User Fee Cap To $95 In 2019

     The cap on the user fee charged to attorneys and others who receive direct payment of fees coming out of the back benefits of the claimants they represent will be $95 in 2019. This is because of a cost of living adjustment. There is no cost of living adjustment on the maximum fee that may be paid. This means that because the cost of living has gone up my attorney fees are going down. Does this make sense to you?

Redetermination Regs Withdrawn

     The Social Security Administration had sent proposed new regulations to the Office of Management and Budget (OMB) on "Redeterminations When There Is a Reason To Believe Fraud or Similar Fault Was Involved in an Individual's Application for Benefits." OMB has to approve proposed new regulations before they can be published in the Federal Register for comments. Social Security has now withdrawn that proposal. We don't know exactly what was in the proposal. They only reveal that if the proposal is approved by OMB and gets published.

     Probably this proposal was withdrawn because of the recent decision of the 6th Circuit Court of Appeals in Hicks v. Commissioner which held that the way Social Security had been doing redeterminations of cases where Eric Conn had previously represented claimants was unconstitutional and in violation of the Administrative Procedure Act. 

     I don't know what, if anything, this means about the path the agency will take from here in the Conn cases. In court filings Social Security has indicated that they are seeking the opinion of the Solicitor General. In general, Social Security seems to be an a "Mother, may I" mode on just about everything these days. The fact that there's an Acting Commissioner probably has a lot to do with it. The lack of clear direction from above may also have something to do with it.

Social Security Offices Closed On Wednesday

     As is traditional, federal offices will be closed on Wednesday, the day of the funeral of former President George H.W. Bush.
     I've been getting questions about whether Social Security will really be closed on Wednesday. The answer is definitely yes as to field offices and hearing offices. It's been so long since we've had a death of a past President that people had forgotten how this is treated.

Really?

     From Social Security Update, an agency newsletter:

Social Security received high scores again this year on the Plain Language Report Card — A+ for compliance and A for Writing quality — in a year that many agencies saw a decline in their scores. This year, the report card concentrated on two pages of the website: the www.socialsecurity.gov home page and the redesigned my Social Security page at www.socialsecurity.gov/myaccount.

Since 2012, the Center for Plain Language has graded federal agencies on compliance with the Plain Writing Act — the 2010 law that requires government writing to be clear, concise, and well organized.

Legislation Introduced On Field Office Closures

     From a press release:

In the wake of this year’s closure of the Mitchell Street SSA field office in Milwaukee, Congresswoman Gwen Moore (WI-04) introduced H.R. 7146, the Maintain Access to Vital Social Security Services Act of 2018, which would require the Social Security Administration (SSA) to operate a sufficient number of fully staffed field offices, as well as set up a review process for their closure.

     With Democrats in control of the House of Representatives this sort of bill could get a serious hearing. There will probably be quite a number of House Social Security Subcommittee hearings next year and they'll be very different from what we've seen over the last eight years. Sure, there have been hearings on office closures with the GOP in charge but, come on, we knew ,and Social Security knew, they weren't serious. It will be different with Democrats in charge. Yes, the Republican controlled Senate can block passage of stand alone legislation on field offices but something like this could easily get put in some must pass legislation such as an appropriations bill with enough money behind it to make it practical. Remember, there will be a lot of GOP Senators from purple states up for re-election in 2020.

Former Social Security OGC Attorney's Nomination To MSPB In Trouble

     From Government Executive:

The [Merit Systems Protection Board, MSPB] that determines federal employees’ challenges to adverse actions will likely to continue to be rendered impotent into next year, as the Senate appears unlikely to approve a slate of nominees to the panel before the legislative session ends.

The Senate Homeland Security and Governmental Affairs Committee scheduled a vote on Wednesday for three individuals President Trump nominated to sit on the Merit Systems Protection Board, but ultimately the committee failed to advance the nominations. The senators present were deadlocked on the nomination of Andrew Maunz, the most controversial of the nominees, with Sen. Rand Paul, R-Ky., voting no by proxy. ...

Trump nominated Maunz to MSPB after he served as an attorney in the Social Security Administration’s general counsel office. His nomination troubled Democrats and some board observers, in part because his office was once found by a federal court to be “dysfunctional and under the management of supervisors whose management skills and performance were deficient in many respects, including unfavorable treatment of older women working in the office, compared with younger women and male attorneys." Maunz, representing SSA’s general counsel office in the case, launched a “vigorous attack” on an employee seeking redress for violations of the Civil Rights Act, according to the judge. The court ultimately ruled in the employee’s favor. ...

     There's no way to discipline Administrative Law Judges without a functioning MSPB.

Update: Since I first posted this, Government Executive has somewhat altered the article I quoted. See the link for the revised article.

Preview Of Oral Argument In Biestek v. Berryhill

     SCOTUSblog has an excellent preview of the December 4 oral argument before the Supreme Court in Biestek v. Berryhill, a 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.

     How will things be different if Biestek prevails? I don't know if the Social Security Administration or its vocational experts (VEs) are ready for the day after such a Supreme Court opinion. If VEs aren't able to provide the underlying data, and they won't, can a federal court affirm a Social Security decision denying the claimant on the basis of that VE testimony? How does Social Security respond to such a situation? Social Security has been delaying and delaying its new vocational information system. How does that fit into this?

The Grand Compromise Fantasy Never Goes Away

     Some excerpts from a piece by Paula Span in the Health Section of the New York Times:

We’ve long heard warnings that the Social Security program that 52 million Americans rely on for their retirement benefits could one day run out of money.

Analysts say that’s not going to happen — if only because older people are such a powerful voting force — but this year the system has hit a worrisome milestone: the Social Security Administration reported that the retirement benefits paid out each month exceeded the tax revenues and interest that fund the program. ...

Making adjustments to keep Social Security solvent, crucial as that is, represents only one of the issues confronting Congress. It could also correct outdated aspects of a program that serves nearly 90 percent of Americans over 65. ...

The fixes will likely include changes designed to bring more money in and pay less out. Imposing a higher payroll tax or raising the level of earnings subject to Social Security taxes (as of January 1, they will apply to the first $132,900, already an increase) would bolster revenues.

Money-saving measures could include reducing benefits for high earners and trimming the number of years that workers collect benefits by raising eligibility ages. ...

Working longer and claiming benefits later — trends already well underway — pay off in ways that extend beyond Social Security itself. “It’s good for people, it’s good for government tax revenues and it could fuel economic growth,” Dr. Johnson [of the Urban Institute] said.

But as his report points out, living longer doesn’t always mean people can work longer. Higher-income professionals may opt to stay on the job, he said, but “health problems are increasingly concentrated among less educated workers and they’re falling further and further behind” economically. Moreover, even those who could work often discover that “employers don’t seem eager to hire 62 year olds.”

By their early sixties, his analysis of national survey data found, a quarter of high school graduates and 37 percent of those without a high school diploma report work limitations related to their health. Many say their jobs require substantial physical effort. ...

While some think tanks and congressional staffs are exploring ways to strengthen Social Security financially, others are looking into outmoded provisions that penalize beneficiaries, primarily women.

Senator Bob Casey, Democrat of Pennsylvania, has introduced legislation intended to help widows, widowers and divorced spouses qualify for higher payments and receive benefits earlier if they’re disabled. ...

Speaking of women and Social Security, another effort would award work credit for those who temporarily leave the labor force because of caregiving responsibilities. ...

     Let me make it clear. I oppose raising full retirement age or any other cut in Social Security. Raising full retirement age would have a devastating effect on working men and women who often can't make it to the current full retirement age which never should have been raised from 65. I have zero trust in any scheme dreamed up to alleviate this problem. Not only can this country easily afford the Social Security benefits currently available but this country can easily afford enhancements to those benefits. The cap on the payroll tax can be raised. Other tax revenues, such as an enhanced estate tax, can be devoted to Social Security. Solving the financing problem is easy if you really want to. If Democrats control Congress and the White House after the 2020 election it's a fantasy to think that they're going to push for some great compromise that cuts Social Security benefits. The Obama Administration's efforts to compromise with Republicans on health care are a vivid memory. GOP Senators stalled and drug out negotiations in bad faith. They never had any intention of voting for health care reform. No Democratic president will make that mistake again any time soon. Social Security reform will have to be accomplished solely with Democratic votes and on Democratic terms.