One Chart Says It All

First Briefs Filed In Lucia

     The parties to the Lucia v. SEC case pending before the Supreme Court have filed their briefs on the merits. Lucia concerns the constitutionality of Administrative Law Judges under the Appointments Clause of the Constitution. Both briefs argue that they are unconstitutional. Under prior Presidential Administrations the position had been that they were constitutional. That changed after Donald Trump decided to be guided in all matters of constitutionality by the Federalist Society. There will be an amicus curiae appointed by the Court who will argue for the position that they are constitutional. That brief hasn't been filed yet. Neither of the briefs filed so far makes mention specifically of Social Security ALJs but both are careful to note that SEC ALJs preside over adversarial adjudications. I don't see that that has anything to do with the scope of the authority exercised by the ALJ, but that's the distinction the briefs implicitly make.

• Brief filed on behalf of Raymond Lucia
• Brief filed by Solicitor General on behalf of the SEC

Underpaying Widows

     From a recent report by Social Security's Office of Inspector General (OIG):

Objective: To determine whether the Social Security Administration (SSA) had adequate controls to inform widow(er) beneficiaries of their option to delay their application for retirement benefits.

Background: An application for retirement or widow(er)’s benefits is an application for both benefits, unless it is restricted. When a widow(er)’s benefit is higher, claimants may delay filing their retirement application up to age 70 to increase their retirement benefits.
Claimants may limit the scope of the application to exclude retirement benefits to maximize the amount of future benefits, including the effect of delayed retirement credits before age 70.

Findings: SSA employees must explain the advantages and disadvantages of filing an application so claimants can make an informed filing decision. However, the decision to file belongs solely to the claimant. SSA employees must discuss and document any unfavorable filing decisions. ...

SSA needs to improve controls to ensure it informs widow(er) beneficiaries of their option to delay their application for retirement benefits. Based on our random sample of 50 beneficiaries, we estimate 11,123 would have been eligible for a higher monthly benefit amount had they delayed their retirement application until age 70. Of these, we estimate SSA underpaid about $131.8 million to 9,224 beneficiaries who were age 70 and older. In addition, we estimate SSA will underpay an additional 1,899 beneficiaries who were under age 70 about $9.8 million, annually, beginning in the year they attain age 70. 

We did not find any evidence SSA had informed claimants of the option to delay their retirement application when they applied for benefits, as required. We also found that SSA did not have systems controls in place to alert its employees when they should inform widow(er)s of their option to delay their applications for retirement benefits. ...

     So, what are we going to do about this, Social Security? No, I don't mean what you're going to do about future cases. I'm asking what you're going to do about all these cases where beneficiaries have already been underpaid because they weren't properly advised?

No Prosecution For Alleged Rep Payee Fraud

     A Richmond television station is reporting that the U.S. Attorney's Office for the Eastern District of Virginia has declined to prosecute in the case of an institutional Social Security representative payee who is alleged to have taken money from 300 mentally disabled people. The business in question is closed and the beneficiaries involved all have new representative payees but no one seems to know where the money went.

They Knew It Would Be An Unpopular Decision

     From the Milwaukee Journal-Sentinel (warning: you'll have to put up with numerous popup ads if you click on the link):

U.S. Rep. Gwen Moore (D-Milwaukee) and Milwaukee Mayor Tom Barrett on Wednesday denounced plans by the Social Security Administration to close its Mitchell St. field office on the city's south side. ...

At a news conference outside the former Forest Home Library, Barrett said he did not hear about the agency's decision to close the Mitchell St. office until January and that the city has offered the former library at 1432 W. Forest Home Ave. for a location. ...

Moore, whose district includes the area served by the office, said the proposal would disperse its Spanish-speaking employees currently serving the poor and largely Hispanic residents of the neighborhood to offices that are hard to reach by bus.

She also said the agency has not made serious attempts to find suitable replacement locations and that she and other public officials were not notified of the closure until the decision had already been made.

"They did not include me or other city officials in the decision," Moore said.

"It seems like they contacted us after they had already made this decision." ...

Jessica LaPointe of the American Federation of Government employees read a statement she said was from employees at the Mitchell St. office saying they were "blindsided" by news of the closure and told to keep quiet about it. ...

Waiting In Denver

     From KUSA in Denver:

Americans with legitimate disability claims are routinely denied benefits under the Social Security Disability Insurance program, then find themselves trapped waiting months, even years, to get a decision on an appeal ...

[W]hile more than 1 million people wait for their appeals to be heard nationwide, many lose their savings or retirement funds, others their homes, sometimes ending up on the streets. 

Thousands have died while waiting for a hearing, according to the Office of the Inspector General.

“It’s this major injustice,” said Denver disability attorney, Will Viner. “What has happened with the increase in the backlog is people are losing their house, unable to pay for food and shelter. In the past year we have had nine clients pass away.”...

And the delays are getting worse. 

In Denver for example, the average wait time to come before a judge was 18 months in January 2018. In the same month of 2014, the wait was 11.5 months.  ...

     I love the graphic that someone did for KUSA. Good work.
 

Beware Of GOPers Bearing Social Security Gifts

     From the New York Times:

Paid leave for new parents, long a Democratic cause, has become a Republican one, too. But policymakers don’t agree on what a leave plan should look like. Now some Republicans have a new idea: Let people collect Social Security benefits early to pay for time off after they have a baby.

Unlike some other proposals, this would require no new taxes. There’s a catch, though: Parents would have their Social Security benefits delayed when they retire to offset the costs. ...

Ms. Lukas [a proponent] has said that she hoped the proposal would “encourage an important mental shift” in the way people think about Social Security. If individuals view it as “property,” she reasons, it could lead to the embrace of personal accounts.

That reasoning is why some experts view the proposal as a backdoor way to try to curb the scale and cost of Social Security. They also said it could put women in a more precarious position in retirement, adding yet another financial penalty to the list that women pay when they become mothers. ...

     My opinion is that there is essentially a 0% chance this gets enacted as proposed. It's not happening without Democratic support and that isn't going to happen, not now, not ever. Find a way to give government-paid parental leave without reducing retirement benefits, sure, but not this. The GOP has been pursuing ways to undermine Social Security since the 1930s. The party has no credibility when it comes to Social Security. 

Any New York Attorney Who Can Help Me?

     Here's the situation. Person with a Supplemental Security Income (SSI) claim moves from New York to North Carolina, where I am. While in New York he was receiving an interim disability benefit either from NY state or New York City. He's now been approved. His SSI benefits are supposed to be reduced by what's called an interim assistance offset. The money offset is supposed to be paid to the governmental entity that was paying the interim assistance. However, by statute, the amount of the attorney fee is supposed to be based upon the gross amount of the back benefits rather than the net amount after the interim assistance offset. In this person's case, if you take the interim assistance offset and combine it with the computed attorney fee, it comes to more than the past due benefits. Social Security has paid NY its full amount but reduced the attorney fee by the excess.

     Can they do that? I couldn't find this question addressed in Social Security's POMS manual. Since I'm in North Carolina, which has no form of interim assistance, rather than NY, I'm not familiar with what Social Security has been doing in these cases.

     If they can do this, is there any way of getting reimbursement from NY for the attorney fee that wasn't paid? I recall hearing that NY did this before Congress changed the statute to base the attorney fee on the gross SSI benefit.