Will The Tail Wag The Dog?

     Here's an excerpt from the brief filed on behalf of the federal government with the Supreme Court by the Solicitor General on the issue of whether a writ of certiorari should be granted in the Lucia case (it has) concerning whether Administrative Law Judges (ALJs) as presently appointed are constitutional:

Given the frequency with which ALJs are employed in administrative proceedings by a variety of federal agencies, see, e.g., 7 C.F.R. 1.144, 1.411(f) (Department of Agriculture); 12 C.F.R. 1081.103 (Consumer Financial Protection Bureau) ; 18 C.F.R. 385.102(e), 385.708 (Federal Energy Regulatory Commission); 29 C.F.R. 102.35 (National Labor Relations Board); 40 C.F.R. 22.3(a), 22.4(c) (Environmental Protection Agency), this Court’s resolution of the question presented is necessary to prevent the same disruption that has affected the Commission’s proceedings from spreading through- out the government.

     Seems like they omitted the name of the agency that employs the vast majority of ALJs, the Social Security Administration (SSA). I doubt that was accidental. Social Security is the rhinoceros in the room that the Solicitor General would prefer that the Supreme Court not notice. This case represents the SEC tail threatening to wag the SSA dog.
     In reading over this brief, I don't see even the slightest sign that the Solicitor General was trying to lay groundwork to distinguish between ALJs at the SEC, where the Lucia case arose, and ALJs at SSA. Every argument they made applies with the same force to SSA ALJs. The effects upon the SEC if these arguments prevail are trivial in comparison to the effects at SSA.
     There is an urgent need for at least the Acting Commissioner of Social Security to issue an order appointing each of the current ALJs and ratifying any actions they may have previously taken. The SEC has long since done this. The Department of Labor did it this week. I think it would be far safer if the President were to issue such an order. The Constitution talks only of department heads having the power to appoint inferior officers. SSA isn't a department. Yes, there's a reasonable argument that the framers of the Constitution were using the word "department" in a more generic way than it is currently used in the federal government; that they meant something more like "agency." Maybe the courts will buy that but maybe doesn't seem good enough to me with so much at stake. We need to move to Defcon 1 on this.

Disability Insurance Trust Fund Reserves Increasing

     From the Office of Chief Actuary, Social Security Administration:

Disability Insurance
(Amounts in billions)

Calendar year	Total income	Total outgo	Net increase in asset reserves	Asset reserves at end of calendar year
2013	$111.2	$143.4	$-32.2	$90.4
2014	114.9	145.1	-30.2	60.2
2015	118.6	146.6	-28.0	32.3
2016	160.0	145.9	14.1	46.3
2017	171.0	145.8	25.1	71.5

A Real Winner In Charlotte

     From the Charlotte Observer:

Oliver Montgomery’s job was to help clients get their Social Security payments.

Instead, he stole them, a new court document said Tuesday – more than $37,000 in all. ...

Read more here: http://www.charlotteobserver.com/news/local/crime/article196260704.html#storylink=cpyHe allegedly committed the crimes while on the taxpayers’ dole: Montgomery worked as a service representative in the Charlotte office of the Social Security Administration, the affidavit says.

Read more here: http://www.charlotteobserver.com/news/local/crime/article196260704.html#storylink=cpy

He allegedly committed the crimes while on the taxpayers’ dole: Montgomery worked as a service representative in the Charlotte office of the Social Security Administration ...

Montgomery’s scheme covered a 12-month period that ended August, during which he allegedly diverted tens of thousands of dollars from two Social Security beneficiaries, the affidavit says.

In one of the cases, Montgomery actually assisted his own investigation.

After threatening an ex-girlfriend who planned to take him to court over a previous debt, Montgomery shot her a text message with a selfie he’d taken at the Social Security office. In the photograph, Montgomery posed with a large amount of cash, the affidavit says.

“Show them that stack on my desk,” he told the former girlfriend in the text.

Instead, she eventually shared the text with federal officials, the affidavit says. ...

     Note to the reporter who wrote this: Being a federal employee doesn't mean that you're "on the taxpayers' dole." That's an insult to the vast majority of government employees who perform their work honorably.

Read more here: http://www.charlotteobserver.com/news/local/crime/article196260704.html#storylink=cpy

Read more here: http://www.charlotteobserver.com/news/local/crime/article196260704.html#storylink=cpy

One Tiny Cut At A Time

     Nancy Altman writes for Slate on how Republicans Are Killing Social Security One Tiny Service Cut at a Time.

Why Make Him Wait?

     From KCRG in Cedar Rapids, Iowa:

Just two months after finding out he had stage four lung cancer, Dean Lange applied for disability. The treatments forced him to quit his job in the trucking industry.

Lange says, "You get what they call chemotherapy brain. It's what the doctors actually call it. You get cloudy, you can't think, it's a vicious thing you know."

He got approved for Social Security Disability Insurance back in November, but he won't see a check until June. He says, "A lot can happen in that 5 months to people in my situation. A lot of people aren't gonna make that 5 months.”

The waiting period is by design ... Laura Seelau with RSH Legal says she does get complaints about the 5 month process, but it's not her client's biggest concern. ...

Lange is calling on members of Congress to change the law so people with a terminal illness can get the benefits right away. He says the extra money would go a long way paying for medical bills. Lange says if cancer kills him, a bill passing to help others in his situation would be his dying wish. ...

     And while we're at it, why does he fact a two and a half year waiting period for Medicare?

Shutdown Ends

     The Senate has voted for a new continuing resolution that will reopen the government. I think the bill might have to go back to the House of Representatives for further action and to the President for a signature but those would be formalities. This shutdown is all but over.

Shutdown

     I posted Social Security's shutdown plan on Saturday, the day of the shutdown. Let me post it again. Click on each thumbnail to view full size.

     By the way, my office called one of Social Security's local field offices today about an attorney fee issue today. It was a situation where the award certificate said the fee was to be one amount but we were paid about $1,000 less. We were trying to find out whether there was some good reason why this happened. We were told "Sorry, but during the shutdown we're not allowed to discuss attorney fees issues." I don't think that should be accurate. Attorney fees are just part of the process that pays the claimant and those payments are being made. If Social Security failed to pay the attorney properly, there's a good chance they've also failed to pay the claimant properly. Has anyone seen or heard instructions on this or other shutdown issues?

An Obscure Question

     Sometimes I upload PDF versions of photos of a part of a client's using Social Security's Electronic Records Express (ERE) system. I do this to demonstrate the client's physical impairment. It might be photos of swollen ankles or severe angulation following a poorly healed bone fracture. In one memorable case, it was astonishingly extreme gout.
     Photos to demonstrate physical impairments work only if they can be viewed in color. I've seen color PDFs uploaded to ERE stay in color in years past but then that seemed to stop. However, I've recently seen an ERE file that included medical records that had color documents in it that stayed in color.

     What's the deal? Will color PDFs uploaded to ERE stay in color or not? Is there some special technique to use?
     Update: A friend provided a link to a section of Social Security's POMS manual which recognizes that some ERE documents need to be in color. It mentions scanning them in color. However, I know I've seen color documents converted to black and white by Social Security's system. In fact, up until last week I don't think I had seen anything in color in ERE for years.