New 1696

      The Social Security Administration has issued a new version of the SSA-1696 form used to appoint an attorney or other representative. I wish they'd give us some advance notice before they do this.

Would Amy Coney Barrett's Confirmation Endanger Social Security?

      From Kim Phillips-Fein writing for the New York Times:

Much of the public anxiety about Amy Coney Barrett — judge on the U.S. Court of Appeals for the Seventh Circuit, Notre Dame law professor and Donald Trump’s nominee for the Supreme Court — has focused on the question of abortion, and whether as a believer in originalism and a practicing Catholic she would be likely to vote to reverse Roe v. Wade.

At least as consequential might be her position on the Social Security Administration: She has suggested that an originalist — whose view of the law is rooted in the idea that the duty of judges is to ascertain whether laws reflect the original meaning of the Constitution — might say that it is not clearly permissible given a strict reading of the Constitution. This isn’t to say that she thinks it should or even could be repealed. “Some decisions,” she wrote, “thought inconsistent with the Constitution’s original public meaning are so well baked into government that reversing them would wreak havoc.” But it does indicate that in the area of judicial philosophy, there are many ways to be extreme. ...

Those who share Judge Barrett’s belief in the legal philosophy of originalism are not ideologically monolithic, but most originalist judges are united in a deep skepticism toward the idea of a powerful federal government....

During the 1930s, similar issues brought Franklin D. Roosevelt’s administration into conflict with the Supreme Court. Many of the early initiatives of the New Deal were rejected as unconstitutional  ...

After his re-election in 1936, with the Social Security Act and the National Labor Relations Act facing constitutional review and the country mired in economic depression, Roosevelt did not want to see his entire program jeopardized by the court. Instead, in February 1937 he proposed a mandatory retirement age of 70 — the “court-packing” plan, as it became known — with any judge who refused to step down to be supplemented by an additional justice with full voting rights. ...

Will the Supreme Court become once more what it was in the early 20th century? Will it insist on a circumscribed national government and a rigid vision of individual economic rights — in the midst of a second Gilded Age?...

     Phillips-Fein isn't the only one thinking that even Social Security could be at risk. Laurence Tribe is saying the same thing. 

     Do not underestimate the extent to which the right wing still wants to re-litigate the New Deal or how radical the Supreme Court will be with Coney Barrett on the bench.

     I think that what worries me the most about Coney Barrett is that she has virtually no experience practicing law. She went from law school to a Supreme Court clerkship to a short time drafting Supreme Court briefs for a law firm to being a law school prof to the Court of Appeals. I don’t think that background should qualify anyone for the Supreme Court. If she had been nominated to a District Court judgeship would she have been considered qualified? Not in my opinion. In fact, I think she would have had enough sense to decline such a nomination.

Updated Fee Schedule

    From a notice posted by Social Security in the Federal Register:

On August 22, 2012, we announced in the Federal Register a schedule of standard administrative fees we charge to the public. We charge these fees to recover our full costs when we provide information and related services for non-program purposes. We are announcing an update to the previously published schedule of standard administrative fees. The updated standard fee schedule is part of our continued effort to standardize fees for non-program information requests. ...  

Based on the most recent cost analysis, the following table provides the new schedule of standard administrative fees per request:  

• Copying an Electronic Folder: $41.  
• Copying a Paper Folder: $83. 
•  Regional Office Certification7: $64.  
• Record Extract: $34.  
• Third Party Manual SSN Verification: $36.  
• Office of Central Operations Certification: $30.  
• W–2/W–3 Requests: $90.  
• Form SSA–7050, Request for Social Security Earning Information: $92.  
• Requests for Copy of Original Form SS–5, Application for a Social Security Card: $21.
  
• Requests for Copy of Numident Record (Computer Extract of the SS–5): $20...

     If they can update this, why can't they update the cap on how much attorneys can charge claimants for representation before the agency?

Who Won The Debate?

 

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Some Video Hearing Information

     I had a telephone call yesterday with Sheila Lowther, the Regional Chief Administrative Law Judge for the Social Security’s Region IV, concerning video hearings. She agreed for me to post what she was saying on this blog. I hope this information is also going out through internal channels, I'm happy to provide the information but Social Security employees shouldn't have to hear it from me.

    Social Security is starting to roll out video hearings on a limited basis. They’re looking for critical need cases where the claimant has declined a telephone hearing. They're starting with Hearing Office Chief Administrative Law Judges. I told her that in critical cases I’ve been strongly advising my clients to accept telephone hearings so there would be no delay. That means that I won’t have any cases for video hearings unless I start declining telephone hearings for critical cases which I'm reluctant to do because I have no guarantee of a video hearing in the near future. I expect that most Social Security attorneys would be in the same boat. She said they will use the Microsoft Teams platform and that it will work from any device. I was assured that they will have enough bandwidth for this. This has been a concern for me and others. There's a noticeable decline in audio quality when additional callers are added to the telephone hearings they’re doing now suggesting to me that even this old technology might strain Social Security's systems. I hope that that issue has nothing to do with bandwidth. Judge Lowther indicated that they want to fully roll this out as soon as possible but she didn’t predict when that might be. 

     By the way, it seemed important to Judge Lowther that Administrative Law Judges will appear against an artificially generated backdrop approximating one of the agency’s hearing rooms. I suppose that may be important to ALJs but it really doesn’t matter to me. My job is to pay no attention to such things and to concentrate on the substance of what’s happening.

Presidential Debate Poll

 

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Suspending Benefits With No Explanation Other Than "Miscellaneous" For An Average Of 36 Months With No Controls In Place

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

... When SSA employees suspend benefits, they identify the issue that needs to be resolved by inputting one of dozens of situation-specific suspense codes to the beneficiary’s record. Employees can also use the generic “miscellaneous suspense” code if they do not identify the issue that requires resolution.  

To resolve benefit suspensions, employees complete follow-up actions, which include contacting beneficiaries, employers, or other agencies to obtain information. Once the employee obtains the necessary information, he/she must determine whether to pay the benefits withheld for prior months and whether to resume monthly benefits.From 1 segment of the Master Beneficiary Record, we identified 2,525 beneficiaries for whom SSA suspended OASDI benefits between January 2015 and December 2018 using the miscellaneous suspense code.We reviewed records for 100 randomly selected beneficiaries.

As of February 2020, SSA had not completed follow-up actions to resolve issues that caused it to withhold benefits using the miscellaneous suspense code for 41 of the 100 beneficiaries. As a result, SSA withheld almost $748,000 from these beneficiaries. ...

We project SSA withheld approximately $378 million from almost 21,000 beneficiaries without resolving the issues that caused the benefit suspensions.

SSA does not have controls to monitor beneficiaries in miscellaneous suspense status or an oversight process to ensure employees use the miscellaneous suspense code appropriately. SSA relies on the employee who suspended benefits to create his/her own reminder to take future resolution actions. For these 41 beneficiaries, this process did not ensure SSA completed necessary actions to resolve outstanding issues. ...

On average, SSA withheld benefits for 36 months and will continue withholding benefits from these beneficiaries until it resolves the suspensions. ...

The high rate of unresolved benefit suspension cases we identified is evidence that SSA’s current system of manual reminders is not a reliable control to ensure it resolves miscellaneous benefit suspensions. SSA needs controls, such as systems alerts and management reports, to identify beneficiaries in miscellaneous suspense status and ensure employees take corrective actions timely. ... 

     I've had plenty of clients in this situation. It seems to take a dozen complaints over several months before anyone does something. Social Security agreed with OIG that they need to do something about this situation. Let's hope that doing something doesn't go in their "miscellaneous" file.

Abolish The Marriage Penalties

      Should marriage be discouraged? There may be a few who have had sad experiences with marriage who would answer that question “yes” but I think that most would say, to the contrary, that marriage should be encouraged. So, why does Social Security have provisions that punish people for getting married? Why do I as an attorney who represents Social Security clients have to warn people about the negative consequences of marriage? Social Security may not be the sole reason but disabled people are much less likely to marry than healthy people. That’s not a good thing for the disabled people or society in general.

     Here are those punitive provisions:

• In most cases people drawing disabled adult child benefits lose all benefits if they marry.
• Two disabled people drawing SSI get less money as a married couple than if they just “live in sin.”
• A disabled person drawing SSI can continue to receive SSI if they “live in sin” with a person who is working full time but loses benefits if they get married.