Can Social Security ALJs Be Distinguished From Other ALJs?

     The issue in the Lucia v. SEC case which the Supreme Court will almost certainly decide by the end of June is whether Administrative Law Judges (ALJs) at the Securities and Exchange Commission (SEC) are unconstitutional under the Appointments Clause of the Constitution because they were not appointed by the President or a Department head. Social Security leaders seem confident that this won't affect their agency. At least, they're doing nothing that suggests concern. I don't understand why.
     When it charged Eric Conn with federal crimes, the government estimated that the amount of money involved was $550 million. Around 1,800 claimants were involved. This means that they valued each case at around $300,000. In doing so, I think they weren't taking into account the value of Medicare benefits but let's leave that aside. The average Social Security Administrative Law Judge (ALJ) hears more than 500 cases a year. This means that based upon the value that the Department of Justice puts on these cases the average Social Security ALJ is deciding upon cases with a value of about $150 million per year.

     The standard for determining whether an officeholder is in "officer" as that term is used in the Constitution is whether that person exercises “significant authority pursuant to the laws of the United States.”  OK, tell me your argument for why ALJs at the SEC are obviously inferior offices subject to the Appointments Clause while Social Security ALJs aren't.
     What does the fact that SEC cases are adversarial and Social Security cases aren't have to do with it? Most "inferior offices" in the federal government have no adjudicative role at all. The question is the decision-making authority involved. The plaintiff in the Lucia case, who promoted a scheme he called "Buckets of Money", was barred by an SEC ALJ from selling securities. (Real sympathetic test case they've got there.) My understanding is that's the sort of thing that SEC ALJs adjudicate. A Social Security ALJ has the power to decide whether a person has an income or not. Not infrequently, homelessness is on the line. If you're barred from selling securities, you move on to a new line of work, not a homeless shelter. On the whole, I'd say there's more at stake in the average Social Security ALJ case than the average SEC case (not to mention that each Social Security ALJ adjudicates far more cases than the average SEC ALJ), unless you think that any case involving wealthy people or corporations is inherently more consequential than a case involving an ordinary American.
     By the way, take a look at the 1988 Supreme Court decision in Morrison v. Olson. That case concerned whether independent counsels of that day passed muster under the Appointments Clause. The statute under consideration in that case is no longer in effect. Robert Mueller was appointed under Department of Justice regulations rather than the old statute. While Mueller was appointed by the acting head of the Department of Justice (the Attorney General had recused himself), he can only be removed for cause. It was the same situation faced by the Court in Morrison. If the Supreme Court decides that SEC ALJs are unconstitutional, it's going to have to make it clear that it doesn't mean to disturb Morrison or there's going to be litigation about the constitutionality of the Mueller appointment. Distinguish Robert Mueller. Distinguish Social Security ALJs. Distinguish Social Security Appeals Council members. Distinguish members of the Board of Veterans Appeals. Probably distinguish ALJs at some other agencies. That's a lot of distinguishing. Maybe finding SEC ALJs unconstitutional isn't worth all that distinguishing especially when no one seems to be able to come up with a bright line test to apply.

What Were They Thinking?

     I can't get over the fact that at a time when there are frequently lines of people waiting to be served at Social Security field offices and many people who try to call the agency end up hanging up in frustration because they have been on hold for so long that the Social Security Administration thought it appropriate to spend good money on a study to answer the burning question, "Can you tell how disabled someone is just by looking at how frequently they're treated at a hospital?"

     Honestly, someone ought to be fired over this. Perhaps everyone at Social Security central offices ought to be required to spend some time working on their agency's front line. 

How I Stay Sane -- Countdown To 2018 Congressional Elections

Election CountdownCountdown

Warning: Beltway Bandits At Work!

     From a press release:

A new report from the National Academies of Sciences, Engineering, and Medicine examines to what extent and in which ways health care utilization—such as in-patient hospitalizations, emergency department use, and hospital readmission—reflects disease severity, disability, and ability to perform gainful activity. The committee that conducted the study was unable to find an association between health care utilization and disease severity as it relates to the Social Security Administration's (SSA) determination of severe impairment—an impairment or combination of impairments severe enough to prevent a person from performing any gainful activity regardless of age, education, or work experience. 

     The Social Security Administration paid these beltway bandits to tell us that there's no direct relationship between the number of hospital visits and the degree of disability! Anybody involved with disability determination could have told you that for free. I have clients with 300 page files who are obvious allowances. I have other clients with 2,000+ page files who have weak cases. Disability determination isn't about counting the number of pages of medical records any more than counting the number of hospital visits. The idea that there would be such a simplistic relationship is absurd on its face.

     There's a real beltway bandit touch to this report. Even though the Social Security Administration paid for this worthless study, the National Academies wants $50 for a copy of the report. 

     By the way, if you did pony up the $50, I will bet you that there will be one unambiguous recommendation in the report -- more research. As I've said before, when someone goes to work for a beltway bandit, they must be told on their very first day of work, whenever you write a report, no matter what else it says, it must always give a firm recommendation for more research.

Does It Even Matter?

     From a press release:

House Ways and Means Social Security Subcommittee Chairman Sam Johnson (R-TX) announced today that the Subcommittee will hold a hearing entitled “Lacking a Leader: Challenges Facing the SSA After Over 5 Years of Acting Commissioners” on Wednesday, March 7, 2018 in 1100 Longworth House Office Building, beginning at 10:00 AM. The hearing will focus on the need for a Senate-confirmed Commissioner to lead the Social Security Administration (SSA), the challenges and limitations the SSA faces when it is led by an Acting Commissioner, and the legal framework for filling a vacancy. ...

The Social Security Administration has been without a Senate-confirmed Commissioner for more than five years since Commissioner Michael Astrue’s term expired on January 19, 2013. The current Acting Commissioner, Nancy Berryhill, has served in that role since January 20, 2017. The current six-year term for a Senate-confirmed Commissioner expires on January 19, 2019.

Are We Sure That Online Filing Is A Good Thing?

     From the Detroit Free Press:

Tim Sagert has been enduring the pain of a double-whammy of identity theft.

First, a crook used his stolen ID to claim Social Security benefits last spring. Then this tax season, Sagert was hit with an SSA-1099 tax form for reporting the income paid to the crook.  ...

The Equifax data breach, first disclosed in September — which some dub as the most destructive data breach recorded —  compromised the personal information of nearly 146 million consumers, including some Social Security data. 

Many consumers wondered  whether someone would open a credit card in their name or file a fake tax return to generate a fraudulent refund using their stolen Social Security numbers.

Few imagined that hackers would try to make bogus claims for Social Security benefits.

But consumers who are in their 60s who have not claimed benefits yet could be at risk for headaches involving fraudulent Social Security retirement claims. ...

Social Security after full retirement age is eligible for up to six months of retroactive benefits, payable in a lump sum. If you accept that lump sum, your monthly benefit is smaller.

For the cyber crooks, the payout is huge if they  use the ID of someone in that age range who isn't already collecting benefits. ...

     I'm going to take a guess that the Social Security Administration would prefer that this not be reported. They wouldn't want their vulnerability to be better known.

Waiting In Albany

     The Albany Times Union has an editorial calling for increased administrative funding for the Social Security Administration. The best thing about it is their awesome illustration.

President's 2019 Budget Would Devastate The Social Security Administration -- If It Were Passed But It Won't Be

     Before I give a excerpt from this Washington Post article, let me make it clear that the President's 2019 budget is of little consequence. The recently passed budget deal will allow Social Security to end up with considerably more money. However, the President's budget does tell us something about this Administration's priorities and adequately funding the Social Security Administration isn't one of them.

For the elderly and disabled who complain about poor Social Security assistance now, these might be the good old days.

President Trump’s proposed fiscal 2019 Social Security Administration (SSA) budget would cut staffing, a recipe for long waits in agency offices and on the telephone ...

Declining service is nothing new, but under Trump, there would be fewer federal employees to deal with an increasing number of people of retirement age. His budget request calls for almost 1,000 fewer full-time-equivalent work years in 2019 than this year. ...

The advocacy group, National Committee to Preserve Social Security and Medicare, provides these stats to illustrate the problem: About 10,000 baby boomers hit retirement age every day. The increase in workloads coupled with a decrease in staffing led to a 627-day wait for disability applicants’ hearings in 2017. The three-minute telephone wait that callers had for SSA’s 800 number in 2010 was six times longer last year. Despite SSA attempts to direct traffic to its website, there were 2 million more field office visits in 2016 than 2015. “More than 16,000 visitors were forced to wait more than hour for service each day in August 2017,” the committee said. ...

Sue Bird, 66, of Wellington, Nev., told of driving 80 miles to a Social Security office in Reno. When she arrived for a 10 a.m. appointment, she estimated 20 to 30 people were standing outside, waiting to get in. Once she got in, she saw almost 150 waiting inside.
“The room was packed with people,” she said by telephone. “I was shocked.” ...