Failure To Raise Fee Cap Has Consequences

     The National Organization of Social Security Claimants Representatives (NOSSCR) filed a Freedom of Information Act (FOIA) request for information on the extent of representation of claimants who had hearings on their Social Security disability claims. The response they got back shows that 80% of Title II claimants, that is claimants for Disability Insurance Benefits, Disabled Widows and Widowers Benefits and Disabled Adult Child Benefits were represented ins fiscal year 2018. That went down to only 57% in Supplemental Security Income (SSI) only cases. It was 76% in cases involving both a Title II claim and an SSI claim.
     The important thing is that representation is down significantly. In 2010 about 95% of claimants were represented at Social Security disability hearings. The major reason for this is that the cap on fees for representing claimants hasn't been raised since February 4, 2009. Ten years of inflation has slowly harder and harder to represent Social Security claimants. We have to be more and more careful about the cases we take on. The result is clear. It's more difficult now to find an attorney to represent you on a Social Security disability claim.

Class Action May Create Big Workload For Social Security

     The United States District Court for the Northern District of Ohio has entered a decision in favor of the Plaintiffs in the Steigerwald v. Berryhill class action. The case has to do with the computation of benefits to which a claimant is entitled in a case where both Disability Insurance Benefits (DIB) and Supplemental Security Income (SSI) are both approved and the claimant is represented. To oversimplify, the needs based SSI benefits are supposed to be reduced because of the DIB payments. However, a represented claimant does not receive the entire DIB payment because some of it is used to pay the attorney. Should the SSI benefits be reduced by money the claimant never sees because it's used to pay the attorney? The Court held that the answer is no. 

     If they can't get this reversed, and I doubt they will, Social Security is going to have to do a lot of recomputations. This isn't computerized. It's all manual. This will be a nightmare for an agency as shorthanded as Social Security is.

     We'll see but I guess that Social Security will appeal, not because they think they can win on appeal, but to stall. I get the impression that there's a lot of stalling going on at Social Security. Everything is being put off until there's a confirmed Commissioner. Maybe they can stall this one until the agency gets better funding.

Something That Shouldn't Be Forgotten

     I first posted this last July and wondered at the time whether Social Security was acting as if Republicans would be in charge of the House of Representatives forever. This may be something the House Social Security Subcommittee ought to look at.

     From the Virginian-Pilot:

Widows and widowers who were shortchanged on Social Security benefits by an estimated $131.8 million won’t get any of that money back, despite an Inspector General report calling for action.

Earlier this year, the administration’s Office of the Inspector General issued an audit report that determined the Social Security Administration underpaid 9,224 people over the age of 70. In addition, as more people in this group turn 70, the underpayment will amount to $9.8 million annually, auditors found.

The report said SSA officials agreed to “take action, as appropriate” for 41 beneficiaries it identified directly in the sample study and determine if it should review the records of more than 13,000 other beneficiaries. It also asked the administration to review its procedures and staff training for informing beneficiaries of their claiming options.

SSA has since provided “nationwide training” to field office workers about these survivor options and changed the language in application materials, said Darren Lutz, a Social Security spokesman.

It won’t, however, change anyone’s benefits retroactively based on the study.

“We reviewed the cases from the audit and determined they were adjudicated correctly, according to the law,” he said in an email. He declined to comment beyond the statement or make officials available to discuss the training. ...

Into The Clouds

     From Fedscoop:

The Social Security Administration is looking to industry for commercial tools to help manage its hybrid, multi-cloud environment.  

 SSA said in a request for information Friday that it “requires a suite of COTS tools, including implementation and integration support, for the enhanced automated management of its diverse cloud hosting environments.” ...  

 SSA’s pursuit of such a tool is in line with it’s greater cloud strategy. As the agency described last summer, rather than pushing blindly into it, it is trying to be “cloud smart,” much like the administration’s recent Cloud Smart policy.  

 “What that means is consider cloud first but be aware of where things run the best,” said John Foertschbeck, senior adviser in SSA’s Office of Systems Operations and Hardware Engineering, the office that issued this RFI. “So just because we’re considering cloud first doesn’t mean that’s where it goes. We want to make sure that we look holistically at applications and make the best determination for where they fit in our environment.”

     This sounds like a concession that the National Data Center that Social Security constructed recently at great expense was a waste of money. 

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.