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.

No Further Pretense

     A message from Nancy Berryhill to Social Security employees:

From: ^Internal Communications 

Sent: Wednesday, March 07, 2018 3:20 PM 

Subject: A Message from Nancy Berryhill A Message To All SSA Employees

Subject: A Message from Nancy Berryhill

On January 20, 2017, I was honored to become the Acting Commissioner of the Social Security Administration. Starting with Social Security 41 years ago as a summer aide, the vital mission of this agency has always fueled my passion for public service. Yesterday, the Government Accountability Office, who is responsible for monitoring the timelines for vacancies in certain Federal government positions, determined that a limitation of 300 days applied to the Acting Commissioner. Out of an abundance of caution, the agency had already taken steps in November 2017 to ensure that agency operations continue uninterrupted. 

Moving forward, I will continue to lead the agency from my position of record, Deputy Commissioner of Operations. Throughout my career, I have learned that position titles come and go, but what truly matters is the people we serve every day. Beyond the change in title, there will be no impact in our service to the American public. Now, as always, I look forward to continuing to focus on the mission of the agency. ...

     What steps were those that Social Security took in November 2017?

Does This Mean That Nancy Berryhill Is Now The Acting Acting Commissioner Of Social Security?

     Below is most of a letter from the General Counsel of  the Government Accountability Office to the Chairman of the House Ways and Means Committee (footnotes omitted). Note the last sentence which I have bolded:

Pursuant to section 3349(b) of title 5 of the United States Code, we are reporting a violation of the Federal Vacancies Reform Act of 19981 (herein "the Vacancies Reform Act" or "Act") at the U.S. Social Security Administration (SSA) with respect to the Commissioner position. Specifically, we are reporting that the service of Nancy A. Berryhill as Acting Commissioner at SSA after November 17, 2017, is in violation of the Act.

The Vacancies Reform Act establishes requirements for temporarily authorizing an acting official to perform the functions and duties of certain vacant positions that require Presidential appointment and Senate confirmation. The Act generally limits the period of time that such a position may be filled with an acting official to 210 days. 5 U.S.C. § 3346(a)(1). In the year of a transitional Presidential inauguration, that time period is extended to 300 days after the vacancy occurs with respect to any vacancy that exists during the 60-day period beginning on the transitional inauguration date. 5 U.S.C. § 3349a(b). Under the provisions of section 3349(b), the Comptroller General is required, upon a determination that an acting official has served longer than the allowable period of service, to report such findings to Congress, the President, and the Office of Personnel Management.

In response to our recent inquiry to all federal departments and agencies with positions subject to the Vacancies Reform Act to update the status of any vacancies, acting officials, or nominations, the General Counsel of SSA reported that the position of Commissioner remains vacant.2 Our research indicates that the position was vacant on January 20, 2017, and Nancy A. Berryhill became Acting Commissioner on January 21, 2017. To date there have been no nominations submitted for that position. According to SSA, Ms. Berryhill became Acting Commissioner pursuant to a memorandum of December 23, 2016, issued by President Obama establishing an order of succession for the performance of the functions and duties of the office of the Commissioner of Social Security (Memorandum of Succession). We note that the Memorandum of Succession specifies that its provisions are subject to the limitations of the Vacancies Reform Act.

In accordance with the Vacancies Reform Act, the 210-day period began to run 90 days after the vacancy occurred on January 20, 2017-on April 20, 2017-and ended on November 16, 2017. Thus, the position of Commissioner should have been vacant beginning November 17, 2017. SSA's website indicates that Ms. Berryhill continued serving as Acting Commissioner after November 16, 2017. We have previously determined that using the acting title of a position during the period in which the position should be vacant violates the time limitations in the Vacancies Reform Act. Therefore Ms. Berryhill was not authorized to continue serving using the title of Acting Commissioner after November 16. However, SSA can provide for performance of the delegable functions and duties of the Commissioner position in accordance with the Memorandum of Succession or other applicable authority. ...

     There will be a House Social Security Subcommittee hearing on this issue today.
     I've already been asked if there will be litigation on this. Maybe I lack imagination but I've not been able to think of anyone who would have standing to raise the issue.
     Attorneys who sue Social Security now have a problem. When we sue the agency, we are supposed to sue the Commissioner or Acting Commissioner by name. That's why Nancy Berryhill is the defendant in thousands of lawsuits. Who is now the proper defendant? I should say that this is a technicality that doesn't affect the validity of any lawsuit.
     Don't blame Nancy Berryhill for this. I doubt that she ever wanted the job even temporarily. She's a career employee. They generally try to avoid the limelight. The responsibility for this lies with President Trump.
     Don't expect Trump to nominate anyone soon. The current term for a Commissioner ends in January 2019. By the time anyone was confirmed now, their term would almost be at an end and they'd have to go through the confirmation process again.

A New SSA-1695 Process

     From an update issued yesterday to a Social Security Emergency Message: 

We are revising EM-12004 REV 3 to update the processing steps of the form SSA-1695 (Identifying Information for Possible Direct payment of Authorized Fee) as they will take place in RASR. ... 

We are revising this EM policy to reflect that effective immediately, we will no longer send manual acknowledgement notices to representatives after processing the SSA-1695, since RASR release 1 will send this notice automatically. In addition, we will no longer redact and fax the processed SSA-1695 into the electronic folder (EF). Instead,we will properly dispose of the form, since the acknowledgement notice sent automatically by RASR will serve as our record of the processing. ...

     I don't know what RASR stands for. 

     The bottom line is that Social Security is altering its process for recording the fact that an attorney is representing a claimant. I always cringe when Social Security makes this sort of change. Any alteration in this sort of process is disruptive. We can hope the disruption will be favorable -- easier processing for Social Security with fewer mistakes -- but in the short run there's probably a greater potential for mistakes.

Can Social Security ALJs Be Distinguished From Other ALJs?

     The issue in the Lucia v. SEC case which the Supreme Court will almost certainly decide by the end of June is whether Administrative Law Judges (ALJs) at the Securities and Exchange Commission (SEC) are unconstitutional under the Appointments Clause of the Constitution because they were not appointed by the President or a Department head. Social Security leaders seem confident that this won't affect their agency. At least, they're doing nothing that suggests concern. I don't understand why.
     When it charged Eric Conn with federal crimes, the government estimated that the amount of money involved was $550 million. Around 1,800 claimants were involved. This means that they valued each case at around $300,000. In doing so, I think they weren't taking into account the value of Medicare benefits but let's leave that aside. The average Social Security Administrative Law Judge (ALJ) hears more than 500 cases a year. This means that based upon the value that the Department of Justice puts on these cases the average Social Security ALJ is deciding upon cases with a value of about $150 million per year.

     The standard for determining whether an officeholder is in "officer" as that term is used in the Constitution is whether that person exercises “significant authority pursuant to the laws of the United States.”  OK, tell me your argument for why ALJs at the SEC are obviously inferior offices subject to the Appointments Clause while Social Security ALJs aren't.
     What does the fact that SEC cases are adversarial and Social Security cases aren't have to do with it? Most "inferior offices" in the federal government have no adjudicative role at all. The question is the decision-making authority involved. The plaintiff in the Lucia case, who promoted a scheme he called "Buckets of Money", was barred by an SEC ALJ from selling securities. (Real sympathetic test case they've got there.) My understanding is that's the sort of thing that SEC ALJs adjudicate. A Social Security ALJ has the power to decide whether a person has an income or not. Not infrequently, homelessness is on the line. If you're barred from selling securities, you move on to a new line of work, not a homeless shelter. On the whole, I'd say there's more at stake in the average Social Security ALJ case than the average SEC case (not to mention that each Social Security ALJ adjudicates far more cases than the average SEC ALJ), unless you think that any case involving wealthy people or corporations is inherently more consequential than a case involving an ordinary American.
     By the way, take a look at the 1988 Supreme Court decision in Morrison v. Olson. That case concerned whether independent counsels of that day passed muster under the Appointments Clause. The statute under consideration in that case is no longer in effect. Robert Mueller was appointed under Department of Justice regulations rather than the old statute. While Mueller was appointed by the acting head of the Department of Justice (the Attorney General had recused himself), he can only be removed for cause. It was the same situation faced by the Court in Morrison. If the Supreme Court decides that SEC ALJs are unconstitutional, it's going to have to make it clear that it doesn't mean to disturb Morrison or there's going to be litigation about the constitutionality of the Mueller appointment. Distinguish Robert Mueller. Distinguish Social Security ALJs. Distinguish Social Security Appeals Council members. Distinguish members of the Board of Veterans Appeals. Probably distinguish ALJs at some other agencies. That's a lot of distinguishing. Maybe finding SEC ALJs unconstitutional isn't worth all that distinguishing especially when no one seems to be able to come up with a bright line test to apply.

What Were They Thinking?

     I can't get over the fact that at a time when there are frequently lines of people waiting to be served at Social Security field offices and many people who try to call the agency end up hanging up in frustration because they have been on hold for so long that the Social Security Administration thought it appropriate to spend good money on a study to answer the burning question, "Can you tell how disabled someone is just by looking at how frequently they're treated at a hospital?"

     Honestly, someone ought to be fired over this. Perhaps everyone at Social Security central offices ought to be required to spend some time working on their agency's front line. 

How I Stay Sane -- Countdown To 2018 Congressional Elections

Election CountdownCountdown

Warning: Beltway Bandits At Work!

     From a press release:

A new report from the National Academies of Sciences, Engineering, and Medicine examines to what extent and in which ways health care utilization—such as in-patient hospitalizations, emergency department use, and hospital readmission—reflects disease severity, disability, and ability to perform gainful activity. The committee that conducted the study was unable to find an association between health care utilization and disease severity as it relates to the Social Security Administration's (SSA) determination of severe impairment—an impairment or combination of impairments severe enough to prevent a person from performing any gainful activity regardless of age, education, or work experience. 

     The Social Security Administration paid these beltway bandits to tell us that there's no direct relationship between the number of hospital visits and the degree of disability! Anybody involved with disability determination could have told you that for free. I have clients with 300 page files who are obvious allowances. I have other clients with 2,000+ page files who have weak cases. Disability determination isn't about counting the number of pages of medical records any more than counting the number of hospital visits. The idea that there would be such a simplistic relationship is absurd on its face.

     There's a real beltway bandit touch to this report. Even though the Social Security Administration paid for this worthless study, the National Academies wants $50 for a copy of the report. 

     By the way, if you did pony up the $50, I will bet you that there will be one unambiguous recommendation in the report -- more research. As I've said before, when someone goes to work for a beltway bandit, they must be told on their very first day of work, whenever you write a report, no matter what else it says, it must always give a firm recommendation for more research.