Comgressional Hearing On Maximizing Social Security

     The Senate Special Committee on Aging held a hearing yesterday on Maximizing Your Social Security Benefits: What You Need to Know. A group of wealthy Senators were wondering why everyone doesn't wait until age 70 to claim their Social Security retirement benefits. Since there's a delayed retirement credit to encourage people to wait, the Senators figure it must be lack of information keeping people from waiting. There definitely is a lack of information. It's a longstanding frustration for me that most people think that Social Security is simple. No, it isn't. No program that pays benefits in many different categories to tens of millions of people could possibly be simple. Even when you try to tell people about the rules that affect them personally, their eyes start glazing over almost immediately. However, the real reason that people claim benefits earlier than some wealthy people think they should is economic necessity. Most people aren't wealthy like these Senators. They don't have the resources to survive more than a few months after retirement without Social Security. 

     Not that it matters to many people but the math on the delayed retirement credit isn't as wonderful as it's cracked up to be. You get 8% more a year for each year that you delay taking Social Security benefits but that's not compounded and it has to be stacked against the facts that you don't get paid Social Security for the years you waited and that you may die before any theoretical breakeven point or even before drawing Social Security retirement benefits at all. Even if you survive long enough, is it irrational to want to take the money when you're still young enough to be able to do something with it? Life is short. Eating dessert first may not always be a bad idea.

Re-Recon Back?

     I got this recently. Is this a sign of the new re-recon? If it is, I don't expect it to amount to much. This sort of thing doesn't seem like a priority. Even if it were, the staffing isn't there to do much.

     By the way, notice that "DDS Case Number." It wasn't the claimant's Social Security number. Is this a sign that Social Security itself will start moving away from the use of the Social Security number as much as possible?

Social Security Employee Refuses To "Certify Sin"

     From the Washington Post:

A short video about lesbian, gay, transgender and bisexual diversity may bring an abrupt end to a federal employee’s 14-year career with the Social Security Administration. David Hall, who works in information technology at the agency’s office in Champaign, Ill., refused to watch the 17-minute video on several occasions.  

Hall told the News-Gazette that the mandate to watch the video first came in April, when the national office sent out an email memo regarding LGBT diversity and inclusivity training. ...

For Hall, that premise was too sinful. The 42-year-old, who identifies as Christian, said he does not believe God would have wanted him to watch the video. Signing a statement he had watched such a video, moreover, was equal to endorsing “an abomination,” he told WCIA. “I’m not going to certify sin.” ... 

On two occasions in June, Hall’s boss told him to watch the video. When Hall declined, he was reprimanded. He later received a two-day suspension, in August, without pay. ... 

Hall is willing to lose his job — he admits it is likely, in fact — and he sees his stance as a call to other Christians. ...

Major Social Security Staff Losses In Many States

ALJs Are Supposed To Schedule 45-50 Hearings A Month

An e-mail from Social Security's Chief Administrative Law Judge Debra Bice:

Jack and I have spoken with many of you over the last few months and know that you share ODAR’s commitment to public service by providing claimants with timely and policy compliant dispositions. You also have shared some of the challenges you face in doing so. We are aware of the challenges you have been facing, even more so now with the hiring freeze. We are working on many initiatives to help support you, such as new regulations, pre-hearing conferences and case summaries of large files.

Given the current environment, you have asked how many cases we expect every judge to schedule each month. Looking at current data, a majority of you are scheduling an average of 45-50 hearings a month and completing the work in a legally sufficient and policy compliant manner. I know that it takes dedication to manage your docket effectively and I thank each of you. I am asking EVERY judge to schedule hearings generally in the range of an average of 45-50 hearings per month. If you feel comfortable handling more cases and can maintain legal sufficiency and policy compliance in your dispositions, please continue to do, and we thank you. If are not yet scheduling an average of 45-50 cases a month, please try to increase your dockets to do so. This may mean adding a day of hearings every month or an additional hearing to each hearing day. We will continue to evaluate our scheduling expectations for all judges in the future.

For those of you who elect to telework, I am going to advise our HOCALJs that, for the October 2016 to March 2017 telework period, an average of 45-50 scheduled hearings a month generally should be considered “reasonably attainable.” I am also going to discuss again with our HOCALJs the need to consider all extenuating circumstances in considering your telework requests.

This is a crisis time for us. Even with all the headwinds in our face, the public we serve is asking us to do the most we can. I am so proud of all of you. If all judges generally can schedule an average of 45-50 hearings a month or more, hold those hearings absent good cause, and move the cases out of ALJ controlled status timely, we can make headway in reducing the wait time for a decision. I speak for your national leaders, your RCALJs and certainly your HOCALJs. All of us, ALL OF US, are appreciative of all you do. I know sometimes our messages do not always reflect that appreciation, but make no mistake - it is unwavering. Judge Allen and I are proud to be your judicial colleagues.

New Attorney Fee Contacts

     Social Security has updated its list of Office of General Counsel contacts for fee authorizations, other than those under the Equal Access to Justice Act (EAJA) -- 406(b) fees.

Regional Office	Jurisdictions	Contact Information
REGION I Social Security Administration Office of Regional Counsel JFK Federal Building 15 New Sudbury Street Room 625 Boston, MA 02203-0002	MA, ME, MI , NH, RI	Phone: (617) 565-4277 Fax: (617) 565-4447
REGION II Social Security Administration Office of Regional Counsel 26 Federal Plaza Room 3904 New York, NY 10278-0004	CT, NY, PR, VI, VT	Phone: (212) 264-3650 Fax: (212) 264-6372
REGION III Social Security Administration Office of Regional Counsel 300 Spring Garden Street 6th Floor Philadelphia, PA 19123-2932	DC, DE, PA, MD NC, NJ, SC, VA, WV	Phone: (215) 597-3300 Fax: (215) 597-4662
REGION IV Social Security Administration Office of the Regional Counsel Sam Nunn Atlanta Federal Center 61 Forsyth Street, S.W. Suite 20T45 Atlanta, GA 30303-8910	MD AL, ND AL, FL, GA	Phone: (404) 562-1028 Fax: (404) 562-1030
REGION V Social Security Administration Office of the Regional Counsel 200 West Adams Street 30th Floor Chicago, IL 60606-5208	IL, IN, OH, WD KY,WI	Phone: (877) 800-7578 Fax: (312) 886-4754
REGION VI Social Security Administration Office of Regional Counsel 1301 Young Street, A-702 Dallas, TX 75202-5433-5433	AR, IA, LA, MN, MS, NE ND, SD, TX	Phone: (214) 767-3212 Fax: (214) 767-9189
REGION VII Social Security Administration Office of Regional Counsel Richard Bolling Federal Building 601 East 12th Street Room 965 Kansas City, MO 64106-2898	MO, TN	Phone: (816) 936-5750 Fax: (816) 936-5963 ||KC OGC
REGION VIII Social Security Administration Office of Regional Counsel 1961 Stout Street Suite 4169 Denver, CO 80202-4003	CO, KS, ED KY, NM, OK, UT, WY	Phone: (303) 844-0018 Fax: (303) 844-0770
REGION IX Social Security Administration Office of Regional Counsel 160 Spear Street Suite 800 San Francisco, CA 94105-1545	CA, NV, HI, Guam, American Samoa, Northern Mariana Island	Phone: (415) 977-8943 Fax: (415) 744-0134
REGION X Social Security Administration Office of Regional Counsel 701 Fifth Avenue Suite 2900, M/S 221A Seattle, WA 98104-7075	AK, AZ, ID, OR, WA	Phone: (206) 615-2539  Fax: (206) 615-2531 ^OGC SEA Admin
BALTIMORE Social Security Administration Office of the General Counsel 6401 Security Boulevard Room 617 Altmeyer Building Baltimore, MD 21235–6401	MD, SD AL, ED NC, WD NC	Phone: (410) 965-0600 Fax: (410) 597–1435

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GN 03930 TN 10 - Fee Authorization Under the Fee Petition Process - 09/01/2016

Airport Workers Keep Their Social Security

     From KTVI:

Nearly 70 employees at Lambert-St. Louis International Airport were relieved to learn they'll get to keep their Social Security benefits.

In May, the airport workers were informed that despite paying into the Social Security system that they were ineligible to receive those benefits because of a decades-old agreement between the state of Missouri and the Social Security Administration.

On Wednesday, Senator Claire McCaskill helped police, city, union, and Social Security officials reach an agreement allowing the workers to keep their benefits. ...

     This reminds me of a case in North Carolina. A new interstate agency was formed that included employees from North Carolina and Virginia, if I remember correctly. Several employees of the state of North Carolina transferred to work at the new interstate agency. Before doing so they received written assurance from the agency that administers pensions for NC state employees that they would continue to be covered by the NC state employee pension plan. Some years later, when the first of these employees retired, he was told, sorry, we made a mistake. Employees of intergovernmental agencies aren't covered by the N.C. government employees pension plan. Here's your contributions back. Goodbye. When they complained it wasn't fair, they were told that the courts had refused to recognize estoppel against the state of North Carolina so, in effect, shut up and go away. If estoppel were applied, the state couldn't argue that the interstate employees weren't covered by the pension plan since the state had told the employees years earlier that they were covered and the employees had relied on this promise. The employees took the case to court and won. The N. C. courts held that estoppel would be applied. The moral of this is that if you're a government agency, don't rely too much on old precedent. If the courts think you're really trying to screw over people, they'll find a way to give those people relief. 

I Wouldn't Regard This As A Good Sign If I Was Social Security's Attorney

     From an order entered in the United States District Court for the Eastern District of Kentucky:

On September 8, 2016, the Court held a telephone conference to schedule and to prepare for oral argument on the Social Security Administration (SSA)’s motions to dismiss. Ned Pillersdorf, Francis E. Budde, and Kelly Lynn Ward Wallen represented the plaintiffs, with Mr. Pillersdorf speaking for that side. Amanda B. Gilman, John S. Osborne, III, and Laura Ridgell - Boltz represented the SSA, with Ms. Gilman speaking for that side. ...

Although the plaintiffs have brought a number of claims against the SSA, the Court is focused on one at the moment: whether the SSA’s redetermination procedures violated the Due Process Clause. That question involves many smaller — but nevertheless difficult — ones, some of which are listed below. As it tries to figure those question s out, the Court would benefit from further briefing and an oral argument. The parties agreed that an in-person argument would work the best. That argument is set for Wednesday, September 21, 2 2016, at 11:00 a.m., at the United States District Courthouse in Pikeville, Kentucky. The parties will submit further briefing by Friday, September 16, 2016. 

In preparing their briefs and arguments, the parties should keep a few things in mind. First , at this stage, the Court is primarily concerned with the plaintiffs’ argument that the SSA failed to afford them due process. The plaintiffs also argue that the SSA applied its redetermination procedures in a prejudicial way — specifically, by initiating those procedures many years too late . To decide that claim, however, the Court first needs to know whether the procedures are constitutional to begin with. 

Second , the Court will construe the parties’ new briefs as cross - motions for summary judgment. The parties agree that the due - process issue depends largely on questions of law that can be resolved through briefing and argument. Plus, the SSA has attached affidavits to its motions to dismiss — when a party has presented such “matters outside the pleadings,” Rule 12 requires the Court to t reat the motion to dismiss as a motion for summary judgment. Fed. R. Civ. P. 12(d). This way, the Court can decide the due - process issue once and for all .

Third, and finally, the Court would appreciate briefs addressing the specific questions that are currently troubling it. As promised at the conference, those questions are listed here:

(1) How exactly, under 42 U.S.C. § 405(u), does the redetermination process work?

a. Where, in the text of the statute, does Congress create the “evidentiary rule” that when the Office of the Inspector General (OIG) finds fraud, parties cannot challenge the finding ?

b. Does Congress even have the power to dictate what evidence an administrative law judge may and may not consider? 

c. Assuming that Congress has that power — and used it in § 405(u) — does the Due Process Clause nevertheless require that parties get a chance to challenge agency evidentiary decisions?

d. What parts of the redetermination process are judicially reviewable?

(2) How did the redetermination process work in the plaintiffs’ cases specifically ?

a. Did the SSA follow §405(u) ?

b. When the OIG alerted the SSA about the fraud, did the SSA take as given that fraud had occurred in every case Eric Conn touched, or did it decide for itself whether fraud occurred in each case?

(3) Assuming that the SSA followed §405 (u), and assuming that under that section the OIG ’s fraud findings are unchallengeable , does the redetermination process violate Goldberg v. Kelly, 397 U.S. 254 (1970)?

a. Did the plaintiffs get a chance to challenge the OIG finding?

b. If they did not, why don’t they deserve one?

(4) If the redetermination process violated the plaintiffs’ due-process rights, what is the proper remedy?

This list is not necessarily exhaustive. Other issues will certainly arise, and the Court will be grateful for the parties’ efforts to anticipate and address them. At the end of the day, however, the problem on the Court’s mind is whether the redetermination process afforded the plaintiffs due process, and if not, what to do about it.