Independent Agency?

     Mark J. Warshawsky, who was a Trump policy appointee at Social Security but who got forced out when the Biden Administration came in, writes for the Baltimore Sun about SSA's odd "independent agency" status. Surprisingly, I don’t fully disagree with him. The Social Security Administration can never be truly independent. It's too restrained by the budget process and the Office of Management and Budget's veto power over regulations. I think that cabinet status is long overdue for the agency. By a wide measure it's the largest and most consequential of the independent agencies. However, unlike Mr. Warshawsky I believe the Commissioner should serve at the pleasure of the President. A highly partisan figure like Andrew Saul (or Mark Warshawsky) should never be serving at Social Security, much less during an Administration he's at odds with.  Let's end this "independent agency" farce. It hasn't worked.

From The Senate Finance Committee Hearing

      I've watched today's hearing before the Senate Finance Committee. There's certainly a lot of concern about people having to mail their drivers licenses or passports to Social Security. The response from Social Security's witness, Grace Kim, on this issue was basically "We're looking into it" but there was no commitment to do anything different, only to get back to the Committee within two weeks. The problem is that this is just the issue that the Senators are hearing the most about from their constituents but there's a much bigger problem with people who need in-person help filing claims, particularly SSI claims. There's no option for them to get the help they need.

     Kim was asked about when field offices might reopen. Her responses didn't include any sort of timeline. She said Social Security would have to wait on guidance from the White House.

     Kim was asked about negotiations with the employee unions. She said that there were negotiations over the agency's workplace safety plan but not about anything else.  I was surprised that there were not more questions on this. The unions want to redo contracts that were imposed upon them during the Trump Administration.  This would certainly happen if President Biden could appoint a new Social Security Commissioner.

     Here's a couple of tidbits from the written Kim's written statement:

... Limiting visitors has also resulted in an influx of incoming mail and phone calls. To illustrate the magnitude of this increase, before the pandemic, field offices scanned and uploaded about 150,000 paper documents weekly for processing. Offices are currently scanning and uploading approximately one and a half million paper documents weekly. In FY 2020, the unit time for the 47 million field office actions increased by 20 percent in part due to scanning, copying, indexing, and returning mailed documents, which significantly reduced our productivity. ...

Similarly, field offices are now handling three times as many phone calls as they did pre-pandemic. We are on track to answer over 60 million calls in our field offices in FY 2021—up from 20 million calls handled in FY 2019. ...

Senate Finance Committee Hearing Today

      The Senate Finance Committee will hold a hearing at 10:00 EDT today on "Social Security During COVID: How the Pandemic Hampered Access to Benefits and Strategies for Improving Service Delivery." It will be possible to watch the hearing online. Grace Kim, Deputy Commissioner for Operations will be the witness for the Social Security Administration.

    One might have expected that the Commissioner would be the witness for Social Security. Leaving aside the question of whether Andrew Saul is legitimately serving as Commissioner, there would be a major problem with him testifying. The hearing would quickly devolve into angry accusations by Democrats that Saul has behaved in an inappropriately partisan fashion as Commissioner followed by spirited counter accusations of something -- I don't know what -- by Republicans. That might be useful in its own way but I expect that it was obvious to all that this only distract from Social Security's current situation.

     I hope to hear detailed information about the agency's dire service delivery problems as well as news about reopening plans. It would be nice if some improvements in relations with employee unions could be announced. It may be too much to hope for but Social Security really needs a supplemental appropriation to help it get through until the next fiscal year, which begins on October 1.

Is This Wrong?

      From National Public Radio:

... Roughly 10% of foster youth in the U.S. are entitled to Social Security benefits, either because their parents have died or because they have a physical or mental disability that would leave them in poverty without financial help. This money — typically more than $700 per month, though survivor benefits vary — is considered their property under federal law.

The Marshall Project and NPR have found that in at least 36 states and Washington, D.C., state foster care agencies comb through their case files to find kids entitled to these benefits, then apply to Social Security to become each child's financial representative, a process permitted by federal regulations. Once approved, the agencies take the money, almost always without notifying the children, their loved ones or lawyers.

At least 10 state foster care agencies hire for-profit companies to obtain millions of dollars in Social Security benefits intended for the most vulnerable children in state care each year, according to a review of hundreds of pages of contract documents. A private firm that Alaska used while Hunter was in state care referred to acquiring benefits from people with disabilities as "a major line of business" in company records. ...

In a Marshall Project/NPR survey of all 50 state child services agencies, most pointed out that it is legal for them to apply to the Social Security Administration to become the financial representative for foster children's benefits — though federal regulations state that a parent, foster parent, relative or family friend is preferred. Almost all said they take kids' money as reimbursement for the cost of foster care, putting the funds in individual accounts to recoup what the state has paid for each child's room and board. ...

The state of Alaska is currently facing a landmark class action lawsuit over this practice that may reach the state Supreme Court later this year. ...

In the 2003 U.S. Supreme Court case Washington State v. Keffeler, 39 state attorneys general argued that losing foster children's survivor and disability benefits could potentially cost state governments billions of dollars for years.

Daniel L. Hatcher, a law professor at the University of Baltimore and a leading expert on this practice, said it invites a larger question about the role of government. "I think sometimes these officials are so in the weeds of getting funding however they can, they don't even realize that this is not just another funding stream — this is literally children's own money," Hatcher said. "This is about whether we're going to use abused and neglected children's own money to pay for what we're supposed to be providing them as a society." ,,,

What's Up?

      I have written about Social Security failing for over a year to update the numbers it made publicly available on payments of attorney fees. They've finally posted those numbers. However, Social Security has stopped updating a much more important set of numbers, those on the number of disability claims filed and approved. These had been regularly updated each month until the end of 2020. Since then, nothing. As I say, this is a much more important set of numbers, especially now with people wondering about the effects of the pandemic.

     What's up?

400,000 Not Getting The Relief They Deserve

     From Forbes:

Student loan borrower advocacy organizations filed a formal petition today, calling on the Biden administration to grant automatic forgiveness to hundreds of thousands of disabled student loan borrowers who may not even realize that they qualify for a discharge. ...

To be granted a TPD [Total and Permanent Disability] Discharge, however, disabled student loan borrowers must submit a formal application, which can be a cumbersome process, particularly for borrowers who suffer from severe physical and psychological impairments. The Department of Education has authority to automatically grant a TPD Discharge to disabled student loan borrowers who are receiving Social Security Disability benefits, if they have a disability review period of at least five to seven years. The Social Security Administration has identified approximately 400,000 disabled student loan borrowers who would qualify for relief, and the agency has shared that information with the Department of Education. But, the Department has not acted to cancel the student debt balances of these borrowers. Many borrowers do not even realize that they qualify, and most have not submitted applications. ...

The petition calls on the Department to use the information it already has regarding the disabled status of these 400,000 borrowers to automatically forgive their student loan debt. In 2019, the Department was able to implement widespread automatic TPD discharges for borrowers identified by the Veteran’s Administration as totally and permanently disabled due to a service-connected disability. Advocates argue that the Department should enact a similar automated discharge system for borrowers determined to be disabled by the Social Security Administration, as well. ...

Sounds Like A Plea For A Supplemental Appropriation This Year -- But Why Didn't We Hear This When Trump Was President?

     A letter that the Social Security Administration posted online (emphasis added):

April 21, 2021

The Honorable John B. Larson
Chair, Subcommittee on Social Security, Committee on Ways and Means
U.S. House of Representatives
Washington, DC 20515

Dear Subcommittee Chair Larson:

I am writing because I want to be clear about the negative impact to Social Security services due to the ongoing pandemic and our funding level in fiscal year (FY) 2021. Our FY 2021 annual appropriation was nearly $900 million less than my original request. It is effectively level with the funding we have received for each of the last four years, despite significant increases in costs that we do not control – such as the Government-wide pay increases.

The pandemic has resulted in unprecedented changes. The safety of the public and our employees has been the paramount driver of how we deliver services during the pandemic. To protect the public and our employees, we have necessarily limited in-person service to critical situations that can only be resolved in-person. While we continue to serve the public over the phone and online, we are still experiencing issues receiving and verifying documents and medical evidence we need to make decisions. Even with fewer applications in FY 2021, pandemic-related challenges and operational constraints present numerous barriers to employees completing workloads timely. In FY 2020, the average time it took us to complete an action in our field offices increased by 20 percent, significantly reducing our productivity. We are working diligently to address these challenges, but the abrupt changes to the way we do our work has caused bottlenecks in certain workloads and service deterioration beyond our control. On February 23, 2021, we shared with your staff the potential implications of our FY 2021 funding level to further harm services.

However, our operational challenges have been aggravated by our inability to fully use our program integrity funding. To use this funding, we must complete cost-saving continuing disability reviews (CDR) and Supplemental Security Income redeterminations. We have had to reduce our planned full medical CDRs by 30 percent due to the pandemic, the lowest level since FY 2013. We deferred these workloads in the early part of the pandemic to protect beneficiaries’ income and healthcare and to reduce the burden on the medical community, which had stopped most elective services.

While we restarted these workloads at the end of FY 2020, we are handling them through the mail and over the phone. During the pandemic, these complex workloads often require multiple contacts with a beneficiary, which slows our ability to complete this work. In addition, over 30 percent of our initial disability claims and CDRs require a consultative exam (CE) with a medical provider so that we can obtain enough medical information to make a decision. Right now, just over 70 percent of our CE providers are scheduling in-person exams. We have focused our limited CE capacity on initial disability claims to ensure that we can provide benefits to people who qualify. Even with that focus, the average processing times for initial disability claims increased about 45 days in the last year. Ultimately, we currently estimate the constraints on our program integrity funding deepens our shortfall by approximately $200 million.

Since becoming Commissioner, I have focused our actions and our resources on efforts to improve the service we provide to the millions of people who turn to us for help. I have been clear in my budget requests about what it takes to improve service and maintain the integrity of our programs: both additional frontline staff to help people now, and information technology (IT) investments to improve our future. IT is fundamental to offering the public more electronic and online options they expect from organizations today, improving the technology to make it easier for our staff to help the public, and ensuring we have a safe, modern platform to support over $1 trillion in benefits payments each year.

I have frozen hiring in non-frontline positions so that we can push all available resources to the offices that directly serve the public. I have increased the staffing in our field offices, national 800 number, processing centers, and State disability determination services (DDS) by nearly 3,000 people since 2019. I have increased IT investments to accelerate our modernization and increase online service options.

We are working with the advocate community to help ensure that the most vulnerable populations can access our services. Our efforts include a robust communications campaign, in combination with a wide range of online resources, to provide information on service options for the beneficiary and individuals or organizations that help them.

I also decided to pay employee awards so they know that we appreciate their hard work and dedication, especially during this difficult time. I have pushed the agency to find creative ways to maintain these efforts despite the significant cut to our budget request this year.

We have explored all possibilities to eliminate our budget shortfall but we are unable to overcome it. I have no other option but to delay our planned hiring to operate within our appropriated resources. Further, we will not be able to compensate for fewer employees with additional overtime. We are operating with the lowest level of overtime in the last decade. These decisions have a lasting negative impact on the service we can provide to the American public. It will increase waits for service from our field offices and on our 800 number as we begin to emerge from the pandemic. The number of pending actions in our processing centers will grow from about 3.7 million actions pending at the end of FY 2020 to more than 4.2 million actions pending by the end of FY 2021. It will delay our plan to eliminate the backlog of cases in the DDS, which currently has about 20 percent more pending cases than prior to the pandemic, as we anticipate an increase in disability receipts into FY 2022.

The pandemic has changed the way we do work at SSA in unprecedented ways. At the start of the pandemic, we transitioned to remote work, focused on critical service workloads through online and telephone options, and suspended some adverse actions to protect the public during an especially critical time. The pandemic required necessary operating adjustments to safely serve the public, reducing our ability to complete our workloads and contributing to increased backlogs and wait times in some priority service areas. These novel factors prevented us from achieving some of our goals in FY 2020 and put our goals for FY 2021 and future years at risk. FY 2021 is a critical year to shape the agency for post-pandemic success, but our resource constraints will delay our recovery.

I appreciate President Biden’s support of our needs with his FY 2022 budget request of nearly $14.2 billion for us, which is $1.3 billion more than what we received this year to operate our agency. No one anticipated the duration of the pandemic and the ongoing challenges it presents. I hope you will consider these challenges and support his request to help us improve service.

Sincerely,

Andrew Saul
Commissioner

It's Simple Economics

      I had posted earlier that representing Social Security disability claimants doesn't pay as well as some other fields of practice that are, at least, a little similar, workers compensation and personal injury. I've found these publicly available average yearly salary numbers from ZipRecruiter:

• Social Security attorney: $56,763
• Personal injury attorney: $82,049
• Attorney generally: $77,331

     These numbers seem about right to me. I would caution that these appear to me to be an average of salaries for jobs advertised on ZipRecruiter. Those would mostly be a mix of entry level jobs and jobs for attorneys with a modest amount of experience. Highly experienced attorneys don't move around all that much and when they do websites like ZipRecruiter are seldom involved. I don't know why but I couldn't find an average salary number for workers compensation claimants' attorney, which would be the closest analogue to Social Security.

     If we want competent attorneys representing Social Security claimants, we're going to have to do something about this salary imbalance and the only way to do that is by allowing Social Security attorneys to charge more. The easiest way of doing that is by increasing the fee cap but more may be required. 

     You're not protecting claimants by holding down the fees they're allowed to pay their attorney. At best, you're holding down the quality of attorney available to them but you may be making it harder for them to find any attorney.

     I have heard Social Security employees bemoan the increasing number of unrepresented claimants who fail to appear for scheduled hearings. Get a clue, people. The biggest reason they don't show up is that they've become discouraged because they couldn't find an attorney to represent them. In an environment in which it's hard to make a living as a Social Security attorney, the first thing you do is to try harder to avoid cases you think you're unlikely to win but making this sort of decision isn't easy. All of us in this field of practice place  a heavy emphasis on the claimant's age when making these decisions which means that if you're young it may be hard to find a Social Security attorney. I fear we turn away too many younger claimants who actually have good cases. To do something about the difficulties that younger people have finding a Social Security attorney, you have to change the risk-reward ratio that attorneys face. The risk isn't likely to change so you have to increase the reward. Is this hard to understand?

OIG Report On Telephone Service Last Summer

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

On July 21, 2020, Representative John Larson, Chair, and Tom Reed, Ranking Member, Subcommittee on Social Security, requested the Office of the Inspector General review SSA’s telephone services during the COVID-19 pandemic. In this report, we address SSA’s telephone services for June 2020. ...

In June 2020, SSA’s field offices and national 800-number received30 percent more calls than June 2019, with field offices receiving most of the additional calls. Also, during the same periods, 

• calls to the field offices and the national 800-number during business hours resulted in fewer busy messages, though the business hours for the national 800-number were reduced in June 2020, 
• the number of callers who hung up without speaking to an employee during business hours was lower for the field offices but slightly higher for the national 800-number, 
• the number of calls handled by employees was much higher for calls to the field offices but remained about the same for calls to the national 800-number, and
• callers to field offices waited less time for service while callers to the 800-number waited longer. ...
  

In general, SSA’s telephone services performance during June 2020 was similar to 13 customer service call centers we reviewed from 10 other Federal agencies, as compared to June 2019, but SSA’s performance seemed to fare better during COVID-19 than industry call centers. ...

Three Years In The Slammer For Former SSA Employee

      From a press release:

U.S. District Judge George L. Russell, III sentenced Cheikh Ahmet Tidiane Cisse, age 45, of Baltimore, Maryland, today to three years and a day in federal prison, followed by three years of supervised release for 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.  Judge Russell also ordered Cisse to pay restitution of $83,247 and forfeit $30,000 seized from Cisse’s home and pay a money judgment in the amount of $51,107. ...

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. ...

Senate Finance Committe Schedules Hearing On Service Delivery

      The full Senate Finance Committee has scheduled a hearing for 10:00 AM on April 29 on Social Security During COVID: How the Pandemic Hampered Access to Benefits and Strategies for Improving Service Delivery. Here's the witness list: 

• Grace Kim, Deputy Commissioner, Operations, Social Security Administration 
• Kascadare Causeya, Program Manager, Central City Concern, Portland , OR 
• Peggy Murphy, Immediate Past President, National Council of Social Security Management Associations, Great Falls , MT 
• Tara Dawson McGuinness, Founder, Senior Advisor, New Practice Lab, New America, Washington, DC

      This hearing is a big sign that there will be considerable pressure on Social Security to reopen its field offices to the public in the next few months. To my friends who work at Social Security, get vaccinated and expect to return to the office before the end of the summer. This weird interval in our lives is drawing to a close, whether we like it or not. Once you're fully vaccinated, you're at virtually no risk from Covid-19. There's no reason to keep public services closed just to protect people who refuse to be vaccinated.

Hire, Hire, Hire

      The American Federation of Government Employees (AFGE), the labor union that represents most Social Security employees recently asked its members for suggestions on improving employee morale, recruitment and retention. Here's an excerpt from their report on what they heard back:

Problems and Suggestions:

Hire, Hire, Hire:

Problem:

The lack of adequate staffing was the most cited complaint from employees.  The second most cited complaint was impossible expectations due to unmanageable workloads – which would also be connected to the lack of adequate staffing.  If we had adequate staffing to distribute the workloads so that everyone would have a manageable workload – the expectations for processing workloads would be fair and stress, anxiety, animosity, depression, etc. would be reduced considerably.  This would also have a major beneficial result on retention (not to mention increased productivity, reducing errors, improving customer service, etc.).

Suggested Solution 1:

Increase the amount of hiring for the front lines.  Stop reducing staffing in order to justify budget allocations for computer programs that we do not need and do not want.  Devote the resources necessary to the front lines where the work is being done – even if this means reducing the number of project managers, admin personal currently dedicated to compiling reports that do not change much from year to year, employees charged with creating training cartoons intended to train employees who are fully grown, etc.  Make budgeting decisions that are smart. ...

OMB Pushing Digital Signatures

      From a Federal News Network piece on information technology modernization:

Take, for example, digital signatures. This technology has been around since the late 1990s, but only in the last year did agencies fully realize its potential. Now the Office of Management and Budget is telling agencies in the budget passback, which Federal News Network obtained, to “accelerate the adoption and utilization of electronic signatures for public facing digital forms to the fullest extent practical in alignment with OMB Memorandum M-19-17 and OMB Memorandum M-00-15.”

Supreme Court Rules Against Issue Exhaustion

     From the syllabus of the just announced Supreme Court opinion in Carr v. Saul:

Held: The Courts of Appeals erred in imposing an issue-exhaustion requirement on petitioners’ Appointments Clause claims. Pp. 4–12.

(a) Administrative review schemes commonly require parties to give the agency an opportunity to address an issue before seeking judicial review of that question. Such administrative issue-exhaustion requirements are typically creatures of statute or regulation. But where as here, no statute or regulation imposes an issue-exhaustion requirement, courts decide whether to require issue exhaustion based on “an analogy to the rule that appellate courts will not consider arguments not raised before trial courts.” Sims v. Apfel, 530 U. S. 103, 109. “[T]he desirability of a court imposing a requirement of issue exhaustion depends on the degree to which the analogy to normal adversarial litigation applies in a particular administrative proceeding.” Ibid. In Sims, which declined to apply an issue-exhaustion requirement to SSA Appeals Council proceedings, the Court explained that “the rationale for requiring issue exhaustion is at its greatest” when “the parties are expected to develop the issues in an adversarial administrative proceeding,” but is “much weaker” when “an administrative proceeding is not adversarial.” Id., at 110. Although Sims dealt with administrative review before the SSA Appeals Council, much of the opinion’s rationale applies equally to SSA ALJ proceedings. Pp. 4–8.

(b) Even assuming that ALJ proceedings are comparatively more adversarial than Appeals Council proceedings, the question remains whether the ALJ proceedings here were adversarial enough to support the “analogy to judicial proceedings” that undergirds judicially created issue-exhaustion requirements. Sims, 530 U. S., at 112 (plurality opinion). Pp. 8–12. 

(1) In the specific context of petitioners’ Appointments Clause challenges, two considerations tip the scales decidedly against imposing an issue-exhaustion requirement. First, agency adjudications are generally ill suited to address structural constitutional challenges,which usually fall outside the adjudicators’ areas of technical expertise. See, e.g., Free Enterprise Fund v. Public Company Accounting Oversight Bd., 561 U. S. 477, 491. Second, this Court has consistently recognized a futility exception to exhaustion requirements. See, e.g., Bethesda Hospital Assn. v. Bowen, 485 U. S. 399, 405–406. Both considerations apply fully here: Petitioners assert purely constitutional claims about which SSA ALJs have no special expertise and for which they can provide no relief. United States v. L. A. Tucker Truck Lines, Inc., 344 U. S. 33, distinguished. Pp. 9–11.

(2) The Commissioner’s contention that petitioners cannot obtain new hearings because they did not “timely challenge” their adjudicators’ appointments presumes what the Commissioner has failed to prove: that petitioners’ challenges are, in fact, untimely. The Commissioner’s reliance on Ryder v. United States, 515 U. S. 177, and Lucia, 585 U. S. ___, is misplaced, as neither decision had occasion to opine on what would constitute a “timely” objection in an administrative re-view scheme like the SSA’s. Pp. 11–12.

Voters Support SSI Reform

      From a report by Data for Progress (click on images to view full size):

The Costs Of Extending SSI To U.S. Territories

      I was looking for something else but happened upon an estimate that Social Security's Office of Chief Actuary made last year of the costs of extending SSI to all U.S. territories. The cost would be $23.4 billion over a ten year period with the vast majority of that for Puerto Rico. There's no projection presented of the number of claimants who would become eligible for benefits.

     The issue of whether it is constitutional to deny SSI benefits to U.S. citizens who reside in U.S. territories will be heard by the Supreme Court this fall. It is also possible that President Biden will formally propose this as a change in the statutes.

That Study That Supposedly Shows The New Musculoskeletal Listings Will Have Little Net Effect Was Done Four Years Ago And Wasn't Done By The Actuary

      Social Security's Chief Actuary has released a very brief memo on its finding that the new musculoskeletal Listings will have almost no net effect upon the number of disability claims approved. I don't understand why it took so long to release this. The memo includes this paragraph: 

To assist in estimating the effects of the final rule, SSA conducted a case study in 2017covering approximately 1,400 initial DDS-level decisions made in 2015. In comparing determinations of these sample cases using the prior criteria and new criteria, a small number of determinations were expected to change from allowance to denial under the new rule, primarily because their case files do not contain all of the medical evidence required under the new rule.

     So it's not really the Chief Actuary's office that did this study. It was actually done by the people who proposed these new Listings and it was done based upon an earlier version of the Listings rather than the final version.

     Why is the Chief Actuary putting this out as if his office did it and as if it was based upon the actual Listings adopted?  I know why Social Security management would want this coming from the Chief Actuary. He has credibility. Current management doesn't. I don't know why he would put his name on a study his office didn't do. I don't think this is going to age well. 

     And, oh yeah, I'd like to see the actual study itself instead of some brief summary of it.

They Say They Want Your Input

      From an announcement by Social Security in the Federal Register (footnotes omitted):

... The Evidence Act requires Federal agencies to develop ``a systematic plan for identifying and addressing policy questions relevant to the programs, policies, and regulations of the agency.'' This plan, referred to as a Learning Agenda, offers the opportunity for us to use data in order to address the key questions we want to answer to improve our operational and programmatic outcomes and to establish strategies to develop evidence to answer important short-and long-term strategic and operational questions. We seek public comments to inform the development of our Learning Agenda. ... 

Through this RFI [Request For Information], we are asking interested persons, including stakeholders across public and private sectors who may be familiar with or interested in the work of our agency, for input on evidence-building activities that inform important priorities for our agency, including those that are related to the President's broader priorities that are available at https://www.whitehouse.gov/priorities/. We also seek input on future projects that will advance our mission. ...

Finally Some New Numbers On Attorney Fee Payments

     Social Security used to post numbers each month showing the amount of fees paid by claimants for representation before the agency but that stopped at the end of 2019. I never gave up. I kept going back to the website expecting that the agency would eventually update the numbers. My patience has been rewarded. They have finally updated the numbers all the way through last month.

     For 2019, 390,809 fees were paid for a total of $1,214,557,861. The average fee paid per case was $3,107.80. 

     For 2020, 360,493 fees were paid, down 8% from 2019. The total fees paid were $1,081,523,523 down 11% from 2019. The average fee paid in 2020 was $3,000.12, down 3% from 2019.

     For the first quarter of 2021, 77,754 fees were  paid with the monthly average number down 14% from 2020. The total fees paid for the first quarter were $262,694,679 with the monthly average down 10% from 2020. The average fee per case was $3,121.31, up 4% from the 2020 average. However, I would caution about drawing too many conclusions when comparing the first quarter of 2021 with 2020. There are many fluctuations in payments from quarter to quarter and quarters aren't the same length.

     In any case, it's no exaggeration to say that those of us representing claimants are hurting. Our costs have gone up with inflation but our average fee per case is either down or stagnate while our total fees are down considerably.

     Whenever I post anything about attorney fees I always get sneering responses that essentially go "Well, why don't you just give up representing Social Security claimants?" The answer is that some attorneys have already given up representing Social Security claimants and many more are wondering what they should do. There's no doubt that representing workers compensation or personal injury clients pays better than Social Security. Those of us who specialize in representing Social Security clients have invested a lot of time and money developing our practices and are reluctant to give them up but that won't last forever. The end of the pandemic will help but only so much. This field of practice was in decline before the pandemic. I've already heard a report that it's hard to find a Social Security attorney in the state of Kansas. Expect that to spread without an increase in the fee cap.

     By the way, I wonder why these numbers were finally updated now.

EM On Covid-19

      Social Security has issued an Emergency Message on the evaluation of Covid-19 disability claims. It's long but don't expect anything that's really new. I don't fault them; it's too early. About the only thing that I see that's even halfway new is a statement that individuals who have had extended stays in intensive care usually require an extended period of rehabilitation before they can return to work. That seems obvious but I don't recall ever seeing that from Social Security and I can recall non-Covid cases where Social Security failed to take this into consideration.

Covid Long Haulers And Social Security Disability

     From an article in U.S. News & World Report concerning Covid-19 long haulers and disability benefits:

... Last June, Democratic U.S. Reps. John Larson of Connecticut – who chairs the House Ways and Means Social Security Subcommittee – and Danny Davis of Illinois, who chairs the Worker & Family Support Subcommittee, called on the Social Security Administration to collaborate with the National Academies of Sciences, Engineering, and Medicine on how to evaluate the long-term impact of COVID-19 on people's ability to work, which SSA agreed to do.

"While I'm encouraged that SSA is moving forward with this examination of what needs to be done to support long haulers, I do not have confidence in Andrew Saul leading the agency," Larson said in an emailed statement to U.S. News, referencing the Social Security Administration commissioner tapped by former President Donald Trump. "I will continue to push SSA and monitor their work to make sure we are supporting those most affected by COVID-19 who may need Social Security Disability." ...

Social Security Halts No-Match Letters

     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 Oversight Subcommittee Chairman Bill Pascrell, Jr. (D-NJ) released the following statement regarding Social Security Administration (SSA)’s decision to halt sending “no-match” letters, also known as Educational Correspondence (EDCOR) notices:

“We welcome SSA’s announcement that it will stop the harmful practice of sending no-match letters to employers with certain discrepancies in their W-2 records. Two years ago, we strongly condemned SSA’s decision to send these letters out in the first place because they disproportionately imperil immigrants and threaten workers’ privacy. No-match letters have been shown to be wholly ineffective in correcting wage records and are not a cost-effective use of SSA’s limited resources. Today, we reiterate that the agency is prohibited by law from using its funds for any purpose other than administering Social Security, such as immigration enforcement. While we are glad to see SSA finally do the right thing and stop sending these letters, it is unfortunate that SSA Commissioner Andrew Saul chose to send these harmful letters for two years, inflicting significant harm on many affected workers.”

In June 2019, Chairmen Neal and Larson, along with former Oversight Subcommittee Chairman, the late John Lewis (D-GA), sent a letter to Commissioner Saul opposing SSA’s decision to restart sending no-match letters. Specifically, the members cited their concerns that the letters may lead to the firing of U.S. citizens and work-authorized immigrants, that they may result in the unauthorized sharing of tax data, and that they were a poor use of SSA’s scarce resources. 

      You will notice the contrast drawn, implicitly, to the pious statements from Social Security that they were forbidden to help the IRS with stimulus checks until the IRS ponied up money for the costs of producing the lists of those eligible because the funds appropriated for Social Security could only be used for administering Social Security and not helping with stimulus payments. However, when the Trump Administration asked for Social Security's help with immigration enforcement, Social Security apparently saw no such obstacle.

     It's past time for the House Ways and Means Committee, the whole Committee, to hold an oversight hearing and force Andrew Saul to answer questions under oath.

Saul Vows To Hang On

     From the Baltimore Sun:

Three months after Donald Trump left office, unions and congressional Democrats say the man he left in charge of the vast Social Security system is making it harder for millions of Americans to get disability benefits and is undermining federal workers’ rights.

Andrew Saul, 74, one of the few remaining holdovers from the Republican president’s administration, told The Baltimore Sun through a spokesman that he intends to lead the Baltimore County-based Social Security Administration until his term ends in January 2025. ...

Saul’s defenders say he has been the subject of unwarranted criticism that is politically motivated.

“I just don’t see any case” for firing Saul for neglect or malfeasance, said Andrew Biggs, a resident scholar at the conservative American Enterprise Institute. ...

     You may recall that when Andrew Biggs was a Social Security employee he thought it was OK for him to go around the country with then President George W. Bush campaigning for the partial privatization of Social Security.

Criticism For Social Security's Reliance On Accurint

      From Mismatched and Mistaken: How The Use Of An Inaccurate Private Database Results In SSI Recipients Unjustly Losing Benefits by Sarah Mancini, Kate Lang and Chi Chi Wu of the National Consumer Law Center:

... In fiscal year 2018, the Social Security Administration (SSA) began using a data set from LexisNexis (Lexis) called Accurint for Government on a widespread basis to determine whether recipients of needs-based government assistance had unreported real property that could dis-qualify them from the receipt of such benefits.

Since the advent of SSA’s use of the Accurint for Government (Accurint) product, advocates representing individuals receiving Supplemental Security Income (SSI) benefits have reported significant problems with clients being falsely accused of owning real property. People who rely on SSI to survive have received letters from SSA suspending their benefits or assessing an overpayment based on supposedly owning real property that puts them over the resource limit. Often the suspension letter does not even identify the alleged real property at issue. Too often, the data relied upon is inaccurate. Vulnerable SSI recipients, who are by definition either disabled or elderly and extremely low income, must attempt to prove a negative—prove that they do not own the real property—to the satisfaction of the employees in their local SSA office. And even worse, they may lose their benefits or face an offset for alleged overpayment during that appeal process, depending on the timing of their appeal.

Lexis appears to be attempting to evade the Fair Credit Reporting Act (FCRA), by inserting a disclaimer at the bottom of its promotional website stating, “Accurint for Government is not a consumer report (as defined in the Fair Credit Reporting Act) and may not be used for any purpose permitted by the FCRA.” This type of disclaimer is part of a wave of businesses attempting to skirt coverage of the FCRA by disclaiming any intent to provide a “consumer report.” By claiming that Accurint for Government is not a consumer report, Lexis is attempting to dodge the FCRA’s requirements to adhere to certain standards of accuracy, and SSA is trying to avoid requirements to provide notices to consumers before taking any adverse action based on information contained in the report. If the FCRA applies, consumers would have the right to dispute inaccurate information contained in the report and have it investigated and corrected by LexisNexis.

 SSA claims that it does not use the data from LexisNexis to deny or suspend benefits without independent verification, but that the data is used only to establish a lead. SSA employees are supposed to conduct an investigation to determine whether the SSI recipient owns the real property. Reports from advocates around the country refute this assertion. ...

 Many of the examples shared with National Consumer Law Center and Justice in Aging involved false real property matches. ... A Bengali SSI recipient in New York had her benefits suspended and an  $11,000 overpayment assessed against her based on real property in Florida that was in fact owned by her sister, with a similar name. ... 

Other examples involved properties that were connected with the recipient at some point, but should not have disqualified the recipient because they were transferred away many years ago or were worth less than the allowed amount ...

Accurint is returning a “match” based on a first and last name only. ... 

     I can't say that I've seen Accurint problems but I have certainly seen problems over the years with inaccurate valuations of real estate. Here are a couple of examples of Social Security going off the deep end with theoretical values of real estate:

• "Heir property" that has no real value. For example, the claimant owns a 1/8 undivided interest in a house. The only way to obtain value out of the house would be to force what is called a partition sale but the claimant lacks funds to hire a lawyer to force a partition sale. This sort of situation usually ends up with the house being sold for unpaid property taxes.
  
• Unsaleable life or remainder interest. For example, the claimant has been willed a life interest in a rundown house that is uninhabitable. In theory, the claimant could sell her life interest but who wants to buy a life interest in an uninhabitable house with the length of ownership determined by the length of someone else's life?

      Yes, I know how to handle these cases. Tell the claimant to list their interest in the property for sale and the property disappears as far as Social Security is concerned but that requires knowledge that the average claimant lacks.