Supreme Court Rules Against Issue Exhaustion

     From the syllabus of the just announced Supreme Court opinion in Carr v. Saul:

Held: The Courts of Appeals erred in imposing an issue-exhaustion requirement on petitioners’ Appointments Clause claims. Pp. 4–12.

(a) Administrative review schemes commonly require parties to give the agency an opportunity to address an issue before seeking judicial review of that question. Such administrative issue-exhaustion requirements are typically creatures of statute or regulation. But where as here, no statute or regulation imposes an issue-exhaustion requirement, courts decide whether to require issue exhaustion based on “an analogy to the rule that appellate courts will not consider arguments not raised before trial courts.” Sims v. Apfel, 530 U. S. 103, 109. “[T]he desirability of a court imposing a requirement of issue exhaustion depends on the degree to which the analogy to normal adversarial litigation applies in a particular administrative proceeding.” Ibid. In Sims, which declined to apply an issue-exhaustion requirement to SSA Appeals Council proceedings, the Court explained that “the rationale for requiring issue exhaustion is at its greatest” when “the parties are expected to develop the issues in an adversarial administrative proceeding,” but is “much weaker” when “an administrative proceeding is not adversarial.” Id., at 110. Although Sims dealt with administrative review before the SSA Appeals Council, much of the opinion’s rationale applies equally to SSA ALJ proceedings. Pp. 4–8.

(b) Even assuming that ALJ proceedings are comparatively more adversarial than Appeals Council proceedings, the question remains whether the ALJ proceedings here were adversarial enough to support the “analogy to judicial proceedings” that undergirds judicially created issue-exhaustion requirements. Sims, 530 U. S., at 112 (plurality opinion). Pp. 8–12. 

(1) In the specific context of petitioners’ Appointments Clause challenges, two considerations tip the scales decidedly against imposing an issue-exhaustion requirement. First, agency adjudications are generally ill suited to address structural constitutional challenges,which usually fall outside the adjudicators’ areas of technical expertise. See, e.g., Free Enterprise Fund v. Public Company Accounting Oversight Bd., 561 U. S. 477, 491. Second, this Court has consistently recognized a futility exception to exhaustion requirements. See, e.g., Bethesda Hospital Assn. v. Bowen, 485 U. S. 399, 405–406. Both considerations apply fully here: Petitioners assert purely constitutional claims about which SSA ALJs have no special expertise and for which they can provide no relief. United States v. L. A. Tucker Truck Lines, Inc., 344 U. S. 33, distinguished. Pp. 9–11.

(2) The Commissioner’s contention that petitioners cannot obtain new hearings because they did not “timely challenge” their adjudicators’ appointments presumes what the Commissioner has failed to prove: that petitioners’ challenges are, in fact, untimely. The Commissioner’s reliance on Ryder v. United States, 515 U. S. 177, and Lucia, 585 U. S. ___, is misplaced, as neither decision had occasion to opine on what would constitute a “timely” objection in an administrative re-view scheme like the SSA’s. Pp. 11–12.

Voters Support SSI Reform

      From a report by Data for Progress (click on images to view full size):

The Costs Of Extending SSI To U.S. Territories

      I was looking for something else but happened upon an estimate that Social Security's Office of Chief Actuary made last year of the costs of extending SSI to all U.S. territories. The cost would be $23.4 billion over a ten year period with the vast majority of that for Puerto Rico. There's no projection presented of the number of claimants who would become eligible for benefits.

     The issue of whether it is constitutional to deny SSI benefits to U.S. citizens who reside in U.S. territories will be heard by the Supreme Court this fall. It is also possible that President Biden will formally propose this as a change in the statutes.

That Study That Supposedly Shows The New Musculoskeletal Listings Will Have Little Net Effect Was Done Four Years Ago And Wasn't Done By The Actuary

      Social Security's Chief Actuary has released a very brief memo on its finding that the new musculoskeletal Listings will have almost no net effect upon the number of disability claims approved. I don't understand why it took so long to release this. The memo includes this paragraph: 

To assist in estimating the effects of the final rule, SSA conducted a case study in 2017covering approximately 1,400 initial DDS-level decisions made in 2015. In comparing determinations of these sample cases using the prior criteria and new criteria, a small number of determinations were expected to change from allowance to denial under the new rule, primarily because their case files do not contain all of the medical evidence required under the new rule.

     So it's not really the Chief Actuary's office that did this study. It was actually done by the people who proposed these new Listings and it was done based upon an earlier version of the Listings rather than the final version.

     Why is the Chief Actuary putting this out as if his office did it and as if it was based upon the actual Listings adopted?  I know why Social Security management would want this coming from the Chief Actuary. He has credibility. Current management doesn't. I don't know why he would put his name on a study his office didn't do. I don't think this is going to age well. 

     And, oh yeah, I'd like to see the actual study itself instead of some brief summary of it.

They Say They Want Your Input

      From an announcement by Social Security in the Federal Register (footnotes omitted):

... The Evidence Act requires Federal agencies to develop ``a systematic plan for identifying and addressing policy questions relevant to the programs, policies, and regulations of the agency.'' This plan, referred to as a Learning Agenda, offers the opportunity for us to use data in order to address the key questions we want to answer to improve our operational and programmatic outcomes and to establish strategies to develop evidence to answer important short-and long-term strategic and operational questions. We seek public comments to inform the development of our Learning Agenda. ... 

Through this RFI [Request For Information], we are asking interested persons, including stakeholders across public and private sectors who may be familiar with or interested in the work of our agency, for input on evidence-building activities that inform important priorities for our agency, including those that are related to the President's broader priorities that are available at https://www.whitehouse.gov/priorities/. We also seek input on future projects that will advance our mission. ...

Finally Some New Numbers On Attorney Fee Payments

     Social Security used to post numbers each month showing the amount of fees paid by claimants for representation before the agency but that stopped at the end of 2019. I never gave up. I kept going back to the website expecting that the agency would eventually update the numbers. My patience has been rewarded. They have finally updated the numbers all the way through last month.

     For 2019, 390,809 fees were paid for a total of $1,214,557,861. The average fee paid per case was $3,107.80. 

     For 2020, 360,493 fees were paid, down 8% from 2019. The total fees paid were $1,081,523,523 down 11% from 2019. The average fee paid in 2020 was $3,000.12, down 3% from 2019.

     For the first quarter of 2021, 77,754 fees were  paid with the monthly average number down 14% from 2020. The total fees paid for the first quarter were $262,694,679 with the monthly average down 10% from 2020. The average fee per case was $3,121.31, up 4% from the 2020 average. However, I would caution about drawing too many conclusions when comparing the first quarter of 2021 with 2020. There are many fluctuations in payments from quarter to quarter and quarters aren't the same length.

     In any case, it's no exaggeration to say that those of us representing claimants are hurting. Our costs have gone up with inflation but our average fee per case is either down or stagnate while our total fees are down considerably.

     Whenever I post anything about attorney fees I always get sneering responses that essentially go "Well, why don't you just give up representing Social Security claimants?" The answer is that some attorneys have already given up representing Social Security claimants and many more are wondering what they should do. There's no doubt that representing workers compensation or personal injury clients pays better than Social Security. Those of us who specialize in representing Social Security clients have invested a lot of time and money developing our practices and are reluctant to give them up but that won't last forever. The end of the pandemic will help but only so much. This field of practice was in decline before the pandemic. I've already heard a report that it's hard to find a Social Security attorney in the state of Kansas. Expect that to spread without an increase in the fee cap.

     By the way, I wonder why these numbers were finally updated now.

EM On Covid-19

      Social Security has issued an Emergency Message on the evaluation of Covid-19 disability claims. It's long but don't expect anything that's really new. I don't fault them; it's too early. About the only thing that I see that's even halfway new is a statement that individuals who have had extended stays in intensive care usually require an extended period of rehabilitation before they can return to work. That seems obvious but I don't recall ever seeing that from Social Security and I can recall non-Covid cases where Social Security failed to take this into consideration.

Covid Long Haulers And Social Security Disability

     From an article in U.S. News & World Report concerning Covid-19 long haulers and disability benefits:

... Last June, Democratic U.S. Reps. John Larson of Connecticut – who chairs the House Ways and Means Social Security Subcommittee – and Danny Davis of Illinois, who chairs the Worker & Family Support Subcommittee, called on the Social Security Administration to collaborate with the National Academies of Sciences, Engineering, and Medicine on how to evaluate the long-term impact of COVID-19 on people's ability to work, which SSA agreed to do.

"While I'm encouraged that SSA is moving forward with this examination of what needs to be done to support long haulers, I do not have confidence in Andrew Saul leading the agency," Larson said in an emailed statement to U.S. News, referencing the Social Security Administration commissioner tapped by former President Donald Trump. "I will continue to push SSA and monitor their work to make sure we are supporting those most affected by COVID-19 who may need Social Security Disability." ...