Headcount Ticks Up

     We're finally getting more up to date numbers from the Office of Personnel Management (OPM) showing the headcount of employees at each agency. Here they are as of last September with some earlier headcount numbers for comparison:

• September 2020 61,447
  
• June 2020 60,515
  
• March 2020 60,659
  
• December 2019 61,969
  
• December 2018 62,946
  
• December 2017 62,777
• September 2017 62,297
• June 2017 61,592
• March 2017 62,183
• December 2016 63,364
• December 2015 65,518
• December 2014 65,430
• December 2013 61,957
• December 2012 64,538
• September 2011 67,136
• December 2010 70,270
• December 2009 67,486
• December 2008 63,733

Claimants Can Now Access Their Case Documents

      From Social Security's Update Newsletter:

Social Security Disability Insurance and Supplemental Security Income beneficiaries with a my Social Security account can now access case documents through the Message Center of their my Social Security account.

Please let your clients know they must contact the local Social Security office, hearings office, or Appeals Council branch where their case is pending to request that a copy of their case documents be sent to their my Social Security Message Center. Also, remind them to turn on my Social Security Message Center notifications at www.ssa.gov/myaccount so they can receive an email or text when the documents are available. You can learn more about this new feature at www.ssa.gov/appeals/electronic_case_document.html.

How Can You Go Wrong With More Agile Scrum Masters?

      From Federal News Network:

The Social Security Administration used the project to modernize its Disability Case Processing System as a proof of concept.

The question then became could SSA replicate the success of DCPS with other legacy, traditional waterfall programs.

Sean Brune, the CIO of SSA, said the answer is a resounding “yes.” The agency is taking the success of the DCPS2 and expanding it through its new IT modernization strategy as a way to guide SSA’s transformation. ...

SSA revamped DCPS2 starting in 2015, and over a 14-month period using DevSecOps to move from a COBOL based, green-screen system that had been in use for more than 25 years. SSA and states use DCPS to determine if claimants are qualified from a medical perspective for a benefit. State and territories process the claims on behalf of SSA using DCPS as a case management and disability determination system.

Brune said the DCPS2 success helped SSA expand their focus on overall IT modernization by further identifying core mission functions, building expertise in modern application development around those core mission functions. ...

“We trained more agile Scrum Masters. ...

     Is DCPS such a big success that it's time to take a victory lap? I don't know because I don't use it. I know that DCPS has been controversial, at least in the past.

"Acting" Commissioner?

      More and more questions are being asked about Andrew Saul's status. What is this "Acting Commissioner" business? If he's only Acting, why hasn't he been fired? Biden would surely prefer someone else as Commissioner. This cute business of trying to have it both ways -- Seila Law has nothing to do with the Social Security Administration yet its confirmed Commissioner is now only its "Acting Commissioner" so you can't apply Seila Law to us isn't going to last forever. This isn't clever. It just underlines the extent of the agency's Seila Law problem. The only solution is for Saul to leave voluntarily or be forced out.

SSA Thinks This OIG Report Is Out Of Bounds -- I Agree

      From a recent report by Social Security's Office of Inspector General (OIG)(emphasis added):

Beneficiaries may elect to receive reduced retirement benefits as young as age 62. When beneficiaries begin receiving retirement benefits before full retirement age (FRA), the Social Security Administration (SSA) generally permanently reduces the payment amount based on the number of months before FRA they begin receiving payments.  

When disability beneficiaries elect to receive reduced retirement benefits, the reduction is not permanent, as it is for non-disability beneficiaries. Specifically, for beneficiaries who (1) were entitled to both disability and retirement benefits and (2) elected to receive reduced retirement benefits, section 202(q)(7)(F) requires that SSA pay a higher benefit amount when the beneficiary reaches FRA. 

From the Master Beneficiary Record, we identified 32,474 beneficiaries who, as of September 5, 2019, (1) had reached FRA, (2) had been entitled to disability benefits and elected to receive reduced retirement benefits, (3) were in current payment status, and (4) were entitled to a higher benefit amount at FRA. We reviewed a random sample of 100 beneficiaries from this population. 

Section 202(q)(7)(F) of the Act gave a financial advantage to 89 of 100 beneficiaries in our sample. By electing reduced retirement benefits, they received higher payments than they would have had they continued receiving disability benefits. Of the 89 beneficiaries,

70 avoided a reduction because they were receiving workers’ compensation or public disability payments;

11 increased total payments for their families; and

8 avoided a reduction because they returned to work.  

When they reached FRA, the Act provided them a financial advantage because it required that SSA remove the age-based reduction for any months the individual was entitled to both disability and reduced retirement benefits and begin paying higher retirement benefits.Because section 202(q)(7)(F) of the Act gave them an advantage, these 89 beneficiaries have already received approximately $1.8 million more in benefits since FRA. Further, 86 of the 89 beneficiaries will receive an estimated $2.4 million more in benefits because this advantage continues through the rest of their lives. We estimate this provision will result in approximately 29,000 beneficiaries receiving almost $1.4 billion in additional lifetime benefits.

We recommend SSA determine whether it should propose a change to section 202(q)(7)(F) of the Act to eliminate the financial advantage it gives to certain disability beneficiaries. SSA disagreed with our recommendation and deferred to Congress to determine whether a legislative change is necessary. ...

     OIG didn't even bother to give a justification for asking for a legislative change. The fact that the provision in question helps some beneficiaries was enough for OIG. 

     In my opinion there is nothing about the provision that OIG objects to that is abusive or that results in unreasonable results or results that Congress didn't intend.

     This OIG report apparently seemed out of bounds to Social Security. I agree with them. I don't think it's the job of OIG to second guess Congress.

No Comment

      From the Washington Post:

... Andrew Saul, a Trump appointee whose six-year term as Social Security commissioner officially ends in 2025, had a curious new “acting” title on a list of temporary government leaders distributed by the new White House last week. Saul announced Thursday that several high-ranking deputies on his team, who had pushed for stricter eligibility for benefits, had been replaced — with labor-friendly Democrats. The Security Administration did not respond to a request for comment about the acting title. ...

Elections Have Consequences

      In accordance with a White House directive, all proposed Social Security regulations that were awaiting approval at the Office of Management and Budget have been withdrawn. These include proposed regulations on the timing and frequency of continuing disability reviews and proposed regulations that would have modified the age categories used in determining disability.

Back Again

      Do you remember Orly Taitz? She’s a lawyer and dentist who was promoting the goofy theory that Barack Obama couldn’t really be an American because he had a phony Social Security number. She’s back, now with a new goofy theory that a court can enjoin the Senate from proceeding with Donald Trump’s impeachment trial. 

     We’ve got to stop codling these nut job attorneys. They have no business with law licenses. There are rules in place which can remove their licenses. Enforce them.

Doing SSI Outreach Again

     From Social Security's Covid19 page:

I received a letter claiming to be from the Social Security Administration (SSA) with an 800# I do not recognize. Is it really from SSA?

We routinely release outreach notices in an effort to identify people eligible for Social Security benefits. From December 2020 through March 2021, we are mailing outreach notices to people who may be eligible for Supplemental Security Income (SSI) payments. SSI makes payments to disabled adults and children who have limited income and resources.

We established a dedicated phone line with a team of specialized employees to help people who receive this notice. These employees are SSI experts who will help callers explore eligibility and assist with SSI applications, if appropriate at the time of the call. We also established a separate phone number for people to call who need help in Spanish.

Could Musculoskeletal Listing Changes Be Reconsidered?

      The harsh new musculoskeletal Listings are scheduled to go into effect on April 2. However, the change of Administration could delay implementation or even kill these changes altogether. Soon after taking office, Biden's Chief of Staff sent a memorandum to agency heads giving them this directive:

... With respect to rules that have been published in the Federal Register, or rules that have been issued in any manner, but have not taken effect, consider postponing the rules’ effective dates for 60 days from the date of this memorandum ... for the purpose of reviewing any questions of fact, law, and policy the rules may raise.  For rules postponed in this manner, during the 60-day period, where appropriate and consistent with applicable law, consider opening a 30-day comment period to allow interested parties to provide comments about issues of fact, law, and policy raised by those rules, and consider pending petitions for reconsideration involving such rules.  As appropriate and consistent with applicable law, and where necessary to continue to review these questions of fact, law, and policy, consider further delaying, or publishing for notice and comment proposed rules further delaying, such rules beyond the 60-day period.  Following the 60-day delay in effective date:

a. for those rules that raise no substantial questions of fact, law, or policy, no further action needs to be taken; and 

b. for those rules that raise substantial questions of fact, law, or policy, agencies should notify the OMB Director and take further appropriate action in consultation with the OMB Director. ...

     The musculoskeletal Listings certainly raise substantial questions of policy, if not fact. Even though their effective date is more than 60 days after this memo, it would certainly seem that they should be subject to additional review and that there should be a new comment period. I would expect that there will be "requests for reconsideration" of the Listings. These new musculoskeletal Listings are not mere housekeeping. They were and remain a highly controversial attack on disability claimants.

     By the way, those proposed regulations that would have increased the number of continuing disability review and that would have modified the grid regulations may not have been officially withdrawn yet but they're dead.

What Just Happened?

      Below is the memo that came out yesterday about personnel changes at Social Security. Click on it to view it at full size.

 

     Andrew Saul, whose term as Social Security Commissioner has been marked by strident anti-union activity, bringing in a union official as his Chief of Staff? Mark Warshawsky ,who has apparently been a consistent advocate for right wing policies, replaced by a fellow at the left leaning Urban Institute?

     But that's not all. Yesterday afternoon, the White House released a list of acting heads of federal agencies and Andrew Saul was listed as the acting head of the Social Security Administration. I thought that Saul believed himself to be the confirmed Commissioner of Social Security, legally entitled to serve out his term of office which runs until January 2025. Unless Saul resigned and was then appointed Acting Commissioner, something which hasn't been announced, the White House announcement can't be technically accurate, although it may reflect the essential nature of the situation. By the way, the memo shown above indicates that it was signed by the Commissioner rather than the Acting Commissioner.

     I'm sure that many readers of this blog have tuned out what I've written about the Supreme Court opinion in Seila Law v. CFPB but it's key to understanding what's going on. In that case, the Supreme Court held that the position of the head of the Consumer Finance Protection Bureau was unconstitutional because the incumbent served a fixed term of years and could only be fired by the President for cause. That sounds exactly like the Commissioner of Social Security. The position of Commissioner of Social Security wasn't before the Court. The attorney for Seila Law argued that there was a distinction between the head of the CFPB and the Commissioner of Social Security but it seems doubtful that the Court will buy that argument once a case squarely presents the issue. 

     I think we may surmise that there was a negotiation between Andrew Saul and President Biden's transition team and yesterday's announcements were the result. I don't understand why Saul wants to hang around to do the bidding of an Administration whose policies he must disagree with but he does.

     So where does that leave the Seila Law litigation that the Social Security Administration is facing? What's Social Security's position? Seila Law totally doesn't apply to cases in the pipeline because Social Security is so much different than CFPB but it can't apply to any future cases because the White House now considers Andrew Saul the Acting Commissioner of Social Security even though Saul himself hasn't announced that he regards himself as serving at the pleasure of the President? That seems like an incoherent position.

     By the way, I've heard an anecdotal report from one attorney that Social Security has recently asked for voluntary remands in all the cases he had in federal court where he was arguing Seila Law. Has anyone else seen this?

Didn’t See This Coming

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

Goodbye, Trump

 

Job Opening

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

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

Emergency Message On Seila Law

     From Emergency Message EW-21002:

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

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

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

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

1. Challenge Made at the Hearing Level

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

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

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

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

To Remember

 

The Problem Of The U.S. Mail

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

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

Major Employee Fraud

     From a press release:

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

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

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

Devastating Effects From Field Office Closures

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

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

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

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

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

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

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

U.S. v. Vaello-Madero Relisted

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

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

"Bold Vision"?

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

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

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

Policy Approaches 

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

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

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

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

Saul Mum As Outside Groups Plan Press Conference

     From a press release issued by Social Security Works:

This Tuesday, Jan. 12th at 2pm ET, unions representing Social Security Administration (SSA) employees and advocates representing Social Security beneficiaries will hold a virtual press conference calling on Joe Biden to clean house by removing all of Donald Trump’s political appointees from SSA on day one of his presidency. The press conference will air live on the Social Security Works Facebook page. ...

Who:

• Ralph de Juliis, President of AFGE Council 220
• The Honorable Melissa McIntosh, President of the Association of Administrative Law Judges
• Matthew Biggs, Secretary-Treasurer of the International Federation of Professional & Technical Engineers
• Alex Lawson, Executive Director of Social Security Works ...

      It seems to me that if I were Andrew Saul and I were planning to hang around as Commissioner, I would have put out a press release sometime in the last two months congratulating Joe Biden and expressing an intention to work with the Biden Administration. If I weren't planning on hanging around, I think I would have already put out a press release saying that I was resigning on a specific date. Neither has happened. I don't know what the lack of any press release means. Maybe somebody should ask Saul what it means, like a reporter seeking a comment on this press conference.

The Numbers Are In

      The Social Security Administration has updated its statistics through the end of 2020 on the number of disability claims filed and adjudicated. (This website may be down at the moment. Social Security's websites seem to be having some problem this morning. I can't get up any of them including the main website.)

     The number of disability claims for which adjudication began went from 1,309,863 in 2019 to 1,226,2236 in 2020, a decline of 6.4%. The number of disability claims entering adjudication has now declined by 36% from its peak in 2010. The number of claims approved went down by 38% over the same time frame.

     By the way, do you remember what happened in the November 2010 election? Republicans gained control of the House of Representatives. They commenced relentless attacks on Social Security disability claimants and beneficiaries.  That wasn't the only thing causing the decline but I'm pretty sure it was a factor.

Waiting Period Eliminated For Those With ALS

      In the midst of everything else I missed that the Congress passed and the President signed a bill that eliminates the five month waiting period for Disability Insurance Benefits for those found disabled due to Amyotrophic Lateral Sclerosis (ALS), often referred to as Lou Gehrig’s Disease. Can somebody explain to me why those with ALS receive this break but not people suffering from terminal cancer? I’ve had the experience of explaining to my sister that there was no point in her applying for Social Security disability benefits because she wouldn’t live long enough to collect them so, yes, this feels personal to me.

Serious Question

      When was the last time anyone at Social Security saw Andrew Saul?

Supreme Court To Again Consider Hearing Puerto Rico SSI Case

     The Supreme Court has "relisted" U.S. v. Vaello-Madero, the case presenting the issue of the constitutionality of denying SSI to U.S. citizens who reside in Puerto Rico and most other U.S. territories. This means that the Court will once again consider whether to agree to hear the case. John Elwood, writing for SCOTUSblog, says that the Court is likely to agree to hear the case.

     This case is a big freaking deal to Social Security world. If the Court finds that it's unconstitutional to deny SSI to Puerto Rico residents, there will be an avalanche of new claims. All parts of the Social Security Administration will be affected. I expect that it will be the biggest logistical challenge for the agency since the creation of SSI in the 1970s.

     It's not clear what position that the new Administration will take on this case. The nomination of Merrick Garland to be Attorney General suggests that the Biden Administration will follow traditional policies which include defending the constitutionality of any statue but there's not been an announcement of a Solicitor General nomination. It's the Solicitor General who actually handles Supreme Court cases for the federal government. The Trump Administration abandoned traditional policies and routinely refused to defend statutes it disagreed with. If the Biden Administration follows suit, it could settle this case as well as any class actions on the issue. Yes, even cases scheduled for oral argument at the Supreme Court can be settled.

     Update: The Supreme Court took no action on the Vaello-Madero case today.

More Eric Conn Litigation

      From the Lexington Herald-Leader:

A former client of disbarred attorney Eric C. Conn has sued to try to overturn hundreds of small-claims lawsuit judgments that Conn pursued against people he represented in Eastern Kentucky.

The judgments have likely caused problems for Conn’s former clients that include damage to their credit scores, losing out on loans and being passed over for jobs, the lawsuit claims. ...

The man who sued Conn, James K. Gillman, is serving a two-year jail sentence and fears the judgment Conn obtained against him will jeopardize his chance of being released on parole, said his attorney, Ned Pillersdorf. ...

     I assume these judgments were for the costs that Conn incurred in representing his clients, both the costs of obtaining existing medical records and the costs of the medical exams done at Conn's office that became part of Conn's criminal problems. I'm surprised he sued over these costs. I doubt that it was cost effective but a lot of what Conn did made no sense. Some people would rather earn a dishonest nickel than an honest dollar.

Read more here: https://www.kentucky.com/news/state/kentucky/article248288575.html?utm_source=BenchmarkEmail&utm_campaign=Today%27s_Daily_Clips_%7c_January_6_2021&utm_medium=email#storylink=cpy

Read more here: https://www.kentucky.com/news/state/kentucky/article248288575.html?utm_source=BenchmarkEmail&utm_campaign=Today%27s_Daily_Clips_%7c_January_6_2021&utm_medium=email#storylink=cpy

No SSI For Territories Because It Might Cause Inflation?

      From Pacific Daily News:

Providing cash assistance to Guam’s elderly and people with disabilities could cause inflation here, according to the Justice Department, which argued it therefore is reasonable for Congress to deny Supplemental Security Income benefits to U.S. citizens living on Guam.

Denying local eligibility for SSI benefits also is reasonable because of the island’s unique tax relationship with the federal government, the Justice Department stated in a brief filed late last week with the U.S. Court of Appeals for the Ninth Circuit.

The Justice Department is challenging a June 2020 ruling by District Court of Guam Chief Judge Frances Tydingco-Gatewood, who said denying SSI payments to Guam resident Katrina Schaller, a woman with a disability, is discriminatory and unconstitutional. The judge prohibited the federal government from continuing to enforce the discriminatory provisions against Schaller. ...

Unions Unanimous In Wanting Saul Gone

      From a press release:  

The American Federation of Government Employees (AFGE) and International Federation of Professional and Technical Engineers (IFPTE) joined together today calling for the ouster of Social Security Administration Commissioner Andrew Saul and Deputy Commissioner David Black. The joint effort comes on the heels of last month’s overwhelming votes of no confidence in the SSA leaders by the members of AFGE Council 220, National Council of SSA Field Operations Locals,and IFPTE Judicial Council 1, the Association of Administrative Law Judges (JC1/AALJ). ...

Strange Bedfellow

      The Cato Institute, a right wing "think tank which has pushed a plan to privatize Social Security, has joined in an amicus brief to the Supreme Court in the case of Carr v. U.S. arguing that Social Security claimants should be able to raise the issue of the constitutionality of the appointments of ALJs even though they had not raised the issue before the agency.

As Expected

      From CNN:

On Joe Biden's first day as President, his White House will issue a memo to halt or delay midnight regulations and actions taken by the Trump administration that will not have taken effect by Inauguration Day, Biden transition spokesperson Jen Psaki told reporters on Wednesday. ...

     This would include the new musculoskeletal listings at Social Security. However, if Andrew Saul tries to stay in office, it would be possible, in theory, for him to refuse to stay the regulation.

SCOTUS Schedules Oral Arguments In Appointments Clause Cases

      The Supreme Court has scheduled oral arguments for Carr v. Saul and Davis v. Saul for March 3. The issue presented by these cases is "Whether a claimant seeking disability benefits under the Social Security Act forfeits an appointments-clause challenge to the appointment of an administrative law judge by failing to present that challenge during administrative proceedings."

Happy New Year

 

Happy New Year!