What are Social Security Emergency Messages and What Weight Do They Carry?

The Social Security Administration uses a dizzying number of methods to issue its positions on the law. These extend from the very formal (Regulations promulgated after notice and comment) all the way down to the very informal (HALLEX, POMS, etc.). Perhaps the most informal method is the "emergency message" system (these are available at: secure.ssa.gov/apps10/reference.nsf/instructiontypecode!openview&restricttocategory=EM).

I recently took a deep dive into the force of law of these proclamations by SSA after a colleague expressed concern to me that a particular Administrative Law Judge was using an emergency message to control the outcome of a decision when the statement of law in that message conflicted with case law on the subject. Interestingly, the Commissioner has issued Social Security Ruling 13-1p, stating that adjudicators are required to follow agency policy as set forth in a number of sources, including emergency messages. Somewhat shockingly, it also specifically directs adjudicators to disregard District Court decisions that conflict with such policy unless it involves a class action case and to disregard Circuit Court decisions unless an acquiescence ruling has been issued directing otherwise. Although SSR 13-1p only discusses the treatment of cases involving drug and alcohol issues, the language in this portion of the Ruling does not say it will not have implication for other types of issues, setting up a potential power struggle between the Courts and SSA on how to treat informal Agency policy on the law.

In Parra v. Astrue, 481 F.3d 742 (9th Cir. 2007), the Circuit held that "internal agency documents" such as emergency messages "do not create judicially enforceable duties"). Parra at 748-749. There is otherwise quite a dearth of case law on the subject and what is available has gone both ways. Compare Neidert v. Berryhill, No. 4:16-cv-00582-NCC, 2017 WL 4260828 *4 (E.D.Mo. Sept. 26, 2017) (holding that the Commissioner's interpretation of law through emergency message is entitled to deference) with Avella v. Saul, No. 2:18-cv-150, 2020 WL 5649327 *7 (S.D.Ga. Sept. 3, 2020) (rejecting argument based on statements in an emergency message). The difference likely can be reconciled by noting that in Avella the controlling Circuit had already issued a binding ruling that conflicts with Agency policy whereas there was no such ruling in the Circuit that controlled in Neidert. Nonetheless, one wonders if the Agency would agree with this in light of the statements made in SSR 13-1p discussed above.

As a final note, there is an odd reference to this issue in Steven B.C. v. Soc. Sec. Admin., No. 6:19-cv-00557-MK, 2020 WL 4559814 *1 (D.Or. Aug. 7, 2020) wherein the Agency apparently argued that emergency rulings (along with other statements of law) "are not judicially enforceable." This seemingly conflicts with the Commissioner's own statement in SSR 13-1p. At the very least, it creates even more confusion about how the Agency will treat emergency messages going forward, particularly in Court litigation. It remains to be seen how any Circuit Court will rule on the issue apart from the Ninth Circuit, which seems to have established that emergency messages cannot be judicially enforced when there is other contrary law that is binding on SSA.