Oral Arguments In Vaello-Madero

      I listened to the oral argument is U.S. v. Vaello-Madero. You can't always tell from oral arguments and maybe I heard what I wanted to hear but my impression was that the only issue was how broad the opinion will be -- that all or virtually all of the justices are ready to hold it unconstitutional to deny SSI to U.S. citizens who reside in Puerto Rico and other territories. 

     If you also listened to the oral arguments, what was your take?

     Update: The Supreme Court reporter at the Washington Post thinks the Supreme Court is reluctant to extend SSI to Puerto Rico.  However, court reporters at The Hill seem uncertain about how the Court will come down.

Reopening Plan

      Vague though it may be, Social Security has released its reopening plan. It certainly allows many employees to continue working from home every day. No one has to come into the office daily.

     I don't know how this is going to work. I'm pretty sure that there will be be far, far too much demand for in-person service at the field offices to allow field office employees to work from home three days a week. How do ALJs conduct all the hearings they are supposed to conduct coming into the office one day a week? Things I've read suggest that many ALJs think that most claimants will continue to accept telephone and video hearings in the future. That's incredibly naive. I don't care how wonderful you think telephone or video hearings are. I know better. My opinion and that of my clients matter. The self-serving opinions of public servants don't matter in this instance. Cramming video hearings down the throats of unwilling claimants won't be politically feasible after the pandemic is over. We're getting back to something like normal or there's going to be hell to pay.

Great Summary Of Upcoming SCOTUS Case On SSI For Puerto Rico

      Ian Millhiser has written an excellent summary for Vox of the legal issues presented by U.S. v. Vaello-Madero, which is to be heard by the Supreme Court tomorrow. Vaello-Madero presents the issue of whether it is constitutional to deny SSI benefits to U.S. citizens who reside in Puerto Rico and other U.S. territories. 

     The old precedents supporting the denial of SSI to Puerto Ricans, the so-called Insular Cases are so disreputable that they cannot be used to turn down Mr. Vaello-Madero. The Court could come up with new reasoning to justify turning down Mr. Vaello-Madero but would it? There probably won't be some liberal-conservative split on this case. Every amicus brief filed supported Mr. Vaello-Madero.

SSI Report

      Social Security has finally posted the SSI Annual Report. Some Republican Senators tried to make an issue over the report being filed late.

Redesigned Statements Get Positive Reviews

      Social Security has redesigned the statement that potential beneficiaries can access online to tell them about their future benefits. The redesign is getting positive reviews. They used to send something like this out in the mail whether you asked for it or not. My experience was that no one paid attention to the statements that used to be mailed even if they were about to file a claim for benefits. It may be a better design now but will that make a difference, especially when far fewer people are seeing it?

A Blast E-Mail To Social Security Operations Employees

From Deputy Comm  Grace Kim. 

Subject: Operations Re-entry Plan

Earlier today, Acting Commissioner Kijakazi issued a broadcast message to provide preliminary information about SSA’s re-entry plan.  I am building on that message to share how Operations fits into that plan.  I want to emphasize that your safety and the safety of the public we serve continues to be a priority not only in our current operating posture, but also in how we will re-enter our offices. We will continue to monitor and follow the government-wide, science-driven advice of the Centers for Disease Control and Prevention.

I know most of you are curious about Operations’ future telework plan.  The global pandemic has changed our operating environment, how and where we work, and highlighted those areas where we are not meeting our public’s needs.  Over the course of the past 19 months, we have learned that we can effectively accomplish some work while teleworking, but our public service responsibilities mean that we still need to do some work onsite.

In Operations, I am planning for greater flexibility for telework for employees.  We will use the lessons learned throughout the pandemic to inform how we implement a telework plan that allows employees to work from home and ensures that we effectively serve the public and carry out our mission.  We will work closely with AFGE to ensure we meet all labor obligations.  I am excited to share that I have proposed a telework program that will allow most Operations employees the opportunity to telework between 2-5 days a week depending on your job duties. Soon, your supervisor will share the telework availability for your position and give you 30 days’ notice before we transition to our new telework plan, which at earliest will begin in January.  Until then, we will continue to operate as we have been under our current Workplace Safety Plan.

After we have completed re-entry and implemented our telework plans, we will evaluate how we are doing.  This evaluation will inform our longer-term plans as we enter Fiscal Year 2023.

I want to thank you for your hard work and commitment to serving the public during this unprecedented time.  I appreciate your patience as we consider how to safely re-enter the workplace. I will keep you updated on the re-entry process.

Grace

Class Actions On Same Sex Marriages Settled

      From NBC News:

Social Security survivors benefits will now be available to same-sex spouses and partners who had been denied access due to previous bans on gay marriage.

The Department of Justice and the Social Security Administration on Monday announced that they dismissed appeals filed by the then-Trump administration in two class-action lawsuits related to Social Security survivors benefits for same-sex partners and spouses.

In 2018, Lambda Legal, an LGBTQ rights nonprofit group, filed two class-action lawsuits against the Social Security Administration: one on behalf of surviving same-sex partners who had been prevented from legally marrying their loved ones by bans on same-sex marriage, and another on behalf of those who were able to marry, but were prevented from being married for at least nine months — the minimum set by the Social Security Administration — due to bans on same-sex marriage. …

SSA To Be Responsible For Paid Leave Under BBB Bill

      The current version of the Build Back Better Act, the major budget reconciliation bill pending in the Senate, contains a major responsibility for the Social Security Administration. If passed , Social Security will be administering Universal Comprehensive Paid Leave. (Begins on page 1065). Claimants will be able to appeal from determinations made under this program but not to federal court. (Page 1081). I am somewhat confused about extra funding. At one point the bill indicates that Social Security will be given an extra $1.591 billion in the first year and an extra $1.5 bill a year thereafter to administer the program. (Page 1090). At another point, it indicates that there will be as much as an extra $2.5 billion. (page 1091). It's not clear to me whether as much as $2 billion of this may be expended for Social Security operations generally. It appears that this will be effective sometime in the current fiscal year -- at least that's when Social Security gets a big appropriation -- but I have been unable to find the exact date.

     This will be the first major new responsibility for the Social Security Administration since SSI was adopted in the 1970s. It comes at a time when the agency's staffing is at a low ebb and there are massive backlogs across almost all agency operations. Also, the agency is being directed by an Acting Commissioner.

Ticket To Work Doesn't Work

      From a recent report by the Government Accountability Office (GAO):

Disability beneficiaries participate in the Social Security Administration’s (SSA) Ticket to Work and Self-Sufficiency program (Ticket to Work) by assigning a "ticket" to service providers who, in turn, provide help with employment. SSA compensates the service providers when Ticket to Work participants achieve designated levels of work and earnings. Using SSA data from 2002, when the program began, through 2018, the most recent year available, GAO estimated that 5 years after starting Ticket to Work, participants’ average earnings were $2,451 more per year than that of similar nonparticipants. However, the majority of participants remained unemployed 5 years after starting Ticket to Work. 

Based on GAO’s analysis, the costs of Ticket to Work exceeded the savings in disability benefits to SSA by an estimated $806 million from 2002 through 2015, the most recent year with reliable savings data. Savings accrue when Ticket to Work participants receive lower benefits or leave the disability rolls due to earnings from work. GAO estimates that participants were slightly more likely to leave the rolls (9.7 percent) than nonparticipants who are similar across a range of characteristics such as age, gender, disability type, and education level (8.6 percent). A greater percentage of participants left the disability rolls due to work rather than for other reasons, such as medical improvement ...

GAO estimates that SSA incurred an additional $133 million to $169 million in costs (above the $806 million) from disability benefit overpayments to Ticket to Work participants. Overpayments can occur when beneficiaries who work do not report earnings to SSA or SSA delays in adjusting their benefit amounts. ...

     This report ignores an important reality.  No one makes claimants participate in the Ticket to Work program. Those who do participate are saying they believe they may have some capacity for work, meaning that they have better prospects for returning to work than claimants generally. Comparing the results in this group to claimants generally makes the Ticket to Work results look better than they are. Some of those who volunteered for Ticket to Work would have returned to work with or without Ticket to Work. We can't tell how many were only able to return to work due to Ticket to Work. If there were a control group, it would be some who volunteered for Ticket to Work but were arbitrarily denied Ticket to Work help but there is no such control group because none were turned away.

     Note the ridiculous level of overpayments associated with Ticket to Work even among a group of beneficiaries who told Social Security they planned to return to work. Don't blame claimants for this. Social Security's system for handling reports of return to work just doesn't work. 

     I'll make a modest suggestion. Social Security should almost completely stop relying upon wage reports from claimants because they do a poor job of reporting and Social Security does a worse job of recording what they report. We should define Substantial Gainful Activity on a quarterly basis and base work deductions on quarterly wages reported by employers. This can mostly be done by the computers. Yes, there will be problems with "wages" that are reported for work done earlier (such as sick pay, vacation pay and residual commissions) and yes, there will be problems with self-employment income but we'd be in a much better place than we're in now if those are the only problems we have to deal with.

Delays In Filing Retirement Claims

      The Washington Post has an article out displaying a couple of charts that they say show that during the pandemic people have been retiring but deliberately delaying claiming Social Security retirement benefits. Here's one of the charts:

     The thing about it is that there's been a similar decline in the number of SSI claims filed and there's no benefit whatsoever in delaying filing an SSI claim. One possibility is that office closures and the increased difficulty in reaching Social Security by telephone have caused people to delay filing claims out of frustration. People don't have to be deterred entirely or even for long to produce something like this graph. Just deter a certain percentage of claims for a month to three months and you end up with fewer claims filed for a time period. My experience is that few people are crafty about the date they file their retirement claim. That sort of behavior exists mostly in the minds of newspaper writers who are overly invested in the idea that simplistic economic theories explain human behavior. They don't factor in the service environment at Social Security.

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.