Social Security Starting To Respond To Supreme Court Case On ALJ Constitutionality

     From Emergency Message EM-18003:

This emergency message directs administrative law judges (ALJs) to acknowledge Appointments Clause arguments raised in connection with the appeal of an administrative action without discussing or making any findings on any such arguments. 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 arguments. ...
[F]our plaintiffs challenging their denials of benefits in Social Security Administration (SSA) cases have raised in one district court the constitutionality of the manner in which SSA’s ALJs are appointed. The district court has stayed the Appointments Clause issue pending action by the Supreme Court in Lucia and Bandimere [the Supreme Court cases concerning SEC ALJs], while litigation of the disability issues in the cases proceed....If a claimant or representative challenges at a hearing the constitutionality of the manner in which SSA appoints its ALJs ...
What will an adjudicator do if a claimant or representative challenges the constitutionality of the manner in which SSA appoints its ALJs?

1. Challenge made orally at the Hearing level

If a claimant or representative challenges at a hearing the constitutionality of the manner in which SSA appoints its ALJs,
ALJs will only respond, “the hearing decision [/dismissal] will acknowledge that the argument was raised.” Because SSA lacks the authority to finally decide constitutional issues such as these.
ALJs will not discuss or make any findings related to the Appointments Clause issue on the record.

When issuing the hearing decision or dismissal, ALJs will acknowledge that the issue was raised by adding the following language “The claimant[/representative] also raised a challenge to the manner in which I was appointed as an administrative law judge under the Appointments Clause to the Constitution. I do not have the authority to rule on that challenge and do not address it further in this decision[/dismissal].”

2. Challenge made in writing at the hearing level

If a claimant or representative challenges in writing the constitutionality of the manner in which SSA appoints its ALJs,
ALJs will acknowledge that the issue was raised by adding the following language to the hearing decision or dismissal “The claimant[/claimant’s representative] also raised a challenge to the manner in which I was appointed as an administrative law judge under the Appointments Clause to the Constitution. I do not have the authority to rule on that challenge and do not address it further in this decision[/dismissal].”
ALJs will not otherwise discuss or make any findings related to the Appointments Clause issue.

3. Challenge made at the Appeals Council (AC) level

As challenges of the constitutionality of the appointment of SSA’s ALJs are outside the purview of the administrative adjudication, the AC will not acknowledge, make findings related to, or otherwise discuss the Appointments Clause issue. ..

If a claimant or representative raises an Appointments Clause issue, Office of Hearings Operations (OHO) and Office of Appellate Operations (OAO) staff will flag the case in CPMS and ARPS by adding the case characteristic “LUCI,” which can be found in both systems under the “Other” case characteristic type.
ALJs who receive appointment clause objections will notify hearing office management. Hearing office management will either add the LUCI case characteristic in CPMS or delegate to staff to do so....

$38.5 Million?

     From a contracting notice posted recently by Social Security:

The Social Security Administration (SSA) has a need to acquire a commercial off the shelf (COTS) software product solution including software licenses, maintenance, training and engineering / implementation support, for an enterprise-level Document Identification Process (DIP) solution to identify duplicate documents in the Social Security Administration's electronic folder and provide the ability to remove those duplicate documents to support streamlining agency business processes. ... The size standard is $38.5M. ... SSA anticipates awarding one firm fixed price/Indefinite delivery indefinite quantity contract for this effort. The period of performance shall be for a 1-year base, with four 1-year option periods. ... It is anticipated that the Request for Proposal (RFP) will be issued on or about January 30, 2018.

Something's Gotta Give

     From the Washington Post:

A new analysis by the Kaiser Family Foundation has found out-of-pocket health-care costs for Medicare beneficiaries are likely to take up half of their average Social Security income by 2030. ...\

[I]n 2013, among all Medicare beneficiaries, average out-of-pocket health-related expenses consumed 41 percent of the average Social Security income, according to a report made available exclusively to The Washington Post.

"This is substantially higher than the share reported by the Medicare actuaries for the same year (23 percent) because it takes into account the full array of out-of-pocket health expenses that people on Medicare face," according to the report. ...

"Five Keys To Evaluating Intellectual Disorder"

     You might find training materials used recently at the Office of Hearings Operations on "Five Keys to Evaluating Intellectual Disorder" interesting.

Intellectual Disability ALJ Training by charles4304 on Scribd

Boomers, Sooner Or Later

     Half of all baby boomers are now over 62, making them at least potentially eligible for Social Security retirement benefits.

Why The Delay?

     The Social Security Administration submitted proposed changes to its musculoskeletal listings to the Office of Management and Budget (OMB), which is part of the White House, on August 25, 2017. OMB approval is required before the proposal can be published in the Federal Register for public comments. The proposal is still pending at OMB. By the standards of past administrations, this is a very long time for a proposed regulation to sit at OMB. I have no idea what the delay means, if anything. Anyway, it's not like I'm eager for the proposal to be published. I doubt that I'll like it.

Will The Tail Wag The Dog?

     Here's an excerpt from the brief filed on behalf of the federal government with the Supreme Court by the Solicitor General on the issue of whether a writ of certiorari should be granted in the Lucia case (it has) concerning whether Administrative Law Judges (ALJs) as presently appointed are constitutional:

Given the frequency with which ALJs are employed in administrative proceedings by a variety of federal agencies, see, e.g., 7 C.F.R. 1.144, 1.411(f) (Department of Agriculture); 12 C.F.R. 1081.103 (Consumer Financial Protection Bureau) ; 18 C.F.R. 385.102(e), 385.708 (Federal Energy Regulatory Commission); 29 C.F.R. 102.35 (National Labor Relations Board); 40 C.F.R. 22.3(a), 22.4(c) (Environmental Protection Agency), this Court’s resolution of the question presented is necessary to prevent the same disruption that has affected the Commission’s proceedings from spreading through- out the government.

     Seems like they omitted the name of the agency that employs the vast majority of ALJs, the Social Security Administration (SSA). I doubt that was accidental. Social Security is the rhinoceros in the room that the Solicitor General would prefer that the Supreme Court not notice. This case represents the SEC tail threatening to wag the SSA dog.
     In reading over this brief, I don't see even the slightest sign that the Solicitor General was trying to lay groundwork to distinguish between ALJs at the SEC, where the Lucia case arose, and ALJs at SSA. Every argument they made applies with the same force to SSA ALJs. The effects upon the SEC if these arguments prevail are trivial in comparison to the effects at SSA.
     There is an urgent need for at least the Acting Commissioner of Social Security to issue an order appointing each of the current ALJs and ratifying any actions they may have previously taken. The SEC has long since done this. The Department of Labor did it this week. I think it would be far safer if the President were to issue such an order. The Constitution talks only of department heads having the power to appoint inferior officers. SSA isn't a department. Yes, there's a reasonable argument that the framers of the Constitution were using the word "department" in a more generic way than it is currently used in the federal government; that they meant something more like "agency." Maybe the courts will buy that but maybe doesn't seem good enough to me with so much at stake. We need to move to Defcon 1 on this.

Disability Insurance Trust Fund Reserves Increasing

     From the Office of Chief Actuary, Social Security Administration:

Disability Insurance
(Amounts in billions)

Calendar year	Total income	Total outgo	Net increase in asset reserves	Asset reserves at end of calendar year
2013	$111.2	$143.4	$-32.2	$90.4
2014	114.9	145.1	-30.2	60.2
2015	118.6	146.6	-28.0	32.3
2016	160.0	145.9	14.1	46.3
2017	171.0	145.8	25.1	71.5

A Real Winner In Charlotte

     From the Charlotte Observer:

Oliver Montgomery’s job was to help clients get their Social Security payments.

Instead, he stole them, a new court document said Tuesday – more than $37,000 in all. ...

Read more here: http://www.charlotteobserver.com/news/local/crime/article196260704.html#storylink=cpyHe allegedly committed the crimes while on the taxpayers’ dole: Montgomery worked as a service representative in the Charlotte office of the Social Security Administration, the affidavit says.

Read more here: http://www.charlotteobserver.com/news/local/crime/article196260704.html#storylink=cpy

He allegedly committed the crimes while on the taxpayers’ dole: Montgomery worked as a service representative in the Charlotte office of the Social Security Administration ...

Montgomery’s scheme covered a 12-month period that ended August, during which he allegedly diverted tens of thousands of dollars from two Social Security beneficiaries, the affidavit says.

In one of the cases, Montgomery actually assisted his own investigation.

After threatening an ex-girlfriend who planned to take him to court over a previous debt, Montgomery shot her a text message with a selfie he’d taken at the Social Security office. In the photograph, Montgomery posed with a large amount of cash, the affidavit says.

“Show them that stack on my desk,” he told the former girlfriend in the text.

Instead, she eventually shared the text with federal officials, the affidavit says. ...

     Note to the reporter who wrote this: Being a federal employee doesn't mean that you're "on the taxpayers' dole." That's an insult to the vast majority of government employees who perform their work honorably.

Read more here: http://www.charlotteobserver.com/news/local/crime/article196260704.html#storylink=cpy

Read more here: http://www.charlotteobserver.com/news/local/crime/article196260704.html#storylink=cpy

One Tiny Cut At A Time

     Nancy Altman writes for Slate on how Republicans Are Killing Social Security One Tiny Service Cut at a Time.