NADE Newsletter

     The National Association of Disability Examiners (NADE), an organization of the people who make initial and reconsideration determinations on disability claims for the Social Security Administration, has issued its Summer 2018 newsletter.

Why Does Anyone Think That Raising Full Retirement Age Would Be Acceptable To Americans?

https://amp.usatoday.com/amp/35928543

New Rules Of Conduct For Attorneys

     The Social Security Administration is publishing final Rules of Conduct and Standards of Responsibility for Appointed Representatives in the Federal Register on Monday. You can read them today. The new rules will be effective 30 days after publication. Here are some excerpts:

... A representative should not withdraw after we set the time and place for the hearing ... 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: 

(i) The representative’s employee or any individual contracting with the representative drafted, prepared, or issued the medical or vocational opinion; or 
(ii) The representative referred or suggested that the claimant seek an examination from, treatment by, or the assistance of, the individual providing opinion evidence. ...

Disclose to us immediately if the representative discovers that his or her services are or were used by the claimant to commit fraud against us....

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.