Dec 31, 2020

And It Didn't Get Trump Re-Elected!

      From Stars and Stripes:

Members of the armed forces and federal employees have 12 months instead of four to pay back Social Security taxes that haven't been collected since September, officials said this week.

The so-called payroll tax deferral, which was put in place by the Trump administration for the last four months of 2020 to help workers during the coronavirus pandemic, meant that many working Americans — including service members and federal employees — had an extra 6.2% of money in each paycheck.

But starting with the first pay period of 2021, the extra money has to be paid back. And, on top of that, Social Security taxes will be collected again.

Initially, the money was supposed to be repaid by April 30 in equal amounts, which would have meant a dip in paychecks of 12.4%.

But this week, the Defense Finance and Accounting Service announced the period to collect the deferred tax has been extended until Dec. 31, 2021, meaning the money will be deducted in even amounts over 26 pay periods instead of eight. ...

     This is just the Department of Defense. Are other federal agencies doing the same? 

     By the way, like the overwhelming majority of private employers, my law firm never stopped collecting FICA.


Dec 30, 2020

Ramping Up The Heat On Saul

      From Joe Davidson's column at the Washington Post:

The Social Security Administration’s internal watchdog has bit it, again, for shortchanging beneficiaries, this time as employee and advocacy groups are pushing for the removal of its political appointees.

A report from the agency’s inspector general’s office is replete with complaints about the agency failing to make people whole. ...

Just as money is a problem for those who didn’t get Social Security checks, money is one reason the agency can’t get the checks out on time, according to Web Phillips, an analyst and consultant with the National Committee to Preserve Social Security and Medicare.

Social Security has too much to do for its staff and resources, said Phillips, who worked there for three decades. “This is being driven by the availability of resources,” he said. “It’s not that there are bad people who don’t care. It’s just that they have to triage the work that they’ve got.” ...

The inspector general’s reproach was issued just two days after two federal employee unions, the Association of Administrative Law Judges and the National Council of SSA Field Operations Locals (Council 220), declared no confidence in President Trump’s Social Security appointees. That same week, Social Security Works said Social Security Commissioner Andrew Saul and Deputy Commissioners David Black and Mark Warshawsky should be removed “immediately.” Council 22 also urged their removal. ...

Time and again, the inspector general’s report said “we found no evidence,” or similar wording, to describe Social Security’s repeated failures to appropriately address the problems of underpayments ...

Rep. John B. Larson, chairman of the House Ways and Means Social Security subcommittee, called the report’s finding “alarming.” ...

“Underpayments are just as important as overpayments,” said Larson (D-Conn.), “and SSA leaders need to pay as much attention to preventing and correcting underpayments as they do to overpayments.” Next month, his panel will examine reasons for the errors and ways to fix them.

Speaking as “the Republican leader on Social Security,” Rep. Tom Reed (N.Y.) promised to hold SSA accountable. “It’s not fair that in some cases the SSA pays people less than they’ve earned, and the SSA needs to do better,” said Reed, the subcommittee’s ranking minority-party member. ...

“SSA’s misplaced focus on overpayments rather than on all improper payments (including underpayments),” [Nancy Altman, president of Social Security Works] wrote by email, “is the result of decades of Republican leadership that’s focused on preventing people from getting the benefits they’ve earned.” ...

Dec 29, 2020

OHO Overtime Plummets In November

         The report shown below was obtained from Social Security by the National Organization of Social Security Claimants Representatives (NOSSCR) and published in its newsletter, which is not available online to non-members. It contains basic operating statistics for Social Security's Office of Hearings Operations. 

Click on image to view full size


Dec 28, 2020

Whither Saul?


      The nearest comparable situation to the one we have now with the Commissioner of Social Security holding over or not holding over into a new Administration was in 2008 after the election of Barack Obama. Then Commissioner Astrue was the first Commissioner confirmed to a fixed term in office. He had been nominated by a Republican President. Astrue's term extended into Obama's term. After Obama was elected I heard at least one person in a position to know say that there was no way Astrue could stay on after Obama took office. We didn't hear anything for more than a month after election day. However, on December 11, 2008 I was able to post about an interview that Astrue had given where he said he would stay in office during the Obama Presidency. We're further along than this in December and I have not heard a word aboutAndrew Saul's plans.

     This situation is not completely the same as before. Astrue was acknowledged by all as competent; Saul, not so much. Astrue had stepped on some toes but not nearly to the extent of Andrew Saul, who seems to have gone out of his way to offend, particularly to offend employee unions which are an important Democratic constituency. Democrats definitely want Saul out. There is the issue now of whether Saul can be fired without cause. That constitutional issue had not emerged in 2008.

     I don't know what's going to happen but it's surprising to me that Saul hasn't either said he's leaving soon or taken some action to let it be known that he's going to try to hang on.

Dec 27, 2020

Six Million?

      From Cox Media Group:

The Social Security Administration plays a critical role in helping people with financial relief in their later years of life, but for some people, the checks don’t ever stop.

“What we found is their books are a mess,” said Adam Andrzejewski with OpenTheBooks.com.

He shared data with us that showed 6 million Social Security numbers that were active for people aged 112-years-old and older.

 “Here’s the problem: there’s only 40 of those people alive in the entire world,” Andrzejewski said. “Last year, Social Security paid out $8 billion improperly.” ...

A bill has been introduced in the Senate to stop dead people from receiving these payments, but Andrzejewski said it has gone nowhere.

     I have no idea whether the 6 million number is accurate but 6 million who are not listed as dead is not the same thing as 6 million dead people receiving benefits. This is so wildly misleading that it raises questions about the motivations of the people behind this "revelation".

     In the end, if you want better efforts to police the death master file, you want to give the Social Security Administration a lot more money for its operating budget. You could, in the alternative, ask whether maintaining the list of dead people should even be the responsibility of the Social Security Administration.

Dec 22, 2020

0.5% Increase In Social Security's Operating Budget

      The huge appropriations/stimulus bill that was just passed by Congress and which should soon be signed by the President includes a $12.9 billion appropriation for Social Security's administrative expenses, an increase of $67 million or 0.5% from the last fiscal year.

     Update: I've corrected the math error. It's not a 5% increase, but a 0.5% increase. There's a reason I'm a lawyer and not an engineer!

Merry Christmas


 

Dec 21, 2020

What's Going On With The Puerto Rico SSI Case?

     In U.S. v. Vaello-Madero the First Circuit Court of Appeals held that it is unconstitutional to deny SSI benefits to U.S. citizens who reside in U.S. territories such as Puerto Rico. The United States Solicitor General petitioned the Supreme Court for a writ of certiorari to review that decision. That means they are asking that the Supreme Court hear the case.

     All the briefs concerning the petition have been filed. The Court generally makes decisions on whether to grant cert at weekly conferences, usually held on Fridays. The Vaello-Madero cert petition was distributed for consideration during the Court's conference on December 11. The Court could have granted or denied cert at that conference but it didn't. It could have relisted the cert petition for consideration at a future conference, which is common, but it didn't. They took no action, effectively putting the case on hold which is less common.

     Amy Howe, writing for SCOTUSblog, which is THE website for Supreme Court news, tells us that the most common reasons for putting a cert petition on hold are because the Court is already considering a similar case or because the Court is waiting for another cert petition presenting a similar question. Neither of these is the case here, unless the Supreme Court is waiting on the Ninth Circuit Court of Appeals to act on a similar case concerning SSI benefits for Guam residents but, as far as I know, that case hasn't been scheduled for oral arguments yet. A decision could be many months off.

     What else could be going on here? I'm no Supreme Court expert but I've read some of the briefs. The briefs supporting SSI for U.S. territories expressed concern that there would be a summary disposition of the case, that is that the Court would summarily reverse the First Circuit without oral arguments, which it can do. The Court may have already decided to do that but has not yet announced anything because a decision and possible dissents are being prepared but that's just my speculation.

     Update: Vaello-Madero is an oddball case. The government has been seeking to recover an overpayment that occurred when the claimant moved to Puerto Rico but continued to receive SSI. Arguably, the case should have been resolved on a procedural issue, whether Vaello-Martinez should have contested the overpayment administratively. There's a class action seeking directly to order the government to pay SSI benefits to Puerto Rico residents. That's now pending in the Court of Appeals. The plaintiffs in that case filed an amicus brief in the Supreme Court asking that the Court hold off on the Vaello-Madero cert petition pending a decision in the Court of Appeals in their case, Peña Martínez v. U.S. Dep’t of Health & Human Servs which presents the issue more directly. The Peña Martínez case also involves other government benefits. Maybe the Court wants to wait for Peña Martínez and the Guam case. That could put Vaello-Madero on hold past the end of June or early July, when this term of Court ends. It also allows the Biden Administration plenty of time to express its own position on the matter.

It's OK To Feel Sad At Christmas, Especially This Christmas

 

It's the shortest day of the year.

Dec 19, 2020

Ways And Means Subcommittee Chairs Ask For Action On Covid-19 Related Overpayments

     A press release:

Today, House Ways and Means Social Security Subcommittee Chairman John B. Larson (D-CT) and Worker and Family Support Subcommittee Chairman Danny K. Davis (D-IL) sent a letter to Social Security Administration (SSA) Commissioner Andrew Saul demanding that SSA forgive repayment of extra benefits paid to Social Security and Supplemental Security Income (SSI) beneficiaries due to the COVID-19 pandemic. This fall, SSA began notifying beneficiaries about these extra benefit payments, which were paid through no fault of their own. SSA also set up a limited process for some beneficiaries to have repayment of their COVID-19 overpayments forgiven. However there have been widespread reports that many beneficiaries have been unable to access even this limited relief.

“With the clock ticking, we urge SSA to immediately extend and expand the streamlined waiver process, providing all beneficiaries with immediate, automatic relief from COVID-19 overpayments. We also request that you provide us with detailed information on SSA’s actions and any relief that has been provided, to date,” wrote Larson and Davis.

“It is unfair and unjust for SSA to allow any hurdles to prevent beneficiaries from accessing relief from these COVID-19 overpayments,” continued Larson and Davis. “We urge SSA to immediately provide automatic relief for all beneficiaries with a COVID-19 overpayment, regardless of whether or not they apply for relief.”

The full letter can be viewed here.

Merry Christmas


 

Dec 18, 2020

No Answer From Saul Or Biden Transition On Commissioner Position

     Joe Davidson at the Washington Post has devoted a column to the effort to get Andrew Saul fired as Social Security Commissioner. It's clear that Davidson doesn't understand the constitutional issue involved but he does detail the pressure to get Saul out. Of interest to me in the column was this sentence: "Neither the agency nor Biden’s team responded to requests for comment." I have to guess that things are still up in the air.

     By the way, as I've asked before, when will the Post retire that same tired photo they've been using for years to illustrate articles having to do with the Social Security Administration?

Social Security Starts To Track Disability Claims As A Result Of Covid-19


      Social Security has issued an Emergency Message telling its staff to start flagging disability claims where Covid-19 is alleged as an impairment. They're not giving any instructions on how to adjudicate the cases. For now, they just want to track them.

     We'll see how common disability claims as a result of Covid-19 will be. Thus far in my practice, I have clients who have had Covid-19 but none who have suffered long term consequences as a result of the infection. I've not taken on any new clients alleging Covid-19 as an impairment. I haven't heard from other attorneys who have. It's still early, though. There may be cases coming but those affected are still hoping they'll get better. Remember, there's a 12 month duration requirement in the definition of disability that Social Security must use. You can be very, very sick but still recover in less than 12 months.

Merry Christmas

 


Dec 17, 2020

Try To Get Paid Before Checking Out

... When underpaid beneficiaries are deceased, SSA should pay the underpayment to a surviving spouse, child, or parent or to the legal representative of the decedent’s estate. ...

SSA did not always take proper actions to pay underpayments due terminated beneficiaries. In December 2015, SSA improved systems controls to pay underpayments due deceased beneficiaries to eligible surviving spouses. However, this control does not identify underpayments due to all terminated beneficiaries. For the 100 terminated beneficiaries in our sample, we found

  • 39 had underpayments that should be paid to eligible beneficiaries;
  • 25 were cases where SSA did not locate the beneficiaries or individuals who were eligible for the underpayments;
  • 7 had erroneous underpayments that should have been corrected or removed from the Master Beneficiary Record; and
  • 29 were correctly paid or resolved. ...
      When one of my clients dies, which is not a rare occurrence, I always make sure to find and alert the person due whatever back benefits there may be. I've always had the impression that unless I did it or some survivor of the decedent contacted Social Security, there was a good chance that it wouldn't get done, that the back benefits would never get paid.
     By the way, it's also not unusual for one of my clients to ask what happens if they die before getting paid. Yes, some of them are pessimistic enough to ask that question even though they're not facing a life threatening condition.

Merry Christmas


 

Dec 16, 2020

DAC Claims Get Missed All The Time

      From a recent report by Social Security's Office of Inspector General:

... An SSI recipient may be eligible for CDB [Child Disability Benefits -- Disabled Adult Child Benfits or DAC is what they're usually called] as a disabled child on a wage earner’s record [the father or mother] under the OASDI [Old Age, Survivors and Disability Insurance] program when the recipient meets the criteria for benefits. To conduct our review, we identified 1,017 SSI recipients who were potentially eligible for CDB from 1 of 20 segments in SSA’s system. From this population, we selected a random sample of 50 recipients for review.

... [W]e identified SSI recipients who were eligible for CDB. Our analysis of 50 SSI recipients identified 22 who were potentially eligible for, and 15 potentially technically entitled to, CDB. This occurred because SSA did not always (1) develop and dispose of leads related to CDB and/or (2) identify SSI recipients eligible for CDB during reviews of their non-medical eligibility factors and SSI payment amounts. Separate from our review, SSA has conducted projects, which identify SSI recipients who were potentially eligible for CDB. Based on the results of our review, we estimate 8,140 SSI recipients were potentially eligible for CDB and may be due underpayments totaling approximately $18.5 million. If SSA does not take action, we estimate the 8,140 SSI recipients may lose an additional $3.6 million over a 12-month period. ...

     In my experience there are two types of benefits that are very frequently missed: Disabled Adult Child and Widowers benefits. Parents benefits are usually missed but there are very, very few entitled to Parents benefits. I always discuss the possibility of DAC benefits with young disability claimants. Even if they're not eligible now because neither of their parents is on Social Security benefits or retired, they'll need the information for later. I also make a point of asking both older male and older female clients about their marital status so I don't miss Widows and Widowers claims.


Merry Christmas

 


Dec 15, 2020

Should Social Security's Administrative Costs Be Considered Part Of The Appropriations Process?

     From Social Security Transition Report For The Biden Administration, prepared by Social Security Works, an advocacy group:

... Section 13301(a) of the Budget Enforcement Act of 1990 unambiguously states:

 “Notwithstanding any other provision of law, the receipts and disbursements of the Federal Old Age and Survivors Insurance Trust Fund and the Federal Disability Insurance Trust Fund shall not be counted as new budget authority, outlays, receipts, or deficit or surplus for purposes of (1) the Budget of the United States Government, (2) the Congressional budget, or (3) the Balanced Budget and Emergency Deficit Control Act of 1985.”

Social Security’s cash benefits, which are paid from the program’s trust funds, are, appropriately, not subject to annual appropriations or spending caps imposed by recent budget agreements. That is wise: Social Security has its own dedicated revenue. It cannot pay monies in excess of its income and assets, and it has no borrowing authority. Consequently, it does not add even a penny to the federal debt. Without any logic whatsoever, however, the associated administrative costs, which are also paid from trust fund monies, are subject to the annual appropriations process and the spending caps imposed by recent budget agreements. There is no legal authority for the different treatment of administrative costs. That different treatment results from an Office of Management and Budget (OMB) interpretation of ambiguous language, in the report accompanying the conference agreement, of the enactment of the above legislative language. That OMB decision, made during President George H.W. Bush’s administration in the early 1990s, was deeply flawed.

 Under well-established, uncontroversial principles of statutory interpretation, the clear statement in the actual law governs, and should not be overridden by ambiguities or even contradictions in the legislative history. Consistent with those principles, the Congressional Budget Office (CBO) disagreed with OMB. (Indeed, CBO offered a different interpretation of the ambiguous report language.) So did the then-Chairman of the Senate Budget Committee, in a letter he wrote to the OMB director. Nevertheless, OMB did not change its position, and that decision continues to affect the way that Social Security’s administrative costs are treated to this very day.We urge President Biden to instruct OMB to revoke the erroneous interpretation, and present his budgets in accordance with the clear, unambiguous language quoted above. Social Security’s administrative budget should not have to compete with other agencies for its administrative funding in the annual appropriations process. ...

Merry Christmas


 

Dec 14, 2020

Video Hearing Stats

      Social Security has posted numbers showing how many video hearings it has held recently. These are hearings where the claimant is at home connecting via a laptop, tablet computer or cell phone. The numbers are confusing since it includes a column purporting to show the number of in-person hearings being held but that's not the case. No in-person hearings have been held since March. Maybe that column is actually the number of telephone hearings? 
     Obviously, this is very uneven. I don't know what accounts for some offices holding no video hearings while others have held many video hearings.
     I wish that the agency would show totals per region and nationally.

 Hearing Office                                  In-person(?)   Video    Total

Merry Christmas


 

Dec 11, 2020

OHO Productivity Continues To Decline

        The report shown below was obtained from Social Security by the National Organization of Social Security Claimants Representatives (NOSSCR) and published in its newsletter, which is not available online to non-members. It is basic operating statistics for Social Security's Office of Hearings Operations. 

     I know the backlog is down under a year. Big whoop. I was around when it was three months. Yes, it really was that low at one time and not just briefly. Take a look at Blankenship v. HEW, 587 F2d 329 (6th Cir. 1978). A District Court ordered that Social Security hearings be held in 90 days. The Court of Appeals found that to be unreasonable but also found that 220 days national average at that time was also unreasonable. Yes, I know the Supreme Court later said the courts can't put time limits on Social Security hearings but I'm talking here about an erosion of values. We've come to expect service that would have once seemed unimaginably poor. We need to get these backlogs down as low as we can. You have to give 75 days notice? So what? Claimants and their attorneys will generally waive that time frame. Besides, that 75 day time frame is an issue only in a few areas of the country. Get the backlog down now while you can. Everyone expects an avalanche of claims as the pandemic wanes.

Click on image to view full size

 

Merry Christmas

 


Dec 10, 2020

Foreshadowing At The Supreme Court

      Yesterday the Supreme Court heard oral arguments in the case of Collins v. Mnuchin which concerns two quasi-governmental corporations. The issue was whether in the wake of the Court's Seila Law opinion there was a constitutional problem with the President's inability to remove the heads of these corporations. There is a similar issue affecting the position of Commissioner of Social Security. It was clear from the questions asked that at least two of the justices are already thinking about what they will do when the Social Security case reaches the Court. Below are a couple of excerpts from the transcript of the oral arguments. I'm not including the answers since I think those are much less important to us than the questions.

Justice Alito:  Suppose we were to agree with Mr. Nielson that this can't be distinguished from the -- the head of the Social Security Administration, or suppose we were to overrule Humphrey's Executor, as some members of the Court have suggested. Do you think it would follow that everything ever done by a Social Security administrator or everything ever done by the FCC or one of the other multi-member commissions was void ab initio, they would all be wiped off the books? 

Justice Kagan: I just go back to Justice Alito's question about the Social Security Administration. I'll put some scary sounding numbers on this. The SSA has been led by a single commissioner since 1994 and ever since then, it's rendered 650,000 decisions every year, so that's about 17 million decisions. Now you told Justice Alito, well, maybe there are some exceptions for lower-level employees. I'm not sure that ALJs would qualify as that, and even if they do, let's assume, which I think is probably true, that all of those decisions are rendered pursuant to guidance and rules that the SSA commissioner has enforced. So are we really going to void all of those decisions? ...  But, I mean, are you really making a good faith argument that if there were at --if there were for cause -- excuse me, if there were at will removal of the Social Security Administration that these 17 million decisions would come out differently or, indeed, that any of them would?

Subcommittee Chairs Attack Proposed Grid Rule Changes

     A press release:

Today, House Ways and Means Committee Chairman Richard E. Neal (D-MA), Social Security Subcommittee Chairman John B. Larson (D-CT), and Worker and Family Support Subcommittee Chairman Danny K. Davis (D-IL) released the following statement regarding news that a draft proposed rule that would narrow the eligibility criteria for Social Security and Supplemental Security Income (SSI) disability benefits has been sent by the Social Security Administration to the Office of Management and Budget for review: 

“Yet again, the Trump Administration is going out of its way to make it harder for people to qualify for the Social Security disability benefits they have earned. Already, fewer than four in 10 applicants are found eligible for Social Security disability benefits, even after all levels of appeal. This rule would reportedly further restrict eligibility for approximately 500,000 Americans, making it even harder for older, severely disabled people to access the essential income they’re qualified to receive. It is outrageous and cruel that at the eleventh hour and in the middle of a pandemic the Trump Administration is trying to advance yet another harmful cut to Social Security benefits for the most vulnerable Americans.”

Merry Christmas

 


Dec 9, 2020

Unions Want Saul Gone


      From Federal Times:

Employees at the Social Security Administration overwhelmingly do not have confidence in their leadership’s ability to successfully direct the agency, according to surveys released by two employee associations Dec. 9.

The American Federation of Government Employees’ Council 220, which represents 26,000 SSA employees, unanimously found no confidence in SSA Commissioner Andrew Saul and Deputy Commissioner David Black.

The Association of Administrative Law Judges, which represents approximately 1,100 administrative law judges who are responsible for making decisions on disability claims at the hearing level, found that 88 percent of their members have no confidence in Saul. And 84 percent of those members expressed no confidence in Theresa Gruber, deputy commissioner for Social Security’s Office of Hearing Operations, and Chief Administrative Law Judge Patrick Nagle. ...

Much of the dissatisfaction stemmed from how agency leaders have managed the COVID-19 pandemic and employee safety concerns. ...