Probably Wasting Their Time

     The Chairman of the House Ways and Means Committee as well as the Chairmen of that Committee's Social Security and Human Resources Subcommittees have written President Trump to urge that he nominate a new Social Security Commissioner.

     I think it will be difficult to find anyone other than a career employee willing to be nominated now. The term of office ends in mid-January 2019. By the time anyone could be confirmed, their term would almost be at an end. Confirmation to a new term thereafter might be difficult, especially if Democrats gain control of the Senate. That's unlikely but not out of the question.

     There's also the problem that Social Security is wildly unpopular with prominent Republicans. It may be difficult to find someone interested in the job who wouldn't be insistent on attacking the benefits programs he or she is supposed to be administering. However, almost no Senate Republicans would want such an unpopular crusade.

     Finally, there's the general problem that few people want to work in Donald Trump's Administration. It's an incoherent mess very possibly based upon near traitorous conduct, not to mention that Trump treats people dreadfully.

     I'd suggest a recess appointment of a caretaker Commissioner. That can be done quickly without confirmation. It's good until the beginning of the next Congress. Of course, doing that would require that Trump have some interest in governing instead of just dispatching absurd tweets in response to Fox and Friends.

Brutal Backlog

     From the Washington Post:

Robert Steers of Southington, Conn., was an Army captain who served in Afghanistan. He also served his country looking for contraband with the Transportation Security Administration.

Now, he’d like to get decent service from the Social Security Administration.
But, as many Americans know, this can be an exasperating experience, filled with endless waits and growing frustration. ...

Steers applied in April 2012 and was denied. To appeal, he requested a hearing with an administrative law judge (ALJ) in May 2013. It took almost two years to be denied again in March 2015. After appealing to federal court, his case was sent back to the administrative law judge in December 2016.

It is now April 2018 — six years after his initial application — and Steers is still waiting to find out if he’ll get the insurance. ...

“I think SSA does not have the staff it needs,” said Iván A. Ramos, Steers’s lawyer in Hartford, Conn. “When you call a hearing office, nobody answers the phone, and when you go to the office you just stand in front of an empty window until someone finally shows up to help you. Many of my clients have trouble paying for food and shelter while they wait for their disability claims to be processed. Seeing what many of my clients and their families have to go through, just to get a hearing, has become the hardest part of my job.” ...

Staffing and service issues have plagued Social Security for years, and President Trump’s proposed budget for fiscal 2019 would make things worse. The disability hearing process can be particularly vexing because there are too few administrative law judges, who hear appeals, and they have too few support staff members. ...

And You're Calling Her Confused?

From The Daily Telegraph of Temple, TX:

Dear Annie: I came to the United States back in the late 1980s. My husband at the time suddenly abandoned me and my two children. We entered a legal separation agreement in 1990 and eventually divorced in the early 2000s. ...

The reason I am writing this letter is because my ex-husband has been collecting Social Security from the United States under my name for the past year. I understand that this is legal to do. However, my ex-husband does not live in the United States and he’s using a false address of residence. He has only come to the United States in the past two years to file for Social Security, update his driver’s license and renew his passport. ...

My goal is to make this matter known. I am not looking for him to repay me any child support. My question, though, is how can we give someone Social Security without looking more in depth to his background? How is he proving that he’s a resident of the United States, for example? If someone is collecting Social Security through an ex-spouse, then why aren’t we checking to see if they paid all their child support? He’s currently lying to the federal office and benefiting on my behalf. ...

Dear Used and Confused: You can report Social Security fraud through the Social Security Administration website (https://www.ssa.gov/) or by calling the SSA at 1-800-269-0271. It sounds as though your husband has disqualified himself from receiving benefits in many ways. Also note that anyone who owes $2,500 or more in child support is not eligible to receive a U.S. passport. Talk to a lawyer about procuring the back pay of child support as well as preventing your husband from fraudulently claiming your SS benefits.

     It's certainly appropriate to report Social Security fraud but there are a few problems with this answer. First, it's not fraud to receive U.S. Social Security benefits while living in another country. In fact, there's about half a million people living outside U.S. borders who receive U.S. Social Security benefits and, no, you don't have to be a U.S. citizen to do so. Second, the writer should have told this woman that child support can be withheld from Social Security benefits. Third, the ex-husband getting benefits on the account doesn't reduce the benefits going to this woman. Whatever he gets is on top of what she gets, not subtracted from it. If she's smart, she can use him getting benefits on her account to collect the child support she's owed but not unless she gets better advice than this.

Briefs Filed In Lucia Case

     All of the amicus briefs, 23 of them, have been filed in Lucia v. S.E.C., the case pending before the Supreme Court on the question of whether Administrative Law Judges (ALJs), as presently appointed, are constitutional, at least at the S.E.C.
     Many readers will be interested in the amicus brief filed by the National Organization of Social Security Claimants Representatives (NOSSCR). It argues that if the Supreme Court is going to find S.E.C. ALJs unconstitutional, it should distinguish Social Security ALJs on the grounds that the cases they hear are non-adversarial. That's the argument NOSSCR pretty much has to make.
     The amicus brief that I like best is one filed by a group of 29 law professors who teach and write about administrative law. That brief calls upon the Supreme Court to be pragmatic. It gives a wider and deeper administrative law perspective largely absent from all the other briefs filed in the case. Here are a couple of excerpts:

The Court’s holding and approach in this case have major implications for the adjudicative structure of the federal government. If the Court were to apply the Tenth Circuit test [that found ALJs to be unconstitutional] to the five SEC ALJs as the basis for a holding that they are inferior officers, federal courts would be required to apply the same test to the 1,926 ALJs who perform analogous functions at other agencies. And it would almost certainly trigger similar challenges to decisions made by the thousands of non-ALJ adjudicators (often referred to as administrative judges or AJs) who perform analogous functions at other agencies. Together, ALJs and AJs preside at hearings in millions of adjudications each year.

If, as seems likely, that iterative process yielded a series of holdings that many thousand federal employees with responsibilities that include presiding at hearings are inferior officers, federal courts would then have to decide what to do about the cases that have been the subject of hearings presided over by those unconstitutionally appointed officers. Courts would also have to decide whether the statutory restrictions on removal of the members of this large new class of inferior officers are constitutional, an issue not before the Court in this case. The point, however, is that the stakes are sufficiently high to justify a judicial approach that preserves as much as possible the congressional design to check agency power through the use of ALJ. ...

The claims that SEC ALJs are biased in favor of the agency echo the widespread claims of bias that provided the impetus for Congress’s decision to enact the APA [Administrative Procedure Act, which led to the creation of the ALJ position]. That statute reduced significantly the potential for ALJ bias in the process of presiding over agency adjudications. Ironically, the claims of bias spawned by the SEC’s decision to bring some enforcement actions before ALJs, rather than federal district judges, have been coupled with the argument that SEC ALJs should be appointed by the agencies where they preside and should be removable at will by the agencies where they preside. 

It is hard to imagine a worse fit between an alleged problem in decision-making and a proposed remedy for that problem. If this Court makes a decision that cascades into a legal regime in which agencies have greater discretion in the process of appointing ALJs and have the discretion to remove ALJs without establishing any cause for removal, it will have eliminated many of the safeguards against pro-agency bias that Congress incorporated in the APA and that this Court praised as important mechanisms to protect the due process rights of the private parties who participate in agency hearings. That, of course, would increase the risk that SEC ALJs will make decisions that reflect pro-agency bias in their roles as presiding officers. ...

National Disability Forum

     From the Social Security Administration:

Social Security’s National Disability Forum is April 18 at 1100 New York Avenue in Washington D.C. The Disability Forum gives all interested stakeholders an opportunity to share their unique insights on topics of particular interest to Social Security. This allows an exchange of ideas early in the process and directly with policy makers.

With the theme of Financial Independence: Directing the Management of One’s Social Security Benefits, the forum will serve as a listening session that brings public awareness to disability and retirement policy stakeholders. Through this dialogue, we will gain insight into how our representative payee policy affects the disability and retirement communities we currently serve and the potential affect it may have in the future.

You and your clients can learn more at www.socialsecurity.gov/thirdparty/whatsnew.html.

Phishing Scheme Aimed At Social Security Disability Recipients

     From a television station that wants to be known as "News 6":

Florida residents who receive Social Security disability benefits are being targeted by imposters who claim their accounts have been hacked and  their SSN assets have been frozen. ...

Acting Inspector General Gale Stallworth Stone issued a statement on March 2 saying in part, “This phishing scheme is targeting unsuspecting persons for the purpose of Social Security benefit theft or identity theft.” ...

American Greed: Eric Conn

     CNBC will be airing an episode of its series American Greed dealing with the weird case of Eric Conn tonight at 10:00 pm Eastern and Pacific. 

     I've heard a rumor that someone is working on a separate documentary film on Conn.

Happy Easter!