Unions Want Saul Gone

      From Federal Times:

Employees at the Social Security Administration overwhelmingly do not have confidence in their leadership’s ability to successfully direct the agency, according to surveys released by two employee associations Dec. 9.

The American Federation of Government Employees’ Council 220, which represents 26,000 SSA employees, unanimously found no confidence in SSA Commissioner Andrew Saul and Deputy Commissioner David Black.

The Association of Administrative Law Judges, which represents approximately 1,100 administrative law judges who are responsible for making decisions on disability claims at the hearing level, found that 88 percent of their members have no confidence in Saul. And 84 percent of those members expressed no confidence in Theresa Gruber, deputy commissioner for Social Security’s Office of Hearing Operations, and Chief Administrative Law Judge Patrick Nagle. ...

Much of the dissatisfaction stemmed from how agency leaders have managed the COVID-19 pandemic and employee safety concerns. ...

Social Security Works Urges Biden To Fire Saul

      From Government Executive:

A liberal advocacy group focused on preserving and expanding social safety net programs like Social Security and Medicare have urged President-elect Biden to replace the leadership of the Social Security Administration and reverse a number of the Trump administration’s policies in favor of an ethos that supports federal workers.

Social Security Works recently released its “transition report,” dated November 2020, for the incoming Biden administration. Chief among the group’s recommendations is that the next president should “clean house,” forcing Commissioner Andrew Saul to resign or be fired and replacing all political appointees at the agency.

“In only eight of the last 40 years has SSA had Senate-confirmed Democratic leadership,” the organization wrote. “Republican control at the top has brought a number of lower-level appointees whom the Social Security community views as hostile to Social Security. It has also brought harmful regulations, the closing of field offices, reductions in staffing, the termination of annual mailing of earnings statements ... anti-union animus, and other actions and attitudes that have degraded access, diminished service, and reduced confidence in the future of Social Security specifically and government more generally.”

The law states that Saul may only be terminated from his post for “neglect of duty or malfeasance,” but Social Security Works said the recent Supreme Court decision Seila Law LLC v. Consumer Financial Protection Bureau, which limited the independence of the fledgling agency, could grant the president the authority to remove Saul anyway. ...

     Two thoughts: First, does Social Security Works know that Saul wants to stay on? Second, regardless of the position of the new Administration, the issue of the constitutionality of a Social Security Commissioner who can only be fired for cause is headed for the Supreme Court. Attorneys who represent Social Security claimants will take care of litigating that issue but it will take us a couple of years or more. If the new Administration wants to litigate the matter directly with Saul, they could probably get it moved along much faster, perhaps even with asking the Supreme Court to hear the matter directly after a District Court decision. Watch out for the confirmation hearing for Biden's nominee for Solicitor General, whoever that may be. That nominee may be asked about this issue since he or she would be the one responsible for litigating it.

 

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?