I Agree But Do You Have To Use That Word "Notch"?

From an earlier "Notch Baby" controversy

     From Paul N. Van de Water writing for the Center on Budget and Policy Priorities:

The next COVID-19 relief bill should fix an unintended benefit “notch” under which, due to the pandemic and resulting recession, Social Security benefits will be significantly lower for workers who turn 60 this year and will be eligible for early retirement benefits in 2022. Those becoming eligible for disability or young survivors benefits in 2022 will also see lower benefits. ...

Normally, average earnings in the economy rise from one year to the next. Due to the sudden, sharp unemployment increase in 2020, however, many workers will suffer a big decrease in their annual earnings. And those decreases will cause the economy-wide average annual wage to fall as well. That, in turn, will reduce the average indexed earnings and Social Security benefits of workers turning 60 in 2020 compared to those with similar earnings who turned 60 in 2019. If the average wage falls by 5 percent in 2020, as now seems likely, the retirement benefit of a 60-year-old worker with average earnings will drop by about $1,200 a year for each and every year of retirement. If the average wage falls more, the decreases will be even larger. ...

Policymakers should fix this unfair result. One solution would be to specify that the wage-indexing factor couldn’t fall from one year to the next, even when the average wage index declines. ...

Beltway Bandit Report On Medical Improvement

     The National Academies of Sciences, Engineering and Medicine has done a study for Social Security of Selected Health Conditions and Likelihood of Improvement with Treatment. The National Academies may sound like a purely scholarly group but it's basically a Beltway Bandit paid large amounts of money to do studies for the federal government. Almost always the studies end up gathering dust.

     I suppose that some at Social Security wanted a hit list of medical conditions whose sufferers could be targeted for continuing disability reviews on the grounds that medical science has improved their conditions. They didn't get that.

     One thing I particularly loathe about this sort of Beltway Bandit report on Social Security disability is that they always begin with a statement about how the authors conceptualize the term "disability". Who the hell cares how you conceptualize the term "disability"? We're dealing with a statutory definition of disability. Social Security has to deal with it. I have to deal with it. So, shut up and deal with it yourselves! No one is interested in this sort of throat clearing.

     This tome goes on with all sorts of amazing irrelevancies such as "During a biopsy, a sample of cells is collected for testing. In most cases, a biopsy is the only way to definitively diagnose cancer (Mayo Clinic, 2019). Methods by which a sample may be collected include ..." followed by a description of biopsy methods. If you're an oncologist or other physician tasked with diagnosing cancer, biopsy methods are really important. If you're a government employees dealing with disability claims, biopsy methods aren't of much importance. Besides, I think that even the lay public already knows that most cancers are diagnosed through biopsies.

     Why put discussions of the conceptualization of the word "disability" and descriptions of biopsy methods in such a report? Well, I guess it makes the report longer. If you're going to charge your customer hundreds of thousands of dollars for a report that doesn't give them what they want -- academic support for a hit list of  claimants to attack with continuing disability reviews -- you'd better make the report at least a few hundred pages long so the customer won't feel cheated.

     I will give the National Academies this. I don't see in this report a recommendation for additional studies. You almost always see that self-serving recommendation in Beltway Bandit studies.

     I'll be happy to give Social Security a hit list of medical conditions where there's a good chance of improvement --  for free:

• Severe trauma. The one year duration requirement in the definition of disability that Social Security must use means that few who have experienced trauma are found disabled but those who are found disabled sometimes do get better after they finish all their surgeries and physical and occupational therapies.
• Metastasized cancer. Most of the time people die from this but those who beat the odds may get better after they finish all their surgeries and radiation and chemotherapy. They may relapse later but they may have an interval during which they can work.
  
• Transplant patients. It takes quite some time to get over a kidney, liver, heart or lung transplant but you can. You probably can't return to work at the moment, though, since you'll be on immunosuppressive drugs and should hardly be leaving your house but in better times you might be able to return to work.
  

     Guess what? Social Security is already going after everyone on my hit list. Most of those  on the list who are cut off don't complain too much because they are better. If my list seems short, it's because of that pesky one year duration requirement in the statutory definition of disability. You see, if you're disabled for at least a year, you're probably never going to get much better. You shouldn't expect to find much medical improvement among Social Security disability claimants.

    

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."