Andrew Saul was sworn in as Commissioner of Social Security on June 17. A few days later I posted a list of issues on Saul's docket. Let's go through that list and see what actions Saul has taken:
What To Do About Hicks v. Commissioner of Social Security
- Social Security twisted its rules to cut off benefits for as many of Eric Conn's former clients as possible. The 6th Circuit Court of Appeals ruled against the agency on November 21, 2018. Ever since then the Solicitor General and Social Security have been "considering" whether to ask the Supreme Court to hear the case. I doubt that they are seriously considering that. I think they've just been stalling until a new Commissioner was confirmed because it's hard to decide how to implement the decision of the Court of Appeals. They can't stall much longer. -- A decision was made that Social Security would not ask the Supreme Court to hear the case but that was inevitable since there was no reason for the Supreme Court to hear the case. No decision has been made on the difficult question of how to handle the Conn cases in the wake of the 6th Circuit opinion.
What To Do About Cases Pending At The Appeals Council Which Were Decided Prior To Lucia v. SEC And An Objection Has Been Made To ALJ
- The Supreme Court decided last year that Administrative Law Judges (ALJs) as then appointed were unconstitutional. Social Security changed the way ALJs were appointed to adjust to this decision but there are thousands of cases still pending at the Appeals Council that were heard before the Lucia opinion. The agency has suggested that they want to avoid remanding all these cases for new hearings with different ALJs by having the Appeals Council issue new decisions on its own. This is arguably illegal and probably impractical. A decision on this can't be delayed much longer. -- No action. This one won't wait much longer.
Proposed Regulation That Has Been Published For Comments And Can Now Be Made Final
- Removing inability to communicate in English as a factor in determining disability. Anti-immigrant proposals are very popular with Republicans these days but Saul will poison his relationship with Congressional Democrats if he goes ahead with this one and they have the power to make his life difficult.-- No action.
Proposed Regulations That Have Not Yet Been Published For Comments
- Considering social media in determining disability. Unpopular with many in Congress, including Republicans.
- Revising evaluation of vocational factors in determining disability (probably increasing age categories in grid regulations). Go ahead with this one and you've made a declaration of war on Congressional Democrats.
- Hearings held by Administrative Appeals Judges. Nobody knows exactly what this one is but if it's what I think it is -- trying to get rid of independent ALJs -- it's going to be unpopular with all Democrats and many Republicans in Congress. -- No action on any of these proposed regulations. Will there ever be any action?
Stance On Employee Unions
- The Trump Administration has taken an extremely aggressive and antagonistic stance on federal employee unions. Social Security has followed suit. Democrats on the House Ways and Means Committee are already pressuring Saul to soften Social Security's approach. Will he be a loyal Republican and continue the harsh anti-union stance or does he modify it to avoid conflict with Congressional Democrats who can make his life difficult? His message to agency staff suggests that he'll soften the anti-union stance. -- No publicly announced action on employee unions.
Process For Appointing New ALJs
- The old process for appointing ALJs was found unconstitutional. What will the new process be? -- Apparently, the agency has been in the process of hiring new ALJs. I don't think there's been any announcement of what the process is.
- This one may be wishful thinking on my part. The cap on fees that may be charged for representing Social Security claimants hasn't been raised since February 9, 2009. By any normal standard it's way past time to increase it. However, I'm not sure that the organizations that represent those who represent claimants have been able to generate any real pressure to increase the cap. -- No action.
11 comments:
In good news, he didn't rush in and do something incredibly stupid.
I'm actually surprised they are not pursuing the matter to the Supreme Court, regardless of there being no reason for the Supreme Court to hear the case.
On the process for appointing new ALJs, I had assumed Saul will just directly appoint them, since arguably that's valid. So the process would be, ALJs proceed through the standard hiring process, and then Saul signs off on it.
But he did institute a hiring freeze, so he's already had a large and negative impact on morale.
As to Lucia, I just received my first letter from the AC suggesting that they might make a new decision without remanding. I was able to make comments about how it deprived my client of due process, etc.
I have received remands in other cases where we raised a Lucia argument but these remands were made on other grounds but assigned to different ALJs on remand.
@ 4:10
I believe the goal here is to issue remands where valid issues were raised not just technicalities like Lucia. For those appeals that only cite Lucia and the AC does not find any other issues they would be issuing a decision on their own motion.
Not right either way but I believe that’s how it’s being done.
We got a remand after citing Lucia but there were other issues. Lucia simply just got us a new ALJ.
The "other issues" in Lucia remands are among the most ridiculous I've ever seen from a group of people that only engage in the absurd. It shouldn't ultimately matter under a Lucia challenge, but it's comical the lengths they stretch to find any other excuse to send it back.
The other great thing about Lucia remands is that they aren't even paying attention to whether a judge was actually appointed by a confirmed commissioner. They're just remanding them without worrying about whether Lucia applies at all.
SSA actually did want to file a cert petition in Hicks but the Solicitor General was the one that said no.
As for new ALJs, Saul stopped impending OHO/OCALJ hiring in its tracks right before it was about to occur with an agency-wide hiring freeze that (a) expressly did NOT extend to Operations, and (b) will enable appropriated funds previously earmarked for backlog reduction to be diverted to IT modernization. I don't know where this fits on your list but it is certainly significant action that shows a deemphasis on the relatively narrow issue of disability adjudication in favor of the broader parts of SSA that affect more of the public -- field offices and computer systems.
I think the other shoe will be dropping soon on the union stance issue. I am hearing that SSA is now aiming to slash telework in all of the applicable contracts, which is possibly the #1 negotiable issue dearest to employees. If Saul were going to soften SSA's stance he'd have done it by now and this wouldn't be happening. The obvious although unstated goal is to make federal work less attractive so that the swamp drains itself.
Denying telework across the board for all positions is counterproductive, and the opposite of, “Draining the swamp.” The only thing this accomplishes is, “Draining the swamp,” of the best, and highly qualified Federal employees, and attracting the least educated, and most unqualified individuals to the Federal workforce.
Of course, the less educated and unqualified individuals are more likely to accept management’s concept of working as automatons, preoccupation with unsubstantiated production quotas/numbers, quality of work a mere afterthought at best, complete and total lack of understanding of the concept of due process, and the use of punitive tools to enforce managements whims and desires. In other words, a workforce devoid of professionals, such as Attorneys/Judges, HR Specialists, Accountants, Actuaries, MBA’s, IT Specialists, etc., and replaced with non-professional, non-college educated future government bureaucrats.
Thus, Management’s desire, as well as the Trump Administration, is to return Federal employment backwards a few hundred years to the old Spoils System, where employees are hired based on their political views, favoritism, and nepotism without ANY education or qualifications.
NEWSFLASH TO SSA MANAGEMENT AND THE TRUMP ADMINISTRATION: This is backwards, counterproductive, and guaranteed to turn the, “Swamp,” into a wholly incompetent and corrupt workforce, in other words, an utter cesspool.
Yes, the new Commissioner did put a partial hiring freeze in place -- Operations direct service components (Field Offices, Teleservice Centers, and Program Service Centers (and probably Card Centers)) are allowed to do hiring. They have been decimated over the last decade.
Insofar as the IT upgrades, they are vital. I can just imagine Mr. Saul's reaction when he was told about the mainframe's reliance on COBOL ….
@ 7:41, I agree. Most of the time they aren’t even citing issues raised in the brief.
The system is very dated and quite ridiculous frankly. Also in my opinion ALJ’s are still NOT appointed and in violation of the supreme courts ruling.
To be properly appointed they would all need to be terminated and then appointed. Not just someone waving their hand and saying ok you’re now appointed. Besides the appeals council was citing that they were now appointed by the “acting commissioner” Acting commissioners can’t lawfully appoint anyone.
@12:14 The new commissioner has done more in his short tenure than the prior acting commissioner ever did.
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