Social Security's Shutdown Plan

     We're now in a federal government shutdown. Here's Social Security's shutdown plan. Click on each thumbnail to view full size.
     The two things I notice is that this time almost all of the Office of Hearings Operations (OHO) will stay open but that almost all of the Office of General Counsel (OGC) will shut down. Last time both mostly shut down but were eventually called back in.

     I'm mostly glad to see OHO stay open. However, there's a part of me that says that ameliorating the effects of a shutdown like this makes the shutdown longer. If virtually the entire federal establishment were actually shut down, the shutdowns would be rare and brief. 

     The OGC shutdown is more of a problem than you might think. Social Security is subject to deadlines in federal court litigation. OGC has enough of a problem meeting these deadlines in the best of times. Federal judges are not as sympathetic to the agency's shutdown problem as you might think. The judges, their staffs and the clerks offices always keep working during these shutdowns. They can't see why OGC would shut down. 

Acting Commissioner's Message On Possible Government Shutdown

From: ^Commissioner Broadcast
Sent: Friday, January 19, 2018 10:37 AM
Subject: Planning for Potential Lapse in Funding

A Message to All SSA Employees

Subject: Planning for Potential Lapse in Funding

As many of you are aware, annual funding for the government expires on January 19.  The Executive Branch does not believe it is necessary for a lapse in funding to occur, and looks forward to working with the Congress to finalize appropriations for this year.

However, prudent management requires that we be prepared for all contingencies, including the possibility that a lapse could occur.  A lapse would mean that a number of government activities would cease due to a lack of appropriated funding, and that a number of employees would be temporarily furloughed.  To prepare for this possibility, we are working to update our contingency plans for executing an orderly shutdown of activities that would be affected by a lapse in appropriations. 

Thank you for your hard work, dedication, and patience through this process, and for all that you do for the Social Security Administration and the American people.

Nancy A. Berryhill
Acting Commissioner

Shutdown Tonight?

     The federal government will shut down tonight if Congress cannot agree on a continuing resolution to fund the government. 

     The last time there was a shutdown almost all Social Security employees were told to keep working. The major exceptions were employees of the Office of Disability Adjudication and Review (now Office of Hearings Operations -- OHO) other than the Administrative Law Judges (ALJs) and most of the Office of General Counsel (OGC). Even without passage of a funding bill almost all the ODAR employees were eventually recalled last time. The OGC employees were recalled just before passage of a continuing resolution. Social Security asked the state Disability Determination Services (DDS) to stay open and they did for a time but some started closing down as the shutdown continued.
      If you're a Social Security employee, please let me know what you're hearing. My guess is that most of you have no idea whether you're supposed to show up for work Monday and may not find out until Monday morning.
     By the way, I don't care what your politics are, a shutdown is completely nuts, almost incomprehensible. 

An Undying Husband

     From Ann Brenoff writing for Huffpost:

For the past 12 months, your tax dollars have been going to pay Social Security benefits to a dead man. I know this because that dead man is my late husband.

No, I am not engaging in any sort of attempt to defraud the Social Security fund. Quite the contrary, I reported his death to the Social Security Administration immediately after it occurred and have been reporting it repeatedly ever since.

None of my two dozen or so calls ― or the day I took off work to visit my local Social Security office and paid $13 to park ― has changed the fact that, as of this writing, the SSA continues to deposit a monthly payment into the checking account I shared with my dead husband. In fact, they also continue to pay his Medicare premium out of his benefit payment. ...

I reached out to my congressman, who was miraculously able to move a few mountains. We are still ironing out the errors that have compounded over the months and working on mitigating the longer-term impacts: For instance, why should I have to wait months for a corrected 1099 form on benefits that were paid in error and that the agency now wants back? ...

     By the way, has anyone ever received a corrected SSA-1099? Is that even theoretically possible? Also, by the way, in her piece Brenhoff eventually veered off into somehow blaming the agency's POMS manual for her problem, which, I guess, helps demonstrate a point that she was trying to make -- that few people understand how Social Security works.

SSAB Report On Rep Payees

     The Social Security Advisory Board (SSAB)has issued a 46 page report on Improving Social Security's Representative Payee Program. Here are their recommendations:

Recommendations to SSA [Social Security Administration]: Š 

• Standardize the capability determination process by using empirically-based assessment and decision-making methods. Š 
• Establish a centralized process to certify new FFS [Fee For Service] organizational rep payees instead of having each FO do its own certification. Š 
• Research and evaluate the order of preference for rep payee selection. Š 
• Implement a plan to achieve full compliance with SSA’s criminal bar policy within five years. Š 
• Examine the effectiveness of the criminal bar policy and continue to strengthen it as an appropriate monitoring device. Š 
• Create specialized rep payee expertise at the FO [Field Office] and/or regional level to administer the rep payee program more uniformly, to answer questions and train new rep payees and to manage organizational rep payee workloads. Š 
• Develop strategies to inform the public of resources related to the SSA rep payee program and how to report suspected abuse. 

Recommendation to Congress: Š 

• No longer require all custodial parents and legal guardians of minor children and spouses residing with adult beneficiaries/recipients to submit an accounting report annually. Instead, these rep payees would be required to submit accounting reports upon SSA’s request. SSA will request accounting reports from at least five percent of the total exempted group each year, with selection done on a partly randomized and partly targeted basis. SSA would develop data and procedures for targeted selection of cases for accounting-report submissions and reviews. SSA will also develop a process to notify regularly all rep payees in the exempted group of their reporting responsibilities, their being subject to audit, if selected, and their need to maintain an ongoing account of how Social Security benefits are spent. Š 
• Increase oversight of contracted monitoring through the inclusion of measurable performance standards to assess the monitoring process, including the development of quality, timeliness and quantity standards and a method of assessing compliance with those standards. 

Recommendation to Congress and SSA: Š 

• The performance of analytical models that are used in the monitoring processes should be periodically examined and judged by experts outside of SSA. Experts conducting this work should provide findings to Congress. Š 
• Improve the design of the annual accounting form and monitoring of all rep payee and organizational rep payees with annual reporting requirements.

Recommendations to OMB [Office of Management and Budget]: Š 

• Study how best to coordinate the management of federal benefits for people who have been determined to be financially incapable with the recognition that alternative approaches such as supportive decision making have been embraced by key stakeholders. Š 
• Consider the creation of a shared database for federal benefit-paying agencies and state and local courts that make guardianship decisions. The database will assist in improving financial capability determinations, rep payee selection and oversight of the program.

Chaos Ahead?

     Let me repeat something that I posted late Friday. The Supreme Court has granted a writ of certiorari in Lucia v. SEC, meaning they will hear the case. Lucia concerns whether Administrative Law Judges (ALJs) as presently appointed are constitutional. The Trump Administration is arguing that they aren't. This case may be heard in this term of the Supreme Court, meaning there may be an opinion by the end of June!

     Let me give a preview of what will happen if the Supreme Court rules that ALJs as presently appointed are unconstitutional. All ALJ hearings must stop. All ALJ decisions must stop. All cases pending at the Appeals Council must be remanded to whatever class of personnel will be hearing cases in the future. All Social Security cases pending in the federal courts must be remanded for new hearings.

     There is only one way to prevent even some of this chaos. That would be to have the President sign off on appointments for each of Social Security's present ALJs and to do so quickly. That would allow ALJs to continue holding hearings and issuing decisions. It wouldn't do anything about the remands of cases pending at the Appeals Council and the federal courts but there's nothing to be done about that. There have already been presidential appointments for the ALJs at the Securities and Exchange Commission (SEC) where this lawsuit began. All that would be required is for someone to prepare a document saying "I, Donald Trump, hereby appoint the following individuals as ALJs", followed by a list of the ALJs and for Trump to sign the document. Of course, for this to happen, we'd have to have a responsible President, so I'm not expecting it.

     The premise the Trump administration is supporting in Lucia is that a Presidential appointment is required by the appointments clause of the Constitution. If you're a lawyer and can't quite remember the appointments clause, don't feel bad. It's about as unimportant a part of the Constitution as you can find. Here it is: 

He [the President] ... shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law: but the Congress may by Law vest the Appointment of such inferior Officers as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments. 

     Tho argument is that Social Security ALJs are "inferior Officers" who must be subject to appointment by the President. Social Security, not being a department, has no "head of department" to make the appointment. What makes an employee an "inferior Officer"? How many angels can dance on the head of a pin?

     I find this lawsuit ridiculous. There's no statute that says that ALJs must not be subject to Presidential appointment. All that would be required to move them from civil service to presidential appointment status would be some changes in regulations at the Office of Personnel Management which the President could easily order. Since there's no obvious test of what makes a position one which must be held by an "inferior Officer", shouldn't the courts defer to the determinations made by Presidents? The President is the one who's supposed to try to make the executive branch work. Why should the courts be second guessing them on this? Even though this is part of the Constitution, it's not like it's enshrining some high principle. If the courts must defer to executive branch interpretations of statutes (the Chevron doctrine), isn't it clear that they should also defer to executive branch determinations of what jobs are and aren't "inferior Officers"? Should the Court find ALJs as presently appointed unconstitutional, aren't they inviting endless lawsuits about the authority of other executive branch employees?

Another Backlog Story

     A suburban Chicago newspaper reports on the brutal backlogs that await so many people who file claims for Social Security disability benefits. I hope these press reports ultimately help

Attorney Fees Up In 2017

     Social Security has posted its final numbers on fees paid to attorneys and others for representing Social Security claimants in calendar year 2017. The total was $1.21 billion, up 11% from 2016. Despite the increase, attorney fees are still down from their peak of $1.43 billion in 2010. 

     Thing may have been a little less bad last year but all attorneys who practice Social Security law face considerable economic pressure. The attorney fee provisions of the Social Security Act were designed to allow claimants to have representation. This right could be effectively eliminated over coming years unless something changes. One important way that the Acting Commissioner of Social Security could assure that claimants don't lose their right to representation is to increase the cap on Social Security attorney fees. It's currently $6,000. The Social Security Act allows the Acting Commissioner to raise this to adjust for inflation but does not require that she do so. If adjusted for inflation, the cap would now be well over $7,000. It's past time to raise the cap.

     Every time I write about attorney fees, I get responses that go something like these:

• "Attorneys who represent claimants are lazy. They do nothing for the money they're paid." Those who post this need to ask themselves the question, "If representing Social Security claimants is such easy money, why don't Social Security employees leave their jobs with the agency and jump on this gravy train?" Social Security employs thousands of attorneys but hardly a one of them has left Social Security to represent Social Security claimants in recent years. What does that tell you?
• "When I was in private practice, I spent hundreds of hours doing depositions and meeting with my client and other witnesses in each individual case. Social Security attorneys don't do anything like that so they're worthless." Those who post this forget that they or their firms were being paid tens if not hundreds of thousands of dollars per case. You try spending hundreds of hours on each Social Security case when the total possible fee is no more than $6,000 and see how long you last! The challenge in representing Social Security claimants is doing a professional job when the economics require you to represent lots of clients. Give it a try and find out for yourself how easy that is.
• "If you can't make any money, why don't you just quit representing Social Security claimants?" I think this sort of thing is posted by one or more people who work at right wing think tanks or GOP Congressional offices who would prefer that claimants go unrepresented. If you think that Social Security disability benefits (and probably Social Security in general) shouldn't exist, you might be fine with anything that makes it harder for people to obtain benefits. Who cares about being fair to claimants when none of them should be getting benefits anyway? I think this is very much a minority viewpoint. I also think if someone who currently espouses this viewpoint actually becomes disabled, they would quickly change their tune and become indignant if they can't find an attorney to represent them.

I Wish This Sort Of Thing Mattered More

     Senator Ron Wyden has penned an op ed on Social Security's hearing backlog.

I Don't Agree

     The Cleveland Plain Dealer is running a piece with recommendations on how disabled people can improve their chances of being approved. I wish I could applaud it but I can't. Here are the recommendations they make that I have trouble with and my reasons for disagreeing:

• A Social Security attorney told them that claimants should print out the questions that Social Security will ask and decide how they'll answer them. I would say, no, just get on with it. Claimants don't need to be told to do this and that before filing a claim. They're already far too inclined to procrastinate. Persons with limited intellectual capacity who also suffer from mental illness file disability claims all the time with no advance preparation. Just get on with it.
• Another Social Security attorney recommended gathering your medical records before you apply. Again, this encourages procrastination. The average Social Security disability claimant has no idea how to gather their medical records or what to gather. As an example, it seems like half of my new clients tell me "I've got all my medical records." They're wrong. All they have are the billing sheets they were given when leaving their doctor's office. Those aren't medical records. They're just billing records which don't help in the least. Social Security and your attorney will gather the records. Just get the claim filed and hire an attorney. Almost everything else will be done for you.
• A third Social Security attorney recommends first getting your doctor on board with your disability claim. I'd rather have that support if possible but it's not essential. I'd say that anywhere from a third to half of my clients don't have that kind of support and I don't care that much. Some doctors think a person has to literally be a quadriplegic or in a persistent vegetative state in order to be disabled. Some think anyone who can't do their past work is disabled. Neither view is correct. Some claimants aren't able to get an opinion because they lack a steady relationship with a physician. Mental illness or poverty often put people in that kind of position. Some physicians tell their patients they'll help with a Social Security disability claim and then don't. I don't care. What's wrong with a person is more important than their physician's opinion. If you tell people they can't win without the help of their physician, you're telling a hell of a lot of very sick people to not file disability claims and that's wrong.