What's On The Agenda?

All federal agencies must provide a list of regulatory changes they are working on, called their regulatory agenda. The regulatory agenda includes regulatory proposals those that have not yet resulted in a Notice of Proposed Rule-Making (NPRM), which is the first time that the public can see the contents of a regulatory proposal. Below are three items from Social Security's regulatory agenda. Note that the first three could be quite significant or quite minor. There is no way to know at this point. We know the third one, which has already resulted in an NPRM, is major. Note also that the dates given are not binding. These things are often delayed by many months, even years. Sometimes they are withdrawn. Also, agencies can suddenly decide to add an item to their regulatory agenda and rush it into the Federal Register.

Title: Clarify Applicability of Res Judicata and Collateral Estoppel   

Abstract: This proposed rule would clarify the applicability of res judicata and collateral estoppel in our administrative review process....

NPRM  04/00/2012

Title: Clarifying Changes to the Title II Regulations (3374P)   

Abstract: These rules amend our regulation to clarify several eligibility criteria for benefits under the Act....

NPRM  08/00/2011

Title: Administrative Waiver of Overpayments   

Abstract: We propose to revise and clarify our regulations addressing the Commissioner's discretion to use blanket waivers for the recovery of an overpayment. Under titles II and XVI of the Social Security Act (Act), the commissioner "shall" seek repayment of overpayments, unless waiver is appropriate. We believe the Act allows us broader discretion in granting blanket waivers than we currently use. ...

NPRM  01/00/2012

Title: Revised Medical Criteria for Evaluating Mental Disorders (886F)   

Abstract: Sections 12.00 and 112.00, Mental Disorders, of appendix 1 to subpart P of part 404 of our regulations describe those mental impairments that we consider severe enough to prevent a person from doing any gainful activity, or that cause marked and severe functional limitations for a child claiming Supplemental Security Income payments under title XVI. We will revise the criteria in these sections to ensure that the medical evaluation criteria are up-to-date and consistent with the latest advances in medical knowledge and treatment.  ...

ANPRM [Advanced NPRM]	03/17/2003	68 FR 12639
ANPRM Comment Period End	06/16/2003
NPRM	08/19/2010	75 FR 51336
NPRM Comment Period End	11/17/2010
Final Action	03/00/2012

Michael Astrue And His Religious Faith

The Washington Examiner has a question and answer piece with Social Security Commissioner Michael Astrue, focusing on his Roman Catholic faith. Here are a couple of excerpts:

Is there one person that most influenced your faith? 

This is sort of a hard thing. I was about 10 when Vatican II came in, and everything changed very dramatically. I had a priest growing up who was very influential in guiding me and some of my friends through all that. So it was very hard many years later to discover he was one of the worst abusers in the scandals in Boston, and not just sexually, but the single most violent. The church's struggle in Boston has been something that I've taken very personally. ...

Do you think your faith improves your leadership?

Yes. Again, if you're motivated by trying to make the world a better place, you're probably more balanced, you treat people better, you try to help them be leaders too and bring out the most in them. I think if you're in government for other reasons you might not behave the same way. And I think a lot of people don't behave that way. For me it's not about the money and it's not about power. It really is for me primarily about the satisfaction of knowing that if I go in and do my job well, life will be better for a lot of people.

Another Posthumous Child Case

From Beeler v. Astrue, ____ F.3d ____ (8th Cir. August 29, 2011):

This case requires us to determine whether a child conceived through artificial insemination more than a year after her father’s death qualifies for benefits under the Act. ...We conclude that the Commissioner’s interpretation is, at a minimum, reasonable and entitled to deference, and that the relevant state law does not entitle the applicant in this case to benefits.

By the way, it appears that there has been a petition for rehearing en banc in the similar recent case of Schafer v. Astrue, 641 F.3d 49 (4th Cir. 2011).

Mandatory Use Of Electronic Process Clears OMB

     The final regulations to require that those who represent Social Security claimants use Social Security's electronic services has cleared the Office of Management and Budget (OMB) and should appear in the Federal Register in the near future. There was some change in the regulations at OMB but we will probably never know what was changed. This proposal was originally linked to changes that would have recognized entities such as law firms as representing claimants. Those proposed changes were confused and unworkable. The appearance is that because its proposal was trashed by attorneys, Social Security has just decided to do nothing.

     People talk about reducing the regulatory burden on the American public. It is hard to imagine anything more absurdly burdensome than Social Security's bizarre policies on attorney fees. These policies burden claimants as well as attorneys. They make it difficult for a claimant to move from one attorney to another. Imagine a claimant in Buffalo who hires an attorney for their Social Security disability claim and not long thereafter moves to Raleigh. The attorney in Buffalo withdraws from the case and waives any fee. I pick up the case and move forward to a successful conclusion. Under Social Security's policies, my fee is cut in half. Why? Would you take on the case if you were me? What is the person moving from Buffalo to Raleigh supposed to do? What value is being protected by this policy?

43% Increase In Threats To Social Security Personnel In One Year -- What's Going On?

From today's Federal Register:

We are publishing the process we follow when we ban an individual from entering our field offices. Due to escalating reports of threats to our personnel and our customers in our offices, we are taking steps to increase the level of protection we provide. ... In FY 2010, we received nearly 2,800 reports of threats to our employees across the Nation, an increase of 43% from FY 2009.

Despite Questions Social Security Plans To Plow Ahead With $500 Million National Data Center

     From Gazette.Net:

Plans for a $500 million office building for the Social Security Administration predicted to bring 200 jobs to Frederick County are progressing after the recent sale of an Urbana property.

A letter from the Frederick County Board of Commissioners to the Social Security Administration on Tuesday expressed the county’s excitement over the project. ...

The new building is planned for use predominantly as a primary data operations center for the administration, along with some office space.The 400,000-square-foot building will incorporate sustainable technologies using energy-efficient heating and cooling systems, on-site renewable energy sources, water conservation, and the use of sustainable materials, according to the county’s letter.

Construction is expected to begin in early 2012.

      Meanwhile, Vivek Kundra, the Chief Information Officer for the Obama administration until last month, has written an op ed piece for the New York Times arguing that "governments around the world are wasting billions of dollars on unnecessary information technology" because of what he calls the "I.T. cartel ... [a] powerful group of private contractors encourages reliance on inefficient software and hardware that is expensive to acquire and to maintain." He argues for cloud computing, noting that the General Services Administration cuts its information technology costs by 50% using cloud computing. He states that cloud computing is "often far more secure than traditional computing, because companies like Google and Amazon can attract and retain cyber-security personnel of a higher quality than many governmental agencies." 
     This comes on the heels of the firing of Ephraim Feig, who had been Social Security's Associate Chief Information Officer for Vision and Strategy. Feig was apparently advocating the same position as Kundra. This also comes on the heels of news that the federal government is closing 800 data centers at the moment.
     As tight as money is at Social Security, there is an urgent need for a Congressional hearing on Social Security's planned national data center. I do not have the knowledge to debate the wisdom of building an expensive data center for Social Security but there is an obvious controversy that needs a public airing. There is too much money at stake not to fully explore the issues.

Maybe He Really Is Disabled

From the Traverse City Record-Eagle:

A Kingsley man who crashed his van into the Social Security Administration Office in Traverse City "in a fit of rage" over repeated disability claim denials finally had his claim approved.

Douglas McCallum, 47, stands to receive about $1,000 a month in Social Security disability benefits, despite pending criminal charges for damaging the SSA office building and sign.

What Is The Point Of The Appeals Council?

     In its current form, does the Appeals Council have any legitimate function? The Appeals Council usually takes at least a year and often much longer. It reverses only about 5% of the decisions it reviews and remands only about 20%. I have never seen any rationality in Appeal Council decisions. Frequently, review is denied even though the Administrative Law Judge (ALJ) decision has obvious, severe defects. This is not just my judgment. Social Security's Office of General Counsel (OGC) clearly agrees with me. Often, after attorneys file civil actions is Social Security cases, OGC takes a voluntary remand because they know they cannot defend the ALJ decision. This probably happens in 25% or more of cases. The remands and reversals that do come out of the Appeals Council seem almost to have been selected at random.

     Does the Appeals Council serve any purpose other than to delay and frustrate claimants who want to obtain review of ALJ decisions? To put it another way, I ask myself the question: "If you could waive Appeals Council review and proceed directly to District Court, would you?" The answer to me is obviously "yes."

    The question of whether the Appeals Council should be abolished has been around a long time. It has usually been coupled with the question of whether reconsideration should be abolished. However, reconsideration does not waste nearly as much time as the Appeal Council and, in its own way, is not nearly as irrational as the Appeals Council. 

     The calls to abolish the Appeals Council were pretty loud before 1999 when claimants were allowed to file new claims while cases were pending at the Appeals Council. In fact, the pressure was so bad at that time that Social Security employees often refused to enforce the policy that sought to prevent a claimant from filing a new claim while an appeal was pending. The 1999 decision to allow a claimant to file a new claim and an appeal released much of the pressure. The issuance of Social Security Ruling 11-1p, which seeks to prevent a claimant from filing a new claim and an appeal, bottles up that pressure once again. This time I think the pressure will build more rapidly because the Appeals Council is even less effective than it was in 1999. As of 1999, if I remember correctly, the Appeals Council was remanding in something like 30% of cases. It's now about 20%, making the Appeals Council even more useless than it was in 1999.