Don't Know What This Means

     Social Security has issued Emergency Message EM-19025 on the Eric Conn cases. It says that:

... On November 28, 2018, the Unites States Court of Appeals for the Sixth Circuit concluded in Hicks v. Commissioner of Social Security that our current redetermination process violated constitutional and statutory protections for individuals who challenged the agency’s redetermination process. Pursuant to the Sixth Circuit’s decision in Hicks, the courts are remanding affected cases to the agency to provide new hearings and decisions. The courts have also ordered us to reinstate benefits pending the outcome of the new redetermination proceedings. We refer to this sub-set of individuals as Hicks cases. ...

Individuals who had their cases remanded from Federal court for new proceedings will receive a letter from the Appeals Council. The letter will address their new hearing to consider their medical condition. …

Affected individuals will also receive separate notices, which will be available in the Online Retrieval System (ORS), explaining how we will comply with the district court’s order to reinstate benefits until we make a new decision and how we will schedule a phone appointment. …

     The EM doesn’t say what will be in these new letters and notices nor does it say what these phone calls will concern. These may be addressed in another EM that they're not posting. Many EMs are kept secret. There are also a number of non-functioning links in the EM. Some of them might address the issues this EM raises.

$150,000 Employee Fraud Alleged

      From an Alabama television station:

A Former Social Security Administration employee in Birmingham is accused of creating underpayments to more than a dozen beneficiaries who’s loved ones had died.

LaTanya Hatter is charged in a three-count federal indictment alleging fraud and identity theft.

Court records show Hatter used her position as a Benefits Authorizer at the Social Security Administration field office in Birmingham to create Automated One Time Payments causing nearly $150,000 to be electronically deposited into her account or the bank accounts belonging to friends or family members. ...

House Arrest For Former Employee Who Embezzled From Social Security

     From the Star News:

A Chula Vista man who worked for the Social Security Administration was sentenced Aug. 30 to eight months home detention for embezzling $65,118.

Nam-Phong Hung Le, 37, has paid all the money back which is part of the reason why he was placed on three years probation in U.S. District Court.

Judge Janis Sammartino ordered Le to pay an additional $34,890, which is a judgement found against him that relates to the fraud. He will have to pay for electronic monitoring of his house arrest.

Le worked as a technical expert in the Social Security Administration office in El Cajon and later in the downtown San Diego offices.

Assistant U.S. Attorney Jeff Hill asked for a 1-year sentence in prison, saying money was taken from six people’s Social Security accounts, including several who were deceased and whose payments should have stopped. ...

AFGE Sues Over Impasses Panel Ruling

     From Government Executive:

A federal employee union local in New York on Wednesday filed a lawsuit accusing the Trump administration of violating a court ruling blocking the key provisions of three controversial workforce executive orders.

The American Federation of Government Employees Local 3369, which represents Social Security Administration workers in New York, argued in a complaint in the U.S. District Court for the Southern District of New York that the White House, Social Security Administration and the Federal Impasses Panel effectively used the collective bargaining process to do an end-run around an injunction against the orders.

In May 2018, President Trump issued three executive orders that sought to shorten the length of performance improvement plans to 30 days, exempt adverse personnel actions from grievance proceedings, streamline collective bargaining negotiations, and significantly reduce the number of work hours and activities that union members can spend on official time. U.S. District Judge Ketanji Brown Jackson in August 2018 blocked the key provisions of the orders, finding that they collectively “eviscerated” federal workers’ collective bargaining rights.

In July, a three-judge panel on the U.S. Circuit Court for the D.C. Circuit overturned that decision on jurisdictional grounds, but the injunction remains in place as the court weighs whether to rehear the case with all 11 judges.

The complaint argues that the Social Security Administration’s actions in negotiating a new contract with AFGE constitute a successful effort to “circumvent” the injunction prohibiting the government from implementing the executive orders and claimed that the impasses panel exceeded its authority by acting as an implementation arm of the Trump administration, rather than an independent arbiter of labor-management bargaining disputes. ...

U.S. Does Disability Benefits On The Cheap

https://www.cbpp.org/research/social-security/chart-book-social-security-disability-insurance

iAppeals Down

     I have heard a number of reports this morning that Social Security's iAppeals system went down yesterday afternoon and is still down. I really wish the agency would make announcements about this sort of thing.
     Update: I'm told that Social Security is aware of the problem and working on it. I'm told that they may not have even been aware of the problem until well into today. That's pretty amazing.

A Personal Milestone

     I want to mark a personal milestone. Forty years ago today, the day after Labor Day 1979, I hung out a shingle and entered the private practice of Social Security law. I knew something about Social Security law from having worked at the agency but I knew almost nothing about representing clients. There's an old joke about a visitor to New York City asking a person on the street how to get to Carnegie Hall and getting the answer  "practice, practice, practice." I thank my early clients for allowing me to "practice" on them.
     Ten years from now will it be 50 years in private practice for me? Not likely but I’m not ruling it out.

Andrew Saul Hasn't Hit The Ground Running

     Andrew Saul was sworn in as Commissioner of Social Security on June 17. A few days later I posted a list of issues on Saul's docket. Let's go through that list and see what actions Saul has taken:

What To Do About Hicks v. Commissioner of Social Security

• Social Security twisted its rules to cut off benefits for as many of Eric Conn's former clients as possible. The 6th Circuit Court of Appeals ruled against the agency on November 21, 2018. Ever since then the Solicitor General and Social Security have been "considering" whether to ask the Supreme Court to hear the case. I doubt that they are seriously considering that. I think they've just been stalling until a new Commissioner was confirmed because it's hard to decide how to implement the decision of the Court of Appeals.  They can't stall much longer. -- A decision was made that Social  Security would not ask the Supreme Court to hear the case but that was inevitable since there was no reason for the Supreme Court to hear the case. No decision has been made on the difficult question of how to handle the Conn cases in the wake of the 6th Circuit opinion.

What To Do About Cases Pending At The Appeals Council Which Were Decided Prior To Lucia v. SEC And An Objection Has Been Made To ALJ

• The Supreme Court decided last year that Administrative Law Judges (ALJs) as then appointed were unconstitutional. Social Security changed the way ALJs were appointed to adjust to this decision but there are thousands of cases still pending at the Appeals Council that were heard before the Lucia opinion. The agency has suggested that they want to avoid remanding all these cases for new hearings with different ALJs by having the Appeals Council issue new decisions on its own. This is arguably illegal and probably impractical. A decision on this can't be delayed much longer. -- No action. This one won't wait much longer.

Proposed Regulation That Has Been Published For Comments And Can Now Be Made Final

• Removing inability to communicate in English as a factor in determining disability. Anti-immigrant proposals are very popular with Republicans these days but Saul will poison his relationship with Congressional Democrats if he goes ahead with this one and they have the power to make his life difficult.-- No action.

Proposed Regulations That Have Not Yet Been Published For Comments

• Considering social media in determining disability. Unpopular with many in Congress, including Republicans.
• Revising evaluation of vocational factors in determining disability (probably increasing age categories in grid regulations). Go ahead with this one and you've made a declaration of war on Congressional Democrats.
• Hearings held by Administrative Appeals Judges. Nobody knows exactly what this one is but if it's what I think it is -- trying to get rid of independent ALJs -- it's going to be unpopular with all Democrats and many Republicans in Congress. -- No action on any of these proposed regulations. Will there ever be any action?

Stance On Employee Unions

• The Trump Administration has taken an extremely aggressive and antagonistic stance on federal employee unions. Social Security has followed suit. Democrats on the House Ways and Means Committee are already pressuring Saul to soften Social Security's approach. Will he be a loyal Republican and continue the harsh anti-union stance or does he modify it to avoid conflict with Congressional Democrats who can make his life difficult? His message to agency staff suggests that he'll soften the anti-union stance. -- No publicly announced action on employee unions.

Process For Appointing New ALJs

• The old process for appointing ALJs was found unconstitutional. What will the new process be? -- Apparently, the agency has been in the process of hiring new ALJs. I don't think there's been any announcement of what the process is.

Fee Cap 

• This one may be wishful thinking on my part. The cap on fees that may be charged for representing Social Security claimants hasn't been raised since February 9, 2009. By any normal standard it's way past time to increase it. However, I'm not sure that the organizations that represent those who represent claimants have been able to generate any real pressure to increase the cap. -- No action.

Happy Labor Day

People Still Forget This