MSPB Paralyzed

     The Merit Systems Protection Board (MSPB) no longer has any Senate confirmed members, making it unclear whether it can function at all. 

     The only way that Administrative Law Judges may be disciplined is by their employing agency bringing an action before the MSPB. 

     Of course, the MSPB is also supposed to provide federal employees more generally the opportunity for a hearing if they feel that their employing agency has treated them in an illegal way.

     Here's Government Executive's explanation for the lack of confirmed MSPB members:

The Senate Homeland Security and Governmental Affairs Committee has already approved two of President Trump’s nominees to serve at MSPB. Senate Republicans have said they will not vote on those two individuals, however, until Trump nominates a third board member to ensure the board maintains a Republican majority. Trump’s third nominee, Andrew Maunz, withdrew his name from consideration earlier this month. 

     I can't understand why it would be crucial that the MSPB have a Republican majority during the interregnum until another Republican can be confirmed. If there are two members, one a Republican and one a Democrat, there won't be a majority to take any action unless they're in agreement with each other. How can that be worse than having no one confirmed? Shouldn't the MSPB be run in as nonpartisan way as possible? This sad state of affairs may be a sign of just how hyper-partisan the GOP has become.

Glad They Caught This Guy

     From a press release:

Jason Pantone, age 34, of Hyde Park, New York, was arrested and charged in a criminal complaint with mailing envelopes containing suspicious white powder to federal offices in New York and Connecticut ...

As alleged in the criminal complaint, Pantone is accused of using the U.S. mail to send envelopes containing white power to locations in New York and Connecticut.  Each envelope contained suspicious white powder and a note indicating, or implying, that the powder was dangerous or intended to cause harm. The complaint alleges that beginning in February 2019, Pantone mailed envelopes addressed to the Social Security Administration Offices in the towns and cities of Plattsburgh, Binghamton, Utica, West Nyack, White Plains, New York, as well as offices in Hartford and Torrington, Connecticut.  The complaint also alleges that additional letters were addressed to United States District Court offices in Syracuse, Binghamton, Albany, Plattsburgh, and Utica.  All the envelopes contained a typed note, which said “ANTHRAX.” 

All samples of the white powder tested thus far have not contained hazardous material. ...

Commissioner Nominee Opposes NYC Mass Transit Fare Increases

     Here are excerpts from an article in the New York Post:

The MTA [Metropolitan Transit Authority] voted Wednesday to raise the price of weekly and monthly MetroCards, while nixing bonuses on pay-per-ride cards — as one of its board members blasted the decision, saying straphangers are the ones getting “screwed.” ...

Ahead of the vote, board member Andrew Saul explained why he was voting against the plan, saying, “The riders are getting screwed.”

“This is a bloated bureaucracy,” Saul said. “This thing is full of waste … I think it’s dead wrong to put this thing on the riders.” ...

      I don't know how much this reflects upon Andrew Saul's qualifications to become Commissioner of Social Security. However, I do know that Republican officeholders almost always oppose additional government revenues even if that inevitably causes degradation in government functioning. The claim is that additional revenues aren't needed because of governmental "waste, fraud and abuse". I'm sure that most Republican officeholders actually believe the "waste, fraud and abuse" claims but I'm also sure that most are either indifferent to declines in government service or actually favor such declines.
     At least in this article, Saul doesn't identify what waste it is that he would like to get rid of so that the fare increase can be avoided. That's generally how it works. Republican either cannot identify the "waste, fraud and abuse" they want to get rid of or or the "waste, fraud and abuse" they do identify is low level stuff that has no appreciable effect upon an agency's budget and can no more be totally eliminated than shoplifting can be totally eliminated by a retail store.
     If Saul comes into the position of Social Security Commissioner believing that there must be terrible waste and inefficiency at Social Security that he can eliminate, he's in for a rude awakening. It's not there.

Confusion Reigns

     Since this sort of thing always seems to be of interest to people, I'll post another note from our database made by a legal assistant at my firm. This concerns a case where some parts of Social Security say they have no record of me representing the client even though other parts, say, yes, we've got that paperwork. That matters since the client has been approved. Far more important though is that even though the claimant has been found disabled because of cancer, the agency can't seem to find a way to pay him. If you're approved due to cancer, you almost certainly have a terminal illness so this is an even more urgent situation than usual. Anyway, here's the note which may give some of the flavor of what it's like to deal with Social Security these days:

Forgot to mention that there is a NOT2 [some sort of notice letter, I think] in file showing you are the attorney. ____ did call me back but it’s still a mess. No one can figure out why you aren’t showing on the screen when a phone call is made and ____ can’t fix it.

Not only that, the entire thing is a comedy of errors, actually, more like a tragedy.

While nothing seemed obvious to ____, we eventually found a screen that shows decision made 2/5/19 that  clt [claimant] met 13.02 [which is for cancer] as of 2/15/2017 (which it the onset we wanted). BUT, there’s no notice of any kind. The case at DO [District Office] just shows “closed.” Doesn’t show it as being at the payment center. But doesn’t SSA have to send it to PC [Payment Center]? He said, “yes.” So, if it’s closed at DO and you didn’t send it to the PC, how is supposed to get to PC? Silence. I need an answer. If he’s assigned, wouldn’t he need to send it to PC? He said call the PC. What if I call and it’s not at PC? He says call back. And say what? Speak to whom? He couldn’t say.

____ mailed a new NOT2 showing fee agreement approved today, but date of onset still says 10/18. And something called a Dickle screen that shows medical onset of 2/15/17 and a copy of the 831 from the recon.

If he knows all of that, why can’t he fix the system?

When I hang up and call back, the DO says there is no 1696 on file. No one seems to know what to do about it. Clearly, it has been in their possession. I have a letter from DDS 1/2019 acknowledging the 1696, we have the NOT2, we have the acknowledgment of the 1695.

I called the PC, 205-801-____. ____ says nothing is in queue. The program they work from, nothing in there “enterprise wise.” She says DO has to send the case there.

I called ____ , the supervisor. Ext ____. Left a very long and detailed message. I will be surprised if I get a return call and if I do not, I’m not sure where to go from here.

     By the way, we generally don't take on the cases of claimants we know to be terminally ill. We tell those folks to file the claim and expect to be approved quickly. This claimant had other very serious health problems at the time we took on the case in 2017 but had not been diagnosed with cancer. This case has been stuck at the initial and reconsideration levels since 2017. We were hoping he'd be approved not just from the time the cancer was diagnosed but from the date he stopped work in 2017 which is why there's the discussion above about onset date.
     The sort of delay that happened here doesn't happen often. When it does happen, it usually happens to people who are really, really sick. Someone at Disability Determination really wants to approve the claim but runs into a lot of resistance. It appears to me that this happened at both the initial and reconsideration levels. Finally, after the cancer diagnosis, the resistance faded and they're approving him but we're not absolutely sure that they're going back to 2017. That date issue may be part of the problem or it may just be a systems problem. We don't know.

Surprised He Got Away With It As Long As He Did

     From NJ.com:

A New Jersey man who had three Social Security numbers for more than two decades admitted he used them to defraud the government out of of $221,364, authorities said Monday.

Fernando Solaris, 63, of Newark, pleaded guilty to one count each of Social Security disability fraud and theft of government property, the U.S. Attorney’s Office for New Jersey said in a statement. Solaris, who slightly altered his name when he applied for the second and third social security numbers, faces up to 15 years in prison when he is sentenced June 4.

The fraud began in 2002 and lasted until 2015 as he used one of the Social Security numbers to collect disability benefits, claiming he was physically unable to work because of pain in his back and left leg, court papers said. Solaris, however, continued to work using the other two numbers, authorities said. ...

Solaris, who arrived in the United States in 1970 from Uruguay, obtained his first Social Security number in 1973. He secured additional Social Security numbers in 1984 and 1989 using slight variations in his name, according to court papers. ...

Quite A Backlog There

     Here is a note in my firm's database from a legal assistant who had called one of Social Security's payment centers on February 19 about a fee petition, that is a request that the agency approve an attorney fee, that had been submitted in a case won at the reconsideration level:

Spoke w/ Kathy. Once I gave her the ssn, she said they have it but the BA [Benefit Authorizer] has not had a chance to get to it. There's 70 cases that are ahead of this one. Told her this one is from April 2018 and she said they have cases they haven't worked from 2017.

     I can't take that fee until the agency approves it. I don't usually use the fee petition process but sometimes I have to. Many, perhaps most, attorneys take on no fee petition cases because of hassles like this. That leaves some claimants unrepresented. I don't understand anyone who says that the fee petition process is a reasonable alternative to the fee agreement cap. The only realistic alternative to the fee agreement cap is to leave the practice.

More Than Six Years Without A Confirmed Commissioner

     Michael Astrue, the last confirmed Commissioner of Social Security, left office on January 19, 2013. The Social Security Administration has been led by Acting Commissioners for more than six years now. I'm not sure that I want Andrew Saul, who has been nominated by President Trump, to be confirmed as Commissioner but I do wish that the agency had a confirmed Commissioner.

     As a general matter, this long interregnum without a confirmed Commissioner is proof that the whole idea of Social Security as an independent agency has failed. The agency has not been removed from the political sphere. Either make Social Security a cabinet level department or fold it back into HHS.

Problems For Another Widow

     I had posted recently about the problems a widow faced after she reported her husband’s death to Social Security and a Social Security employee recorded it as if the husband had died a year earlier than he did. Now comes a second report of another widow who dutifully reported her husband’s death and another Social Security employee recorded it as if both husband and wife had died instead of the husband!

     These reports could be signs of a systems problem.