They Need Help

Widow of a Conn client who committed suicide

     The struggle continues for many of Eric Conn's former clients. Social Security has expanded its target list. They're now going after more of his former clients. The hearings are starting up again.
     Kentucky attorneys have stepped up and are representing many of these unfortunate folks but the need is far beyond what Kentucky attorneys can handle.

     Don't think that if you volunteer that you'll be working with criminals (not that there's anything wrong with that). No one is accusing Conn's clients of being in on his scheme. Many of Conn's clients never met Conn. I represent several of Conn's former clients and can tell you that they're ordinary Social Security disability claimants.

     These cases can't be done on a fee generating basis because the claimants continue to receive benefits as they await new hearings and decisions from new Administrative Law Judges.

     You don't have to travel to Kentucky to represent one of Conn's former clients. You can participate in the hearing by video from your nearest hearing office.

     To volunteer, please contact Mary Going at AppalRed Legal Aid. Her e-mail address is mary[at]ardfky.org. Her phone number is 606-886-9876. There's a listserver where you can ask for and receive advice on representing Conn's former clients.

Mass AC Remands On Lucia Grounds Coming?

     From a revised version of Social Security's Emergency Message EM-18003 on Important Information Regarding Possible Challenges to the Appointment of Administrative Law Judges in SSA’s Administrative Process:

If a claimant or representative files a timely Appointments Clause challenge and timely requests Appeals Council review, the AC will consider the challenge in the context of the facts of the case (including, but not limited to, the date of the ALJ decision and the date the challenge was raised) in determining whether there is a basis to grant review. The AC will determine whether granting review is appropriate under 20 CFR 404.970 or 416.1470, or both, when considering both the decision on the merits and any potentially unresolved Appointments Clause issues.

In those matters where a timely Appointments Clause challenge to an ALJ decision issued prior to July 16, 2018 is raised to the Appeals Council in a proper request for review, the AC will grant review and issue a decision or order remand, as appropriate.

Immigration Helps Social Security

From Vox

I'm Not A Medicare Expert; I Just Play One On TV

     From Philip Moeller writing for PBS News Hour:

Sharilyn – Ind.: My daughter has cancer. She is on disability and Medicare. She is getting married in two months. Can she stay on Medicare or will she have to get on her new husband’s insurance?

Phil Moeller: If she is receiving Medicare through her Social Security disability, it will be her choice whether to continue it or, if available, choose to be covered by her husband’s health plan. She could even keep both, using one as primary and the other as supplemental, depending on which has the best benefits.

     How many ways can you mislead someone in two sentences? First, Moeller fails to mention the very real possibility that the daughter is on Disabled Adult Child benefits. If so (apart from a very unusual circumstance) marriage will end not just the Medicare but the cash benefits as well. That's more than a theoretical possibility since the question probably concerns a young woman. It is important to warn people who may be at risk about this trap. Second, no, you don't get to choose between Medicare and private healthcare insurance. If you're Medicare eligible, any private healthcare insurance is a secondary payer even if you decline Medicare Part B coverage. In other words, you better have Medicare Part B because your healthcare insurance won't pay for anything Medicare Part B would have paid for. You can't decline Medicare Part A. You don't have to pay a premium for Part A. The young woman needs to be told to ask her new husband's insurer about any options they would offer her but what they offer will only supplement Medicare, not substitute for it.

Don't Do That!

     From NJ.com:

Between December 2014 and July 2018, the government says, Nicholas Pao collected almost $100,000 in Social Security benefits.

The problem? The government alleges not only were they not his benefits, but that Pao, 37, abused his job with the Social Security Administration to get them. ...

Prosecutors said Pao, a technical claims expert at the agency's local office, used his credentials to access at least five individual accounts and make changes that caused them to be issued additional benefits.

Pao would change the beneficiaries' mailing addresses to that of a residence near him, from which he collected the Direct Express benefit debit cards mailed out by SSA, an investigator wrote in a criminal complaint. ...

Proposal To Require That VEs Not Be Present In Person At Hearings

     Social Security has sent proposed new regulations on Setting the Manner for the Appearance of Parties and Witnesses at a Hearing to the Office of Management and Budget (OMB) for approval. If approved, the proposed regulations will be published in the Federal Register for public comment. Social Security will have to consider the comments before adopting final regulations. Here's Social Security's summary of the proposal:

We propose to revise 20 CFR parts 404 and 416 to establish a preference for the manner in which parties and expert witnesses appear at a hearing, including by video teleconference (VTC) or by telephone.  We also propose to require non-parties, including medical and vocational experts, to appear by telephone or VTC, unless circumstances in the case warrant a different manner of appearance. We would specify that although the adjudicator may identify facts that may impact an individual’s manner of appearance, it is ultimately the Agency’s responsibility to schedule the hearing and determine the manner in which individuals will appear.

Could Social Security ALJs Be Appointed Based On Their Politics?

     Because of President Trump's Executive Order, Administrative Law Judges (ALJs) will no longer be appointed through a process controlled by the federal Office of Personnel Management (OPM). Agency heads will be able to appoint the ALJs pretty much however they want to appoint them.

     Social Security and other agencies would never appoint ALJs on political criteria, would they? We'll see but take a look at what happened with Immigration Judges during the George W. Bush Administriation. Of course, the Trump Administration is too high minded to do anything like that.

CA6 Opinion On When Lucia Argument Must Be Raised

     After the Supreme Court found in Lucia v. SEC that the Administrative Law Judge (ALJ) appointment process was unconstitutional, the Solicitor General, who represents the federal government before the Supreme Court, told agencies that the Department of Justice would only defend ALJ decisions issued before the date that the ALJs were constitutionally appointed on the grounds that no objection was made while the case was pending before the agency.

     We've just gotten the first decision of a Court of Appeals on this issue and the Court wasn't buying that argument. In the case before the Sixth Circuit, Jones Brothers v. Secretary of Labor, the objection was filed before the Federal Mine Safety and Health Review Commission but not before the ALJ. Here's some language from the opinion:

... This administrative agency, like all administrative agencies, has no authority to entertain a facial constitutional challenge to the validity of a law. An administrative agency may not invalidate the statute from which it derives its existence and that it is charged with implementing. See Mathews v. Diaz , 426 U.S. 67, 76 (1976); Weinberger v. Salfi , 422 U.S. 749, 765 (1975); Johnson v. Robison, 415 U.S. 361, 368 (1974); Pub. Util. Comm’n v. United States, 355 U.S . 534, 539–40 (1958). 

Each of the three branches of the federal government, it is true, has an independent obligation to interpret the Constitution. But only the Judiciary enjoys the power to invalidate statutes inconsistent with the Constitution. See Marbury v. Madison, 5 U.S. (1 Cranch) 137, 177–78 (1803). 

We thus could not fault a petitioner for failing to a raise a facial constitutional challenge in front of an administrative body that could not entertain it. See McCarthy v. Madigan , 503 U.S. 140, 147 – 48 (1992). To hold otherwise would be to stretch forfeiture beyond its breaking point. We must read the statute in light of its constitutional setting: The Mine Act establishes an agency dispute - resolution scheme of limited scope. In that context, “questions of law” include only those legal claims the Commission is fit to decide and fix. See Plaquemines Port, Harbor & Terminal Dist. v. Fed. Mar. Comm’n , 838 F.2d 536, 544 (D.C. Cir. 1988) (Bork, J.); Motor & Equip. Mfrs. Ass’n v. EPA, 627 F.2d 10 95, 1114–15 (D.C. Cir. 1979). ...

     The Court went on to the more  complicated question of whether the petitioner forfeited the Lucia argument for not raising "as applied" constitutional challenge earlier but eventually concluded that the petitioner had not forfeited the argument. I see nothing in the opinion that would not apply to Social Security with at least as much force.

71% Overpayment Rate

     From Work-Related Overpayments of Social Security Disability Insurance Beneficiaries: Prevalence And Descriptive Statistics, a study by several researchers for the Mathematica Center for Studying Disability Policy:

Work-related overpayments occur when the Social Security Administration (SSA) issues a monthly benefit to which an individual is not entitled because of engagement in substantial gainful activity. ... 
We found that: 

• 1.9 percent of all DI [Disability Insurance] beneficiaries in our sample were overpaid due to work in one or more months during the three-year study period. 
• Among DI beneficiaries with sufficient earnings to put them at risk of a work-related overpayment, 71 percent were overpaid. 
• Work-related overpayments lasted for a median of nine months. 
• Work-related overpayments accrued to a median of over $9,000.

      71% of the time that a Social Security Disability Insurance Benefits recipient returns to work for long enough at enough pay that his or her benefits should be reduced those benefits aren't actually reduced and there's an overpayment of benefits? That's terrible. It's obvious that there are systemic problems. You can't just blame claimants for this high a rate of overpayments. There are undoubtedly many reasons for this situation but the incredible complexity of the rules applied in cases where beneficiaries return to work have to be a major part. I also think it's too difficult to report return to work.
     I'll make one simple suggestion which would probably help and it could be implemented without changing any laws. Send a yearly mailer to each person drawing disability benefits each January asking whether they have earned money in the preceding year. If they reply that they have, follow up with them to get the details. If they have worked but remain eligible for benefits at the time, send them quarterly mailers for at least the next couple of years and follow up on the responses. I'll admit that there's one huge problem with my suggestion. Social Security lacks the manpower to deal with the responses they would receive. I'll admit that it's also possible that it wouldn't be cost efficient since only 1.9% o benefits recipients are affected. Got any better ideas?

SSA Failing To Recover Net Out Some SSI Overpayments And Underpayments

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

... To recover an outstanding SSI overpayment, SSA can withhold the entire prior-month underpayment due a recipient up to the balance of the overpayment. SSA defines underpayments that are due for months before the month SSA identifies them as prior-month underpayments. ...

SSA did not always follow its policy of withholding SSI prior-month underpayments from outstanding SSI overpayments. Specifically, SSA did not appropriately withhold more than 6,000 prior-month underpayments to recover outstanding overpayments. This occurred because SSA employees did not take the necessary manual actions in SSA’s systems to ensure overpayment recovery. Had SSA followed its policy, we estimate it could have recovered approximately $44 million in outstanding overpayments from nearly 125,000 prior-month underpayments it paid to SSI recipients during CYs 2015 and 2016. ...