About That Footnote

     Social Security is trying to worm its way out of the federal courts applying the new rule changing past relevant work from 15 years to 5 by saying in a footnote to a Social Security ruling that it expected the courts to apply the law in effect at the time of the administrative decision. 

    I wrote earlier that I didn't think that Social Security was getting out of this problem with a simple footnote.

    Here's a quote that may be of interest:

It is in the general true that the province of an appellate court is only to enquire whether a judgment when rendered was erroneous or not. But if subsequent to the judgment and before the decision of the appellate court, a law intervenes and positively changes the rule which governs, the law must be obeyed, or its obligation denied. If the law be constitutional . . . I know of no court which can contest its obligation. It is true that in mere private cases between individuals, a court will and ought to struggle hard against a construction which will, by a retrospective operation, affect the rights of parties, but in great national concerns . . . the court must decide according to existing laws, and if it be necessary to set aside a judgment, rightful when rendered, but which cannot be affirmed but in violation of law, the judgment must be set aside.

    Chief Justice John Marshall wrote that in United States v. Schooner Peggy, 5 U.S. 1 (1801). You don't have to go back that far to find the same principle applied. Try Bradley v. Richmond School Board, 416 U.S. 696 (1974). Want a case where this was applied to Social Security? See Hicks v. Califano, 600 F.2d 1048 (4th Cir. 1979). That one is especially applicable because it was a case arising from the initial adoption of the grid regulations.

    There won't be that many cases where the difference between 15 years and 5 years is outcome determinative,  I don't know why Social Security wants to fight over these few cases. Get it over with and accept the voluntary remands.

    For that matter, apply this at the Appeals Council. Don't apply res judicata to cases affected and grant reopenings within the two and four time periods allowed by law when requested.

Good Decision Out Of CA4

    The Fourth Circuit Court of Appeals issued an important decision yesterday in Shelley C. v. Commissioner of Social Security.

    The Court found that summary statements assigning "little weight" to the opinion of the treating physician on the grounds that it "is on an issue reserved for the Commissioner and . . . is inconsistent with the medical evidence of record. [His] treatment notes do not indicate any significant symptoms that would render [Shelley C.] unable to perform basic work activities” does not comply with the agency's own regulations. An ALJ decision must identify the alleged inconsistencies between the treating physician's opinion and the medical evidence. The Court also held that the ALJ decision must explicitly show consideration of each of the six factors in 20 C.F.R.§404.1527(c). I think that in practical terms the Court held that merely using canned language won't cut it. If an ALJ gives "little weight" to a treating physician's opinion, the ALJ is going to have to explain why.

    By the way, the Court didn't even deign to discuss the "opinion reserved to the Commissioner" language in the ALJ decision, which is about how much attention one should pay to makeweight language implying that Social Security has some right to summarily make decisions without regard to the evidence and without being held to account by anyone. Taken at face value, that arrogance would render judicial review meaningless.

    The Court also held that the ALJ "could not dismiss Shelley C.’s subjective complaints based entirely upon the belief that they were not corroborated by the record’s medical evidence."

    The Court did not remand the case. It reversed it and ordered payment of benefits. That is uncommon at the District Court level and quite rare at the Court of Appeals level. This was a bad day for Social Security's Office of General Counsel and for canned boilerplate in ALJ decisions. Show your work, ALJs.

No Dice For Disability Determination Patent Application

     The United States Court of Appeals for the Federal Circuit has ruled against a patent application that promises to determine whether an individual is disabled for purposes of Social Security through a computer network.

No Remedy For Unconstitutional Commissioner

     From the Court's summary of the 9th Circuit's decision in Kaufmann v. Kijakazi, decided on April 27, 2022:

... Claimant challenged the constitutionality of the statute that governed the President’s removal authority over the Commissioner, and the district court’s grant of the Commissioner’s Rule 59(e) motion. ...

The panel ... held that the President possessed the authority to remove the Commissioner of Social Security at will.

The final question was the appropriate remedy for claimant, whose appeal to the Appeals Council was denied while Commissioner Saul served under an unconstitutional removal provision. ...

... Because claimant did not show that the removal provision caused her any actual harm, the panel upheld the Commissioner’s decision denying her application for benefits. ...

9th Circuit Rules That New Regs Supercede Prior Court Precedent

      From the 9th Circuit Court of Appeals' summary of its April 22, 2022 opinion in Woods v. Kijakazi:

... [T]he panel held that recent changes to the Social Security Administration’s regulations displaced longstanding case law requiring an administrative law judge (“ALJ”) to provide “specific and legitimate” reasons for rejecting an examining doctor’s opinion. For claims filed on or after March 27, 2017, that are subject to the new regulations, the former hierarchy of medical opinions – in which the court assigned presumptive weight based on the extent of the doctor’s relationship with the claimant – no longer applies. While the panel agreed with the government that the “specific and legitimate” standard was clearly irreconcilable with the 2017 regulations, the panel held that the extent of the claimant’s relationship with the medical provider – the “relationship factors” – remained relevant under the new regulations. An ALJ can still consider the length and purpose of the treatment relationship, the frequency of examinations, the kinds and extent of examinations that the medical source has performed or ordered from specialists, and whether the medical source has examined the claimant or merely reviewed the claimant’s records. However, the ALJ no longer needs to make specific findings regarding those relationship factors. ...

What Will Social Security Do About The Marasco & Nesslebush Case?

      I had written recently about Social Security's inability to react to an adverse ruling by a court at anything other than a glacial pace. Let me ask when the agency might decide what it's going to do about Marasco & Nesselbush v. Collins. On July 16, 2021 the First Circuit Court of Appeals held that:

... SSA's rule barring payments to attorneys for work completed before they enter government service is both arbitrary and, in some circumstances, in conflict with the statutory mandate to pay "a reasonable fee" for successful representation of SSA claimants. ...

and further held that:

... SSA must adjust its rules, as described above, to ensure that the law firms that employ salaried associates to represent SSA claimants may receive direct payment of the attorney's fees to which the firms' associates are entitled for representation performed while employed by those law firms. ...

     This didn't go to the Supreme Court so Social Security has no choice but to implement it in the First Circuit area (most of New England) but it makes little sense to try to apply it just to that one area of the country. Payment centers all over the country are involved in authorizing attorney fees in the cases of claimants residing in the First Circuit area. Why would you want to have two systems? I can't exclude the possibility that Social Security will be that pig-headed but I hope that wiser heads prevail. Something should have been done about this problem decades ago.

Slow Reaction Time

      On August 24, 2020 the 9th Circuit Court of Appeals issued a decision in Maxwell v. Saul, 971 F.3d 1128, holding that coming up with two job titles to which a claimant could transfer skills isn't enough to support a finding of transferable skills. Since that time the agency has been thinking about what to do about the Maxwell decision. It's still thinking about whether to issue an Acquiescence Ruling but it's now told its staff to follow Maxwell in the 9th Circuit.

     I don't know whether to attribute this extraordinary delay to a sclerosed decision-making process or stubborness. Maybe they're both contributing factors.

Miscellany

      Some stories from the weekend:

• Washington Post article on Social Security's field office problems;
• Nancy Altman urges an end to the "starvation" of Social Security's field offices;
• Binder and Binder -- the law firm -- gets a big payday.
  

SSA On A Real Losing Streak In Conn Cases

      From WTVQ:

Hundreds of Social Security disability recipients in Appalachia who were victimized by now-disbarred attorney Eric C. Conn’s fraud scheme notched another major legal victory.

The United States Court of Appeals for the Fourth Circuit ruled Thursday the Social Security Administration violated due process rights of Conn’s former clients by refusing to allow them to rebut allegations that their medical evidence was tainted by fraud. ...

The agency ended up terminating benefits for nearly half those individuals, including Gary Kirk and Larry Kermit Taylor, the plaintiffs in Thursday’s decision.

Kirk and Taylor successfully argued the SSA violated the Administrative Procedure Act and the Due Process Clause of the Fifth Amendment of the United States Constitution when it revoked their disability.

Besides the Fourth Circuit, the Sixth Circuit and the Seventh Circuit have considered substantially similar cases and each concluded that the SSA’s redetermination procedures were unlawful. ...

OHO Productivity Continues To Decline

        The report shown below was obtained from Social Security by the National Organization of Social Security Claimants Representatives (NOSSCR) and published in its newsletter, which is not available online to non-members. It is basic operating statistics for Social Security's Office of Hearings Operations. 

     I know the backlog is down under a year. Big whoop. I was around when it was three months. Yes, it really was that low at one time and not just briefly. Take a look at Blankenship v. HEW, 587 F2d 329 (6th Cir. 1978). A District Court ordered that Social Security hearings be held in 90 days. The Court of Appeals found that to be unreasonable but also found that 220 days national average at that time was also unreasonable. Yes, I know the Supreme Court later said the courts can't put time limits on Social Security hearings but I'm talking here about an erosion of values. We've come to expect service that would have once seemed unimaginably poor. We need to get these backlogs down as low as we can. You have to give 75 days notice? So what? Claimants and their attorneys will generally waive that time frame. Besides, that 75 day time frame is an issue only in a few areas of the country. Get the backlog down now while you can. Everyone expects an avalanche of claims as the pandemic wanes.

Click on image to view full size

 

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.

Appellate Decision On Application Of Windfall Offset To Canadian Social Security Benefits

      From the Indiana Lawyer:

A split 7th Circuit Court of Appeals panel affirmed a grant of summary judgment to the Social Security Administration on Monday in a class-action suit brought by a Canadian woman with dual citizenship who alleged her U.S. Social Security benefits were wrongly reduced based on similar benefits she receives from Canada.

Lorraine Beeler, a dual citizen of Canada and the United States, has established nearly 20-year careers in both countries and receives monthly retirement benefits from the Canada Pension Plan, that country’s equivalent to U.S. Social Security. She also worked at jobs on which she paid Social Security taxes in the United States.

Beeler’s earnings in Canada were not subject to Social Security taxes, and her earnings in the United States were not subject to Canada Pension Plan taxes. But Beeler ran into a problem after she alleges her Social Security benefits were wrongly withheld. She then sued the Social Security Administration in the U.S. District Court for the Southern District of Indiana in the class action case of Lorraine Beeler v. Andrew M. Saul, 19-2099. 

There, Beeler asserted that the reduction of her U.S. benefits is a violation of two Social Security provisions: The Windfall Elimination Provision and the U.S.-Canada totalization agreement. The class claims that both the statutory language of the WEP and the terms of the agreement prohibit the reduction of Beeler’s benefits. ...

The 7th Circuit Court of Appeals split in affirming the district court’s decision, with the majority concluding the agency correctly ruled that plaintiffs’ Canadian employment was noncovered under the Social Security Act, and thus the provision applied to reduce their Social Security benefits. ...

But Circuit Judge Amy St. Eve dissented from the majority’s opinion, finding that its analysis “rests on an unsupported premise to exclude Beeler’s work from the definition of employment. ...

     I'm a little surprised that we're just now getting litigation on this issue. I suppose the reason there hasn't been litigation is that most of the time the U.S. Social Security Administration cannot apply the offset because it has no knowledge that a claimant is receiving foreign social security benefits.

     By the way, I think it would have been better if this case had not been brought as a class action. When there were more class actions against Social Security than there are now, the practice was to win an individual case and THEN bring the class action in another case with a different named plaintiff so that Social Security could raise nothing other than procedural defenses. Don't put all your eggs in one basket until you have to.

Social Security Loses In The Seventh Circuit On Conn Case

     The vast majority of Eric Conn's former clients reside in Kentucky. The Sixth Circuit Court of Appeals, whose territory includes Kentucky, has already ruled that the process used by Social Security to reopen the cases of Conn's former clients, could not stand. However, Conn had some clients who live in West Virginia, which is in the Fourth Circuit Court of Appeals territory and other Conn clients have moved all over the country. The latest appellate court to act on a Conn case is the Seventh Circuit Court of Appeals which has just ruled that the process that Social Security used cannot stand, although it did so in a narrower way that the Sixth Circuit. I believe there is another case pending at the Fourth Circuit Court of Appeals but I don't know the status of that case.

    The Conn cases that have been sent back for new hearings are on hold at the moment because of the Covid-19 pandemic. It's not at all clear how these will be handled.

First Circuit Rules That Puerto Rico Residents Can Be Paid SSI

     The First Circuit Court of Appeals has issued an opinion in the case of U.S. v. Vallelo-Madero holding that it is an unconstitutional denial of equal protection to refuse to pay Supplemental Security Income (SSI) benefits to qualified residents of Puerto Rico. Puerto Rico residents are citizens of the United States but since the beginning of the program ineligible for SSI. If they move to a state, however, they can get the benefit.

     The background of the case is interesting. Vallelo-Madero was receiving SSI while living in New York but then moved to Puerto Rico. Apparently, he didn't tell Social Security he had moved but they somehow found out later. It looks as if they did a criminal investigation but eventually decided not to bring charges. Instead, they did something they rarely do, they filed a civil suit to try to collect the overpayment. It was at this point that he raised the defense that his SSI never should have stopped so there wasn't an overpayment.

     Social Security can now ask all the judges of the First Circuit Court of Appeals to hear the case en banc or they can ask the Supreme Court to hear the case or they can give up and start paying SSI to all eligible applicants living in Puerto Rico. I don't think this Administration is going to pay SSI to a bunch of brown skinned people if it can avoid it. However, if Joe Biden is elected President in November and this case is still pending as I expect it will be, he may decide to accept the First Circuit opinion and start paying SSI to eligible people living in Puerto Rico.

Social Security Loses In CA3 On Issue Of When Lucia Argument Had To Have Been Raised

     After the Supreme Court held in Lucia v. SEC that Administrative Law Judges (ALJs) as then appointed were unconstitutional, there was the inevitable issue of which Social Security claimants would get new hearings. The Social Security Administration argued that the issue had to have been raised before the Administrative Law Judge or at least before the Appeals Council. They have now given up on the argument that Lucia had to have been raised before the ALJ and have remanded all of the cases where the Lucia issue was raised at least before the Appeals Council. The issue of whether the issue had to have been raised at least before the Appeals Council is being litigated in the federal courts. 

     We have our first Court of Appeals opinions in one of the post-Lucia Social Security cases, Cirko v. Commissioner, a Third Circuit case. Social Security lost. The Court held that it did not matter that the Lucia issue wasn't raised until after the matter reached the United States District Court.

     Social Security is still litigating this issue before other Courts of Appeals. It's possible that the agency will win elsewhere. If that happens, the issue will have to be decided by the Supreme Court.

Social Security Treated Employee Worse Because He Was A Vet

     From Bloomberg Law:

A former attorney adviser with the Social Security Administration convinced the Federal Circuit Nov. 7 that his veteran status was a substantially motivating factor in the agency’s 2011 decision to fire him.

As a qualifying veteran hired by a government agency, Clarence McGuffin was entitled to a shorter probationary period than other non-veteran new hires before the full suite of Civil Service Reform Act rights vested. Those rights include the right to appeal adverse employment actions to the Merit Systems Protection Board....

 “We want to terminate him so that he does not acquire MSPB rights,” read one intra-agency email quoted in the opinion. Another email stated that McGuffin was a “vet” who “has to be terminated in his first year.” ...

McGuffin was let go from his attorney adviser position in SSA’s Office of Disability Adjudication and Review in part because he allegedly wasn’t producing his “fair share” of work, a monthly quantity determined by dividing the office’s caseload across all of the attorney advisers charged with authoring benefits appeals decisions. But SSA isn’t supposed to use an attorney adviser’s “fair share” production as a performance metric until their second year with the agency, Reyna said. ...

“The record is clear that SSA closed the door on Mr. McGuffin well before the end of his first year to avoid the inconvenience of defending itself should Mr. McGuffin assert his procedural safeguards afforded under the CSRA,” Reyna said. The court reversed the contrary decision from the MPSB and remanded the case for further proceedings. ...

The case is McGuffin v. SSA, Fed. Cir., No. 17-2433, 11/7/19. ...

Andrew Saul Hasn't Hit The Ground Running

     Andrew Saul was sworn in as Commissioner of Social Security on June 17. A few days later I posted a list of issues on Saul's docket. Let's go through that list and see what actions Saul has taken:

What To Do About Hicks v. Commissioner of Social Security

• Social Security twisted its rules to cut off benefits for as many of Eric Conn's former clients as possible. The 6th Circuit Court of Appeals ruled against the agency on November 21, 2018. Ever since then the Solicitor General and Social Security have been "considering" whether to ask the Supreme Court to hear the case. I doubt that they are seriously considering that. I think they've just been stalling until a new Commissioner was confirmed because it's hard to decide how to implement the decision of the Court of Appeals.  They can't stall much longer. -- A decision was made that Social  Security would not ask the Supreme Court to hear the case but that was inevitable since there was no reason for the Supreme Court to hear the case. No decision has been made on the difficult question of how to handle the Conn cases in the wake of the 6th Circuit opinion.

What To Do About Cases Pending At The Appeals Council Which Were Decided Prior To Lucia v. SEC And An Objection Has Been Made To ALJ

• The Supreme Court decided last year that Administrative Law Judges (ALJs) as then appointed were unconstitutional. Social Security changed the way ALJs were appointed to adjust to this decision but there are thousands of cases still pending at the Appeals Council that were heard before the Lucia opinion. The agency has suggested that they want to avoid remanding all these cases for new hearings with different ALJs by having the Appeals Council issue new decisions on its own. This is arguably illegal and probably impractical. A decision on this can't be delayed much longer. -- No action. This one won't wait much longer.

Proposed Regulation That Has Been Published For Comments And Can Now Be Made Final

• Removing inability to communicate in English as a factor in determining disability. Anti-immigrant proposals are very popular with Republicans these days but Saul will poison his relationship with Congressional Democrats if he goes ahead with this one and they have the power to make his life difficult.-- No action.

Proposed Regulations That Have Not Yet Been Published For Comments

• Considering social media in determining disability. Unpopular with many in Congress, including Republicans.
• Revising evaluation of vocational factors in determining disability (probably increasing age categories in grid regulations). Go ahead with this one and you've made a declaration of war on Congressional Democrats.
• Hearings held by Administrative Appeals Judges. Nobody knows exactly what this one is but if it's what I think it is -- trying to get rid of independent ALJs -- it's going to be unpopular with all Democrats and many Republicans in Congress. -- No action on any of these proposed regulations. Will there ever be any action?

Stance On Employee Unions

• The Trump Administration has taken an extremely aggressive and antagonistic stance on federal employee unions. Social Security has followed suit. Democrats on the House Ways and Means Committee are already pressuring Saul to soften Social Security's approach. Will he be a loyal Republican and continue the harsh anti-union stance or does he modify it to avoid conflict with Congressional Democrats who can make his life difficult? His message to agency staff suggests that he'll soften the anti-union stance. -- No publicly announced action on employee unions.

Process For Appointing New ALJs

• The old process for appointing ALJs was found unconstitutional. What will the new process be? -- Apparently, the agency has been in the process of hiring new ALJs. I don't think there's been any announcement of what the process is.

Fee Cap 

• This one may be wishful thinking on my part. The cap on fees that may be charged for representing Social Security claimants hasn't been raised since February 9, 2009. By any normal standard it's way past time to increase it. However, I'm not sure that the organizations that represent those who represent claimants have been able to generate any real pressure to increase the cap. -- No action.

The 6th Circuit Has Spoken So Let's Put These Claimants Back On Benefits

     From WLEX:

... On Sunday, attorneys filed a pleading in Federal Court seeking class action relief for the more than 800 former clients who lost their Social Security benefits as a result of the largest fraud case in the history of the agency.

The move comes after the U.S. 6th Circuit Court of Appeals denied the agency’s request for a rehearing of a November decision.

That decision found the Social Security Administration’s actions were unconstitutional when it tossed all medical records from four doctors associated with Conn’s scheme. As a result, hundreds of former clients lost their benefits.

“We’re hoping that, as of Friday, the Social Security Administration will acknowledge these hearings were unconstitutional and restore the benefits of 800 to 900 people up here,” said Ned Pillersdorf, an attorney who has represented former clients of Conn’s. ...

     It's not completely clear from this article but the class action relief sought at the moment is for the claimants involved to be placed back in payment status.
     My prediction is that Social Security will stall, saying they need more time to consider whether to ask the Supreme Court to hear the case. Ultimately, they won't ask for Supreme Court review because there is no clear reason why the Supreme Court would hear the case but the agency can delay resumption of benefits for these claimants for several months this way. No one at Social Security wants to be responsible for pulling the plug on their Eric Conn debacle. They'll want to let it wait until there's a confirmed Commissioner.

En Banc Review Requested In Hicks v. Berryhill

     In Hicks v. Berryhill the 6th Circuit Court of Appeals held unconstitutional the process that the Social Security Administration had used to terminate the disability benefits of hundreds of former clients of Eric Conn, who was found guilty of fraudulent conduct. That opinion came out on November 21, 2018. After getting two extensions, the Social Security Administration asked for rehearing en banc on February 6, 2019.

     Normally, cases at the Court of Appeals level are heard by three judge panels. However, after an opinion from a three judge panel, the losing party can ask that all the judges on the Court hear the case en banc. The 6th Circuit has 16 judges. En banc review is seldom requested and rarely granted. 

     An oral argument is very much an interactive process. I can't even imagine what it would be like to argue a case before a 16 judge panel.

     If this is reheard en banc, I fear that the result will be a deeply fractured plurality opinion, one where there's not a majority of the Court in agreement on anything. A plurality opinion would probably leave the Social Security Administration uncertain of what it should do. Plurality opinions are bad enough when they happen at the Supreme Court. They shouldn't happen at a Court of Appeals.

Good News For Eric Conn's Former Clients

     There as finally been a decision in the 6th Circuit Court of Appeals in a case concerning the serious legal and constitutional issues presented by Social Security's reviews of prior decisions made in cases where Eric Conn had represented the claimant. This requires study but it appears to be good news for these claimants.

     The 6th Circuit is, by a wide measure, the most conservative of the Courts of Appeals. If Social Security can't win there, they can't win. However, I would expect that the agency will ask that the case be reheard en banc, that is by all members of the Court, rather than by a three member panel as is usually the case.