Bye, Bye Andrew Saul!

     The Supreme Court has issued its opinion in Seila Law v. CFPB. The Court held that the position of Director of the Consumer Finance Protection Board is unconstitutional because the incumbent serves a set five year term and may only be removed for cause. The holding is that this unconstitutionally removes the President's authority to manage the Executive Branch.

     The position of Director of the CFPB is almost identical to that of Commissioner of Social Security in that the Commissioner serves a set six year term and may only be removed for cause. I see no reasonable way of distinguishing the two. The position of Commissioner of Social Security as currently constituted is unconstitutional.

     Where does this leave Andrew Saul? The Seila Law opinion doesn't seem to leave open the possibility that the Director of the CFPB just remains in her position while now serving at the pleasure of the President. The Court clearly ruled that the action that the Director of the CFPB had taken that was on appeal was invalid. Thus, I have to say that Andrew Saul just lost his job. He ought to resign immediately in order to avoid any confusion. However, "confusion" seems to be this Administration's middle name.

     Where does this leave the Social Security Administration? Well, even though it's not part of a cabinet level department, it's no longer an independent agency. It could be made an independent agency again by replacing the Commissioner with a Board, which the agency had in its earliest days, but I doubt that would be practicable. The agency could be stuffed back into some cabinet level department as it once was but that seems unlikely. It could be made a cabinet level department, which would be my preference. It could stay neither fish nor fowl, neither a cabinet level department nor an independent agency. I don't think that this Congress will act on the issue. We'll see what, if anything, the next Congress does.

     Where does it leave administrative decisions made by the Social Security Administration that are now on appeal? The agency's Administrative Law Judges (ALJs) made decisions on a delegation of authority from the Commissioner. So too do members of the Appeals Council. Are those decisions made heretofore now invalid? I expect this issue will be litigated. For matter, what about contracting decisions and personnel decisions?

     By the way, the majority opinion contains this language:

... [T]he CFPB’s defenders note that the Social Security Administration (SSA) has been run by a single Administrator since 1994. That example, too, is comparatively recent and controversial. President Clinton questioned the constitutionality of the SSA’s new single-Director structure upon signing it into law. ...

    In successive sentences the Chief Justice refers to the head of the Social Security Administration as its "Administrator" and as its "Director" rather than as its Commissioner.

Man Arrested On Charge Of Threatening Senator Over Social Security Payment

     From WSET:

A Virginia man has been charged with threatening to kill Sen. Mark Warner for not getting Social Security payments.

United States Attorney Thomas T. Cullen and U.S. Capitol Police Chief Steven A. Sund said 37-year-old Dylan Stephen Jayne was arrested Thursday on a federal criminal complaint and charged with one count of transmitting a threat via interstate commerce.

Court documents show that Jaynce called the Abingdon office of Sen. Mark Warner the morning of September 2, 2019. They show he left a voicemail threatening to kill the senator regarding his perceived lack of receiving Social Security payments. ...

As Long As It Saves Money, It Has To Be A Good Thing

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

... If a claimant disagrees with SSA’s initial disability determination, he/she can appeal that determination. In most cases, the first level of review is a reconsideration by the disability determination services. In 1999, SSA eliminated the reconsideration level in 10 States. In these 10 States, the first level of appeal was a hearing by an administrative law judge (ALJ). In 2019, SSA began reinstating the reconsideration level in the 10 States. ...

Of the 616,917 claimants denied at the reconsideration level in CY 2015, we estimate 86,400 (14 percent) did not take action after the reconsideration denial while 530,500 claimants (86 percent) appealed to an ALJ and/or filed new claims. Of the 530,500 claimants, we estimate 290,000 (55 percent) subsequently received allowance decisions.In FY 2018, it took on average 79 days longer for a claimant to receive an allowance decision by an ALJ in States with the reconsideration level of appeal. ...

Reinstating the reconsideration level allows for a uniform disability process that standardizes services for all claimants nationwide. With reinstatement of the reconsideration level, the Agency estimated $3.9 billion in program savings over a 10-year period (FYs 2019 to 2028). ...

     And why is it that reconsideration saves hundreds of millions of dollars a year? Because it increases delay and frustration for disabled people. Fewer of them get an ALJ hearing because they drop out after the added hurdle of reconsideration. For OIG, however, causing sick people to suffer delay and frustration is of no consequence, as long as it saves money. The attitude isn't far from being "The only good disability claimant is a denied disability claimant."

Some Questions For The Commissioner

Congressman Larson

     Congressman John Larson seems to have rediscovered the fact that he's the Chairman of the House Social Security Subcommittee. He's actually sent a letter to the Commissioner of Social Security asking for a response to the recent report by the Social Security Advisory Board on field office closures. Maybe someone should tell him that he can schedule a hearing to really get some answers.

     What is the problem with Larson? Did he get stuck with a Subcommittee he isn't interested in chairing?

Commissioner's Investments During Early Days Of Covid-19 Come Under Scrutiny

 

    From Salon:

In early 2020, Social Security Administration Commissioner Andrew Saul engaged in several stock transactions that appear to have anticipated market reactions to the coronavirus crisis, according to financial disclosure forms.

Specifically, Saul made seemingly prescient investments in Abbott Laboratories, UnitedHealth, thecloud workflow company ServiceNow and Eurofins, a foreign company that manufactures personal protective equipment (PPE) for health care workers, among other things.

Though Saul — a wealthy New York businessman with prior government service and decades of financial expertise — has a substantial and diverse portfolio, the timing of the transactions, together with his activity in the administration and investment experience, is intriguing. ...

Recent disclosure forms, however show that Saul bought shares in Abbott Labs worth between $15,000 and $50,000 on Jan. 15, Feb. 21 and March 16 — the latter date being exactly when the Social Security Administration announced it would close its offices and two days before the Food and Drug Administration approved Abbott's coronavirus test for hospital use.

On March 30, Trump showcased Abbott's rapid-response COVID-19 test, gameshow-style, in a televised Rose Garden address. ...

Along with the Abbott buys, Saul made a string of investments in the insurance company UnitedHealth in late January and March. Though he entered the administration with investments in the company, he did not make any market moves until late January, as administration officials were behaving one way about the virus in private and another in public. ...

On Feb. 7, Saul invested in a company he had not previously: Eurofins Scientific, a medical lab company headquartered in Luxembourg that manufactures PPE. He put between $15,001 and $50,000 into Eurofins that month, then sold an unknown amount, amid widespread outcry about shortages, on March 31. ...

Saul furthered his investment in a company called ServiceNow in January. He dropped an additional $50,001 to $100,000 into the cloud computing company that manages digital workflows on Jan. 21, one week before the company announced a major acquisition. ... 

It is not clear how Saul's investment patterns may have changed since April. He did not respond to Salon's request for comment.

     The implication here is that it's possible that the Commissioner traded stocks based upon insider information. At least, there's no sign that he sold stock that was about to take a tumble, such as airline or hotel stock.

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.