Social Security Proceeding On Gun Control

     The Social Security Administration has sent proposed regulations to the Office of Management and Budget (OMB) on "Implementation of the NICS Improvement Amendments Act of 2007." NICS is the National Instant Criminal Background Check System. The NICS Improvement Amendments Act of 2007 was passed in the wake of the mass shooting at Virginia Tech. That Act was designed to allow NICS to better obtain information about individuals who have a history of severe psychiatric problems which might make them dangerous.

     Before anyone gets too excited about this, let me give a brief sketch about what happens next in the process which must be followed if these proposed regulations are to come into effect. First, OMB must approve them. Ordinarily, this takes at least a few weeks. Second, Social Security must publish the proposed regulations in the Federal Register in what's called a Notice of Proposed Rule-Making (NPRM). The public is allowed comment on the NPRM. Generally, the public is given 60 days to comment but this time period is usually extended for an NPRM that attracts much public attention. Social Security must then review the comments, perhaps alter the proposed regulations to some extent, and them publish them in the Federal Register again so that they may go into effect. This process normally takes a year or more even for regulations that attract only a few comments. This NPRM will attract thousands of comments. They'll be repetitive but employees still have to catalog them. I have no idea how long it will take Social Security to deal with the comments but it will be a big job. Without truly extraordinary efforts there is no way this proposal will go into effect while Barack Obama is still President.

Hearings Proceeding Rapidly For Eric Conn's Prior Clients

     Ned Pillersdorf, the lead counsel for the class action lawsuit to halt Social Security's attempt to cut off the disability benefits of about 1,500 former clients of Eric Conn, has obtained some numbers on the ongoing Administrative Law Judge hearings in those cases. So far about two-thirds of the hearings have been held. About 49% of the claimants who have had gotten decisions have won. About 57% of those who have an attorney have won.

     It's not in Pillersdorf's Facebook posting but the early signs are that the Appeals Council is rushing out denials of review in the cases of those who are denied by ALJs. They're coming out within a month after the request for review.
     The United States District Court for the District of Kentucky is about to be hit by an avalanche of cases. The judge who has been sitting on the motion for preliminary injunction may wonder why he didn't take care of these cases en masse instead of one by one.

Colvin Can Continue As Acting Commissioner Even If Eanes Is Confirmed

     The "Open Executive Session" of the Senate Finance Committee to consider the nomination of Andrew Lamont Eanes to become Deputy Commissioner of Social Security, as well as some other nominations, which had been scheduled for today, has been postponed. No new date has been announced.

     I have been saying that if confirmed that Eanes will become Acting Commissioner of Social Security replacing the current Acting Commissioner, Carolyn Colvin. That's exactly right as things stand now. If Eanes is confirmed, Colvin is out of a job and Eanes as Deputy Commissioner automatically becomes Acting Commissioner. However, it appears that there is a plan to change that. The plan is to create some other position at Social Security, I assume in the Senior Executive Service (SES), for Colvin. The President could then alter the order of succession to make the person holding that position the Acting Commissioner. There are no formalities to this. All that's needed is a simple memorandum from the President. While the Social Security Act provides that the Deputy Commissioner becomes the Acting Commissioner, it also provides that the President can designate someone else.

     I find this weird. The job of Deputy Commissioner at Social Security has only one defined duty -- to become Acting Commissioner if the Commissioner's job is vacant -- and the President would be taking away that duty. What's the point of having a Deputy Commissioner if you take away the only duty of the office? I don't mean to suggest that Eanes won't have anything to do if confirmed. I'm sure he'll be given something to do but if he can't be Acting Commissioner he really seems like a fifth wheel. It also seems weird to me because a person holding a statutory position where he had to be confirmed by the Senate will be reporting to a person holding an SES position which doesn't require Senate confirmation. I wonder how often that happens in the federal government.

     Whose idea was it to confirm Eanes but to retain Colvin as Acting Commissioner? Why would you do this? Why bother nominating or confirming Eanes if you have such a low regard for him that you want to make sure he has no power, at least for now?

Senate Finance Committee To Vote On Eanes Nomination

     The Senate Finance Committee has scheduled a vote for March 2 on the nomination of Andrew Lamont Eanes to become Deputy Commissioner of Social Security. Barring any last minute problem, Eanes is likely to be confirmed by the Senate in the near future.

     If confirmed, Eanes will immediately replace Carolyn Colvin as Acting Commissioner of Social Security. Let me explain why that is. Social Security's Commissioner and Deputy Commissioner do not serve at the pleasure of the President. They serve set six year terms. Colvin's term as Deputy Commissioner ended about three years ago if I remember correctly. She has stayed in office only because the statute allows a Commissioner or Deputy Commissioner to stay in office until a successor is confirmed. The last Commissioner of Social Security, Michael Astrue, resigned some time ago. If Eanes is confirmed, Colvin is immediately out of a job. Eanes will immediately succeed her as Acting Commissioner. There is no pending nomination for Commissioner. Colvin had been nominated in the last Congress but President Obama did not re-nominate her after the 2014 Congressional election.

Rudolph Patterson 1939-2016

     I regret to report that Rudolph Patterson of Macon, Georgia, who was one of the founders of the National Organization of Social Security Claimants Representatives (NOSSCR), has passed away. Rudolph was an invaluable part of NOSSCR for three decades. He trained thousands of attorneys in Social Security law and remained an inspiration to many.

     I first met Rudolph at the first NOSSCR Conference, help in New Orleans in the fall of 1979. I remember being disappointed that I got into town too late to take Rudolph up on his offer of dinner at Antoine's. I think he invited all the attendees to dinner. Rupolph was always generous with his time and his considerable expertise. He certainly helped me greatly.

     Rudolph was NOSSCR's Atticus Finch, the role model to which we all aspired and should still aspire.

Off Topic: Clarence Thomas Asks A Question

     For the first time in more than a decade, Supreme Court Associate Justice Clarence Thomas asked a question from the bench during oral arguments! Actually, he asked several questions in a five minute exchange concerning gun rights.

If You Really Think They Can Work, Why Don't You Hire Them?

     The Equal Employment Opportunities Commission (EEOC) has proposed that federal agencies do a better job of hiring individuals with what they refer to as "disabilities", which I would call medical impairments. The EEOC wants to increase the goal for federal agencies from 7% of the workforce to 12% of the workforce having a "disability."  

     Claimants for Social Security disability benefits are usually incredulous when told that Social Security believes there is some work they can still do. They often ask the question "If Social Security thinks I can work, why don't they give me a job?" I'd like to see Social Security offering jobs to some of the people whose disability claims they turn down despite the fact that the claimants are in and out of psychiatric hospitals. Plenty of them have a history of doing office work. Some are former government employees. If you really think they can work why don't you hire them? You can't hire them all but you can hire some.

New Instructions For Conn Cases

     Social Security just updated its HALLEX manual section pertaining to cases involving alleged "fraud or similar fault." Here are some excerpts with my comments in brackets:

• Except in unusual circumstances where individual case instruction is more appropriate, ODAR will draft specific processing instructions for any group of cases involving the same source(s) believed to have committed fraud or similar fault. [Did I miss the specific processing instructions for the Eric Conn cases or did SSA not release them? Are there secret instructions for these cases?]
• If SSA determined that fraud or similar fault was involved in the individual's application, SSA will provide detailed information regarding relevant criminal, civil, congressional, or administrative investigative findings and how they relate to the individual's application for benefits. SSA will associate copies of any relevant material(s) with the notice and in the claim(s) file. [I don’t remember seeing this “detailed information” in the Conn cases.]
• Under sections 205(u) and 1631(e)(7) of the Act, adjudicators do not have discretion to reconsider the issue of whether the identified evidence should be disregarded when based on an OIG referral of information or a referral based on information obtained during a criminal or other law enforcement investigation.
• However, when the redetermination is based solely on an SSA finding of fraud or similar fault, an adjudicator can consider a beneficiary's or recipient's objection to the disregarding of certain evidence. If the adjudicator is satisfied that fraud or similar fault was not involved in providing the evidence, he or she will consider the evidence. However, if the adjudicator disregards the evidence because a preponderance of the evidence shows that fraud or similar fault was involved in providing the evidence, he or she will address the beneficiary's or recipient's objection in his or her decision. [What? This sounds contradictory.]
• If the beneficiary or recipient submits evidence of an impairment that existed at the time of the original allowance date, but was not alleged on his or her application, SSA will generally consider that evidence. However, if the particular circumstances involved require that a certain type of evidence be disregarded, SSA may also disregard any newly submitted evidence involving that type of evidence. [What’s the standard here? What “particular circumstances” are you talking about?]