Unhappy ALJs

      Some of Social Security’s Administrative Law Judges really don’t like that Washington Post piece on all the federal court remands of their decisions. Take a look at what they have to say.

Social Security Faring Poorly In Federal Court

     Lisa Rein at the Washington Post has written an article on how frequently Social Security loses when denied disability claimants appeal their cases to federal court. Here are a few snippets:

• In the last two fiscal years, federal judges considering appeals for denied benefits found fault with almost 6 in every 10 cases and sent them back to administrative law judges at Social Security for new hearings — the highest rate of rejections in years, agency statistics show. ... The scathing opinions have come from district and appellate court judges across the political spectrum, from conservatives appointed by President Ronald Reagan to liberal appointees of President Barack Obama.
• The high rate of rejections for cases handled by administrative law judges and the attorneys who write their decisions is driven by stringent monthly quotas set by Social Security officials and growing pressure to deny more cases, according to current and former officials, audits and attorneys who represent the disabled. The agency’s policies have been reshaped to give less deference to the expertise of doctors who, in some cases, have treated claimants for years, and its policies routinely depart from federal appellate court rulings. ... Social Security has stacked the cards against the approximately 2 million people each year who apply for help when they can no longer work.
• Social Security has also tilted the scales in recent years away from key medical evidence, critics say, in another sign of the shift toward granting fewer claims. While administrative law judges once based much of their decision on evidence from primary care doctors or psychiatrists who best understood their patients’ medical issues, that policy changed in 2017. Now judges are free to disregard the opinions of these treating physicians and rely heavily instead on contracted doctors who examine claimants for as little as 15 minute.
• Less weight is given to certain musculoskeletal conditions, for example. IQ tests that show mental impairments do not automatically grant benefits.

I Thought We Decided Social Security Was Constitutional Over 80 Years Ago

     From Slate:

... For years now, right-wing litigators have argued that the CFPB [Consumer Financial Protection Bureau] is unconstitutional because it is funded independently: The agency draws its budget from the Federal Reserve, which in turn draws its budget from interest on securities. Because Congress does not directly appropriate money to the CFPB every year, lawyers claimed, its funding violates the Constitution’s appropriations clause. ...

At least seven different federal courts dismissed this theory until it landed in the 5^th Circuit, the nation’s Trumpiest appeals court. In May 2022, Judge Edith Jones—a Ronald Reagan appointee and hard-right bomb-thrower—wrote a 39-page concurrence asserting that the CFPB is funded unconstitutionally. Four other judges joined her. Then, in October, a three-judge panel formally declared that the CFPB’s independent budget mechanism renders the entire agency unconstitutional. Judge Cory Wilson, writing for the panel, revoked the CFPB’s ability to issue or enforce any regulations. (All three members of the panel were appointed by Donald Trump.) Thus, under the current law of the 5^th Circuit, the CFPB effectively does not exist. ...

You might wonder: What does this skirmish over a small financial agency have to do with hundreds of billions of dollars in annual entitlement spending? The answer: everything. In her concurrence, Jones took pains to clarify that her reasoning was not limited to the CFPB. Jones announced that all “appropriations to the executive must be temporally bound.” If Congress does not put a “time limit” on funding, it gives the executive branch too much discretion over spending. Under the Constitution, she claimed, the executive must “come ‘cap in hand’ to the legislature at regular intervals” to ensure that it remains “dependent” and “accountable.” ...

If their view becomes the law of the land, it will empower courts to abolish trillions of dollars in entitlement spending. Why? Because today two-thirds of annual federal spending is “mandatory”—including some of our nation’s most beloved social safety net programs. All of this spending amounted to $5.2 trillion in fiscal year 2021 that would suddenly be at risk of elimination by judicial fiat. ...

Does this principle derive from the Constitution? Of course not. The appropriations clause at question simply states that all money drawn from the treasury must be “in consequence of appropriations made by law.” There is no textual requirement that Congress reauthorize appropriations periodically. In fact, Article 1 of the Constitution suggests the exact opposite: It bars Congress from appropriating money to the Army “for a longer term than two years,” implying that other kinds of long-term appropriations are permissible. If they weren’t, then why would Army appropriations need an explicit time limit? ...

    Be careful what you ask for GOP. You might get it.

Boring To Most Readers But Essential To Some

      Social Security is changing its rules to centralize acceptance of legal process. To explain, Social Security gets sued many thousands of time a year. The vast majority are appeals in disability cases. If you sue someone, you have to tell them they've been sued. This can be referred to as "legal process." Up to this point, where you sent the legal process depended upon where the lawsuit was filed. Now, they will all be sent to the same place. This has to do with changes at Social Security's Office of General Counsel (OGC) but also with changes in the Federal Rules of Civil Procedure. This change will appear in the Federal Register (where official federal announcements are published) tomorrow.

You Snooze, You Lose

    From Bloomberg:

An attorney who won disability insurance benefits for his client isn’t entitled to the fees the Social Security Administration designated for his work before a federal court, because his 26-month delay in requesting them wasn’t reasonable, the First Circuit said.

Jose Pais was denied benefits by the SSA in 2014. In 2018, a federal district court ruled in Pais’ favor and remanded the case to the SSA, which then decided Pais was entitled to benefits.

Pais and his lawyer had signed a contingent-fee agreement. The SSA therefore sent Pais a notice of award in June 2019, saying that his lawyer was entitled under federal law to fees of up to $29,159, representing 25% of the recovered benefits.

The lawyer promptly submitted a claim to SSA for over $7,000 for the work he did in administrative proceedings, but didn’t submit a claim for his work before the district court until August 2021.   

The district court rejected the lawyer’s excuses and said that the delay was unreasonable under Federal Rule of Civil Procedure 60(b).

There is not fixed time under the Social Security law for an attorney to file a motion for fees, the opinion by Judge O. Rogeriee Thompson of the US Court of Appeals for the First Circuit said. But there is a circuit split over which Federal Rule of Civil Procedure applies to the request, Thompson said.

The Tenth Circuit applies Rule 60, under which parties have a “reasonable time” to move for “relief from a final judgment, order, or proceeding.” But the Second, Third, Fifth, and Eleventh circuits apply Rule 54(d)(2), which says that unless a statute or court order says otherwise, a motion for attorneys’ fees must “be filed no later than 14 days after the entry of judgment.”

Agreeing with the Tenth Circuit, the First Circuit said that the SSA never hands down a notice of award within 14 days of a district court’s judgment, which makes rigid application of Rule 54(d)(2) impossible. It also noted that some of the circuits that apply Rule 54(d)(2) toll the 14 days to the date the SSA issues a notice of award. ...

    What I want to know is how long it took Social Security to act on the fee petition. This delay may not be as bad as it seems.

SSNs Exposed In Court Records

From a letter from Senator Ron Wyden to John Roberts, the Chief Justice:

I write with concern that federal courts are failing in their legal obligations to protect Americans’ private information, putting Americans at needless risk of identify theft, stalking and other harms. Each year, federal courts make available to the public court filings containing tens of thousands of Americans’ personal information, such as their Social Security Numbers (SSNs) and dates of birth. However, federal court rules — required by Congress — mandate that court filings be scrubbed of personal information before they are publicly available. These rules are not being followed, the courts are not enforcing them, and as a result, cach year tens of thousands of Americans are exposed to needless privacy violations. 

The Judicial Conference, the courts’ policy-making body, has known about this problem for at least a decade and has refused to act.  …

The most recent report, which was provided to my office in draft form, says the Federal Judicial Center (FIC), the courts’ research arm, has twice studied the problem of personal data appearing in public court records, in 2010 and 2015, and in both cases found significant violations of the judiciary’s privacy rules. In the most recent study, the FIC examined 3.9 million court records filed duringa one month period in 2013. It found 5,437 of these documents included one or more SSNs. If these statistics are representative of the problem, it would mean that the courts have made available to the public roughly half a million documents containing personal data since 2015. …

     I hope this isn’t happening in Social Security cases. Many, many years ago we used to put the claimant’s Social Security number in the case caption but those days are long gone. 

Supreme Court To Hear Social Security Cases Today

     The Supreme Court is scheduled to hear oral arguments at 10:00 today in two cases that present the issue of when a Social Security claimant must raise an issue. Must it have been raised before the agency in order to raise it before the federal courts? This is in the context of Lucia challenges to the authority of Administrative Law Judges to hear cases but the Court's ruling will certainly affect Seila Law litigation. 

     You can listen to live audio of the oral arguments.

The RECAP Project

     Thousands of Social Security cases end up being appealed to the federal courts every year. One annoying aspect of practicing in the federal courts is the costs charged for the PACER system. It's the system for online access to court records. With PACER you often have to pay to get access to public records. My gut feeling is that this is wrong.

     Recently, I've discovered a worthy project to try to alleviate the PACER monopoly at least a little and Social Security attorneys can participate:

RECAP Project — Turning PACER Around Since 2009

RECAP is an online archive and free extension for Firefox and Chrome that improves the experience of using PACER, the electronic public access system for the U.S. Federal District and Bankruptcy Courts.

If you use PACER, install RECAP. Once installed, every docket or PDF you purchase on PACER will be added to the RECAP Archive. Anything somebody else has added to the archive will be available to you for free — right in PACER itself. ...

The Archives and APIs

Thanks to our users and our data consulting projects, the RECAP Archive contains tens of millions of PACER documents, including every free opinion in PACER. Everything in the archive is fully searchable, including millions of pages that were originally scanned PDFs.

Everything that is in the RECAP Archive is also regularly uploaded to the Internet Archive, where it has a lasting home. This amounts to thousands of liberated documents daily. ...

New List For Service Of Process

      The Social Security Administration has announced a new list of addresses for service of process. 

     For non-attorney readers, I'll explain. Social Security gets sued a lot -- something like eight or ten thousand times a year, if I remember correctly. Mostly, these are denied claimants appealing. When you sue someone, you have to tell them they've been sued. That's called service of process. Generally, this isn't that difficult. You deliver it to the person's residence or to the headquarters of a business or other entity. However, Social Security gets sued enough that their attorneys who respond to these lawsuits are broken down into Offices of Regional Counsel as well as the Office of General Counsel in Baltimore. They want service of process to the office that will be responding to the lawsuit. The assignments to these components change from time to time so they have to put out new lists to tell you where to serve process on them.

Proposed Amendments To Federal Rules Of Civil Procedure To Specifically Address Social Security Cases

      The Committee on Rules of Practice and Procedure of the Judicial Conference of the United States has produced a lengthy set of amendments to the Federal Rules of Appellate, Bankruptcy, Civil and Criminal Procedure. These include amendments to the Federal Rules of Civil Procedure to specifically address Social Security cases. The proposed changes concerning Social Security begin at page 231 of this 280 page document. 

     At first reading, these do not seem concerning to me but as lawyers know, any procedural rules have the potential to be outcome determinative.

     The public has until February 16, 2021 to file written comments on the proposed changes. There will be public hearings on the proposed amendments to the civil rules on November 10 and January 22. After this process, the Committee on Rules of Practice and Procedure, the Judicial Conference and the Supreme Court must all agree before these proposals come into effect.

New Addresses For Service Of Process

     The Social Security Administration has posted new addresses for service of process effective immediately. This has to do with suing the agency. If you sue them, you have to let them know you've sued them. This is the address you use to let them know you've sued them. The address you use depends upon the judicial district the lawsuit is brought in. They had just changed these addresses in October. I believe all the changes shift cases from the Office of Regional Counsel in New York. Is there some problem there?

Did It Matter?

     About two and a half years ago Social Security changed its policies on voluntary remands, that is cases where the agency agrees that a case on appeal to the United States District Court should be remanded to the agency.

     I'm curious. Has there been a change in the rate at which Social Security agrees to voluntary remands since that change in policy? Has there been a change in what they do after voluntary remands? Did the policy change matter?

Pay Attention If You’re Suing Social Security

     Social Security is announcing new addresses for service of process on the agency. This is effective immediately.

Stay Granted In Steigerwald Class Action

     The U.S. Court of Appeals for the Sixth Circuit has given Social Security a stay in the Steigerwald v. Saul class action lawsuit.

     Steigerwald has to do with the computation of benefits to which a claimant is entitled in a case where Disability Insurance Benefits (DIB) and Supplemental Security Income (SSI) are both approved and the claimant is represented. To oversimplify, the needs based SSI benefits are supposed to be reduced because of the DIB payments. However, a represented claimant does not receive the entire DIB payment because some of it is used to pay the attorney. Should the SSI benefits be reduced by money the claimant never sees because it's used to pay the attorney? The answer is no but Social Security had been failing to do it that way which led to the class action lawsuit.

     The District Court had given Social Security only until September 25, 2019 to do the redeterminations. The Court of Appeals has given Social Security two years. 

     My opinion is that while the September 25, 2019 date was unrealistic, two years is way too long. Social Security should have known that it was going to lose Steigerwald from the day it was filed some two years ago. They had already lost another class action on this issue many years ago. Social Security should have gotten going far earlier. Foot dragging shouldn't be rewarded.

A Question

     I'm preparing the 2019 edition of Social Security Disability Practice. One small way that I may update the book is to talk about the new practice in some U.S. District Courts of omitting the claimant's surname from the caption of a case. This is being done to try to protect the privacy of the claimants. 

     This isn't being done in any of the Districts in my state so I'm uncertain about the mechanics. Is the surname omitted in the initial complaint? Is it omitted by the parties only thereafter? Is it only the Court that omits the surname when it files an order?

PACER Gouging

From the New Republic:

 … Three legal nonprofit groups—the National Veterans Legal Services Program, the National Consumer Law Center, and Alliance for Justice—filed a class action lawsuit against the federal government in 2016 to challenge PACER’s fee structure. …  

 The PACER system itself brought in more than $146 million in fees during the 2016 fiscal year, even though it cost just over $3 million to operate. …  

     Social Security attorneys who practice in the federal courts are big users of PACER.  This rankles.

New Service Of Process Addresses

     The Social Security Administration is announcing changes in the addresses it uses for service of process. This will appear in the Federal Register tomorrow but you can read it today. To explain to lay folks, if you sue someone you have to let them know. This is called service of process. If you're suing Social Security, you have to mail the notice, called a summons, to them. They get to pick what address you send it to. Social Security has made it somewhat complex by having different addresses depending upon exactly which federal court district the lawsuit is filed in. They've now changed some of those addresses.

Report On Culbertson v. Berryhill Oral Argument

     SCOTUSblog reports on this past week’s oral argument before the Supreme Court in Culbertson v. Berryhill, a case concerning the cap or caps on attorney fees for representing Social Security claimants in federal court.

Preview Of Culbertson v. Berryhill

      SCOTUS blog gives a preview of the oral arguments coming up this week before the Supreme Court in Culbertson v. Berryhill on the computation of federal court attorney fees for representation in Social Security cases in the federal courts.

Minor But Interesting Development

     I'm noticing that some United States District Courts are now issuing opinions in adult Social Security cases which identify the plaintiff only by first name and last initial. It seems to be more than one Judge or District doing this. It’s being done to protect privacy. I'm sure that anyone who really wanted to could look in the Court's records and discover the real name. This would just protect privacy on Westlaw, the major online database of Court opinions. I just noticed it. I can't think it's been around long. It's not being done in any of the North Carolina Districts. Does anyone know where this started?