Merry Christmas

 

Overruling A Court With The Stroke Of A Pen

      From a notice of rescission of acquiescence published in the Federal Register today:

... On September 23, 2015, we published AR [Acquiescence Ruling] 15-1(4) (80 FR 57418) to reflect the holding in Radford v. Colvin, 734 F.3d 288 (4th Cir. 2013). In Radford, the United States Court of Appeals for the Fourth Circuit held that listing 1.04A required a claimant to show only “that each of the symptoms are present, and that the claimant has suffered or can be expected to suffer from nerve root compression continuously for at least 12 months,” 734 F.3d at 294. Contrary to our policy that the requisite level of severity requires the simultaneous presence of all the medical criteria in paragraph A, the Court of Appeals held that a claimant need not show that each criterion was present simultaneously or in particularly close proximity. 

This rescission notice is the result of publication of the final rule, “Revised Medical Criteria for Evaluating Musculoskeletal Disorders,” published on December 3, 2020 at 85 FR 78164.

Clearing Out The Regulations Cupboard

     The Social Security Administration has asked the approval of the Office of Management and Budget (OMB) for proposed regulations on "Adjudicating Disability Claims in Which We Must Consider Vocational Factors." 

    Don't get excited. It's way too late for these proposed regulations to be finalized during the Trump Administration. It's not even theoretically possible given the notice periods involved. In fact, they'll probably not even be approved for publication as a proposal. 

     I don't want to read too much into this but sending this to OMB isn't something you'd do if you were interested in cooperating with the incoming Biden Administration.

How Does Social Security Reopen?

      The Covid-19 timeline is starting to come into focus. Before the end of the month Covid-19 vaccinations will have begun. Probably only medical personnel and first responders will be vaccinated at the beginning. However, by early next year it will probably be possible to start vaccinating older people and those with chronic illnesses. It will take until around May or June to make vaccination available to anyone who wants it. Sadly, a significant percentage of the population will refuse vaccination.

     I've got a lot of questions about how Social Security reopens:

• Does Social Security wait to reopen its offices until all its employees can be vaccinated or does it allow or require employees to return to their offices as they complete their vaccinations?
• Can field offices be reopened to the public in some partial manner before all employees can return to the office?
• Does Social Security have the legal authority -- and the will -- to demand that its employees be vaccinated or else lose their jobs? Unvaccinated employees in the office are a threat to other unvaccinated employees and customers. To some extent, they're a threat even to vaccinated employees since the vaccines are less than 100% effective.
  
• Can Social Security refuse to allow members of the public to enter its field offices if they cannot present proof of vaccination? Unvaccinated customers in waiting rooms are a threat to other customers and to employees.
  
• Once field offices reopen there's going to be a crush of people wanting to be seen in person. Other than urging people to make appointments, how does Social Security deal with this? Appointment calendars may quickly fill up for months into the future. There's also the problem that there's a specific statutory requirement that Social Security deal with many walk-in customers. 42 U.S.C. §405(t).
  

Headcount Declines About 5% Under Trump

      During the Trump Administration the Office of Personnel Management (OPM) has been extremely slow in posting the number of employees at each agency. They've finally updated to June of this year. Here are the recent numbers with some earlier headcount numbers for comparison:

• June 2020 60,515
  
• March 2020 60,659
  
• December 2019 61,969
  
• December 2018 62,946
  
• December 2017 62,777
• September 2017 62,297
• June 2017 61,592
• March 2017 62,183
• December 2016 63,364
• December 2015 65,518
• December 2014 65,430
• December 2013 61,957
• December 2012 64,538
• September 2011 67,136
• December 2010 70,270
• December 2009 67,486
• December 2008 63,733

What Happens When The Pandemic Finally Wanes?

      This is the line outside a Social Security field office a year ago. Can you imagine the lines once Social Security field offices reopen to the public sometime next year? 

Investigation Into Alleged Bribe For Pardon Scheme -- The Crime: Social Security Fraud

      From the New York Times:

The Justice Department investigated as recently as this summer the roles of a top fund-raiser for President Trump and a lawyer for his son-in-law, Jared Kushner, in a suspected scheme to offer a bribe in exchange for clemency ...

A billionaire real estate developer from the San Francisco area, Sanford Diller, enlisted their help in securing clemency for a Berkeley psychologist, Hugh L. Baras, who had received a 30-month prison sentence on a conviction of tax evasion and improperly claiming Social Security benefits, according to the filing and the people familiar with the case. Under the suspected scheme, Mr. Diller would make “a substantial political contribution” to an unspecified recipient in exchange for the pardon. He died in February 2018, and there is no evidence that the effort continued after his death. ...

[T]he case relates to the conviction of Mr. Baras, 77, who was sentenced in 2014 and ordered to pay restitution of about $594,000 for tax evasion and illegally claiming disability insurance benefits to which he was not entitled from the Social Security Administration. ...

Bill To Remove Five Month Waiting Period For ALS Patients Advances

      From the Northwest Arkansas Democrat Gazette:

The U.S. Senate voted 96-1 Wednesday to speed up disability benefits for Americans who are diagnosed with amyotrophic lateral sclerosis -- commonly referred to as ALS.

The bill's sponsor, U.S. Sen. Sheldon Whitehouse, D-R.I., worked closely with U.S. Sen. Tom Cotton, R-Ark., to secure passage of the measure, which would waive the five-month waiting period that delays patients' access to Social Security Disability Insurance.

The legislation now heads to the other side of the Capitol. The House version of the bill, sponsored by U.S. Rep. Seth Moulton, D-Mass., already has more than 300 co-sponsors, including all four of Arkansas' congressmen. ...

     The House Majority Leader has announced that this bill will be brought to the House floor next week.

     This bill would be great for ALS patients but NO ONE should be subjected to this five month waiting period. Why give ALS patients relief from this waiting period but not patients with terminal cancer? 

     My clients ask me why this five month waiting period exists.  They always give me a blank look of incomprehension when I tell them the only reason that five month waiting period is in the Social Security Act is to save money. There's no other explanation.