What Passes For Justice In Northern Alabama

      From the Huntsville Item:

Getting approved for disability payments from the Social Security Administration isn't easy, but depending on where you live, it could be even harder.

In North Alabama, for example, three of the judges who hear disability claims have the lowest approval record of any administrative law judge in the state; two of them also have among the lowest approval rate of any of the 12,000 judges nationwide.  ...

Judge Cynthia Weaver approves only 12% of claims, giving her the lowest claims approval rate of any judge hearing disability cases in Alabama. Among nearly 50 judges in the country with similar disposition caseloads, between 250-260 dispositions, Weaver had the lowest approval rating for claims based on data reported in recent months. 

An applicant's odds are only slightly better if they go before Judge Patrick Digsby, who approves about 13.6% of the claims that come before him. Judge Mallette Richey has the third-lowest claims approval rate at 26%. ...

If applicants choose to appeal, their odds aren't good. The Appeals Council denies 82% of claims and remands another 14% back to the judge who heard the case. There is no data on the final outcome of cases sent back to judges. Only 1% of claims are approved by the Appeals Council. ...

Problem Avoided

 

     From the Detroit Free Press:

The pandemic-related economic shutdown in 2020 triggered all sorts of anxiety, including oddly enough a fear that those who turn 62 next year would be stuck with drastic cuts to their Social Security benefits. ...

The reason? A key wage index that Social Security uses as part of the calculation of benefits looked like it was set to plummet during the 2020 economic slowdown. 

In Congressional testimony in July 2020, Social Security Administration Chief Actuary Stephen Goss suggested that benefits could be 9.1% lower for this specific group, for life. ...

Now, amazingly, there is good news for those baby boomers born in 1960. Things didn't turn out as horrible as the original headlines suggested.

The average wage index — which is calculated by Social Security to track wage growth in the overall economy — didn't fall as once projected. Instead, the Social Security Administration recently posted that the national average wage index was up 2.83% in 2020 from 2019 — not down.  ...

Delayed SSI Report

      From a press release:

U.S. Senator Mike Crapo (R-Idaho), Ranking Member of the Senate Finance Committee, and Senator Todd Young (R-Indiana), Ranking Member of the Finance Committee’s Subcommittee on Social Security, Pensions and Family Policy, pressed the Acting Commissioner of the Social Security Administration on when Congress can expect to receive the annual report on the Supplemental Security Income (SSI) program. 

The delay in reporting to Congress on the program relative to the statutory deadline of May 30 is the longest in the history of the report, and comes on the heels of the longest delay ever in the Social Security and Medicare trustees report.  ...

     I can't even imagine a political motivation for delaying this mundane report. Just accept the reality that I have to accept every day. Social Security isn't hitting on all cylinders. Work isn't getting done in a timely manner. This has to do with general understaffing and reduced efficiency because almost everyone is working from home. It sucks but there it is.

Long Covid And Social Security Disability

      From the New York Times:

Since she tested positive for the coronavirus in April 2020, Josie Cabrera Taveras has found herself sleeping for up to 15 hours a day, stopping in grocery store aisles to catch her breath, lapsing in and out of consciousness and unable to return to her job as a nanny.

She believes that she is one of thousands, possibly millions, of Americans who may have a condition known as “long Covid.” The Biden administration has said people with the condition could qualify for federal disability protections and benefits, which can include health care, housing and unemployment benefits.

But like many others who may have long Covid, Ms. Taveras, 31, has had a hard time proving it. ...

With no direct medical evidence of her condition, she has been turned down for disability coverage twice. Even a note from a prestigious post-Covid clinic in the Mount Sinai hospital system, attesting that Ms. Taveras “continues to experience daily symptoms and is currently unable to work,” was not enough. ...

Since December 2020, the Social Security Administration has determined that about 16,000 applicants were able to provide medical evidence supporting Covid-19 as one of their impairments, according to Nicole Tiggemann, a spokeswoman for the agency, which was not flagging Covid cases before that.

But she would not say how many of those 16,000 applicants had been approved for benefits, or how many people claiming long Covid as a condition had been denied. Many cases are probably still pending; wait times for a determination can stretch for five months or more. ...

Steven Trompeter, 49, was unable to perform his job as an industrial mechanic after getting sick with Covid symptoms, including cough, fever, muscle aches and loss of taste and smell, in February 2020. He applied for disability in December 2020 and was approved six months later. ...

     I'm glad Mr. Trompter got approved but surprised that he would have been approved based solely on long Covid. Maybe there are other health problems involved in his case.

     I'm not seeing any groundswell of long Covid cases. So far, I've got one such case and it could easily be described as a post-ICU syndrome case, an entity that was well known before Covid. I'm not hearing about many long Covid cases from other attorneys.

Reason For Concern?

     I had posted yesterday that extending SSI to U.S. territories is part of the budget reconciliation bill pending in the Senate. Apart from the general threat of last minute snags on the bill as a whole, there is some reason for concern about the SSI part. The problem is arcane Congressional rules. Generally, any bill can be filibustered in the Senate. Budget reconciliation bills are a major exception. Those can't be filibustered. However, you can't put just anything in a budget reconciliation bill. One major rule is that no provision can be part of reconciliation if it would increase the deficit more than 10 years out. Generally, drafters of budget reconciliation bills get around this by including sunset provisions for budget reconciliation items that cost money. Extending SSI to the territories definitely costs money. However, the provision extending SSI to the territories contains no sunset provision (page 1682).

     I think this means that any Senator or Representative can object to the SSI provision. However, there may be some budget reconciliation exception that might cover this. I don't know. I'm no expert in Congressional rules. However, I'm not the only one asking the question.

    Would someone object? I'm not so sure. My guess is that this legislative provision is part of a settlement of litigation on the subject. I'd say that it's a reasonable settlement looked at from either a Democratic or Republican stance. I think the government's posture in the case pending at the Supreme Court is weak. Settling the issue in this way allows for a much better implementation of SSI for the territories. Doing it immediately as a result of a Supreme Court opinion would be a real mess.

     If someone objects, what happens then? Do they pull the provision altogether? Add a 10 year sunset? What is the deal, if there is one, with those litigating with the government on this issue. I don't know.

Republicans Want Field Office Reopened

      Sixty-one members of Congress, all or almost all of them Republicans, have written a letter demanding that Social Security field offices be reopened.

Budget Reconcilation Bill Extends SSI To Territories

      I spoke too soon about SSI changes not being in the budget reconciliation bill. The legislative text is now available and it includes one SSI change (page 1682) -- extending SSI to U.S. territories effective January 1, 2024. However, a case pending at the Supreme Court could extend SSI to the territories a lot sooner than that.

     Update to include some speculation: Maybe there won't be an oral argument in U.S. v. Vaello-Madero. Maybe an agreement was quietly made in that case and related cases. If the Biden Administration gets SSI for territories legislatively, the cases get dropped. That allows for an easier implementation -- giving Social Security almost two more years. (And I really think the government is going to lose this case if it is argued.) However, such an agreement would deprive claimants of benefits for that time period. That kind of deal is what I would have urged if I had been in the Solicitor General's office. I guess we'll see soon. The oral argument in U.S. v. Vaello-Madero is scheduled for November 9.

SSI Reform Probably Won't Be In The Budget Reconciliation Bill

      There's a summary out of the current "framework" for the budget reconciliation bill pending in Congress. There had been some hope that this bill would include at least some limited SSI reform but, alas, that's not listed. I guess it's still possible that there will be some really small bore SSI changes in the final bill in the category listed as "Equity and Other Investments" but as much as this has been whittled down, I wouldn't expect it.

Social Security ALJs Want End To Quotas

      From Government Executive:

Officials at the Justice Department last week announced that it would suspend a controversial system for managing immigration judges’ performance based on the number of cases they decide, prompting judges at other agencies to request an end to similar quotas. ...

The decision has raised the hopes of another union of judges that its agency will abandon its own controversial quota system. The Association of Administrative Law Judges said they have been operating under an onerous requirement from the Social Security Administration to schedule at least 50 disability cases per month since 2017.

“We have to submit a calendar that demonstrates that we will hold at least 50 hearings in a month, and if you don’t, you have to make up the difference in other months,” said AALJ President Melissa McIntosh. “The consequences include discipline, and judges who have received proposed removal actions are cited for ‘not managing’ their docket . . . In addition to this scheduling rule, they repeatedly say that you must have between 500 and 700 legally defensible decisions per year.”

McIntosh’s organization is urging acting Social Security Commissioner Kilolo Kijakazi to abandon the performance metrics, arguing that they effectively deprive claimants of their due process rights, particularly as cases have gotten more complex in recent years. ...

Larson Introduces Social Security 2100 Act

Representative Larson

      John Larson, the Chairman of the House Social Security Subcommittee, has introduced the Social Security 2100 Act. The bill would provide:

• Benefit bump for current and new beneficiaries – Provides an increase for all beneficiaries that is the equivalent to about 2% of the average benefit. The US faces a retirement crisis and a modest boost in benefits strengthens the one leg of the retirement system that is universal and the most reliable.
• Protection against inflation – Improves the annual cost-of-living adjustment (COLA) formula to better reflect the costs incurred by seniors through adopting a CPI-E formula. This provision will help seniors who spend a greater portion of their income on health care and other necessities. Improved inflation protection will especially help older retirees and widows who are more likely to rely on Social Security benefits as they age.
• Protects low-income workers – No one who paid into the system over a lifetime should retire into poverty. The new minimum benefit will be set at 25% above the poverty line and would be tied to wage levels to ensure that the minimum benefit does not fall behind.
• Improves benefits for widows and widowers in two income households
• Repeals the Windfall Elimination Provision (WEP) and Government Pension Offset (GPO) that currently penalize many public servants.
• Ends the 5-month waiting period to receive disability benefits.
• Provides caregiver credits to ensure that caregivers are not penalized in retirement for taking time out of the workforce to care for children or other dependents.
• Extends benefits for students through age 22.
• Increases access to benefits for children who live with grandparents or other relatives.
• Have millionaires and billionaires pay the same rate as everyone else – Presently, payroll taxes are not collected on wages over $142,800. This legislation would apply the payroll tax to wages above $400,000. This provision would only affect the top 0.4% of wage earners.
• Extends the depletion date (when a 20% cut to benefits would occur) to 2038 – Giving Congress more time to ensure long term solvency of the Trust Funds.
• Social Security Trust Fund Established – Social Security provides all-in-one retirement, survivor, and disability benefits funded through the dedicated FICA contribution paid by workers. There are technically two trust funds, Old-Age and Survivors (OASI) and Disability Insurance (DI), and that are usually referred to as the Social Security Trust Fund. This provision combines the OASI & DI trust funds into one Social Security Trust Fund, to ensure that all benefits will be paid.

     There is no path to passage of this bill in the current Congress. It's not clear this would pass even in the House of Representatives. Senate Republicans would use the filibuster to prevent debate on the bill. Because of opposition from Senators Manchin and Sinema, Democrats lack a majority to do anything about the filibuster. Anything having to do with Title II of the Social Security Act is off limits under the budget reconciliation process.

     One aspect of the bill not summarized above could have some real world consequences in the near term. Representative Larson's bill would do something about the fee cap that is slowly choking attorneys who represent Social Security claimants. The Acting Commissioner of Social Security can raise the fee cap by a simple notice in the Federal Register. No legislation is needed. I believe this bill is the first time that Larson has come out in support of raising the fee cap. Generally, Social Security Subcommittee Chairs have considerable influence at Social Security. However, Larson has seemed so disengaged from his Subcommittee's responsibilities, I don't know how much influence he has at the agency.