Social Security Loses In The Seventh Circuit On Conn Case

     The vast majority of Eric Conn's former clients reside in Kentucky. The Sixth Circuit Court of Appeals, whose territory includes Kentucky, has already ruled that the process used by Social Security to reopen the cases of Conn's former clients, could not stand. However, Conn had some clients who live in West Virginia, which is in the Fourth Circuit Court of Appeals territory and other Conn clients have moved all over the country. The latest appellate court to act on a Conn case is the Seventh Circuit Court of Appeals which has just ruled that the process that Social Security used cannot stand, although it did so in a narrower way that the Sixth Circuit. I believe there is another case pending at the Fourth Circuit Court of Appeals but I don't know the status of that case.

    The Conn cases that have been sent back for new hearings are on hold at the moment because of the Covid-19 pandemic. It's not at all clear how these will be handled.

What's A Poor Claimant To Do?

     The New Republic has an article up on the problems faced by Social Security claimants who are declared overpaid. The statutes, regulations and policies are complicated. Very few lawyers understand them and lay people never do. If you're declared overpaid, untnil you do something your monthly checks stop immediately. The system is undeniably harsh. Social Security is difficult to contact. Many of the agency's employees don't understand overpayments themselves. It can be well nigh impossible to get an explanation for a declared overpayment. Claimants can't afford lawyers. Even most Social Security attorneys have only a limited understanding of all the ways that alleged overpayments can happen and what can be done about them because they are so few cases where claimants can pay a fee. There's too many of the cases for the private bar to handle them pro bono. It would be best if legal services had the resources to handle all of the cases but they don't. A second best way of handling the problem would be if the cases could be made fee generating for attorneys in private practice but I don't see that happening.

     Think an attorney can't make a difference? I've had two cases in my career which started off with my client facing a large overpayment but which ended with my client receiving a large underpayment. Yes, they really do make mistakes that bad. The agency makes plenty of mistakes in declaring and computing overpayments. Even when the overpayment is real, there's always waiver for the claimant, waiver for dependents who received benefits, partial waiver, payment plans, lump sum payment offers, etc.

Field Offices To Resume Very Limited In-Office Appointments

    From an update to Social Security's Covid-19 webpage:

... Will SSA provide in-person services during the COVID-19 pandemic?

Date: June 29, 2020

If you have a critical situation we cannot help you with by phone or online, we may be able to schedule an in-office appointment for you. We remain unable to provide service to walk-in visitors due to the pandemic. ... 

New Card Requests 

We assign the vast majority of SSNs and issue SSN cards at birth. We will continue to process new card requests through our automated processes for newborns as part of the hospital registration process (we call that process Enumeration at Birth). We will also continue to process SSNs and issue cards for certain lawful immigrants [we call these processes Enumeration at Entry (EAE) and Enumeration beyond Entry (EBE)]. 

If these automated processes are not available to you, we will schedule an in-office appointment for a new card request for those with a critical need. ...

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.