Waiting In Missouri

     From a television station in Bloomfield, MO:

Every day, Susan Babis wonders how she's going to pay even the smallest bills.

Babis lives with schizophrenia and post-traumatic stress disorder and said she is unable to hold a job. Even a $3 co-pay for her medications forces her to rely on friends. ...

Babis applied for Social Security disability benefits in July 2016. More than a year and a half later, she still hasn't had a hearing to determine whether she'll receive them. The government denied her application and she filed an appeal in January 2017. Earlier this year, she was informed she was scheduled for a hearing this September.

Babis isn't alone. 

The Social Security Administration's own data show an average wait time of 16 months at the agency's facilities in Springfield and Kansas City, 18 months in Columbia and 20 months in St. Louis. ...

The Social Security Administration turned down a request for an on-camera interview for this story. It also never responded to a request for the number of Missourians currently awaiting disability claims.

Former Conn Client's Case Argued In CA6

     The audio recording of the oral argument before the 6th Circuit Court of Appeals in the case of Hicks v. Commissioner of SSA is now available online. This is the first case to reach a Court of Appeals concerning the legal issues presented by Social Security's unprecedented reviews of the cases of former clients of Eric Conn.

Quite Rare?

     From the Cleveland Plain Dealer:

Q: Last month I received a letter from Social Security telling me how to access the online account I had just established. The letter also told me to dial an 800 number or visit a Social Security office if I had not opened such an account. Two days later I received a second letter about my change of address request.

I had done neither of these, so I went to the Akron Social Security office. The people there were friendly and professional. They deleted the online account and disallowed the change to a San Diego address. They also told me that my direct-deposit bank information had not been compromised.

I asked whether it would be a good idea to open a legitimate online account and they helped me do so.

Two things they were vague about: How did the scammer get my information and what could he or she accomplish with the bogus account. They also were unsure as to whether Social Security Administration would pursue this matter further.

The 800 number in the letter is answered by a robot receptionist and it could not respond to my statement, "I did not open an online account." This motivated me to drive to Akron.

D.S., Hudson

A: It's a good thing --  a really good thing -- you didn't ignore that letter. I talked to the Social Security Administration about your problem. They said that, fortunately, near disasters like what you encountered don't happen often.
"Our anti-fraud activities identify attempts and make the type of activity you are asking about very rare," said Doug Nguyen, regional spokesman for the Social Security Administration. "The agency employs a multi-faceted approach towards fraud prevention and regularly performs data analytics against (legitimate) transactions to identify anomalous activity and take action." ...

OIG To Investigate Milwaukee Office Closure

     Social Security's Inspector General plans to investigate the closure of a field office in Milwaukee. I don't see how they could find that the agency complied with its own policies. 

One Vet's Struggle

     An Atlanta television station is reporting on one vet's struggle to get Social Security disability benefits. You must multiply this story by a million to begin to get a picture of what goes on at Social Security.

So What Kind Of Pumpkin Did Social Security Turn Into At Midnight?

Yeah, I know, I'm mixing metaphors. So?

     I've been looking at the Federal Vacancies Reform Act of 1998.  Here's what I've discovered.

     Under 5 U.S.C. §3345 upon a vacancy in an office that requires Senate approval, the President can designate a person to serve as an acting officeholder. If the President doesn't make such a designation, the "first assistant" to the departed officeholder becomes the acting officeholder. In the case of the Social Security Administration, President Obama established a plan of succession. President Trump could have altered that plan but didn't. Under that plan, Nancy Berryhill became acting Commissioner. However, under that statute there can only be an acting officeholder up to certain time limits and 5 U.S.C. §3347 makes it clear that there is no other process by which a person can become or stay an acting officeholder beyond those time limits.  Everyone is in agreement that that time period has passed for the office of Social Security Commissioner and that office is vacant.

     Once the time period has passed, 5 U.S.C. §3348(b)(1) says the office and the functions and duties of that office remain vacant until someone can properly qualify to become the officeholder. Under 5 U.S.C. 3348(a)(2)(A) the functions or duties of an office are defined as those established by statute and "required by statute to be performed by the applicable officer (and only that officer)." That means that Administrative Law Judges and Appeals Counsel members and other Social Security employees who are performing previously delegated duties are able to continue to perform their previously delegated duties during the vacancy of the office of Commissioner of Social Security. So can just about any other employee.

     However, what about duties that had not previously been delegated? Even though there's nothing in the statutes that would have prevented the Commissioner or Acting Commissioner from delegating essentially any of the duties of the office, I don't see how there's anybody available now to further delegate any duties.
     I don't think there's any published list of duties that the Commissioner of Social Security has and hasn't delegated. Probably, there's always been some fuzziness about this since it's not possible to know in advance every novel issue or circumstance that might come up. Here would be my best guess of some duties that would never have been delegated under normal circumstances:

• Firing, replacing or disciplining senior level employees
• Coordinating the activities of the various offices and individuals who report directly to the Commissioner 
• Deciding upon internal budget allocations
• Deciding upon staffing level and overtime allocations for Social Security's various parts
• Approving contracts over some predetermined dollar amount
• Approving agreements with employee unions
• Signing off on proposed or final regulations
• Settling major litigation
• Approving statements made to Congressional committees
• Approving requests for legislation or agency comments on pending legislation

     It is possible that Nancy Berryhill made some last minute delegations before her authority as Acting Commissioner expired so that there could be better continuity. If there were any such extraordinary delegations, I think it behooves Social Security to announce them.

    In any case, Social Security was already somewhat rudderless with Nancy Berryhill as Acting Commissioner (not that it was her fault) and is even more rudderless now. How rudderless may depend upon whether Nancy Berryhill made some extraordinary delegations of authority while still Acting Commissioner. There's also the question of how well those at the top at Social Security will work together with no one really in charge -- the "you're not my real mommy" problem if you will.

I Think She's Got A Point

     From a letter from Congresswoman Gwen Moore (D-Wis) to Social Security's Acting Inspector General (although, for the same reason that there's no Acting Commissioner of Social Security I think there's no Acting Inspector General):

I am writing regarding the anticipated closing of the “Mitchell St.” Social Security Administration (SSA) Field Office at 1710 S. 7th St. Ste. 200, Milwaukee, WI 53204.
My office was first notified that the Mitchell St. Field Office would be closing on January 9, 2018. It was explained to my staff that the current office location had numerous health and safety concerns which necessitated closing the office....

As noted in SSA policies and procedures for closing and consolidating field offices, “At least 180 days prior to the proposed consolidation date, we will notify the public about any field office consolidation proposal and include a 30 day comment period.” As stated above my office was first notified on January 9, 2018, less than two months prior to the anticipated consolidation. Based on information received from SSA and the General Services Administration (GSA), SSA began the process of looking for an alternative site in late 2015; over two years ago. Per the above requirements, SSA had both the ability and the opportunity to notify my office and the public at large of its anticipated actions. ...

TV Station Picks Up On Story Of Elderly Man Being Thrown To Ground At Phoenix Field Office

     A local television station has picked up on the story of a security guard throwing an elderly man to the ground at a Social Security field office in Phoenix. Neither the guard nor the elderly man are identified.

Social Security Field Office Closed By Anthrax Hoax

     From the Leesburg, Florida Daily Commercial:

Police and firefighters converged on two Lake County offices Wednesday to investigate suspicious packages, although one quickly proved to be a hoax.

Members of Lake County’s Hazardous Materials unit responded to the Lake Emergency Medical Services office on Old U.S. Highway 441 in Mount Dora early Wednesday afternoon after a “white powdery substance” arrived there by mail, according to City of Mount Dora spokeswoman Lisa McDonald. ...

12 employees who came in contact with the letter were temporarily quarantined while the Hazmat team tested the substance, but the team soon determined the substance was not hazardous.

At the same time, the Social Security Administration building in Leesburg was temporarily closed after employees received another suspicious package. Leesburg police did not immediately know what kind of package it was or how it arrived but said they were waiting for the Hazmat team to finish in Mount Dora and come investigate the suspicious substance there.

The scares were the latest in a series of such hoaxes dating back to last year.

Early in 2017, the Daily Commercial received a letter that threatened the life of President Donald Trump, and another mailed to the paper in December contained white powder inside a folded piece of looseleaf paper with the word ANTHRAX written across it. Lake County Fire Rescue’s hazardous materials team responded to the newspaper and determined that the substance was baking powder.

Then on Jan. 29, three letters — presumably from the same person — arrived at three locations in Leesburg: the Daily Commercial, Bank of America on North 14th Street and Florida Heart & Vascular Center on Dixie Highway, across from Leesburg Regional Medical Center. It was the second time the bank had received one of the letters.

No harmful substances were in those letters.

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.