Court Holds That SSI Available In Guam

     A U.S. District Court judge has found that it is unconstitutional to deny Supplemental Security Income (SSI) benefits to Guam residents while allowing them to residents of the 50 states or the Northern Marianas. 

     The United States Court of Appeals for the First Circuit has already ruled that SSI benefits can’t be denied to residents of Puerto Rico. The Solicitor General will soon have to decide what to do about the Puerto Rico case. At least, I guess so. I haven’t heard that the Puerto Rico case is being reheard en banc. The government has only 90 days to ask the Supreme Court to hear the case or, at least, to ask the Court for more time. The Puerto Rico case was decided on April 10. 

     The only other U.S. territory where there’s no court order is the Virgin Islands. 

     Emergency legislation will be needed unless the Supreme Court holds that the denial of SSI in territories is constitutional. I’m not completely sure the Supreme Court will even agree to hear it. Social Security is not prepared to adjudicate what will probably be hundreds of thousands of SSI disability claims, primarily in Puerto Rico. I’ll post more on this later but what will have to be done is to grandfather in the current recipients of territorial permanent and total benefits These are paid for with federal money. These benefits were paid in every state prior to the implementation of SSI. Those benefits were ended when SSI was implemented but continued in the territories. By statute the recipients were grandfathered onto SSI. These were called conversion cases. That’s what will have to be done.

Why Don't More Claimants Accept Phone Hearings?

     I saw a comment on this board expressing annoyance with attorneys who don't accept telephone hearings for their clients. It seems worth responding since most Social Security employees have little idea of the dynamics involved.

     I don't know what percentage of claimants awaiting hearings on their Social Security disability claims are accepting telephone hearings, the only type of hearing available to them as the moment. If the agency is compiling numbers, perhaps some Social Security employee can tell us. Certainly, a lot of claimants are declining telephone hearings.

     I can speak to what I'm doing. The most important thing to remember is that it's the client's choice. I've heard that a few attorneys just automatically accept or decline telephone hearings without consulting with their clients. I'm aghast at this. I've heard other attorneys express amazement that any of their colleagues would do this.

     However, even though it's the client's choice, attorney opinion matters a lot. Whenever an attorney lays out a choice that a client has to make, whether it's on this issue or any other, most of the time the client asks "What do you think?" They're paying for our expertise so they ought to take our opinions into account.

     The advice I'm giving clients depends upon the client's financial situation.

     If it's an SSI or concurrent claim or even a Title II only claim where I know that the client has run out of money or soon will, I almost always strongly advise accepting a telephone hearing. Telephone hearings are not ideal but delay is potentially catastrophic for  desperately poor claimants. I've had a couple of clients commit suicide. I've had several others who died of overdoses where you couldn't be sure whether the overdose was accidental or intentional. I'm pretty sure that financial stress was a factor in most, if not all, of these tragic situations. I've had too many conversations with clients who were facing imminent homelessness. I've had too many conversations with clients who stayed in abusive relationships for fear of homelessness. I take delay very, very seriously.

     There are some situations where I can't recommend a telephone hearing even for poor claimants. If there are communication problems, a telephone hearing may be impractical. Some clients aren't in medical care. I can look at their files and see that they're going to lose if they don't get back in medical care. I tell them this in strong terms and advise that they refuse a telephone hearing at least until they can get back in medical care.

     If my client is not in financial distress, my advice is that "it's your choice" but I tell them not to expect an in-person hearing to be scheduled until there's a vaccine for Covid-19. There's no reason to hope that a vaccine will be available until sometime next year. Even if  you're not in financial distress, a long wait for a hearing can be difficult. Claimants want it all behind them. Having this hanging over their heads wears them down. I also warn that there's a risk that Social Security will eventually force a telephone hearing on them. If there's no vaccine in sight later this year, I expect that. Many of my colleagues may violently disagree with me but I think that would be a rational choice for the agency to make. I haven't run any numbers but I'd guess that well over half of my clients who aren't in financial distress elect a telephone hearing.

     Other attorneys may be advising their clients differently. I can think of four factors that might make others recommend waiting for an in-person hearing.

• First, the attorney may expect that the Covid-19 pandemic will go away soon. In many areas of the country Covid-19 cases are declining. I happen to live in a state where Covid-19 cases are increasing so I can't be optimistic. Even if you're in an area where Covid-19 cases are declining, I don't think you should expect in-person hearings this years. As Social Security leaders remind us, they're running a national program. Can you resume holding hearings in Harrisburg, PA but not in Raleigh, NC? Can you resume holding hearings when the official advice is that individuals who are older or sicker or immunocompromised should stay at home as much as possible? Too many participants in hearings -- and not just claimants -- fall into one of these categories.
  
• A second factor is a fear that the telephone hearings being held now are just the start of a campaign to end in-person hearings. I am sure there are some at Social Security who might like this idea but I don't think that's likely to happen. It would draw massive opposition and have little support in Congress. In any case, the grand scheme of things isn't an individual claimant's concern. They need to know what's best for them. Also, individual claimants declining telephone hearings don't make telephone hearings go away. Others are accepting.
• Third, many attorneys have concerns about the mechanics of the telephone hearings. At least early on, there was a problem with hearing participants being dropped from the call without warning for no apparent reason. The other participants often had no idea that this has happened for several minutes. There's no way to log back on if you've been dropped. Also, I've found the sound quality on the telephone hearings to be only fair. I don't understand why the sound quality isn't better. It should be digital. Assuming they can hear each other, it's too easy for people talk over each other in these telephone hearings without intending to do so. I've also had several hearings in which the ALJ started to question the Vocational Expert but the claimant tried to answer because he or she thought the question was directed at them. I've seen that happen at in-person hearings but not too often.
• Fourth, and maybe most important, many attorneys believe that their clients' chances of winning may be lower with a telephone hearings than with in-person hearings. That could be but I haven't seen that myself. From what I've heard, I think most other attorneys who have done a few telephone hearings would agree with me on this. I haven't heard of attorneys doing a few telephone hearings and then start advising their clients to refuse them. I'd be interested in seeing some numbers from Social Security on how claimants who have telephone hearings fare.
  

A Legal, Moral, And Political Right

I've Never Seen Something Like This

     I would invite readers to review this heavily redacted report by Social Security's Office of Inspector General (OIG) on fraudulent internet claims released late Friday afternoon and say whether they think it was properly redacted. Was OIG's point in redacting this to protect information which could be used to defraud the trust funds or was it to reduce the agency's embarrassment? Here's a little bit of the report to give you an idea:

     Why are all the numbers that would give one an idea how bad the problem is redacted? Also, why was this released late on a Friday afternoon, the traditional time for dumping embarrassing information? I wouldn't think that OIG would be trying to reduce the agency's embarrassment but just look at the redactions! Were the redactions OIG’s idea or something done at the agency’s insistence? I have seen dozens, probably hundreds, of OIG reports over the years but never one with redactions. There have been quite many where only a stub is released due to security concerns but never one with redactions. There has to be a story behind this.

Mr. Buckets Of Money Settles His Case

     Reuters reports that Raymond Lucia of Lucia v. SEC fame has settled his case with the Securities and Exchange Commission.  In the Lucia case, the Supreme Court decided that the constitution requires that Administrative Law Judges (ALJs) be appointed by agency heads. This caused problems at Social Security since its ALJs had not been appointed by the Commissioner of Social Security. That problem has since been rectified but litigation continues in cases decided before the ALJs received their official appointments. In fact, I'm surprised that there's only been one decision from a Court of Appeals on this issue so far.

     The new case that Mr. Lucia settled had to do with the issue of whether ALJs are unconstitutionally shielded from dismissal. This is all part of the Federalist Society "unitary executive" theory that Presidents must have unbridled discretion, that is if they're Republicans. The Federalist Society will suddenly discover that the constitution imposes dramatic limitations on Presidential power if Joe Biden is elected President.

     Mr. Lucia eventually settled because he was tired of fighting constitutional battles. All Mr. "Buckets of Money" really wants to do is bilk simple-minded investors!

     The assault on ALJs isn't over just because Mr. Lucia settled his case. It doesn't identify them but the Reuters article says there are at least three other such ALJ removal cases pending. The upcoming Supreme Court decision in the Seila Law case will probably have implications for this litigation.

Small Bore Identity Theft Bill Passes In Senate

     From a press release: "The U.S. Senate yesterday passed bipartisan legislation ...  to require the Social Security Administration (SSA) to provide a single point of contact to help Americans who are victims of identity theft."

New Retirement Claim Portal

     Social Security has issued a press release saying that it has redesigned its online portal for filing retirement claims.

That's A Lot Of Underpaid Widows And Widowers

     From a recent report by Social Security's Office of Inspector General (OIG):

... We identified 30,768 individuals receiving retirement benefits as of January 2019 who may be eligible for additional widow(er)’s benefits. From this population, we selected a random sample of 100 beneficiaries for review. ...

Of the 100 retirement beneficiaries sampled, 69 were eligible for higher widow(er)’s benefits. Of these 69 widow(er)s, there were

• 20 who filed claims and whom SSA determined were entitled to widow(er)’s benefits before the start of our audit and
  
• 49 who were eligible for approximately $630,000 in widow(er)’s benefits. ...
  

This occurred because SSA (1) employees did not always assess and take action when cases were alerted for possible payment increases, and/or (2) did not have processes to detect beneficiaries potentially eligible for higher widow(er)s benefits. Based on the results of our review, we estimate 15,076 retirement beneficiaries were eligible for $193.8 million in widow(er)’s benefits as of September 2019. Further, we estimate 12,615 of these beneficiaries could lose an additional $530.9 million in widow(er)’s benefits over their lifetimes. ...

     Social Security agreed that it will have to do something to address this problem.

     My guess is that the underpaid group includes more widowers than you might think. A lot of widower claims get missed because the widowers just don't think of applying for benefits on their late wife's account. In my experience two types of claims most often missed are Disabled Adult Child and Widowers benefits.