Chaos Ahead?

     Let me repeat something that I posted late Friday. The Supreme Court has granted a writ of certiorari in Lucia v. SEC, meaning they will hear the case. Lucia concerns whether Administrative Law Judges (ALJs) as presently appointed are constitutional. The Trump Administration is arguing that they aren't. This case may be heard in this term of the Supreme Court, meaning there may be an opinion by the end of June!

     Let me give a preview of what will happen if the Supreme Court rules that ALJs as presently appointed are unconstitutional. All ALJ hearings must stop. All ALJ decisions must stop. All cases pending at the Appeals Council must be remanded to whatever class of personnel will be hearing cases in the future. All Social Security cases pending in the federal courts must be remanded for new hearings.

     There is only one way to prevent even some of this chaos. That would be to have the President sign off on appointments for each of Social Security's present ALJs and to do so quickly. That would allow ALJs to continue holding hearings and issuing decisions. It wouldn't do anything about the remands of cases pending at the Appeals Council and the federal courts but there's nothing to be done about that. There have already been presidential appointments for the ALJs at the Securities and Exchange Commission (SEC) where this lawsuit began. All that would be required is for someone to prepare a document saying "I, Donald Trump, hereby appoint the following individuals as ALJs", followed by a list of the ALJs and for Trump to sign the document. Of course, for this to happen, we'd have to have a responsible President, so I'm not expecting it.

     The premise the Trump administration is supporting in Lucia is that a Presidential appointment is required by the appointments clause of the Constitution. If you're a lawyer and can't quite remember the appointments clause, don't feel bad. It's about as unimportant a part of the Constitution as you can find. Here it is: 

He [the President] ... shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law: but the Congress may by Law vest the Appointment of such inferior Officers as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments. 

     Tho argument is that Social Security ALJs are "inferior Officers" who must be subject to appointment by the President. Social Security, not being a department, has no "head of department" to make the appointment. What makes an employee an "inferior Officer"? How many angels can dance on the head of a pin?

     I find this lawsuit ridiculous. There's no statute that says that ALJs must not be subject to Presidential appointment. All that would be required to move them from civil service to presidential appointment status would be some changes in regulations at the Office of Personnel Management which the President could easily order. Since there's no obvious test of what makes a position one which must be held by an "inferior Officer", shouldn't the courts defer to the determinations made by Presidents? The President is the one who's supposed to try to make the executive branch work. Why should the courts be second guessing them on this? Even though this is part of the Constitution, it's not like it's enshrining some high principle. If the courts must defer to executive branch interpretations of statutes (the Chevron doctrine), isn't it clear that they should also defer to executive branch determinations of what jobs are and aren't "inferior Officers"? Should the Court find ALJs as presently appointed unconstitutional, aren't they inviting endless lawsuits about the authority of other executive branch employees?

Another Backlog Story

     A suburban Chicago newspaper reports on the brutal backlogs that await so many people who file claims for Social Security disability benefits. I hope these press reports ultimately help

Attorney Fees Up In 2017

     Social Security has posted its final numbers on fees paid to attorneys and others for representing Social Security claimants in calendar year 2017. The total was $1.21 billion, up 11% from 2016. Despite the increase, attorney fees are still down from their peak of $1.43 billion in 2010. 

     Thing may have been a little less bad last year but all attorneys who practice Social Security law face considerable economic pressure. The attorney fee provisions of the Social Security Act were designed to allow claimants to have representation. This right could be effectively eliminated over coming years unless something changes. One important way that the Acting Commissioner of Social Security could assure that claimants don't lose their right to representation is to increase the cap on Social Security attorney fees. It's currently $6,000. The Social Security Act allows the Acting Commissioner to raise this to adjust for inflation but does not require that she do so. If adjusted for inflation, the cap would now be well over $7,000. It's past time to raise the cap.

     Every time I write about attorney fees, I get responses that go something like these:

• "Attorneys who represent claimants are lazy. They do nothing for the money they're paid." Those who post this need to ask themselves the question, "If representing Social Security claimants is such easy money, why don't Social Security employees leave their jobs with the agency and jump on this gravy train?" Social Security employs thousands of attorneys but hardly a one of them has left Social Security to represent Social Security claimants in recent years. What does that tell you?
• "When I was in private practice, I spent hundreds of hours doing depositions and meeting with my client and other witnesses in each individual case. Social Security attorneys don't do anything like that so they're worthless." Those who post this forget that they or their firms were being paid tens if not hundreds of thousands of dollars per case. You try spending hundreds of hours on each Social Security case when the total possible fee is no more than $6,000 and see how long you last! The challenge in representing Social Security claimants is doing a professional job when the economics require you to represent lots of clients. Give it a try and find out for yourself how easy that is.
• "If you can't make any money, why don't you just quit representing Social Security claimants?" I think this sort of thing is posted by one or more people who work at right wing think tanks or GOP Congressional offices who would prefer that claimants go unrepresented. If you think that Social Security disability benefits (and probably Social Security in general) shouldn't exist, you might be fine with anything that makes it harder for people to obtain benefits. Who cares about being fair to claimants when none of them should be getting benefits anyway? I think this is very much a minority viewpoint. I also think if someone who currently espouses this viewpoint actually becomes disabled, they would quickly change their tune and become indignant if they can't find an attorney to represent them.

I Wish This Sort Of Thing Mattered More

     Senator Ron Wyden has penned an op ed on Social Security's hearing backlog.

I Don't Agree

     The Cleveland Plain Dealer is running a piece with recommendations on how disabled people can improve their chances of being approved. I wish I could applaud it but I can't. Here are the recommendations they make that I have trouble with and my reasons for disagreeing:

• A Social Security attorney told them that claimants should print out the questions that Social Security will ask and decide how they'll answer them. I would say, no, just get on with it. Claimants don't need to be told to do this and that before filing a claim. They're already far too inclined to procrastinate. Persons with limited intellectual capacity who also suffer from mental illness file disability claims all the time with no advance preparation. Just get on with it.
• Another Social Security attorney recommended gathering your medical records before you apply. Again, this encourages procrastination. The average Social Security disability claimant has no idea how to gather their medical records or what to gather. As an example, it seems like half of my new clients tell me "I've got all my medical records." They're wrong. All they have are the billing sheets they were given when leaving their doctor's office. Those aren't medical records. They're just billing records which don't help in the least. Social Security and your attorney will gather the records. Just get the claim filed and hire an attorney. Almost everything else will be done for you.
• A third Social Security attorney recommends first getting your doctor on board with your disability claim. I'd rather have that support if possible but it's not essential. I'd say that anywhere from a third to half of my clients don't have that kind of support and I don't care that much. Some doctors think a person has to literally be a quadriplegic or in a persistent vegetative state in order to be disabled. Some think anyone who can't do their past work is disabled. Neither view is correct. Some claimants aren't able to get an opinion because they lack a steady relationship with a physician. Mental illness or poverty often put people in that kind of position. Some physicians tell their patients they'll help with a Social Security disability claim and then don't. I don't care. What's wrong with a person is more important than their physician's opinion. If you tell people they can't win without the help of their physician, you're telling a hell of a lot of very sick people to not file disability claims and that's wrong.

One Great Idea After Another Coming Out Of The Trump Administration

    From Katie Tastrom writing for THINK:

In a letter to state Medicaid directors Thursday morning, the Trump administration announced that it would allow states to require Medicaid recipients to participate in a work program or other form of approved “community engagement” in order to retain their health benefits. While there will supposedly be exceptions for disabled people, allowing states to implement the work requirement is a terrible idea. As a disability lawyer and disabled person myself, I know this policy change will be disastrous for my community in a number of important ways.  

My first concern involves the eligibility process. According to the Washington Post, states will be able to decide for themselves who qualifies as “disabled” for the purpose of being exempt from the work requirement. No matter how broad they define the category, there will be disabled people who do not qualify for the exemption even though they should. ...  

While this appeals process [concerning whether the person is disabled for purposes of Medicaid] plays out, people are likely to get sicker and more disabled as they await a final decision. In the end, many people could become stuck in a grey area: too sick or disabled to work, but not sick or disabled enough to be exempt from the work requirement. ...  

The states that will end up implementing these work requirements are also the states that tend to be the poorest to begin with ...

Supreme Court Will Hear ALJ Constitutionality Case

     The Supreme Court has granted a writ of certiorari in Lucia v. SEC, meaning they will hear the case. Lucia concerns whether Administrative Law Judges (ALJs) as presently appointed are constitutional. The Trump Administration is arguing that they aren't. I don't know enough about Supreme Court operations to know whether the case will be heard this term or the next. This term would mean a decision this year. Next term would mean a decision next year.

Maybe Some Of These Cases Should Be Approved At Lower Levels?

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

Allowance rates—the rate at which Social Security Administration (SSA) administrative law judges allowed disability benefits to be paid when claimants appealed—varied across judges, even after holding constant certain characteristics of claimants, judges, hearing offices, and other factors that could otherwise explain differences in allowance rates. Specifically, GAO estimated that the allowance rate could vary by as much as 46 percentage points if different judges heard a typical claim (one that was average in all other factors GAO analyzed). SSA officials said that this level of variation is not surprising, given the complexity of appeals and judicial discretion. Nonetheless, the variation declined by 5 percentage points between fiscal years 2007 and 2015 (see figure), a change officials attributed to enhanced quality assurance efforts and training for judges. GAO also identified various factors that were associated with a greater chance that a claimant would be allowed benefits. In addition to characteristics related to disability criteria, such as the claimant's impairment and age, GAO found that claimants who had representatives, such as an attorney or family member, were allowed benefits at a rate nearly 3 times higher than those without representatives. Other factors did not appear related to allowance rates, such as the percentage of backlogged claims in a hearing office. ...

From fiscal years 2007 through 2015, most claimants (77 percent) had an attorney representative, and 12 percent had a nonattorney representative. ...

  

Note the high approval rate in MS cases. I was just  talking about MS cases recently. I've also talked about intellectual deficiency cases a lot also.