What's Going On With The Saul Nomination?

     On April 13 President Trump nominated Andrew Saul to become Commissioner of Social Security. The average time for the Senate to clear Trump's nominations has been 85 days. It's already been almost that long but no hearing has been scheduled on the Saul nomination.
     I have to note a couple of things before we start speculating too much about the fate of the Saul nomination. The President nominated Charles Rettig to become Commissioner of the IRS on January 24. There was no hearing on that nomination until June 28. The other thing is that Saul actually received two nominations. One is for the current term of Social Security Commissioner which expires in January 2019. The other nomination is for a full six year term as Commissioner beginning in January 2019. Don't they have to wait until closer to the start date for the term to vote on confirming him to that six year term? What determines that? Statute? Senate rules? Tradition? The Senate Finance Committee may just be waiting until it can take up both of Saul's nominations.

A Couple Of Questions

     I've been giving thought to the recent Supreme Court opinion in Lucia v. SEC, which held that Administrative Law Judges (ALJs) at the Securities and Exchange Commission were unconstitutionally appointed. I keep coming back to a couple of questions.

• Why does Social Security want to keep a record of the cases pending administratively in which the claimant has objected to the ALJ on Lucia grounds?
• Why hasn't Social Security tried to limit the scope of its potential Lucia problem by having the Acting Commissioner appoint each of its ALJs and ratifying their actions?

     What can the agency do with records of Lucia objections? The only thing I can come up with is that the agency is considering making an issue preclusion argument, i.e., that a claimant can't get a new hearing on Lucia grounds unless they made an objection while the case was pending administratively. I don't think an issue preclusion argument would work for a couple of reasons. First, the Supreme Court decided in Sims v. Apfel  that issue preclusion generally doesn't apply in the Social Security context. Second, this would be a weird context to apply issue preclusion because Social Security has announced publicly that neither the ALJs nor the Appeals Council will consider Lucia arguments. If the agency isn't interested in making issue preclusion arguments, what are they up to? Is the point that even though the issue preclusion argument won't work that it might buy time for the agency?

     The question of why Social Security hasn't tried to mitigate its Lucia problem by having the Acting Commissioner appoint each of the ALJs may take us to a darker place. The issue in Lucia was that the appointments clause of the Constitution requires that "inferior officers" be appointed either by the President or by the head of a department. ALJs have been appointed through a process that hasn't involved the President or the heads of departments. Once the Supreme Court agreed to hear Lucia, the Securities and Exchange Commission and many other agencies that employ ALJs quickly decided to have the heads of the agencies appoint each of their ALJs so that the Lucia problem would be limited to old cases. Social Security didn't do that. It still hasn't done that even in the wake of Lucia. I don't know Social Security's General Counsel but I'm pretty sure he or she is a competent lawyer so I'm pretty sure that he or she advised the Acting Commissioner to mitigate the problem by appointing each of the agency's ALJs. That hasn't happened. Why? I guess you could blame it on general fecklessness by the Acting Commissioner or, more likely, the White House, since the Acting Commissioner probably deferred to the White House.  Alternatively, you could guess that there has been high level consideration of using Lucia as a pretext to replace all of Social Security's ALJs with non-ALJ hearing officers Think Mick Mulvaney, the head of the Office of Management and Budget, who tried to convince Trump that he could attack Social Security disability since it was really welfare, not Social Security. The agency could give each ALJ a notice that he or she is being riffed but that they can keep a job if they'll agree to accept a new, non-ALJ hearing officer position appointed by the Acting Commissioner. The new job would lack the protections of independence afforded ALJs. In the short run, I'd think that most ALJs would have no alternative but to take that offer, even if they immediately started looking for other work. I hate to rattle people's cages but this seems like a possibility. I think it would lead to chaos but the Trump White House isn't big on thinking through the consequences of its decisions.

Members Of Congress Oppose Field Office Closures

     A group of more than one hundred members of Congress have sent the President a letter asking that he stop closing Social Security field offices.

They Say You Should Write About What You Know

     From Let's Close More Social Security Field Offices by Elizabeth Bauer published by Forbes:

Social Security advocates have been sounding the alarm:  Republicans, stymied in their efforts to cut benefits in the overall Social Security program, have set their sights on the program's administrative budget, leaving frail elderly ladies travelling endlessly and waiting for hours on end for their turn in the line at the Social Security field office. ...

[V]irtually all tasks associated with Social Security Old Age benefits can be done online.  You can view your benefit statement, apply for Social Security retirement or disability benefits and Medicare, update your address or direct deposit information, and more.  Many of the Social Security applicants or recipients ... do not actually need to come to the office at all, but we're told that we can't expect the elderly to use computers so they need to have the in-person option preserved for them.  However, most retirees have family members who are able to help and of those who don't, all of the same sort of institutions (public libraries, townships, even the local VFW) that came to the aid of Obamacare "exchange" users or provide other services to the elderly, should certainly be able to help these individuals, which in turn would have the further benefit of providing a means to further connect up older Americans to the internet, whether it's e-mail or online bill-pay or other benefits. ... 

After all, certain of these tasks [applying for survivor or SSI benefits] must be done in-person at field offices (or by mail with the attendant risk of lost documents) solely due to the need to verify the authenticity of certain documents.  Perhaps this is more complex than I imagine, but it hardly seems like something that requires a Social Security specialist's skills to do; surely it would be a win-win situation for individuals to be able to have a local governmental unit verify the authenticity of the document prior to forwarding photocopies or document scans onward. ... 

SSI benefits are so complex to administer that their cost is 9% of the overall benefits paid out (compared to 0.3% for old age/survivors and 1.8% for disability), but SSI recipients, who are overwhelmingly under-65s who qualify by reason of disability, generally qualify for other state or federal benefits as well, and other agencies are already involved in providing them services, which means that closer coordination, with a focus on return to (or entry into) the workforce, could only benefit them. ...

     If I looked at her other writings I might find that Ms. Bauer has also said "Let them eat cake!"

A Flea On The Back Of A Buffalo

     The Supreme Court has agreed to hear Biestek v. Berryhill, a Sixth Circuit Social Security case presenting the issue:

Whether a vocational expert’s testimony can constitute substantial evidence of “other work,” 20 C.F.R. § 404.1520(a)(4)(v), available to an applicant for social security benefits on the basis of a disability, when the expert fails upon the applicant’s request to provide the underlying data on which that testimony is premised.

      What is it exactly that the Vocational Expert (VE) is supposed to reveal to me? As a general matter, VEs aren't researchers. They don't have research, either published or unpublished, that they have done that they can reveal to me. They're basing their testimony on the Dictionary of Occupational Titles (DOT) and generalized experience. One can ask questions like "Which factories did you visit to observe this job?" but I'm not sure where any answer to that question gets you.

     More important, concentrating on the issue presented in Biestek is like focusing one's attention on a flea on the back of a buffalo -- while one is being trampled by the buffalo. The enormous issue is the use of the DOT itself. The data in it is more than 40 years old! Everyone knows it's way out of date and quite unreliable yet the Social Security Administration keeps using it as a foundation for disability determination. The DOT isn't the issue presented in Biestek but it's hard to see how the Supreme Court can fail to notice it.

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?