Employment Discrimination Class Action Settled

      From WBAL-TV:

The Equal Employment Opportunity Commission has given final approval to a $22.7 million settlement involving a class-action lawsuit against the Social Security Administration filed by some of the agency's minority workers.

The issues include employee rights, promotions and worker compensation. …

African American men who worked at the SSA headquarters in Woodlawn, Baltimore County, at any time between 2003 and 2023 are eligible to submit a claim for a settlement award. …

"SSA has agreed to be transparent about what is going on in their awards bonus system. For the next two years, every decision in every office will report what awards were given, what people receive and at what rate, and that will allow everybody to take a look and make a decision about whether the system is working in a fair manner," [Jeremy] Wright [an attorney representing the plaintiffs] told 11 News Investigates. …

$90,000 Backpay For Widower

      From Business Insider Personal Finance:

Anthony Gonzales and Mark Johnson were married at the Bernalillo County Clerk's Office in Albuquerque, New Mexico, alongside more than 100 other LGBTQ+ couples, on August 27, 2013. 

Same-sex marriage was legalized statewide in New Mexico in December 2013 — and was legalized nationwide on June 26, 2015 by the Supreme Court — however, some local county clerks in New Mexico began issuing marriage licenses to LGBTQ+ couples as early as August 2013, arguing that New Mexico's definition of marriage made no mention of sex or gender. … 

Johnson died on February 19, 2014, six months after he legally married Gonzales at the county clerk's office. … 

When he turned 60 in 2015, one year after Mark's death, Gonzales was let go from his job. He applied for survivor benefits, Social Security benefits that widows and widowers get when their spouse dies. … 

Gonzales was denied survivor benefits three weeks after he sent his application. He says, "I got a letter saying, 'Sorry, but you weren't married the required nine months.' And I was like, 'Well, how could we fulfill that requirement when we could not get married?" … 

In May 2021, the US District Court of Arizona ruled in favor of … same-sex couples who had been denied survivor benefits. According to records reviewed by Insider, Gonzales started receiving $1,700 a month in survivor benefits starting May 2021, along with $90,000 in backpay for the years he was denied benefits. …

Class Actions On Same Sex Marriages Settled

      From NBC News:

Social Security survivors benefits will now be available to same-sex spouses and partners who had been denied access due to previous bans on gay marriage.

The Department of Justice and the Social Security Administration on Monday announced that they dismissed appeals filed by the then-Trump administration in two class-action lawsuits related to Social Security survivors benefits for same-sex partners and spouses.

In 2018, Lambda Legal, an LGBTQ rights nonprofit group, filed two class-action lawsuits against the Social Security Administration: one on behalf of surviving same-sex partners who had been prevented from legally marrying their loved ones by bans on same-sex marriage, and another on behalf of those who were able to marry, but were prevented from being married for at least nine months — the minimum set by the Social Security Administration — due to bans on same-sex marriage. …

SSI Class Action

      A class action lawsuit has been filed in the Eastern District of New York dealing with the poor service that the Social Security Administration has afforded Supplemental Security Income claimants since the pandemic began, particularly in regard to how that poor service has created or increased overpayments and the agency’s inability to cope with the overpayments other than by seizing current benefits without giving the claimants involved a reasonable opportunity to request waiver of the overpayments.

     Overall, SSI claimants and recipients have fared horribly during the pandemic. Regardless of the merits of this lawsuit, they deserve much better.

Covid Litigation

      From a press release issued by Justice In Aging, an organization which "uses the power of law to fight senior poverty":

... The Social Security Administration issued an interim rule in August 2020, due to the national emergency, that was intended to create an easier process to “waive”—forgive—certain penalties SSA imposed related to ineligibility during the early months of the pandemic. However, the agency didn’t effectively inform people that the simplified waiver process even existed, and the waiver only covered the first six months of this ongoing pandemic—before the deadly winter wave of COVID-19 cases. If an individual was lucky enough to learn of the existence of the simplified waiver, their problems didn’t end there. For example, the individuals named in the lawsuit faced problems like being told to contact a specific person at a specific phone number, yet not being able to reach anyone or leave a message; and being told to make an appointment to request the simplified waiver, only to be told that there are actually no appointments available.  

“This lawsuit aims to address the concerns of vulnerable citizens who rely on benefits from the Social Security Administration in order to survive,” said Sheila S. Boston, partner at Arnold & Porter. “Using the rule of law, we will hold Social Security accountable for amending its pandemic response to ensure that thousands of impacted individuals receive their benefits and information related to those benefits in a timely manner.” ...

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.

Will It Hold Up On Appeal?

      From The Advocate:

A federal court ruled Friday that the Social Security Administration’s blanket denial of Social Security survivor’s benefits to same-sex spouses who were prevented from marrying is unconstitutional.

The ruling came in the case of Helen Thornton, a resident of Washington State who sought to claim survivor’s benefits based on her 27-year relationship with Marge Brown, who died in 2006, six years before same-sex couples in the state had the right to marry. Brown had a more extensive work record than Thornton, who supplements her own modest Social Security income by taking care of animals, notes a press release from Lambda Legal, which represented Thornton along with attorneys from the firm of Nossaman LLP.

Thornton applied for the benefits in 2015, shortly before she would have been eligible to receive them at age 60. But the SSA turned her down because she and Brown had not been legally married, even though state law prevented them from marrying. She filed suit in 2018 in U.S. District Court for the Western District of Washington.

On Friday, a judge in that court, James L. Robart, ruled that denial of the benefits violated the U.S. Constitution. He also certified the case as a national class action, meaning others who have sought the benefits and been denied simply because they were unable to marry their partner will have an avenue to claim them. ...

Stay Granted In Steigerwald Class Action

     The U.S. Court of Appeals for the Sixth Circuit has given Social Security a stay in the Steigerwald v. Saul class action lawsuit.

     Steigerwald has to do with the computation of benefits to which a claimant is entitled in a case where Disability Insurance Benefits (DIB) and Supplemental Security Income (SSI) are both approved and the claimant is represented. To oversimplify, the needs based SSI benefits are supposed to be reduced because of the DIB payments. However, a represented claimant does not receive the entire DIB payment because some of it is used to pay the attorney. Should the SSI benefits be reduced by money the claimant never sees because it's used to pay the attorney? The answer is no but Social Security had been failing to do it that way which led to the class action lawsuit.

     The District Court had given Social Security only until September 25, 2019 to do the redeterminations. The Court of Appeals has given Social Security two years. 

     My opinion is that while the September 25, 2019 date was unrealistic, two years is way too long. Social Security should have known that it was going to lose Steigerwald from the day it was filed some two years ago. They had already lost another class action on this issue many years ago. Social Security should have gotten going far earlier. Foot dragging shouldn't be rewarded.

The "You Were In The Neighhborhood Where A Crime Was Committed So You Must Be Guilty" Standard

     I had heard that there were allegations of Social Security disability fraud in Puerto Rico. Until recently I was under the impression that this just concerned a small number of claimants. There's now a class action lawsuit that's in the process of being filed against Social Security concerning these cases that tells us that this is huge. Here's an excerpt from the class action complaint (note that this link expires on May 20) that will be filed once a motion to consolidate is granted:

... Starting around 2013, SSA invoked §405(u) to reconsider plaintiffs’ final favorable disability determinations. The impetus was the discovery of a fraud scheme in Puerto Rico involving non-attorney representative Samuel Torres Crespo. Torres Crespo allegedly worked with four doctors—José Hernández González, Wildo Vargas, Rafael Miguez Balseiro, and Erica Rivera Castro (together, the “implicated doctors”)—to submit fraudulent medical evidence in support of some applications for Title II benefits. After a lengthy investigation that started in 2009, the government indicted Torres Crespo and the implicated doctors in 2013. The indictments charged the individuals with making false statements or representations to SSA. Ultimately, Torres Crespo, Hernández González, and Vargas pled guilty to making (or participating in a conspiracy to make) false or misleading statements to SSA. Miguez Balseiro and Rivera Castro each pled guilty to a misdemeanor count of inadequate recordkeeping; their charges for making false statements or representations to SSA were dismissed with prejudice.

After the indictments were filed, SSA initiated redetermination proceedings for nearly 7,000 disability beneficiaries, including plaintiffs, whose files included evidence from Torres Crespo and/or one or more of the implicated doctors.

As a result of these redetermination proceedings, plaintiffs and approximately 1,000-1,500 other beneficiaries in Puerto Rico lost their disability benefits. ...

With respect to members of the Exclusion Class, SSA excluded all medical evidence associated with Torres Crespo or the implicated doctors without permitting the affected
beneficiaries any opportunity to dispute SSA’s allegations that the evidence was tainted by fraud.

With respect to members of the Non-Exclusion Class, SSA initiated the redetermination process based on a preliminary suspicion that evidence submitted by Torres Crespo and/or one of the implicated doctors was fraudulent. Later, however, SSA made a formal finding that there was no reason to believe that fraud was involved in the beneficiaries’ applications. ...

     Note the allegation that some of the claimants were caught up in this not because fraudulent evidence was submitted in their cases but merely because they had been represented by someone who submitted fraudulent evidence in other cases. Social Security acknowledged that there was no reason to believe there was fraud in the case of these individuals but still redetermined their cases and cut off their benefits. It's a standard of "you were in the neighborhood where a crime was committed so you must be guilty."

National Stagger Walk Case

     One of my firm’s legal assistants e-mailed me yesterday afternoon with a question. She had been on the phone with a Social Security employee inquiring about a delay in benefit payment to a client. She had been told that it was a “national stagger walk case.” She wanted to know what that was. It took me a few minutes but I eventually figured out that she must have misunderstood what had been said, that the Social Security employee must have been referring to the Steigerwald v. Berryhill class action on computation of SSI back benefits when the claimant had been represented and there was also a Disability Insurance Benefits claim.  I think I need to get out some information about Steigerwald to the legal assistants at my firm.

     This raises the question: What is going on now with Steigerwald at Social Security? Have they conceded that they’ll have to make the recomputations? How do they plan to do it? How much disruption will this cause?

Class Action May Create Big Workload For Social Security

     The United States District Court for the Northern District of Ohio has entered a decision in favor of the Plaintiffs in the Steigerwald v. Berryhill class action. The case has to do with the computation of benefits to which a claimant is entitled in a case where both Disability Insurance Benefits (DIB) and Supplemental Security Income (SSI) are both approved and the claimant is represented. To oversimplify, the needs based SSI benefits are supposed to be reduced because of the DIB payments. However, a represented claimant does not receive the entire DIB payment because some of it is used to pay the attorney. Should the SSI benefits be reduced by money the claimant never sees because it's used to pay the attorney? The Court held that the answer is no. 

     If they can't get this reversed, and I doubt they will, Social Security is going to have to do a lot of recomputations. This isn't computerized. It's all manual. This will be a nightmare for an agency as shorthanded as Social Security is.

     We'll see but I guess that Social Security will appeal, not because they think they can win on appeal, but to stall. I get the impression that there's a lot of stalling going on at Social Security. Everything is being put off until there's a confirmed Commissioner. Maybe they can stall this one until the agency gets better funding.

Settlement Concerning One Consultative Physician

     Social Security has settled a class action lawsuit concerning the agency's usage of Dr. Frank Chen to do consultative medical examinations in disability claims. Chen was alleged to have supplied Social Security with "grossly deficient reports [that] were based on cursory examinations (often lasting ten minutes or less), referenced tests that were never performed, and were inconsistent with plaintiffs’ medical records." The agency kept using Chen despite knowing of problems with his examinations and twice warning him. Many of those who were denied disability benefits after being examined by Dr. Chen will now get redeterminations.

Kind Of Pathetic

     There's been a controversy over the Social Security Administration's efforts to collect ancient debts, some more than thirty years old, by seizing current benefits owed as well as tax refunds. Social Security generally has no records to substantiate that anything was ever owed. Often the agency tries to collect debts from the children of the person allegedly overpaid.

     Inevitably, these extreme debt collection practices have generated litigation. Apparently, Social Security has no confidence in its ability to defend its practices. The agency is now trying to moot a class action lawsuit by writing off the alleged debt of the named plaintiff. This has generated an appeal.

     Let me suggest that if Social Security doesn't think it can win in court on the merits of its position that it should change its position. This effort to moot the litigation is unworthy of a government agency.

Most Of Eric Conn's Former Clients Aren't Taking Advantage Of Free Legal Help

     From WSAZ:

Attorneys representing hundreds of people fighting to keep their federal disability benefits worry those benefits may disappear for most of them if they do not have a lawyer.  

Last year, the Social Security Administration ordered nearly 1,800 people to attend hearings to determine whether they should continue receiving disability checks. Many have already gone through with the hearings and are now waiting on the results. 

The people are former clients of Floyd County lawyer Eric C. Conn. ... 

Thursday night, some of those people gathered in Prestonsburg, where they heard from the legal team trying to help them keep their disability payments. 

The prevailing theme was encouraging disability recipients who have not hired an attorney to represent them at their re-determination hearings to do so. ...

[Ned] Pillersdorf [who is handling a class action lawsuit on the terminations] estimates around 1,000 disability recipients do not have legal representation for their hearings and, as a result of not seeking counsel, will lose their hearings. ... 

"The suicide chatter is way up," Pillersdorf said. "It was especially bad around Christmas. Unfortunately people have got this unfortunate response that suicide is somehow a rational response to losing their benefits. We want to reassure people their lawyers are doing everything they can to help them." ...

     It would be great if the other 1,000 or so former clients of Eric Conn were to seek legal help. The problem is that at this point there wouldn't be nearly enough volunteer attorneys to represent them all. By this point, it's almost too late. Virtually all of these cases are now scheduled for hearings.

The Sad Situation In Kentucky

     The Lexington Herald-Leader has an op ed from Ned Pillersdorf, the attorney who has brought class actions both against Eric Conn seeking damages for his representation of claimants before the Social Security Administration and against the Social Security Administration for its efforts to cut 1,787 of Conn's former clients off disability benefits. 

      It's a sad situation. It's surprising that we're still waiting for a decision from a federal District Court Judge. It's surprising that Social Security has started holding hearings in these cases. It may only be days before some benefits are terminated. Without intervention from the federal courts within a few months hundreds will have lost benefits.

Class Action Lawsuit Over Terminations Of Benefits

     A class action lawsuit has been brought against the Social Security Administration over the termination of benefits which had been going to approximately 900 firmer clients of Eric Conn. 

     Meanwhile the Lexington Herald-Leader has run an editorial criticizing Social Security for cutting off these benefits but not prosecuting Conn. It's not just me who finds it peculiar that the evidence exists to justify summarily cutting 900 people off benefits but the evidence doesn't exist to suspend Conn from practicing before Social Security, a civil matter which would only require proof by a preponderance of the evidence, much less to bring criminal charges against him. Social Security can yell "It's fraud! It's fraud!" all they want but this doesn't make sense.

Class Action On Social Security Debt Collection Survives Motion To Dismiss

     There's a class action pending in the United States District Court for the District of Maryland, Grice v. Colvin, on Social Security's extremely aggressive efforts to collect overpayments, many of them ancient. The Court has denied a motion to dismiss. That doesn't guarantee the plaintiffs will win but it's certainly a sign that the case isn't going away anytime soon.
     You brought this on yourselves, Social Security. What you were doing was way over the top. I've been writing about this problem since 2007! I'm surprised it took so long for the public to realize just how abusive Social Security's debt collection policies have been.
     By the way, the link I'm giving to the Court's ruling is only valid until April 8.

Class Action On Old Overpayments

     From Accounting Today:

A group of plaintiffs are suing the Treasury Department, the Social Security Administration, and the District of Columbia, claiming the federal government is continuing to hold onto their tax refunds to pay for supposed overpayments of Social Security benefits decades ago. ... 

The Legal Aid Society and the law firm McKenna Long & Aldridge brought suit against the U.S. Treasury, the Social Security Administration and the District of Columbia government on behalf of three D.C. residents, Tina Heard, Pearline Snow and Carolyn Graham. They are seeking class-action status in the suit, and believe the case could affect up to 400,000 Social Security beneficiaries who had $75 million taken from their tax refunds. They claim the government confiscated the refund payments in violation of federal law and without the due process required under the Constitution. In most cases, the alleged debt to the Social Security Administration had been incurred by their parents or other relatives. ... 

Heard, Snow and Graham claim they originally learned of the debts they allegedly owed the government when some or all of the 2013 tax refunds they were expecting in early 2014 never arrived. They contend that they received no notice from the SSA before the Treasury Department seized their refunds. Only after they went to significant effort to determine why their refunds were withheld did they learn that the Treasury’s actions were based on the SSA’s findings that they had each been overpaid Social Security benefits decades before.

Despite multiple attempts to communicate with the agency, none of the plaintiffs has received a clear explanation of what exactly was owed or why, according to their attorneys.

Class Action On Consultative Examinations In Bay Area

     From a press release:

A class action lawsuit was filed today in federal district court in San Francisco against the Social Security Administration (SSA) by three plaintiffs who were deprived of disability benefits because of SSA’s continued reliance on medical reports from a doctor who has been disqualified. The grossly deficient reports were based on cursory examinations (often lasting ten minutes or less), referenced tests that were never performed, and were inconsistent with plaintiffs’ medical records. On the basis of these faulty reports, plaintiffs who were no longer able to work were denied Supplemental Security Income (SSI) and Social Security Disability Insurance (SSDI) benefits, essential to their well-being....

 Kevin Hart is a San Mateo County resident who was sent to Dr. Frank Chen for a medical exam to determine if he was still disabled and thus still eligible for his SSI and SSDI benefits. Dr. Chen, didn’t review Hart’s medical records, didn’t ask him about his condition, repeatedly interrupted Hart when he attempted to explain his diagnosis, and only spent approximately 10 minutes on a perfunctory examination. Dr. Chen’s report referenced tests he didn’t perform and failed to mention Mr. Hart’s primary disability, a leg and foot injury he sustained after being hit by a car— even though Hart needed a cane to stand during his exam. After Dr. Chen’s evaluation, Hart was notified that his benefits were being terminated because he was no longer disabled. He was never notified that Dr. Chen had been disqualified, even though Dr. Chen’s report was an important reason for the decision in his case. ...

The lawsuit seeks to require the SSA to reopen all prior determinations that terminated or denied SSI and/or SSDI benefits and that relied on a consultative examination report from Dr. Chen, and offer Plaintiffs an opportunity for a new exam from a qualified medical professional. ...

Plaintiffs are represented by Morrison & Foerster LLP, the National Senior Citizens Law Center and the Legal Aid Society of San Mateo County.

Big Class Action Settlement For SSA Employees With Disabilities

     From a press release:

Nearly a decade after Ronald Jantz, a deaf employee of the Social Security Administration, filed a class action claim against his employer alleging discrimination in promotions of employees with disabilities, the parties today jointly announce that the United States Equal Employment Opportunity Commission has preliminarily approved a class-wide settlement designed to make sweeping improvements to policies and processes impacting the careers of employees with disabilities at the Social Security Administration. The Social Security Administration, with approximately 60,000 current employees, is one of the largest federal employers of employees with disabilities. The class action settlement will also provide monetary relief to employees with "targeted disabilities." Targeted disabilities are a subset of disabilities that the EEOC, as a matter of policy, has identified for special emphasis, and include deafness, blindness, missing extremities, partial or complete paralysis, epilepsy, severe intellectual disability, psychiatric disability, and dwarfism. With no finding of wrongdoing or discrimination, the parties set aside their differences and devoted their energy to creating a dynamic package of relief and enhancements for past and current SSA employees. 

Specifically, the Settlement Agreement includes a package of extensive programmatic changes that are designed to retain and support employees with disabilities and to broadly enhance the opportunities for career success and advancement of such employees. These programmatic changes include major revisions to SSA's reasonable accommodation processes, technology processes, training content, and provision of assistive supports for Agency employees with disabilities. The reasonable accommodation changes, in particular, will create a new centralized office where a multidisciplinary team of specialists will promptly and expertly handle requests that do not lend themselves to ready approval by a first-line manager 

In addition to the sweeping package of programmatic changes, the Settlement Agreement also establishes a separate fund of $9.98 million for the payment of claims to eligible class members, as well as Class Counsel's legal fees and expenses, and payments to Mr. Jantz and the other class agents, as well as administrative costs.