Social Security's Chief Actuary Responds To Concerns Of GOP Senators

      Some Democratic Senators asked Social Security's Chief Actuary what the effect would be upon the Social Security Trust Funds if the President's proposal to end the F.I.C.A. tax that supports the Trust Funds is ended, without any replacement. Trump didn't say that this would be without a replacement but he didn't specify a replacement. The response, of course, is that the Trust Funds would quickly run out of money and be unable to pay benefits. The Chief Actuary's response has now appeared in campaign ads.

     Some Republican Senators took offense at this and sent the Chief Actuary a letter complaining about his letter. I'd say they should blame the President for making a bone-headed proposal that would inevitably sound foolish in a TV ad. Responding to Congressional inquiries is part of the Chief Actuary's job. He can't very well say "I'm not going to answer your question because the answer would make the President sound foolish and irresponsible and I don't think he meant to sound that way."

     The Chief Actuary has now responded. Here's part of the final paragraph of the letter:

... While it is never desirable for the Office of the Chief Actuary to engage in matters with political implications, it appears that this is unavoidable to a degree, as long as we are asked to provide objective and factual answers to questions posed by members of Congress. Our answers have always been as direct and objective as possible, and we regret that even clear answers may be taken out of context or used for purposes other than intended. ...

Supreme Court Asked To Hear Case On SSI For Puerto Rico

      The United States Solicitor General has petitioned the Supreme Court for a writ of certiorari to review the First Circuit Court of Appeals decision in U.S. v. Vaello-Madero. That means they are asking that the Supreme Court hear the case. In Vaello-Madero the First Circuit held that it is unconstitutional to deny SSI benefits to U.S. citizens who reside in U.S. territories such as Puerto Rico. 

     It is almost certain that the Court will hear the case but first the other side gets a chance to respond to the cert petition and then both sides get time to prepare briefs on the merits before the Court places the case on its argument calendar. I don't know how long this takes but I would guess it wouldn't be argued until after Inauguration Day, which is only a little over than four months away. By that time there could be a new President and a new Solicitor General who might view the case differently than the Trump Administration. Of course, it's uncertain that there will be a new President and, if so, whether that would make a difference in the government's position in this case. It would be possible for a new Solicitor General to ask the Court to dismiss the case. The new Solicitor General could go ahead with the oral argument and disavow the government's previously filed brief. Maybe they continue to defend the constitutionality of the statute. I don't know how things like this have been handled in the past when there's been a change of Administration or whether there have been situations quite like this in the past.

It's Not Easy Seeing Green

     Last week I downloaded a newly issued decision by an Administrative Law Judge. Unlike any ALJ decision I've ever seen this one had a green background, much like this post, except that the entire pages were green, which I can't do with Blogger.

    Can anyone tell me why this happened? I've wondered whether in Social Security's system drafts appear internally in green and this one somehow got posted in a draft form. However, as I think about it, that doesn't make sense because this is hard to read at best and for some with color blindness (which isn't rare) it may be impossible to read. Can anyone give me an explanation?

     There's always something new at Social Security.

When Do The Video Hearings Begin?

     Social Security has issued an official announcement about video hearings. Interestingly, the announcement talks only about video hearings beginning this fall. A November date isn't mentioned. November is the date that was mentioned to NOSSCR recently. This may mean nothing but people were already asking whether November meant the first of November. The term "fall" covers a lot of ground. Perhaps, it's a sign that this won't be rolled out all at once or that Social Security still hasn't decided when they'll start this.

Update On Lucia

      In June of 2018 the Supreme Court held in Lucia v. SEC that Administrative Law Judges (ALJs) as of that date were unconstitutional because they had not been appointed by the agency head. Social Security and other agencies cured this defect by having the agency head officially appoint each of the ALJs but this left the problem of cases decided before the new appointments. Social Security has tried to reduce the scope of that problem by arguing that the issue had to have been raised before the ALJ or at least before the Appeals Council.

     The first Court of Appeals opinions in one of the post-Lucia Social Security cases was Cirko v. Commissioner, a Third Circuit case, last November. Social Security lost. The Court held that the issue could be raised for the first time on appeal in the U.S. District Court.

     We now have three newer opinions from Courts of Appeals. In Carr v. Commissioner, the Tenth Circuit held on June 15, 2020 that the Court could not consider the Lucia issue since it had not been raised administratively. In Davis v. Saul, the Eight Circuit held the same way on June 26, 2020. However, in Ramsey v. Commissioner, the Sixth Circuit held on September 1 that the issue could be considered even though it had not been raised administratively. There are cases pending in other Courts of Appeals as well.

     The claimants in the Carr and Davis cases have asked that the Supreme Court review their cases. The Court doesn't have to do so but since there's disagreement among the Circuits, the Court probably will agree to hear the cases.

     Note that a Supreme Court opinion on this issue may have implications for the litigation over the constitutionality of the position of Social Security Commissioner brought about by the Supreme Court opinion in Seila Law v. CFPB. The Social Security Administration is trying very hard to pretend this issue doesn't even exist but it does and it will be litigated. Probably, it's already being litigated. I think it's irresponsible that Andrew Saul is still carrying out the role of Commissioner of Social Security. The attitude that Seila Law doesn't apply to Social Security seems to be based upon the assumption that because Seila Law was only about the Administration's desire to knock down the Consumer Financial Protection Bureau, which they hate, that other agencies that they don't hate (or don't want to admit to hating) won't be affected.  That assumes that the majority of the Supreme Court was just as cynical as they are and was only using a constitutional justification to harass an agency that the Court's majority hates as much as they do. That's not a safe assumption. As a lawyer, you may safely assume that your adversary is as cynical as you are but you should never assume that about a Court. Result oriented, maybe, but cynical, no. There is a distinction. But maybe I'm being too harsh. Another possibility is that those involved don't really care what the Supreme Court ultimately does about the Social Security Commissioner position because they expect to be out of office long before the Court can take up the issue. I guess that's just a different form of cynicism, however.

From A Labor Day Long Ago: GOP Proud Of Expanding Union Membership, Expanding Social Security

 

Need To Have Defined Roles When You're Being Agile

      From Fed Scoop:

The Social Security Administration can avoid confusion and bottlenecks on IT modernization projects by identifying roles for contracting officials in the agile software development process, according to the Government Accountability Office.

SSA adopted an agile approach to software development — characterized by incremental or iterative improvements to software — in 2017 to help meet its modernization goals, but those projects continue to see delays due to the murky roles of contracting officials, GAO says in a new report.

While SSA issued guidance on agile team members like project owners, developers and testers, it failed to do so for contracting officers (COs) and contracting officer’s representatives (CORs) within the context of agile projects.

“SSA officials told us they did not think they needed to specify the roles given that the contractors were only responsible for providing services,” reads GAO’s report released Monday. “However, according to leading practices for agile adoption, key roles in agile IT development include the program office, product owner, contracting personnel, and development team.” ...

Liam And Olivia, The Most Popular Baby Names Of 2019

      From Social Security, the most popular baby names of 2019:

Rank	Male name	Female name
1	Liam	Olivia
2	Noah	Emma
3	Oliver	Ava
4	William	Sophia
5	Elijah	Isabella
6	James	Charlotte
7	Benjamin	Amelia
8	Lucas	Mia
9	Mason	Harper
10	Ethan	Evelyn

CBO Produces Startling Report On DI Trust Fund Future

      Social Security's Office of Chief Actuary releases annual projections for the future status of the Old Age and Survivors Insurance (OASI) and Disability Insurance (DI) Trust Funds, called the trustees report.  The 2020 report projects that the OASI Trust Fund will lack funds to pay full benefits in 2034 and the DI Trust Fund in 2065.

     The trustees report is the one that people pay the most attention to but it's not the only one. The Congressional Budget Office (CBO) produces its own projections. That report has just been issued. It shows that the OASI Trust Fund will lack funds to pay full benefits in 2031 and the DI Trust Fund in 2026.

     The difference between the OASI projections (2034 versus 2031) is significant but the difference in the DI projections (2065 versus 2026) is eye popping. The difference in the OASI projections are probably due to different economic assumptions. The CBO had the benefit of knowing about the Covid-19 pandemic. There's no easy explanation for the difference in the DI projections. The CBO report doesn't attempt to explain the difference other than saying:

CBO had previously projected that the DI trust fund would be solvent through the end of the 10-year projection period. The earlier exhaustion date currently projected is largely the result of CBO’s projections of lower payroll tax revenues and higher spending on benefits in the next few year.

More Social Security Employees To Work In Office

      From Federal News Network:

The Social Security Administration is planning to ask more employees, first on a volunteer basis, to return to the agency’s field offices.

Managers have been coming into the field offices since the beginning days of the pandemic to handle the mail and process “dire-need cases.” Some SSA employees have joined them at the request of their managers, but the American Federation of Government Employees union, which represents workers at the agency’s field offices, didn’t consider those recalls to be large-scale.

Now, the agency will solicit more volunteers to return to their field offices, Sherry Jackson, a vice president with AFGE Council 220, told Federal News Network.

Offices that don’t have enough volunteers will begin recalling employees to work in person on a rotational basis. Employees who have been chosen to return will receive a recall letter from their area managers and two weeks notice before they’re expected in the office, Jackson said. ...

Stanford Ross Passes

      Former Social Security Commissioner Stanford Ross has died at the age of 88. He served during the Carter Administration.

I'd Say Trump Walked Right Into This One

      From Jennifer Rubin writing for the Washington Post:

You might not have noticed it during his speech in Pittsburgh on Monday, but Democratic presidential nominee Joe Biden slipped a big issue into the mix for 2020. While focusing primarily on President Trump’s liability for the ongoing pandemic, the rotten economy and the surge in racial violence, Biden also hit Trump’s plan to eliminate or suspend the payroll tax after the election. Biden declared, “The Social Security Administration’s chief actuary just released a report saying if a plan like the one Trump is proposing goes into effect, the Social Security Trust Fund would be ‘permanently depleted by the middle of calendar year 2023, with no ability to pay benefits thereafter.’” Oh, that seems like a big deal.

Biden was referring to Trump’s suggestion to eliminate the payroll tax, the funding mechanism that supports Social Security and Medicare. The Associated Press explained: “These taxes raised $1.24 trillion last year, according to the Congressional Budget Office. Over a 10-year period, Trump’s idea would blow a $16.1 trillion hole in a U.S. budget that is already laden with rising debt loads.”

The chief actuary of the Social Security Administration, Stephen Goss, sent a letter last week to Senate Democrats, explaining, “If this hypothetical legislation were enacted, with no alternative source of revenue to replace the elimination of payroll taxes on earned income paid on January 1, 2021 and thereafter, we estimate that [the Disability Insurance] Trust Fund asset reserves would become permanently depleted in about the middle of calendar year 2021, with no ability to pay DI benefits thereafter.” Goss added, “We estimate that [the Old Age and Survivors Insurance] Trust Fund reserves would become permanently depleted by the middle of calendar year 2023, with no ability to pay OASI benefits thereafter.”     

      In a sign that this issue may have hit a nerve, the Chairman of the Senate Finance Committee and the senior Republican on the House Ways and Means Committee have written Stephen Goss, Social Security's Chief Actuary, to complain about his response to the hypothetical question. However, Goss had little option but to respond to the hypothetical question. That's what his office does. He can't refuse to answer questions because he thinks a question because it seems political. All the questions are political. 

     Republicans have long thought that Goss is against them. I think the problem is that they keep putting forward foolish proposals because they have never bothered to try to understand how Social Security works or even given much thought to the politics of Social Security.  It's not Goss' fault the GOP keeps coming up with untenable ideas.

Glitches With Some Telephone Hearings

      I don't know how widespread the problem is but I'm hearing of serious technical problems with Social Security's telephone hearings affecting several hearing offices in North Carolina and one in South Carolina. This could be just a regional thing. I hope that whatever is causing it gets fixed soon. My general impression, however, is that the audio quality on these telephone hearings has gone down over time.

Eliminating Barriers For Conducting Consultative Examinations?

     Social Security has asked the Office of Management and Budget to approve interim final regulations on "Eliminating Barriers for Conducting Consultative Examinations." I don't know what's in this package.

We Need To Make Sure This Works For Everyone

      I posted yesterday that the Microsoft Teams app that Social Security plans to use to hold Administrative Law Judge hearings wasn't available for my desktop and therefore probably wasn't available for laptops either. I received responses saying that it certainly was available to desktops. Take a look at this screenshot and tell me that it's available to everyone at the moment:

     Perhaps it's included in recent versions of the Microsoft Office Suite but I don't think people should have to buy that to participate in these hearings. Maybe there's some other explanation but the page shown above says what it says and the fact that you haven't gotten such a message doesn't make what I'm seeing an illusion. We need to make sure this works for everyone.

Social Security Planning To Use Platform For Video Hearings That Doesn't Currently Work With Most Laptops

     Beginning in November Social Security is planning to use the Microsoft Teams app for Administrative Law Judge video hearings during the pandemic but I see this message when I go to the Microsoft Teams website "Teams for your personal life is only available for iOS and Android. Desktop and web coming soon." This would rule out Windows laptops, which is most of them. You can do these hearings with handheld cellphones but that's not going to give you a stable image. Also, while they’re not heavy, holding up a cell phone for an hour could become tiring. I hope they get this sorted out by November.

Social Security Relies On The U.S. Mail

      From the New York Times:

Top Democrats are warning that the problems afflicting the United States Postal Service pose a threat to more than voting rights — a slowdown in services, they say, will also hurt seniors who rely on letter carriers for Social Security checks, medications and other critical mail. ...

Over the past two decades, the Social Security Administration has shifted to electronic payment for most beneficiaries, but that doesn’t mean the agency’s operations are not vulnerable to delays in mail service.

The agency currently pays 99 percent of Social Security beneficiaries via direct deposit to a checking or savings account, or a government-issued debit card. But nearly 850,000 paper checks still are mailed each month to recipients of retirement, disability and Supplemental Security Income benefits. Social Security also sends and receives millions of pieces of mail every year, including notifications, requests for information, Medicare enrollment forms and replacement Social Security cards. More isolated, rural parts of the country are particularly vulnerable to problems within the postal system.

Moreover, the shutdown since March of Social Security’s national network of field offices because of the pandemic means that more business is being transacted through the Postal Service that normally would be handled through in-person visits. ...

Nowadays, Social Security sends 350 million pieces of mail annually to support its programs, according to an agency report last year. ...

Sounds Bad But I’d Like To Hear The Other Side Of This

      From Government Executive:

Less than 24 hours before Hurricane Laura made along along the Gulf Coast as a Category 4 storm, officials at the Social Security Administration told employees at its Lake Charles, La., field office that they would not be eligible for weather and safety leave.

Instead, employees forced to evacuate ahead of the hurricane were expected to work remotely from their hotel rooms on unsecured public Wi-Fi connections or take annual or sick leave, just three hours after the storm had left the area.  

Joel Smith, president of the American Federation of Government Employees Local 3184, which represents Social Security workers in Louisiana, said management informed employees they would not be able to take weather and safety leave in a teleconference meeting Wednesday morning. .Although there is no written record of the leave denial, an IT employee sent all employees in the office instructions on how to connect to the agency’s virtual private network over public wireless Internet connections. ...

Major Downturn In SSI Awards

      From David Weaver, writing for The Hill:

... In May, June, and July of this year, SSA awarded 5,038, 4,572, and 5,122 elderly individuals SSI benefits, respectively. The June award figure is the smallest number of monthly awards for the elderly in the last 20 years. The May and July figures are the second and third smallest in the last 20 years. Further, the total number of awards in these three months is 42 percent lower than the number of awards to the elderly for the comparable 3-month period in 2019.

Problems have now materialized for the disabled groups as well. In July of this year, SSA awarded SSI benefits to 25,200 disabled adults ages 18 to 64. That is the lowest monthly award figure in the last 20 years for this group. It is also 40 percent lower than the figure for this group for July of 2019. ...

     Weaver is blaming the downturn on lack of outreach. Maybe, but I'm pretty sure that having the field offices closed to walk-in traffic is a bigger factor. You certainly can't blame this downturn on disability determination since this includes a major downturn in people qualifying on account of age alone. Those claims don't go through disability determination.

New List For Service Of Process

      The Social Security Administration has announced a new list of addresses for service of process. 

     For non-attorney readers, I'll explain. Social Security gets sued a lot -- something like eight or ten thousand times a year, if I remember correctly. Mostly, these are denied claimants appealing. When you sue someone, you have to tell them they've been sued. That's called service of process. Generally, this isn't that difficult. You deliver it to the person's residence or to the headquarters of a business or other entity. However, Social Security gets sued enough that their attorneys who respond to these lawsuits are broken down into Offices of Regional Counsel as well as the Office of General Counsel in Baltimore. They want service of process to the office that will be responding to the lawsuit. The assignments to these components change from time to time so they have to put out new lists to tell you where to serve process on them.