It's Official: Appropriations Process Suspended

From the Associated Press:

Sidestepping battles with Republicans over offshore oil drilling and pork barrel projects, Democrats controlling the House have called a halt to efforts to pass the 12 annual bills that fund Cabinet agency budgets. ...

Appropriations Committee Chairman David Obey, D-Wis. -- blindsided last month by a GOP effort to transform a bill funding education and health care into a vehicle to permit additional offshore oil drilling -- has suspended his panel's work on spending bills for the budget year beginning Oct. 1. ...

Obey says Republicans simply want to drag out the annual appropriations debates for political ends and that he won't be a pawn in such a game. But with President Bush promising veto after veto of the Democratic bills -- and Senate action unlikely for most of them as well -- there's little enthusiasm among either rank and file Democrats or their leaders to pass all the bills. ...

At a hearing last month, Lewis and a colleague tried to force a vote to lift the offshore drilling ban, enraging Obey, who quickly gaveled the meeting to a close. The panel hasn't reassembled since and has no plans to vote on bills this week.

"With all due respect, there are only seven weeks left in the session. I don't see why we should spend those seven weeks in Jerry Lewis' playpen," Obey said.

Mental Impairment Listings Coming

The Office of Management and Budget (OMB) acted yesterday on Social Security's proposed new mental impairment listings. We can expect to see the proposal in the Federal Register shortly. Apparently, OMB forced Social Security to alter the proposal since the notice indicates that the "Concluded Action" on the proposal was "Consistent with Change."

The public will be able to comment on the proposal after it is published in the Federal Register. Social Security must then consider what will probably be extensive comments. It is virtually inconceivable that these regulations would be finalized before President Bush leaves office, especially since Bush has already promised no new regulations after November 1. Since final regulations will have to be approved again by OMB, the new President who takes office in January 2009 will be able in influence the final rules.

As I have said before, I and many others are apprehensive about this proposal. Previously, Social Security proposed regulations that would have increased the age categories of the grid regulations by two years in an obvious attempt to save money at the expense of Social Security disability claimants. This has been blocked by Congressional opposition, but could be revived at any time with little prior notice. More recently, Commissioner Astrue proposed new procedural rules that would have created barriers to claims being approved in another obvious attempt to save money at the expense of Social Security disability claimants. This too has been blocked by Congressional opposition, but, again, it could be revived at any time with little prior notice. Is this proposal in the same vein?

Eight Circuit Says No Right To Cross-Examine

A panel of the Eight Circuit Court of Appeals held yesterday in Passmore v. Astrue that a disability claimants has no absolute right to cross-examine a consultative physician who examined a claimant at the behest of the Social Security Administration and who issued a report adverse to the claimant. This is at odds with the decisions of some other Courts of Appeals and even with a prior panel of the Eight Circuit. The Passmore panel went to some effort to avoid prior precedent. I would read the Court's analysis of the issue of whether it was an abuse of discretion to deny Mr. Passmore's request to cross examine the physician to mean that a claimant simply has no right to cross-examine the author of an adverse consultative examination report under just about any circumstance.

I have no idea whether this case is an appropriate vehicle for Supreme Court review -- Social Security filed the appeal in the case suggesting that the underlying case might not be that strong -- but this issue may be headed for the Supreme Court.

John McCain On Social Security

Today Is The Deadline

Under Executive Order (EO) 12866 any regulation proposed by any agency must be submitted to the Office of Management and Budget (OMB) for approval. EO 12866 sets forth a 90 deadline for OMB to act upon a regulatory proposal. This deadline can be extended by 30 days.

On April 10, 2008 the Social Security Administration submitted proposed new mental impairment listings to OMB for approval. As of this writing, OMB has taken no action on this regulatory proposal. OMB's time is up today. Either OMB must take action on this proposal or extend the time period.

Some are hopeful that what is in this proposal will help people who suffer from mental illness, particularly those who suffer from mental retardation. Some are fearful that the proposed listings would hurt mentally ill claimants. A lot of people are just apprehensive.

In any case, it is far too late for any final mental impairment listings to be finally adopted during the Bush Administration. All that OMB can approve now would be proposed regulations. The proposed regulations would then be published in the Federal Register for public comments. Final regulations could not be adopted until at least next year.

Client Abducts Social Security Attorney

From the Herald Bulletin of Madison County, Indiana:

Anderson police are still searching for a man who they say abducted his attorney at knifepoint while on their way to the Madison County Jail.

Anderson attorney Thomas Hamer was driving his client Richard Lee Hudson from a successful Social Security benefits hearing in Indianapolis on Monday, when, according to Hamer and police reports, Hudson jumped into the backseat of Hamer’s sport utility vehicle and held a knife to his throat.

Police were called to Rangeline Nature Preserve at 12:41 p.m., Detective Mitch Carroll said, after Hamer flagged down a telephone repair truck going southbound on Rangeline Road for help.

“When we were coming back from Indianapolis, we were right in front of KeyBank (across the street from the jail), and that’s when (Hudson) said ‘I’m not going back to jail,’ or ‘If you think I’m going back to jail you’re crazy’ or something like that,” Hamer said during an interview Monday night.

At that point, Hudson jumped from the passenger’s seat into the backseat behind Hamer, where he held a knife to Hamer’s throat, Hamer said. The attorney said then Hudson said he wanted to go to Maplewood Cemetery because his mother and father were buried there.

“When we got to the cemetery, we kept going farther and farther back, and that’s the first time I thought he was going to kill me,” Hamer said.

According to Hamer, Hudson then tied Hamer’s hands behind his back with a belt and put him in the car.

“He was driving, talking about how he was going to kill his ex-girlfriend,” Hamer said. “I tried talking him out of it, but he was saying he was going to kill her, then commit suicide. What I thought he was going to do was go to this girl’s house, stab her, take the pills — he said he already had the pills, and I thought he would leave me in the car.”

Hudson drove the SUV to Rangeline Nature Preserve, located at 1200 S. Rangeline Road, Hamer said, and the men started walking along one of the trails in the park.

“I said, ‘if you’re going to tie me up, just tie me up here,’” Hamer said. “We went a few steps further and instead of walking on the path, we started walking on the brush. He said if I didn’t do anything stupid, he wouldn’t hurt me.”

Hudson then tied Hamer’s ankles with his old shirt and ran from the scene, leaving in his attorney’s burgundy 2007 Ford Escape hybrid with Hamer’s wallet, cell phone and other personal item.

2007 Allowance And Denial Rates

The National Organization of Social Security Claimants Representatives (NOSSCR) has obtained from Social Security a report on the allowance and denial rates on disability claims at the initial and reconsideration levels for 2007. The pages are reproduced here. Click on each to view full size. Note the disparities between the states. By the way, you may want to note NOSSCR's newly redesigned website.

Night Court

My firm has been notified that several hundred cases are being transferred from the Office of Disability Adjudication and Review (ODAR) office in Charlotte to the Seattle ODAR office for video hearings. We have been told that the Seattle ODAR office is planning to schedule hearings starting as late as 8:00 p.m. on the East Coast, which would be 5:00 Pacific time.

We have not heard any explanation for why these hearings would be scheduled so late in the day. I do not know if this is merely a peculiar aberration or a sign of things to come, but ODAR is going to some trouble to arrange for personnel to work this late. I do know that there have been some capacity problems in midday on the network through which Social Security does video hearings.

Somehow, the idea of night court has a declasse feel to it. Besides being inconvenient for the claimant's attorney, the symbolism strikes me as inappropriate.