butler, Armstrong, etc. It also covers the area around Youngstown, Ohio. Youngstown is approximately 45 miles from the hearing office. Although I live 1,000 miles from the Seven Fields office I have had several hearings there. I represented two of my cousins. There was no reimbursement because there is no area covered by that office that is more than 75 miles from Mars, PA. I believe that the travel is another cost of doing business. Someone alluded to the fact that the "National firms" hire local attorneys to handle the hearings. I have never done any work for those type of firms. I have heard anecdotes from my clients (former clients of National firms) and from other sources that the local attorneys are usually brought in late in the game. The local attorney usually does not have an opportunity to develop the file or have much contact with the client. I see many of these clients and attorneys at the hearing offices sitting in the waiting rooms going over the case for the first time 30 minutes before the hearing. Some of my appeal clients have described this scenario to me many times: They are represented by the national firm. they get a call about two days before the hearing telling them to meet Attorney Smith or Jones (Names changed to protect the innocent) 30 minutes before the hearing. If there was a way to argue ineffective assistance of counsel in a Social Security appeal I probably would do so. I prepare my clients for the hearing 3 to 4 weeks out. My office updates the file throughout the case and especially upon receipt of the hearing notice. One Chief ALJ told me that one of the national firms dismisses about 50% of the hearing requests that they have in his office. I believe that in many of these cases local is better. The ALJs know me from 40 years of practice. That does not mean I get everything I am after but I do think they respect the fact that I will not back down and will exercise the right of the Appeals Council and the Federal Court if I need to.
With regard to the first point, Lucia. There are also cases in the Federal Courts. The vast majority of those cases have ruled that a claimant cannot first raise Lucia in the Federal Court. Some of those decisions have not analyzed the issue of what did the Supreme Court mean by "timely." There are several exceptions through decisions by Courts in Pennsylvania and North Carolina. On June 27, 2019 a Magistrate Judge in the Northern District of Oklahoma remanded a case and also held that Lucia can be raised for the first time in Federal Court. The Magistrate Judge's decision in that case was the final Order and Judgment of the Court. The Lucia case window (decided by an ALJ before July 10, 2018) is closing.
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