En Banc Review Requested In Hicks v. Berryhill

     In Hicks v. Berryhill the 6th Circuit Court of Appeals held unconstitutional the process that the Social Security Administration had used to terminate the disability benefits of hundreds of former clients of Eric Conn, who was found guilty of fraudulent conduct. That opinion came out on November 21, 2018. After getting two extensions, the Social Security Administration asked for rehearing en banc on February 6, 2019.

     Normally, cases at the Court of Appeals level are heard by three judge panels. However, after an opinion from a three judge panel, the losing party can ask that all the judges on the Court hear the case en banc. The 6th Circuit has 16 judges. En banc review is seldom requested and rarely granted. 

     An oral argument is very much an interactive process. I can't even imagine what it would be like to argue a case before a 16 judge panel.

     If this is reheard en banc, I fear that the result will be a deeply fractured plurality opinion, one where there's not a majority of the Court in agreement on anything. A plurality opinion would probably leave the Social Security Administration uncertain of what it should do. Plurality opinions are bad enough when they happen at the Supreme Court. They shouldn't happen at a Court of Appeals.

Delay After Delay

     From the Cleveland Plain Dealer:

Today is the day Isaac Everhart has long been waiting for, the day he appears before an administrative law judge with the Social Security Administration in a bid for disability benefits.

Isaac is counting on the benefits to lift his wife, Violet, and daughter, Tiffany, out of their subsistence existence – the result of his inability to work since 2015 because of a back injury. ...

Isaac assumes the hearing is just a formality, that the judge will make an immediate ruling to grant him monthly disability checks and retroactive pay to the date of his fall. But he is mistaken.

At the end of the hearing, the judge informs Isaac that a review of the material in the nearly six-inch binder could take as long as 75 days. If the decision is in Isaac’s favor, it would likely be three to six months before Isaac sees the first check.

The news reduces Isaac to tears.

“I don’t understand how they can make us wait any longer,” Isaac tells his lawyer. ...

      No, it's not likely to take three to six months to get first payment of benefits. In most cases, it's a month. It can certainly take longer to get everything paid, particularly if there's a windfall offset or a workers compensation offset but it doesn't sound like that would be the case here. The 75 days to get an ALJ decision would be on the optimistic side where I practice. There's a big backlog in getting out ALJ decisions nationally. It's good that this article talks about the delays AFTER an ALJ hearing is held. They're significant. Claimants also need relief on that side.

Judge Finds Failure To Provide SSI In Puerto Rico Unconstitutional

From the Associated Press:

A U.S. judge said Monday that the federal government is violating the Constitution by prohibiting people who live in Puerto Rico from receiving Supplemental Security Income.
The opinion was issued as Judge Gustavo Gelpi dismissed a lawsuit filed by the federal government seeking to recover more than $28,000 in SSI disability benefits paid to a U.S. citizen after he moved from New York to the U.S. territory of Puerto Rico.

Gelpi said a clause in the Constitution that allows federal legislators to enact rules and regulations for U.S. territories is not "carte blanche for Congress to switch on and off at its convenience the fundamental constitutional rights to due process and equal protection."

"Congress, likewise, cannot demean and brand said United States citizen while in Puerto Rico with a stigma of inferior citizenship to that of his brethren nationwide," Gelpi wrote, adding that powers granted under the Constitution are not infinite.

The ruling involved the case of Jose Luis Vaello Madero, who lived in New York from 1985 until 2013, when he moved to Puerto Rico. He continued to receive payments until 2016, when he was told he was ineligible. The Social Security Administration then filed civil action against him in 2017 demanding he return the funds he received. ...

     If this holds up on appeal, it's enormously important in Puerto Rico. Let's use Mississippi for comparison. About 121,000 Mississippians out of a population of about 2.9 million draw SSI. If the same proportion of the population of the Commonwealth of Puerto Rico, about 3.2 million, were to draw SSI it would be about 134,000 people but Puerto Rico is certainly poorer than Mississippi so it would be more.
     Before you yawn and say that's interesting but what does it have to do with me, consider this. Puerto Rico residents should immediately start filing SSI claims to give themselves protective filing dates. The Puerto Rico field offices aren't ready for this and will need lots of outside held. However, the real avalanche of SSI claims will come if this holds up on appeal. Taking and adjudicating those claims will be an enormous undertaking for an understaffed agency. It will take resources away from other parts of the agency.

     By the way, everyone knows that Puerto Ricans are U.S. citizens, right?

PACER Gouging

From the New Republic:

 … Three legal nonprofit groups—the National Veterans Legal Services Program, the National Consumer Law Center, and Alliance for Justice—filed a class action lawsuit against the federal government in 2016 to challenge PACER’s fee structure. …  

 The PACER system itself brought in more than $146 million in fees during the 2016 fiscal year, even though it cost just over $3 million to operate. …  

     Social Security attorneys who practice in the federal courts are big users of PACER.  This rankles.

Democrats Support In-Person Social Security Hearings

     From a press release:

Top Democrats responsible for Social Security policy in the House and Senate yesterday called on the Social Security Administration to withdraw a proposed rule that would limit the right of Americans to receive an in-person appeals hearing if their initial application for Social Security benefits is denied. Workers who are eligible to apply for these benefits have contributed to Social Security for years, paying into the program with each paycheck.

“This change would deprive millions of Americans of their constitutional right to due process and result in hearings which are less fair and less efficient. This proposal is harmful and not justified and we request that SSA withdraw this proposed rule,” the members wrote. 

The letter was signed by House Ways and Means Committee Chairman Richard E. Neal, (D-MA), House Ways and Means Social Security Subcommittee Chairman John Larson (D-CT), House Ways and Means Worker & Family Support Subcommittee Chairman Danny K. Davis (D-IL), Senate Finance Committee Ranking Member Ron Wyden (D-OR), and Senate Finance Social Security Subcommittee Ranking Member Sherrod Brown (D-OH).

In the letter, the members outlined why video hearings are inferior to in-person hearings. In a video hearing, the administrative law judge (ALJ) may be limited in their ability to thoroughly evaluate the impact that an individual’s impairments have on their ability to work, and disabled individuals may not be able to fully and effectively present their case. The Social Security Administration has a large backlog of individuals awaiting an appeal hearing, and the delays cause significant harm to individuals who have worked years to earn their Social Security benefits but have suffered a career-ending injury or illness. ...

The full letter can be found here.

Surgeon Convicted Of Social Security Fraud

     From the Shreveport Times:

A Shreveport surgeon was found guilty by a federal jury on Friday of stealing more than $200,000 in Social Security disability payments. 

Dr. John Owings, chief of trauma at LSU Health Shreveport, was found guilty of 20 counts of theft of government property and one count of concealing or failing to disclose an event affecting right to a government benefits. 

The United States presented evidence during trial showing that Owings applied for disability benefits in 2008 and continued to receive those benefits through June of 2017, after returning to work in 2012,” a release from the Department of Justice states. “When Owings went back to work as a surgeon at the University of California-Davis in 2012, making $22,000 a month, he failed to tell the Social Security Administration (SSA) about his return to work.” ...

 Shreveport surgeon was found guilty by a federal jury on Friday of stealing more than $200,000 in Social Security disability payments.

Are Undocumented Immigrants Such A Bad Thing?

     Those nasty undocumented immigrants that Donald Trump wants to keep out of this country with a fence are actually contributing about $13 billion a year to the Social Security trust funds. Why exactly is it crucial that we hunt down and deport all of these immigrants when the U.S. birth rate is so low?

Democrats Coalescing Around Social Security 2100 Act

Congressman Larson

     John Larson, the Chairman of the House Social Security Subcommittee, and Democratic Senators Blumenthal and Van Hollen have introduced the Social Security 2100 Act which would increase Social Security benefits and reduce taxes paid on Social Security benefits. The bill would also increase the FICA tax in two ways. Income over $400,000 would be covered by the FICA tax and the FICA rate itself would climb by 0.1% a year between 2020 and 2043. The bill has 200 cosponsors in the House of Representatives, all Democrats. 

      The Office of Chief Actuary at Social Security has now scored the Social Security 2100 Act. It would leave the Social Security trust funds in balance for the next 75 years at least.

     There is little hope that such a bill would pass with Republicans in control of the Senate. However, Democrats running for Congress and the White House in 2020 may choose to run on this bill and then try to pass it in 2021.