What Just Happened?

      Below is the memo that came out yesterday about personnel changes at Social Security. Click on it to view it at full size.

 

     Andrew Saul, whose term as Social Security Commissioner has been marked by strident anti-union activity, bringing in a union official as his Chief of Staff? Mark Warshawsky ,who has apparently been a consistent advocate for right wing policies, replaced by a fellow at the left leaning Urban Institute?

     But that's not all. Yesterday afternoon, the White House released a list of acting heads of federal agencies and Andrew Saul was listed as the acting head of the Social Security Administration. I thought that Saul believed himself to be the confirmed Commissioner of Social Security, legally entitled to serve out his term of office which runs until January 2025. Unless Saul resigned and was then appointed Acting Commissioner, something which hasn't been announced, the White House announcement can't be technically accurate, although it may reflect the essential nature of the situation. By the way, the memo shown above indicates that it was signed by the Commissioner rather than the Acting Commissioner.

     I'm sure that many readers of this blog have tuned out what I've written about the Supreme Court opinion in Seila Law v. CFPB but it's key to understanding what's going on. In that case, the Supreme Court held that the position of the head of the Consumer Finance Protection Bureau was unconstitutional because the incumbent served a fixed term of years and could only be fired by the President for cause. That sounds exactly like the Commissioner of Social Security. The position of Commissioner of Social Security wasn't before the Court. The attorney for Seila Law argued that there was a distinction between the head of the CFPB and the Commissioner of Social Security but it seems doubtful that the Court will buy that argument once a case squarely presents the issue. 

     I think we may surmise that there was a negotiation between Andrew Saul and President Biden's transition team and yesterday's announcements were the result. I don't understand why Saul wants to hang around to do the bidding of an Administration whose policies he must disagree with but he does.

     So where does that leave the Seila Law litigation that the Social Security Administration is facing? What's Social Security's position? Seila Law totally doesn't apply to cases in the pipeline because Social Security is so much different than CFPB but it can't apply to any future cases because the White House now considers Andrew Saul the Acting Commissioner of Social Security even though Saul himself hasn't announced that he regards himself as serving at the pleasure of the President? That seems like an incoherent position.

     By the way, I've heard an anecdotal report from one attorney that Social Security has recently asked for voluntary remands in all the cases he had in federal court where he was arguing Seila Law. Has anyone else seen this?

Didn’t See This Coming

      More on this tomorrow but take a look at what has to be the weirdest personnel memorandum in Social Security history.

Goodbye, Trump

 

Job Opening

      My law firm is seeking to hire an associate attorney to replace an attorney who is leaving. (We're definitely not expanding!) The job is in Raleigh but the person hired could start from elsewhere since we're all working from home at the moment due to Covid-19. Social Security experience required.

    To apply, send a resume to charles@hall-rouse.com.

Emergency Message On Seila Law

     From Emergency Message EW-21002:

This emergency message provides guidance to administrative law judges (ALJs) and Appeals Council (AC) members regarding objections and arguments based on a recent Supreme Court decision, Seila Law LLC v. Consumer Financial Protection Bureau, 140 S. Ct. 2183 (2020). This message also provides instructions in the Case Processing and Management System (CPMS) and the Appeals Review Processing System (ARPS) for flagging cases in which claimants or representatives raise such objections or arguments.

On June 29, 2020, the Supreme Court of the United States ruled on the constitutionality of the structure of the Consumer Financial Protection Bureau (CFPB). The Supreme Court held, based on circumstances regarding the CFPB, that the CFPB’s leadership by a single director, removable by the President only for inefficiency, neglect of duty, or malfeasance, violated constitutional separation of powers principles. The Supreme Court further held that the for-cause removal provision was severable from the remainder of the CFPB statute.

At our ALJ hearings and AC levels, although the Supreme Court’s decision did not directly address the Social Security Administration (SSA), some claimants and representatives have raised arguments citing Seila Law to challenge the constitutionality of SSA’s structure or the authority of the agency or adjudicator to act on their claim. Such constitutional contentions, when properly presented in agency proceedings, may be preserved for judicial review. Agency adjudicators facing objections that invoke Seila Law should consider and address whether the claimant wishes to withdraw his or her hearing request and whether the ALJ should disqualify himself or herself. We provide guidance on such issues in this EM. ...

 C. What should an adjudicator do if a claimant or representative raises an objection under Seila Law?

1. Challenge Made at the Hearing Level

If a claimant or representative presents an objection invoking Seila Law at the hearing level (whether orally at the hearing, in writing before or after the hearing, or both), the ALJ should consider several questions, set forth below, and document the ALJ’s consideration of these questions in the hearing decision as appropriate.

(1) Is the claimant seeking to withdraw his or her request for a hearing?
a. Under 20 C.F.R. §§ 404.957(a) and 416.1457(a), an ALJ may dismiss a request for a hearing at any time before the notice of the hearing decision is mailed, when the claimant withdraws the request orally on the record at the hearing or in writing.
b. The ALJ should consider whether the claimant’s objection seeks to withdraw his or her request for a hearing.
i. If the claimant’s objection expresses an intention to withdraw the request for a hearing, the ALJ should properly develop the request by following the guidance in HALLEX I-2-4-20.
ii. If the claimant’s objection does not express the intention to withdraw the request for a hearing, it would be appropriate to indicate in the hearing decision that, while the claimant objected to the proceeding based on separation of powers principles, the claimant did not ask to withdraw his or her request for a hearing as permitted under 20 C.F.R. § 404.957(a) or §416.1457(a) (or both); that the claimant appeared at the hearing; and that the ALJ accordingly issues a decision on the claim.
(2) Is the claimant asking the presiding ALJ to withdraw from the case in favor of another agency adjudicator?
a. ALJs have a duty to consider objections to the ALJ presiding in the case. See 20 C.F.R. §§ 404.940, 416.1440. Under the regulations, an ALJ shall not conduct a hearing if he or she is prejudiced or partial with respect to any party or has any interest in the matter pending for decision. See SSR 13-1p. If the ALJ finds withdrawal appropriate, another ALJ will be appointed to conduct the hearing.
b. The ALJ should consider whether the claimant’s objection seeks the ALJ’s disqualification and withdrawal in favor of another agency adjudicator.
i. If a claimant’s objection seeks the presiding ALJ’s disqualification and withdrawal on grounds specific to the presiding ALJ (such as prejudice or partiality), the ALJ shall either address the objection in the decision or withdraw, as appropriate under regulatory guidance. See HALLEX I-2-1-60.
ii. If a claimant’s objection does not seek the presiding ALJ’s disqualification and withdrawal on grounds specific to the presiding ALJ (such as prejudice or partiality), the ALJ should indicate in the hearing decision that the claimant has not challenged the presiding ALJ’s qualifications in a manner that is specific to the presiding ALJ (such as prejudice or partiality), and that the ALJ accordingly conducted the hearing and hereby issues a decision on the claim.
(3) Is the claimant objecting to the ALJ’s authority to render an unfavorable decision on the claim (but not to render a favorable decision on the claim)?
a. Governing regulations provide that the ALJ shall look fully into the issues at a hearing, and, based on a preponderance of the evidence offered at the hearing or otherwise included in the record, issue a written decision giving the findings of fact and the reasons for the decision. 20 C.F.R. §§ 404.944, 404.953(a), 416.1444, 416.1453(a).
b. If a claimant’s objection expresses a view that, because of separation of powers principles, the ALJ lacks authority to deny the claim, it would be appropriate for the ALJ to indicate in the hearing decision that regulations governing the ALJ’s duties and responsibilities require the ALJ to decide a claim, whether favorably or unfavorably, based on the evidence of record. ...

     This is an obvious attempt to intimidate claimants and their attorneys to prevent Seila Law objections. It implies, but doesn't state, that favorable decisions might be overturned if the Supreme Court holds that the position of Commissioner of Social Security is unconstitutional. It doesn't allow ALJs or the Appeals Council to actually consider Seila Law objections on the merits but if they don't raise such objections, the agency will argue in court that they waived them. This puts ALJs in the position of playing litigation games with claimants. This is unworthy of the Social Security Administration. 

     By the way, there was no need for this Emergency Message if Andrew Saul was about to resign as Commissioner.

To Remember

 

The Problem Of The U.S. Mail

      Social Security’s regulations assume that any notices they mail to claimants will be received within five days. I think many of us have recently had personal experiences with the unreliability of the U.S. mail. For example on January 4 I received a package that was sent to me by U.S. mail on December 4. As another example, well into the new year I was still receiving Christmas cards mailed to me a week or more before Christmas. For another example, I’ve already had at least one payment I mailed received late even though it was mailed more than a week before the due date. You can add your own examples. 

     There is only a limited time given to file appeals from adverse Social Security decisions. There is only an extremely short time given to ask for interim benefits when a person is told they are no longer disabled. I think it’s time for Social Security to revisit its assumptions about mail service. 

Major Employee Fraud

     From a press release:

Cheikh Ahmet Tidiane Cisse, age 45, of Baltimore, Maryland, pleaded guilty today to federal charges of theft of government property and aggravated identity theft, in connection with a scheme in which Cisse filed fraudulent claims for Social Security benefits using fictitious identities and the identities of actual individuals, and attempted to collected over $236,000.  ...

Cisse was employed by the Social Security Administration (SSA) as a Claims Specialist in SSA’s Office of International Operations.  Cisse admitted that between July 2018 and March 2019, he filed fictitious claims for benefits using stolen identities and identity documents he obtained through the course of his employment with SSA in order to steal or attempt to steal over $236,000 from SSA.

According to his plea agreement, as part of his job, Cisse was responsible for reviewing the identity documents of social security claimants living abroad, such as passports, marriage certificates, and identity cards.  Cisse then created new, fictitious identities in SSA's database, often using information from the foreign identity documents he reviewed, which were issued social security numbers (SSNs).  Cisse used the fictitious identities to file fraudulent claims for social security divorced spouse survivor's benefits against actual deceased individuals, directing the benefits payments to debit cards or bank accounts he opened in the names of the fictitious identities using the identity documents he obtained through his employment.  Cisse sometimes provided his home address for that of the fictitious claimants, but also provided an address in Quebec, Canada, that corresponded to a mail forwarding service to which he subscribed, making it appear as if the fictitious claimants lived abroad.  Through this mail forwarding service, Cisse received mail associated with the scheme, including genuine social security cards in the names of the fictitious identities and benefits payments. ...