Have A Safe Independence Day

Not Much Progress In Solving Covid-19 Problems

     The Coalition for Citizens with Disabilities (CCD), the country's major umbrella group for nonprofits involved in helping the disabled, has tried to get some answers from Social Security on its processes during the Covid-19 pandemic. The agency's answers indicate that not much progress has been made. They're working on it but there are major bottlenecks. It doesn’t help that there were major problems before Covid-19.

     I sometimes think that Social Security is like a team entering a high tech car in the Monte Carlo Grand Prix race with a flat tire. They try to implement sophisticated new technology before solving basic workflow problems.

No Noticeable Covid-19 Effect On Trust Funds -- So Far

     We now have some very early numbers showing how the Covid-19 pandemic has affected the Social Security trust funds. In the three month time period of March, April and May of 2019, the combined Social Security trust funds gained $560 million. In the same months of 2020, the combined trust funds gained $863 million. I'm sure it's coming but so far there's no evidence of a Covid-19 effect on the trust funds.

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. ...