Better Call Saul: New Commissioner Nominated

     From the White House:

President Donald J. Trump today announced his intent to nominate the following individuals to key positions in his Administration:

Andrew M. Saul of New York, to be Commissioner of Social Security, for the remainder of a six year term expiring January 19, 2019 and for an additional six year term expiring January 19, 2025.  Mr. Saul is currently a partner with Saul Partners, L.P. His previous business positions include: Chairman of the Board of Cache, Inc., President of Brooks Fashion Stores, Inc., and President of BR Investors. His previous public service includes tenures as Chairman of the Federal Retirement Thrift Investment Board and Vice Chairman of the Metropolitan Transportation Authority. Presently, he is a Commissioner for Westchester County, New York. Mr. Saul’s philanthropic involvement includes serving as Vice Chairman of the Mt. Sinai Health System in New York City, Vice Chairman of the Icahn School of Medicine at Mt. Sinai, a Trustee of the Metropolitan Museum of Art, and a Trustee for the National Gallery of Art in Washington, DC. He is a former board member of the United Jewish Appeal Federation of New York. Mr. Saul is a graduate of the Wharton School of Finance at the University of Pennsylvania, and serves on its Board of Overseers.

     Here's Saul's bio from Wikipedia. This must have been prepared by Saul or someone working for him.
     Is it possible for him to be confirmed now for a term that doesn't begin for nine months?
     Trump is also making the following nomination for Deputy Commissioner:

David Fabian Black of North Dakota, to be Deputy Commissioner of Social Security for the remainder of a six-year term expiring January 19, 2019.  Mr. Black currently serves as the White House Senior Advisor at the Social Security Administration.  He served as SSA’s General Counsel from October 2007 until July 2015.  From 2004 through 2007, he served as the Deputy Assistant Secretary in the Department of Education’s Office for Civil Rights.  Mr. Black is a Lieutenant Colonel in the U.S. Army Reserve where he deployed to both Afghanistan and Iraq in support of the Global War on Terrorism and earned a Bronze Star Medal.   Mr. Black holds a J.D. from the University of Minnesota and a B.A. in political science, summa cum laude, from the University of North Dakota.

Who Do You Sue And How Much Can The Attorney Get Paid If That Suit Is Successful?

     One minor issue caused by the absence of a confirmed or even acting Commissioner of Social Security is who do attorneys sue when they sue Social Security after a claimant has been denied. The statute says to sue the Commissioner. Normally, we sue the Commissioner or Acting Commissioner by name.
     The Solicitor General, who represents the federal government, including Social Security, before the Supreme Court, faced this issue recently in making a filing before the Supreme Court. Here's how they titled the case:

RICHARD ALLEN CULBERTSON, PETITIONER v. NANCY A. BERRYHILL, DEPUTY COMMISSIONER FOR OPERATIONS, SOCIAL SECURITY ADMINISTRATION

     By the way, this was a response to a petition for a writ of certiorari, that is a request that the Court hear a case. The Solicitor General is supporting the petition, which means that it probably will be heard. The issue in the case is:

Whether 42 U.S.C. 406(b)(1)(A) establishes that 25% of a claimant’s past-due benefits under Title II of the Social Security Act is the maximum aggregate amount of attorney’s fees that may be charged for representing the claimant in both administrative and court proceedings under Title II [of the Social Security Act].

Now We Know What Happened To Conn's Files

Files stored in Conn's former office

     One nagging issue with the redeterminations of disability for Eric Conn's former clients is the files that Eric Conn kept on his clients. While Conn may not have done that much development of medical records on his clients surely some fell into his lap, brought in by his clients. Did he bother to give any of this to Social Security? There had been reports that Conn had burned many files. However, recently photos and videos surfaced showing the client files still in his former offices.
     A local media outlet contacted the Department of Justice concerning those files. This is an e-mail from an attorney with the Department of Justice in response to that inquiry:

Sorry for the delayed reply. It is inaccurate to report that the United States is moving forward with the redetermination process while simultaneously denying claimants access to the records needed to appropriately litigate their claims. It is also inaccurate to report that the Justice Department advised individuals that the files were destroyed. The U.S. government has not forfeited Conn’s law office yet. Those proceedings are pending before the Court. Therefore, the Justice Department does not have custody of the law office and have neither the authority to admit or deny anyone from entering the property. Moreover, the contents of the law office, including the claimant files, are not subject to forfeiture, thus, the United States does not and will not possess or have access to the claimant files. However, the Department is assisting in the process of having a receiver appointed by the Kentucky Bar Association, who has constructive possession of the files, to gain actual possession of the files, and return them to clients for their SSA redetermination hearings.

     By the way, it's long settled law that the files that an attorney keeps on his or her clients don't belong to the attorney but to the clients. It's the same with medical records maintained by physicians.

Oh, The Hypocrisy

     From Michael Hiltzik writing for the Los Angeles Times:

One would have thought that after saddling the U.S. economy with a tax cut costing $1.5 trillion over 10 years, conservatives and their patrons in corporate America would soft-pedal the usual attacks on Social Security, Medicare and Medicaid. 

One would be wrong. 

Recently, the drumbeats for cuts in social insurance benefits have been sounding louder. As is traditional, the call for cutbacks is placed in the context of concern about rising federal deficits. ... 

The politicians unsheathing their paring knives for Social Security and Medicare undoubtedly are hoping that Americans' memories are short — that when they claim that it's social programs like these that are driving the deficit, no one will recall that the single biggest driver of red ink is that tax cut delivered to the very members of society who needed help the least.

Why Do These Regional Differences Persist?

     Social Security has posted an updated dataset giving the average processing time at each of its hearing offices. Here's the list of the offices with the top ten longest processing time, in days:

• San Juan 864
• National Hearing Center Chicago 820
• New York 772
• Buffalo 764
• Bronx 760
• Philadelphia 756
• National Hearing Center Falls Church 755
• Queens 738
• South Jersey 736
• Miami 725

     Note that using the average number may understate the problem. Cases that are quickly dismissed because a request for hearing was filed too late go into that average. The typical case that actually goes to hearing will take longer than the stated average.

     Here's a list of the top ten shortest processing time, again in days:

• Providence 325
• Boston 352
• Houston North 360
• Manchester 375
• Portland, ME 400
• Dallas North 428
• Oklahoma City 431
• Fort Smith 434
• Springfield, MA 434
• Middlesboro 436

     It looks like things are going very nicely in Social Security's Boston Region, which has five of the top ten best offices, while things are going very badly next door in Social Security's New York region, which has six of the top ten worst offices. Why such big differences between regions? I thought that once we had video hearings these differences would go away.

Cage Match Looming In Lucia?

     The National Law Review reports on what it calls a "cage match" possibly looming before the Supreme Court in the Lucia case on the constitutionality of Administrative Law Judges.

NADE Newsletter

     The National Association of Disability Examiners (NADE), an organization of the personnel who make disability determinations at the initial and reconsideration levels for Social Security, has posted its Spring 2018 newsletter.

I'm Not Buying It

     Workers comp insurers are trying to dispute the widely held belief that they've been increasingly successful in shifting the costs of workplace injuries on to Social Security and Medicare. I'm not buying it. It's obvious at ground level that they're able to settle cases for vastly less than the true costs of lost wages and future medical care.