How Soon Might We Get A Supreme Court Decison On Whether Social Security's ALJs Are Constitutional?

     I've been trying to think through the question of how soon the Supreme Court might act on a case presenting the issue of whether Administrative Law Judges (ALJs) at the Social Security Administration, as currently hired, are constitutional. The normal process would be for cases to be filed in District Courts presenting the issue. The District Courts would issue decisions. The parties who lost in District Court would appeal the decisions to the Courts of Appeals. Once a few Courts of Appeals have acted on these cases, there would be a split, that is different Courts coming to different conclusions. The Supreme Court would then grant a writ of certiorari (cert) in one of the cases to resolve the issue. If this process is followed, there probably won't be a Supreme Court opinion on the issue until sometime in 2020.

     There are some ways this process could be speeded up. While it usually does, the Supreme Court doesn't have to wait until there's a split between different Courts of Appeals. It could take the first case on this issue decided by one of the Courts of Appeals. However, I don't think that would speed up things very much. If these cases proceed in the traditional manner there will be enough of them that this issue will probably come up in several Courts of Appeals around the same time and my guess is that there will quickly be a split. 

     The Supreme Court doesn't have to wait for a decision from a Court of Appeals. It can grant cert directly on a case that has just been decided by a District Court. However, it is exceptionally rare for that to happen. If the Solicitor General, who represents the federal government before the Supreme Court, asks for it, maybe, but this may not be the sort of thing that the current Solicitor General would regard as that urgent.

     What I really wonder is whether one or more of the Courts of Appeals will raise the issue of Social Security ALJ constitutionality sua sponte, this is, of the Court's own volition, in cases already pending in the Courts of Appeals on other issues, asking the parties to brief the Lucia issue and then deciding it even though the argument had not been presented to the District Court. If that happens, we could see action from the Supreme Court by this time next year. It's certainly unusual for one of the Courts of Appeals to raise an issue sua sponte but this is an exceptional situation. The judges of the Courts of Appeals are well aware of the urgency to get the issue resolved, far more so than Supreme Court justices. At any given time there are probably several hundred Social Security cases pending in the Courts of Appeals. Even if most judges of the Courts of Appeals wouldn't want to take up this issue sua sponte, wouldn't there be enough who would to get this argued and decided in some of the Courts of Appeals by late this year? That's what it would take for the Supreme Court to decide upon the issue next year. Would Social Security's attorneys even object to a Court of Appeals panel wanting to take this issue up sua sponte? They also have an interest in getting this decided soon. This might make for some interesting oral arguments in Social Security cases. One thing to note is that there are few oral arguments in the U.S. Courts of Appeals during the summer. The judges are still working but they hold few oral arguments during the summer. We may not see the sua sponte issue coming up until September. If you've got an oral argument coming up in the next three months in a Court of Appeals in a Social Security case, you'd better be ready in case the question is asked. However, I would note that even if some of the Courts of Appeals take this issue up sua sponte, there may still not be enough time to get this before the Supreme Court in time to get a decision by this time next year. Some of the Courts of Appeals would have to act pretty quickly to get this issue on the Supreme Court's docket in time. Maybe it's just wishful thinking on my part to believe it's possible. 

Social Security's First Public Response To Lucia

     The Social Security Administration has issued a revision to the Emergency Message it had released on the Lucia case prior to the Supreme Court's opinion. The revision adds little other than this: "The Office of the General Counsel (OGC), in consultation with the Department of Justice, is reviewing the [Lucia] decision to determine whether, and to what extent, it may affect SSA. We expect to issue additional instructions after OGC completes its review."
     While most of us didn't think the Supreme Court would really do it, we all knew it was possible. Wouldn't you expect that there would have been some contingency planning? Of course, the White House should have been coordinating such contingency planning across all federal agencies but the current White House seems uninterested in such sort of nuts and bolts governing and is highly preoccupied with other matters.

Final Regs On Representation Of Claimants Approved

     The Office of Management and Budget has concluded its review of regulatory changes proposed by the Social Security Administration titled Revisions to Rules of Conduct and Standards of Responsibility for Appointed Representatives. This is the final review. The agency may now publish this as final regulations.

     We won't know what is in the final regulations until they're published, which will probably happen in the near future. Here's what I wrote at the time these regulations were first proposed:

The summary provided by Social Security includes a sentence that seems to encapsulate their approach: 

The changes to our rules are not meant to suggest that any specific conduct is permissible under our existing rules; instead, we seek to ensure that our rules of conduct and standards of responsibility are clearer as a whole and directly address a broader range of inappropriate conduct

     Social Security thinks it's important to point out that there's no representative conduct that they find permissible but plenty they want to forbid because they believe it's inappropriate? That certainly suggests as attitude.

     Here's a couple of excerpts from the proposal:

A representative should not withdraw after a hearing is scheduled unless the representative can show that a withdrawal is necessary due to extraordinary circumstances, as we determine on a case-by-case basis. ...

Disclose in writing, at the time a medical or vocational opinion is submitted to us or as soon as the representative is aware of the submission to us, if: ...

• (ii) The representative referred or suggested that the claimant seek an examination from, treatment by, or the assistance of the individual providing opinion evidence.

     Why would these be a problem? 

     As to the withdrawal provision, the agency insists on recognizing only individual lawyers as representing claimants, not law firms. Prohibiting the substitution of one attorney for another after a hearing is scheduled makes it difficult for a law firm to properly allocate its resources and makes it easy for individual attorneys employed by a firm to pick up and leave their firm with the files of their clients after the firm has spent large sums of money on the cases over the many months or years that the firm has represented the claimants. I don't know what the point of this is other than to harass law firms. Let me anticipate the response from a government employee. "Law firms don't spend much money on Social Security cases -- only a few dollars obtaining medical records -- so that's no big deal." Anyone who thinks this has never run a law firm. Law firms spend almost all of their money on salaries and other overhead. The problem is that a law firm may spend thousands of dollars on the office overhead associated with a case only to see an attorney waltz away at the last minute pocketing the entire fee. Is it unreasonable for a law firm to try to make this difficult? What exactly is the problem with a law firm substituting one attorney for another after a hearing is scheduled? It doesn't delay anything. 

     As to the requirement that attorneys notify Social Security if they suggest medical treatment, if I tell my client that he or she ought to get in psychiatric treatment, I'm supposed to disclose this to Social Security if the psychiatrist later offers an opinion? What if I tell my client to get back to the doctor he or she used to see? Am I supposed to carefully track the advice I give clients about medical treatment?

An Unexpected Result

     From Correlation Patterns between Primary and Secondary Diagnosis Codes in the Social Security Disability Programs, Social Security Administration, Office of Retirement and Disability Policy, ORES Working paper 113:

... [D]isorders of the back and affective/mood disorders are by far the two most common impairments overall, together accounting for a disproportionately high share of the diagnoses (32.4% combined ... [T]he estimated correlation between the two diagnoses is small, but it is both negative and statistically significant (a −0.062 posterior mean with a t-statistic of −10.5). This finding appears to conflict with a popular perception: that affective/mood impairments and disorders of the back are two relatively “subjective” medical diagnoses with a “suspiciously” high degree of association. ...

Fresno's Hearing Backlog

     Fresno has the longest backlog of claimants awaiting a hearing on their Social Security disability claim in California. The local paper is noticing.

Your Move, Social Security

     I wrote this back in January in response to the upcoming oral argument in Lucia v. SEC, on the issue of Administrative Law Judge constitutionality:

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.

     Social Security didn't need me to tell them this. I'm virtually certain their in-house attorneys were saying the same thing. They may have been getting the same advice from the Department of Justice. However, they did nothing. Perhaps the problem was the lack of a proper acting Commissioner. Maybe they asked the President to do something or tell them what to do and he didn't. You may have noticed that the Trump White House isn't a well-oiled governing machine. Who knows what happened internally at Social Security? (If you're an insider who knows, I'd be interested in hearing from you.) In any case, they did nothing.
     How long is it going to take Social Security to respond to the Lucia decision? Will their response just be wishing and hoping that the Supreme Court ultimately draws a distinction between SEC ALJs and SSA ALJs? They might but I wouldn't bet on it.
     At the absolute least, we need for the President to sign an order appointing each of Social Security's current ALJs and ratifying their actions to this point. We need at least a backup plan for immediately converting Social Security's ALJs to some other job title where they can be fired at will. Perhaps, we need to go to that forthwith.
     I'd very much prefer to keep independent ALJs who are hired in much the same way as before and who can only be removed with great difficulty but a situation where Social Security has to redo every hearing held over a several year time period while it's in the middle of hiring new people to hold hearings would be an unimaginable catastrophe. Non-ALJ hearing officers wouldn't be the end of the world.
     By the way, the same problem exists with the Administrative Appeals Judges at the Appeals Council. They're civil service too.
     Also, this problem won't wait until a new Commissioner is confirmed. I don't know when a confirmation hearing is coming up. I don't know what the chances are that Mr. Saul will be confirmed. There are certainly reasons for Senators of both parties to be concerned about him.

OMB Proposals For Social Security

     From the Social Security part of government reorganization plan (page 127) recently issued by the Office of Management and Budget (OMB), which is part of the White House:

Eliminate In-Kind Support and Maintenance and the Holding Out Policy for SSI 
This proposal simplifies administration of the Supplemental Security Income (SSI) program and reduces improper payments. The proposal eliminates the counting of In-Kind Support and Maintenance (ISM) in lieu of a flat rate benefit reduction for adults living with other adults. The proposal also ends the intrusive and burdensome “holding out” policy, which currently reduces benefits for couples that present themselves as married to the community. 

Eliminate Services to Claimant Representatives 
This proposal would eliminate the Federal Government as the middleman in the relationship between applicants and the representatives they voluntarily hire. It would eliminate administration of fee agreements, fee petitions, and claimant representative travel. The current workload is expensive, error prone, and not SSA’s core mission. In FY 2016, SSA spent about $122 million on the activity, but collected only about $30 million (due to a statutory fee cap) to reimburse the trust funds. The $30 million collected is not currently part of SSA’s administrative resources. ... 

Eliminate SSI Dedicated Accounts 
This proposal facilitates financial independence by eliminating dedicated accounts for past-due benefits to SSI youth recipients. It also reduces the administrative burden of monitoring expenses from dedicated accounts. ... 

Additional Footprint Reduction 
SSA continues to find ways to increase real property efficiency and reduce the size of its real property portfolio. SSA will continue to co-locate offices, consolidate space while merging components, and ensure space savings when implementing telework.

     Note that none of this other than the "Footprint Reduction" can be implemented without legislation and that's not likely to happen and closing offices is certainly unpopular.

Delays In South Jersey

     The South Jersey Times isn't happy with the lengthy delays in processing Social Security disability claims:

Between the poles of allowing fraudulent Social Security disability applications to proceed unfettered, and holding up benefits from the deserving during an excruciatingly long process, there must be a "sweet spot" for regional Social Security Administration offices.

Whatever is going on, the South Jersey office is not hitting that sweet spot. ...

Average waits for a decision there are, stunningly, the third longest among the nation's 168 offices. ...

So why isn't this being treated by Congress or the public as a scandal ... ? ... [T]here's that little twinge of concern within most of us that injured, working-age non-veterans who ask for government benefit checks might really be trying to pull one over on Uncle Sam.

It happens, of course. We love watching videos of "injured" middle-aged guys who say they can't work, working the dance floor or shooting hoops in the driveway.

The Supplemental Security Income/disability process, which can result in multiple denials until someone finally the hires "right" lawyer, creates even more suspicion. For years, SSI payments were derisively known in some down-and-out areas as "crazy checks," obtained -- not always honestly -- by citing psychological disorders.

Large-scale commercial fraud, like the $550 million conviction of a Kentucky country lawyer and a plea from his administrative law-judge accomplice, requires monitoring of waves of unusually easy benefit approvals from the same jurisdiction. But how hard is it to separate these odd patterns from individual cases with no apparent irregularities? ...