Caseloads Continue To Dwindle -- For Now

      This was obtained from Social Security by the National Organization of Social Security Claimants Representatives (NOSSCR) and published in its newsletter, which is not available online to non-members. It is basic operating statistics for Social Security's Office of Hearings Operations. Click on the image to view full size.

     By the way, obviously backlogs continue to dwindle but what happens when the Covid-19 pandemic ends? We all hope that's coming early next year as a result of a vaccine. Is there a backlog of claims that people have deferred filing because of office closures? We know that backlogs have increased at the initial and reconsideration levels. How much will receipts increase at OHO as that backlog is worked down? For that matter, will it be worked down? Will a possible change of Presidential Administrations matter? Will there be many new claims as a result of chronic health problems caused by Covid-19 itself? I don't know the answers to these questions but one way or another the circumstances we see at the moment won't last. There's a very real chance that there will be a dramatic increase in new requests for hearing next year. Work down that backlog while you can.

 

I Haven't Seen This One Before

      From a press release:

A Las Vegas resident pleaded guilty in federal court yesterday to fraudulently obtaining nearly $1.2 million in Social Security Administration (SSA) and Department of Veterans Affairs (VA) benefits, announced U.S. Attorney Nicholas A. Trutanich for the District of Nevada. ...

According to court documents, Montano [the defendant] — who was the branch manager of a bank in Las Vegas — received information about two accounts with large balances and no activity:

• The first account (Account A) was held by a Las Vegas resident who was receiving SSA retirement benefits. The individual passed away in February 1997. The SSA was not notified about the individual’s death, and benefits continued to be paid into the account.
  
• The second account (Account B) was held by a Las Vegas resident who was receiving both SSA retirement benefits and VA benefits. The individual passed away in June 2011. Neither the SSA nor the VA was notified about the individual’s death, and benefits continued to accumulate in the account.
  
•  Through a bank computer, Montano ordered debit cards for both accounts, using them to withdraw cash — which he either spent or deposited into his personal bank account — and to make purchases for his personal use and benefit. In addition, Montano ordered and wrote checks (for his personal use) for Account B. Montano also used his authority as a branch manager to authorize a $35,000 cashier’s check from Account B. He then used the funds to buy a luxury car, which he has agreed to forfeit to the United States. 
  
• In total, between August 2015 and June 2020, Montano fraudulently obtained: (a) approximately $436,686.80 in SSA benefits to which he was not entitled; and (b) approximately $757,985.88 in VA benefits to which he was not entitled. ...

Social Security's Chief Actuary Responds To Concerns Of GOP Senators

      Some Democratic Senators asked Social Security's Chief Actuary what the effect would be upon the Social Security Trust Funds if the President's proposal to end the F.I.C.A. tax that supports the Trust Funds is ended, without any replacement. Trump didn't say that this would be without a replacement but he didn't specify a replacement. The response, of course, is that the Trust Funds would quickly run out of money and be unable to pay benefits. The Chief Actuary's response has now appeared in campaign ads.

     Some Republican Senators took offense at this and sent the Chief Actuary a letter complaining about his letter. I'd say they should blame the President for making a bone-headed proposal that would inevitably sound foolish in a TV ad. Responding to Congressional inquiries is part of the Chief Actuary's job. He can't very well say "I'm not going to answer your question because the answer would make the President sound foolish and irresponsible and I don't think he meant to sound that way."

     The Chief Actuary has now responded. Here's part of the final paragraph of the letter:

... While it is never desirable for the Office of the Chief Actuary to engage in matters with political implications, it appears that this is unavoidable to a degree, as long as we are asked to provide objective and factual answers to questions posed by members of Congress. Our answers have always been as direct and objective as possible, and we regret that even clear answers may be taken out of context or used for purposes other than intended. ...

Supreme Court Asked To Hear Case On SSI For Puerto Rico

      The United States Solicitor General has petitioned the Supreme Court for a writ of certiorari to review the First Circuit Court of Appeals decision in U.S. v. Vaello-Madero. That means they are asking that the Supreme Court hear the case. In Vaello-Madero the First Circuit held that it is unconstitutional to deny SSI benefits to U.S. citizens who reside in U.S. territories such as Puerto Rico. 

     It is almost certain that the Court will hear the case but first the other side gets a chance to respond to the cert petition and then both sides get time to prepare briefs on the merits before the Court places the case on its argument calendar. I don't know how long this takes but I would guess it wouldn't be argued until after Inauguration Day, which is only a little over than four months away. By that time there could be a new President and a new Solicitor General who might view the case differently than the Trump Administration. Of course, it's uncertain that there will be a new President and, if so, whether that would make a difference in the government's position in this case. It would be possible for a new Solicitor General to ask the Court to dismiss the case. The new Solicitor General could go ahead with the oral argument and disavow the government's previously filed brief. Maybe they continue to defend the constitutionality of the statute. I don't know how things like this have been handled in the past when there's been a change of Administration or whether there have been situations quite like this in the past.

It's Not Easy Seeing Green

     Last week I downloaded a newly issued decision by an Administrative Law Judge. Unlike any ALJ decision I've ever seen this one had a green background, much like this post, except that the entire pages were green, which I can't do with Blogger.

    Can anyone tell me why this happened? I've wondered whether in Social Security's system drafts appear internally in green and this one somehow got posted in a draft form. However, as I think about it, that doesn't make sense because this is hard to read at best and for some with color blindness (which isn't rare) it may be impossible to read. Can anyone give me an explanation?

     There's always something new at Social Security.

When Do The Video Hearings Begin?

     Social Security has issued an official announcement about video hearings. Interestingly, the announcement talks only about video hearings beginning this fall. A November date isn't mentioned. November is the date that was mentioned to NOSSCR recently. This may mean nothing but people were already asking whether November meant the first of November. The term "fall" covers a lot of ground. Perhaps, it's a sign that this won't be rolled out all at once or that Social Security still hasn't decided when they'll start this.

Update On Lucia

      In June of 2018 the Supreme Court held in Lucia v. SEC that Administrative Law Judges (ALJs) as of that date were unconstitutional because they had not been appointed by the agency head. Social Security and other agencies cured this defect by having the agency head officially appoint each of the ALJs but this left the problem of cases decided before the new appointments. Social Security has tried to reduce the scope of that problem by arguing that the issue had to have been raised before the ALJ or at least before the Appeals Council.

     The first Court of Appeals opinions in one of the post-Lucia Social Security cases was Cirko v. Commissioner, a Third Circuit case, last November. Social Security lost. The Court held that the issue could be raised for the first time on appeal in the U.S. District Court.

     We now have three newer opinions from Courts of Appeals. In Carr v. Commissioner, the Tenth Circuit held on June 15, 2020 that the Court could not consider the Lucia issue since it had not been raised administratively. In Davis v. Saul, the Eight Circuit held the same way on June 26, 2020. However, in Ramsey v. Commissioner, the Sixth Circuit held on September 1 that the issue could be considered even though it had not been raised administratively. There are cases pending in other Courts of Appeals as well.

     The claimants in the Carr and Davis cases have asked that the Supreme Court review their cases. The Court doesn't have to do so but since there's disagreement among the Circuits, the Court probably will agree to hear the cases.

     Note that a Supreme Court opinion on this issue may have implications for the litigation over the constitutionality of the position of Social Security Commissioner brought about by the Supreme Court opinion in Seila Law v. CFPB. The Social Security Administration is trying very hard to pretend this issue doesn't even exist but it does and it will be litigated. Probably, it's already being litigated. I think it's irresponsible that Andrew Saul is still carrying out the role of Commissioner of Social Security. The attitude that Seila Law doesn't apply to Social Security seems to be based upon the assumption that because Seila Law was only about the Administration's desire to knock down the Consumer Financial Protection Bureau, which they hate, that other agencies that they don't hate (or don't want to admit to hating) won't be affected.  That assumes that the majority of the Supreme Court was just as cynical as they are and was only using a constitutional justification to harass an agency that the Court's majority hates as much as they do. That's not a safe assumption. As a lawyer, you may safely assume that your adversary is as cynical as you are but you should never assume that about a Court. Result oriented, maybe, but cynical, no. There is a distinction. But maybe I'm being too harsh. Another possibility is that those involved don't really care what the Supreme Court ultimately does about the Social Security Commissioner position because they expect to be out of office long before the Court can take up the issue. I guess that's just a different form of cynicism, however.

From A Labor Day Long Ago: GOP Proud Of Expanding Union Membership, Expanding Social Security