Here's something from the preamble to Social Security Ruling (SSR) 17-4p:
Through SSRs, we make available to the public precedential decisions relating to the Federal old-age, survivors, disability, supplemental security income, and special veterans’ benefits programs. We may base SSRs on determinations or decisions made at all levels of administrative adjudication, Federal court decisions, Commissioner’s decisions, opinions of the Office of the General Counsel, or other interpretations of the law and regulations.The SSR specifically says that it does not have the same force or effect as a statute or regulation. It only talks about it being binding upon the Social Security Administration itself. Doesn't this say on its face that it doesn't bind members of the public?
Although SSRs do not have the same force and effect as statutes or regulations, they are binding on all components of the Social Security Administration. 20 CFR 402.35(b)(1).
The Administrative Procedure Act (APA) says that regulations, which have the force and effect of law, can only be adopted after a cumbersome process which requires publication of the proposed regulation in the Federal Register, allowing the public to comment on the proposed regulation and considering those comments before final adoption. Presidential orders also require that proposed and final regulations be submitted to the Office of Management and Budget, which is part of the White House, for approval before publication in the Federal Register. The APA provides that the notice and comment procedure applies to all rules other than "interpretative rules, general statements of policy, or rules of agency organization, procedure, or practice." That's why the preamble quoted above is attached to all SSRs. Isn't the fact that regulations can bind the public the reason why the APA requires notice and comment? Binding the public is the role of statutes and regulations, not SSRs.
I don't think this SSR passes muster under the APA. I know the agency is trying to address conduct it has good reason to consider obnoxious but there are limits. Would Social Security really try to discipline someone based upon the contents of a mere ruling?
10 comments:
As an elaboration of how SSA is interpreting the new regs in conjunction with other already articulated regs/rules, the SSR may pass muster. However, the part I found problematic was using this SSR to redefine what 20 CFR 404.1512 and 416.912 mean. They have been interpreted by Commissioner and courts to mean one thing in the past. Now, SSA has changed when and how those regs will be applied through this SSR. What they should have done was repeal these regs and incorporated a new development standard that is consistent with the new 5 day rule regs. They chose not to do that but now want to re-imagine what those regs mean via SSR. Seems problematic.
i'm sure a HALLEX has much less effect than an SSR, but just for the sake of conversation, i'd like to point out that the provisions added in the SSR were put in place in a HALLEX months ago.
https://www.ssa.gov/OP_Home/hallex/I-02/I-2-5-1.html
It says the SSRs are binding on "all components of Social Security". Interestingly, it does not say SSRs are binding on representatives or members of the public. In other words, it doesn't appear as though SSR adoption was intended to be a method of imposing duties or instituting rules for people outside the Agency, which is what they are doing. Rather, it is only intended to be a way for the Agency to issue policies to its own employees. In that way, it is not consistent with 20 CFR 402.35(b)(1), and seems to be an extra-regulatory action.
@9:43
It's arguable whether representatives are a component of Social Security, however 20 CFR § 404.1740(c)(9) requires representatives comply with the Administrations "rules or regulations," so I this representatives are bound regardless of the ruling's language.
However, the claimant is certainly not a component of Social Security or bound under 20 CFR § 404.1740(c)(9). I will be interested to see the first pro se lawsuit dealing with the issue.
If the statement that SSR's are binding on all components of the Agency, which I believe they are, this would also apply to POMS and HALLEX as statements of agency policy binding on the Agency components.
Raise your hand if you have ever been told by an ALJ that ALJ's are not bound by POMS (or HALLEX) or any other Agency policy embodied in Rulings.
I really would like to know who in Disability Policy came up with this. Probably the same can't shoot straight gang who offered the secret ALJ policy. When was the last time a new SSR didn't make it harder for claimants and reps ( note the recent treating physician undermining). There's just no one in charge up there. So the agency allows clueless minnows to pen crap that will only increase tension between ALJS and claimants and reps. Yep, that will reduce the backlog.Don't often quote congressmen; but as one said this week; How do you fix stupid?
I was a rep for a few years before I joined the agency, but I never had a chance to finish a Federal Court appeal. Now that I'm on my own, I'm looking forward to going to Federal Court. I'm just waiting to do it on one of my own cases. I think the change to the treating physician rule and these new five day evidence rules go against Federal Court Jurisprudence on this issue and may even go against the Social Security Act itself. I'm looking forward to making those arguments at any rate.
17-4P, A Lament For Justice Lost
Anonymous
What happened to the agency
Whose mission was to serve?
Objective not adverse,
Justice, with patience served?
Now eager to inflict the lash
Of penalties with records slashed
With no care for consequence
Of harm done to claimants
I will visit Justice's grave
And on the tombstone read
I died so some ALJs
Could from their jobs be freed
To care less for justice,
than expediency
SSR 96-1p states that ALJs are bound only by Agency policy and are not permitted to interpret Federal Court precedent. This is a problematic ruling because it turns ALJs into case technicians.
The federal courts still operate, though, as if that SSR doesn't exist, with liberal District Court and appellate justices in the 2nd, 7th, and 9th Circuits routinely substituting their judgment for ALJ judgment on issues related to credibility and treating physician opinions, and expressing repeated confusion as to why ALJs don't, for example, use some 1997 decision on some other case to better their jurisprudence.
Those Circuits expect ALJs to adhere to their own expectations -- in the 2nd Circuit, particularly with regards to developing the record sua sponte.
And yet, under SSR 96-1p, ALJs can't interpret Federal Court cases or apply them in their decisions (excepting Court remand cases).
If the Federal Courts didn't intervene to strike down SSR 96-1p, don't expect them to bat an eyelash at SSR 17-4p.
10:19, that situation is supposedly what the Appeals Council is for.
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