Mar 8, 2018

No Acting Commissioner Means No Changes in Regulations And Who Knows What Else?

     I couldn't figure it out. The Office of Management and Budget (OMB) approved a Notice of Proposed Rule Making (NPRM) of new musculoskeletal Listings for Social Security on February 16, 2018. Normally, once a proposal like this is approved by OMB, it gets published in the Federal Register within a week or so but this one still hasn't shown up in the Federal Register. 
     I think I know the reason for the delay. The NPRM needs the signature of the Commissioner or Acting Commissioner of Social Security. There's nobody to sign off on the NPRM since there's no valid Acting Commissioner.
     Social Security isn't going to be able to propose, much less finalize, any changes in its regulations until this Commissioner business gets resolved.
     And, while I'm thinking of it, can Social Security even take a position in litigation with no one running the show? Maybe they do if there's a valid General Counsel at Social Security but we probably have exactly the same problem there as exists with the Commissioner position.  The agency has a few thousand cases pending in the federal courts.
     What about contracting? Can the agency sign any contracts?
     What about personnel actions?
     By the way, by statute, the Commissioner of Social Security is supposed to put forward its own proposed budget for the agency in addition to the President's proposed budget. The President's budget for FY 2019 came out recently but I don't believe there was ever a budget from Social Security. I think I now know the reason.
     And one last question, what about the Appeals Council and Administrative Law Judges? They operate on a delegation of authority from the Commissioner. Without a Commissioner, do they have authority to act? If that seems outlandish, take a look at this Supreme Court opinion which dealt in passing with the question of delegated authority when there was no one validly occupying the position whose responsibility was delegated. 
     I'm wondering if we might get a recess appointment of a caretaker Commissioner to tide us over until next January. That would avoid the lengthy confirmation process for someone whose term of office would only last a few months. Of course, that would make sense, so it probably won't happen with Donald Trump as President. Social Security is saying they've known about this problem at least since last November. You have to assume that they have alerted the White House back then if not much earlier. It's several months later and the White House has done nothing. What does that tell you about the level of functioning in the Trump White House? At least Mussolini got the trains running on time.


  1. Some may think that the former ACOSS left the Appeals Council (AC) is in good hands since effective October 2017, she appointed the former AC Executive Director (Pat Jonas) as the Deputy Commissioner for the newly-established Office of Analytics, Review and Oversight (OARO), with former AAJ Amy Thompson as the Assistant Deputy. Ms. Berryhill also asked the former AC Deputy Executive Director (Gerald Ray) after less than one month of retiring from the AC) to return to SSA to work in OARO's Analytics Center for Excellence. Not too sure of Gerald's title (or salary for that matter). All of the changes at the top positioned Pat and Gerald's protege' Kelly Salzmann to assume the role as the Acting AC Executive Director. With Pat, Gerald and Kelly together again, the AC is unstoppable.

  2. The topline numbers of the Commissioner's budget are included at the end of SSA's section of the appendix to the President's budget. The FY2019 numbers can be found here:

    OMB did not provide these numbers in the FY2018 President's budget request in violation of Section 704(b) of the Social Security Act.

  3. @9:13


  4. Who should we be naming in new federal court filings as Nancy Berryhill is no longer acting commissioner?

  5. @6:47

    "Commissioner of Social Security Administration"

  6. You know, really, Mr. Hall, your open hatred and disdain for President Trump is unbecoming for an officer of the court. While you have the right to your opinions, to write in such a politically biased manner is not fitting.

  7. @9:55 -

    Irrespective of what Mr. Hall's political views may or may not be, I get a perverse sense of satisfaction when I see ardent defenders of the mockery that is our President wholly ignore bedrock political principles such as the First Amendment.

  8. Maybe if the mainstream press wasn’t working so hard to discourage, discredit, and force people out of the Whitehouse and Trump administration maybe our government would “get more done”. The media’s actions border on treason as they are surely impeding the effective operation of our government and threatening the integrity of our political system which they seeking to control. At its best they are guilty of harassment and bullying.

  9. Gerald Ray in charge? The guy who admitted that the Appeals Council is nothing but a computer program that scans ALJ decisions?

    ALJs: the only judiciary whose decisions get appealed downhill instead of up...