Report On Culbertson v. Berryhill Oral Argument

     SCOTUSblog reports on this past week’s oral argument before the Supreme Court in Culbertson v. Berryhill, a case concerning the cap or caps on attorney fees for representing Social Security claimants in federal court.

Does This Story Add Up To You?

     A Cleveland television station reports on a Social Security overpayment case. Here's the scenario. Woman's mother dies. She says she informed Social Security of the death yet the direct deposit of her mother's Social Security benefits continued for ten years.  At one point she even opened a new bank account to continue receiving the money. She says that over the years she just never thought about the bank account and never took out any of the money. Now she's worrying about repaying all the money. 

     Does this story add up to you?

     By the way, the television station's take on the story was only to wonder how in the world Social Security kept paying benefits all that time.

Proposed Regulations On Consideration Of Pain

     The Social Security Administration has asked the Office of Management and Budget (OMB), which is part of the White House, to approve publication of proposed an Advanced Notice of Proposed Rule Making (ANPRM) on Consideration of Pain in the Adult Disability Determination Process. Here's the only explanation available of the proposal:

Our regulations set a two-step process for evaluating pain in disability claims, at which we identify the existence of medical evidence supporting pain and evaluate the intensity of the alleged pain respectively. With this ANPRM we seek to solicit public comment on these existing rules to determine whether they align with current medicine and health care research.

     This isn't even a proposal at this point. They'll only be seeking comments on what a proposal should be.

Transcript Of Culbertson v. Berryhill Oral Argument

     The Supreme Court has posted the transcript of the oral argument in Culbertson v. Berryhill, concerning attorney fees for federal court work. The argument was more spirited than I would have thought. I wouldn't predict the Court's decision in this case but I would predict that it won't be unanimous. 

     To my mind this is a straightforward plain language case. The statute says there's a separate cap on attorney fees for federal court. You can certainly make an argument that it shouldn't say that but that's what it says. If that's not what Congress intended, they can change the statute but it's not up to the Court to change it to something they think makes more sense. Judges or justices shouldn't use the plain language argument only when it suits their purposes and ignore it when they don't like the result. Plain language should always be the first consideration.

Hearings For Eric Conn's Former Clients Suspended Until January 7

     The Lexington Herald-Leader reports on Social Security's decision to suspend hearings for Eric Conn's former clients until January 7.

     I'd love to get a copy of whatever memo Social Security sent out to staff about this.

Hearings For Eric Conn's Former Clients Suspended For Two Months

     Ongoing hearings to cut off disability benefits for Eric Conn's former clients have been suspended until January 7, probably because of the problems in these claimants obtaining access to the files that Conn's office kept on them. No, I don't have a link. This just happened. Apparently, there was pressure from a local Republican Congressman. The news has come from his office. We have no word yet on cases which have already been heard but which are pending decision writing.

     I wouldn't predict that Democrats on the House Social Security Subcommittee, who will be in the majority come January, will go to bat for Conn's former clients but the pressure on Social Security to aggressively go after these claimants will abate. Perhaps we'll get some sanity. If you haven't been involved in these cases you may think these people are just getting what they deserve but once you get nearer ground level it becomes clear that whatever Conn may have done these claimants did nothing wrong and that most of them are sick and deserve the benefits they've been receiving. Social Security has gone to incredible lengths to try to prevent Conn's former clients from getting fair hearings.

Social Security Disability Claims, Awards And Number In Current Payment StatusFrom

Source: Office of Chief Actuary, Social Security Administration

Was A Claimant Required To Make A Lucia Objection Administratively In Order To Preserve The Issue For Federal Court?

     Since the Supreme Court's decision in Lucia v. SEC that Administrative Law Judges (ALJs) as they had been appointed to that time were unconstitutional there's been a big issue concerning the thousands of Social Security cases pending in the federal courts. It would seem that all should be remanded for new hearings except for one problem. Almost none of the claimants involved had raised the issue while the cases were pending at Social Security. In most administrative litigation an objection must be filed while the case is pending before the agency in order to preserve the issue for federal court. However, there's a prior Supreme Court decision that says that as a general matter that is not required in Social Security cases. There's also the fact that Social Security had announced prior to the Lucia decision that it would refuse to consider any argument about ALJ constitutionality. Why require that an objection be made when the agency has announced that it won't consider it?

     We've been waiting for the federal courts to act on this issue. There have been a number of decisions that have accepted Social Security's argument but those have been rather summary decisions that barely discussed the issue. We now have a more substantive decision in Muhammad v. Berryhill and it goes the other way. It's the recommended decision of a federal Magistrate Judge. The District Court judge could overrule this recommendation but it is certainly a substantive decision. We're a long way from even a Court of Appeals decision in this case.

     This issue may or may not end up at the Supreme Court. My guess is that it won't because the Courts of Appeals will all come down against Social Security. Even though a number of District Courts have accepted the agency's arguments, I just think those arguments are weak.