Social Security Employee Refuses To "Certify Sin"

     From the Washington Post:

A short video about lesbian, gay, transgender and bisexual diversity may bring an abrupt end to a federal employee’s 14-year career with the Social Security Administration. David Hall, who works in information technology at the agency’s office in Champaign, Ill., refused to watch the 17-minute video on several occasions.  

Hall told the News-Gazette that the mandate to watch the video first came in April, when the national office sent out an email memo regarding LGBT diversity and inclusivity training. ...

For Hall, that premise was too sinful. The 42-year-old, who identifies as Christian, said he does not believe God would have wanted him to watch the video. Signing a statement he had watched such a video, moreover, was equal to endorsing “an abomination,” he told WCIA. “I’m not going to certify sin.” ... 

On two occasions in June, Hall’s boss told him to watch the video. When Hall declined, he was reprimanded. He later received a two-day suspension, in August, without pay. ... 

Hall is willing to lose his job — he admits it is likely, in fact — and he sees his stance as a call to other Christians. ...

Major Social Security Staff Losses In Many States

ALJs Are Supposed To Schedule 45-50 Hearings A Month

An e-mail from Social Security's Chief Administrative Law Judge Debra Bice:

Jack and I have spoken with many of you over the last few months and know that you share ODAR’s commitment to public service by providing claimants with timely and policy compliant dispositions. You also have shared some of the challenges you face in doing so. We are aware of the challenges you have been facing, even more so now with the hiring freeze. We are working on many initiatives to help support you, such as new regulations, pre-hearing conferences and case summaries of large files.

Given the current environment, you have asked how many cases we expect every judge to schedule each month. Looking at current data, a majority of you are scheduling an average of 45-50 hearings a month and completing the work in a legally sufficient and policy compliant manner. I know that it takes dedication to manage your docket effectively and I thank each of you. I am asking EVERY judge to schedule hearings generally in the range of an average of 45-50 hearings per month. If you feel comfortable handling more cases and can maintain legal sufficiency and policy compliance in your dispositions, please continue to do, and we thank you. If are not yet scheduling an average of 45-50 cases a month, please try to increase your dockets to do so. This may mean adding a day of hearings every month or an additional hearing to each hearing day. We will continue to evaluate our scheduling expectations for all judges in the future.

For those of you who elect to telework, I am going to advise our HOCALJs that, for the October 2016 to March 2017 telework period, an average of 45-50 scheduled hearings a month generally should be considered “reasonably attainable.” I am also going to discuss again with our HOCALJs the need to consider all extenuating circumstances in considering your telework requests.

This is a crisis time for us. Even with all the headwinds in our face, the public we serve is asking us to do the most we can. I am so proud of all of you. If all judges generally can schedule an average of 45-50 hearings a month or more, hold those hearings absent good cause, and move the cases out of ALJ controlled status timely, we can make headway in reducing the wait time for a decision. I speak for your national leaders, your RCALJs and certainly your HOCALJs. All of us, ALL OF US, are appreciative of all you do. I know sometimes our messages do not always reflect that appreciation, but make no mistake - it is unwavering. Judge Allen and I are proud to be your judicial colleagues.

New Attorney Fee Contacts

     Social Security has updated its list of Office of General Counsel contacts for fee authorizations, other than those under the Equal Access to Justice Act (EAJA) -- 406(b) fees.

Regional Office	Jurisdictions	Contact Information
REGION I Social Security Administration Office of Regional Counsel JFK Federal Building 15 New Sudbury Street Room 625 Boston, MA 02203-0002	MA, ME, MI , NH, RI	Phone: (617) 565-4277 Fax: (617) 565-4447
REGION II Social Security Administration Office of Regional Counsel 26 Federal Plaza Room 3904 New York, NY 10278-0004	CT, NY, PR, VI, VT	Phone: (212) 264-3650 Fax: (212) 264-6372
REGION III Social Security Administration Office of Regional Counsel 300 Spring Garden Street 6th Floor Philadelphia, PA 19123-2932	DC, DE, PA, MD NC, NJ, SC, VA, WV	Phone: (215) 597-3300 Fax: (215) 597-4662
REGION IV Social Security Administration Office of the Regional Counsel Sam Nunn Atlanta Federal Center 61 Forsyth Street, S.W. Suite 20T45 Atlanta, GA 30303-8910	MD AL, ND AL, FL, GA	Phone: (404) 562-1028 Fax: (404) 562-1030
REGION V Social Security Administration Office of the Regional Counsel 200 West Adams Street 30th Floor Chicago, IL 60606-5208	IL, IN, OH, WD KY,WI	Phone: (877) 800-7578 Fax: (312) 886-4754
REGION VI Social Security Administration Office of Regional Counsel 1301 Young Street, A-702 Dallas, TX 75202-5433-5433	AR, IA, LA, MN, MS, NE ND, SD, TX	Phone: (214) 767-3212 Fax: (214) 767-9189
REGION VII Social Security Administration Office of Regional Counsel Richard Bolling Federal Building 601 East 12th Street Room 965 Kansas City, MO 64106-2898	MO, TN	Phone: (816) 936-5750 Fax: (816) 936-5963 ||KC OGC
REGION VIII Social Security Administration Office of Regional Counsel 1961 Stout Street Suite 4169 Denver, CO 80202-4003	CO, KS, ED KY, NM, OK, UT, WY	Phone: (303) 844-0018 Fax: (303) 844-0770
REGION IX Social Security Administration Office of Regional Counsel 160 Spear Street Suite 800 San Francisco, CA 94105-1545	CA, NV, HI, Guam, American Samoa, Northern Mariana Island	Phone: (415) 977-8943 Fax: (415) 744-0134
REGION X Social Security Administration Office of Regional Counsel 701 Fifth Avenue Suite 2900, M/S 221A Seattle, WA 98104-7075	AK, AZ, ID, OR, WA	Phone: (206) 615-2539  Fax: (206) 615-2531 ^OGC SEA Admin
BALTIMORE Social Security Administration Office of the General Counsel 6401 Security Boulevard Room 617 Altmeyer Building Baltimore, MD 21235–6401	MD, SD AL, ED NC, WD NC	Phone: (410) 965-0600 Fax: (410) 597–1435

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GN 03930 TN 10 - Fee Authorization Under the Fee Petition Process - 09/01/2016

Airport Workers Keep Their Social Security

     From KTVI:

Nearly 70 employees at Lambert-St. Louis International Airport were relieved to learn they'll get to keep their Social Security benefits.

In May, the airport workers were informed that despite paying into the Social Security system that they were ineligible to receive those benefits because of a decades-old agreement between the state of Missouri and the Social Security Administration.

On Wednesday, Senator Claire McCaskill helped police, city, union, and Social Security officials reach an agreement allowing the workers to keep their benefits. ...

     This reminds me of a case in North Carolina. A new interstate agency was formed that included employees from North Carolina and Virginia, if I remember correctly. Several employees of the state of North Carolina transferred to work at the new interstate agency. Before doing so they received written assurance from the agency that administers pensions for NC state employees that they would continue to be covered by the NC state employee pension plan. Some years later, when the first of these employees retired, he was told, sorry, we made a mistake. Employees of intergovernmental agencies aren't covered by the N.C. government employees pension plan. Here's your contributions back. Goodbye. When they complained it wasn't fair, they were told that the courts had refused to recognize estoppel against the state of North Carolina so, in effect, shut up and go away. If estoppel were applied, the state couldn't argue that the interstate employees weren't covered by the pension plan since the state had told the employees years earlier that they were covered and the employees had relied on this promise. The employees took the case to court and won. The N. C. courts held that estoppel would be applied. The moral of this is that if you're a government agency, don't rely too much on old precedent. If the courts think you're really trying to screw over people, they'll find a way to give those people relief. 

I Wouldn't Regard This As A Good Sign If I Was Social Security's Attorney

     From an order entered in the United States District Court for the Eastern District of Kentucky:

On September 8, 2016, the Court held a telephone conference to schedule and to prepare for oral argument on the Social Security Administration (SSA)’s motions to dismiss. Ned Pillersdorf, Francis E. Budde, and Kelly Lynn Ward Wallen represented the plaintiffs, with Mr. Pillersdorf speaking for that side. Amanda B. Gilman, John S. Osborne, III, and Laura Ridgell - Boltz represented the SSA, with Ms. Gilman speaking for that side. ...

Although the plaintiffs have brought a number of claims against the SSA, the Court is focused on one at the moment: whether the SSA’s redetermination procedures violated the Due Process Clause. That question involves many smaller — but nevertheless difficult — ones, some of which are listed below. As it tries to figure those question s out, the Court would benefit from further briefing and an oral argument. The parties agreed that an in-person argument would work the best. That argument is set for Wednesday, September 21, 2 2016, at 11:00 a.m., at the United States District Courthouse in Pikeville, Kentucky. The parties will submit further briefing by Friday, September 16, 2016. 

In preparing their briefs and arguments, the parties should keep a few things in mind. First , at this stage, the Court is primarily concerned with the plaintiffs’ argument that the SSA failed to afford them due process. The plaintiffs also argue that the SSA applied its redetermination procedures in a prejudicial way — specifically, by initiating those procedures many years too late . To decide that claim, however, the Court first needs to know whether the procedures are constitutional to begin with. 

Second , the Court will construe the parties’ new briefs as cross - motions for summary judgment. The parties agree that the due - process issue depends largely on questions of law that can be resolved through briefing and argument. Plus, the SSA has attached affidavits to its motions to dismiss — when a party has presented such “matters outside the pleadings,” Rule 12 requires the Court to t reat the motion to dismiss as a motion for summary judgment. Fed. R. Civ. P. 12(d). This way, the Court can decide the due - process issue once and for all .

Third, and finally, the Court would appreciate briefs addressing the specific questions that are currently troubling it. As promised at the conference, those questions are listed here:

(1) How exactly, under 42 U.S.C. § 405(u), does the redetermination process work?

a. Where, in the text of the statute, does Congress create the “evidentiary rule” that when the Office of the Inspector General (OIG) finds fraud, parties cannot challenge the finding ?

b. Does Congress even have the power to dictate what evidence an administrative law judge may and may not consider? 

c. Assuming that Congress has that power — and used it in § 405(u) — does the Due Process Clause nevertheless require that parties get a chance to challenge agency evidentiary decisions?

d. What parts of the redetermination process are judicially reviewable?

(2) How did the redetermination process work in the plaintiffs’ cases specifically ?

a. Did the SSA follow §405(u) ?

b. When the OIG alerted the SSA about the fraud, did the SSA take as given that fraud had occurred in every case Eric Conn touched, or did it decide for itself whether fraud occurred in each case?

(3) Assuming that the SSA followed §405 (u), and assuming that under that section the OIG ’s fraud findings are unchallengeable , does the redetermination process violate Goldberg v. Kelly, 397 U.S. 254 (1970)?

a. Did the plaintiffs get a chance to challenge the OIG finding?

b. If they did not, why don’t they deserve one?

(4) If the redetermination process violated the plaintiffs’ due-process rights, what is the proper remedy?

This list is not necessarily exhaustive. Other issues will certainly arise, and the Court will be grateful for the parties’ efforts to anticipate and address them. At the end of the day, however, the problem on the Court’s mind is whether the redetermination process afforded the plaintiffs due process, and if not, what to do about it.

The Binder And Binder Saga Goes On

     There's been an important filing in bankruptcy court in the matter of Binder & Binder. Read it yourself but it looks to me like Charlie Binder and Harry Binder as individuals (or through an entity controlled by the two of them) will be buying the Social Security assets of the Binder and Binder corporation for $3.5 million. Remember, Binder and Binder as a corporation is distinct legally from the two brothers as individuals.

NPRM On Evidence In Disability Claims

     What immediately jumps out at me from a 176 page Notice of Proposed Rule-Making (NPRM) that Social Security is publishing in the Federal Register tomorrow:

• We propose to revise our rules in 20 CFR 404.1504 and 416.904 to state that we will not provide any analysis in our determinations and decisions about how we consider decisions made by other governmental agencies or nongovernmental entities that an individual is disabled, blind, or unemployable in any claim for disability or blindness under titles II and XVI of the Act , and that we are no t bound by those decisions. Although we would categorize decisions made by other governmental agencies or nongovernmental entities within the other medical evidence category if made by a medical source or a statement if made by a nonmedical source , we propose to state in 20 CFR 404.1520b and 416.920b that these decisions are inherently neither valuable nor persuasive to our disability and blindness determinations. ...
• [W]e propose to state in 20 CFR 404.1520b(c)(2) and 416.920b(c)( 2 ) that we will not provide any analysis about how we considered disability examiner findings from a prior level of adjudication ...
• Consistent with our goals to better define and organize our evidence regulations to produce more accurate and consistent determinations and decisions, we propose to define a statement on an issue reserved to the Commissioner as a statement that would direct the determination or decision of disability. ... Although a statement on an issue reserved to the Commissioner would be categorized within other medical evidence if made by a medical source or a statement if made by a nonmedical source, w e would not provide any analysis about how we consider ed such statements at all in our determinations and decisions . ...
• To help adjudicators, representatives, and courts identify statements on issues reserved to the Commissioner, we propose to include the following in 20 CFR 404.1520b(c)(3) and 416.920b(c)(3) : 

• statements that an individual is or is not disabled, blind, able to work, or able to perform regular or continuing work;  
• statements about whether or not an individual’s impairment(s) meets the duration requirement for disability; statements about whether or not an individual’s impairment(s) meets or equals any listing in the Listing of Impairments; 
• in title XVI child claims, statements about whether or not an individual’s impairment(s) functionally equals the Listings; 
• in adult claims, statements about what an individual’s RFC is using our programmatic terms about the functional exertional levels in Part 404, Subpart P, Appendix 2, Rule 200.00 in stead of descriptions about his or her functional abilities and limitations ; 
• in adult claims, statements about whether or not a n individual’s RFC prevents him or her from doing past relevant work; 
• in adult claims, statements that an individual does or does not meet the requirements of a medical-vocational rule in Part 404, Subpart P, Appendix 2 ; and  statements about whether or not a n individual's disability continues or ends when we conduct a continuing disability review (CDR) . ...

• In order to assist representatives and our adjudicators in interpreting our rules, we propose to revise our rules to state affirmatively our current policy that we will not use a diagnosis, medical opinion, or an individual's statement of symptoms to establish the existence of an impairment(s). We would clarify our rules to state that a physical or mental impairment must be established by objective medical evidence from an AMS. We would continue to follow our current policy if we have objective medical evidence from an AMS that a claimant has a severe impairment(s) at step 2, we will consider all evidence to determine the severity of the impairment(s) and all other findings in the sequential evaluation process. ...
• [W]e propose several revisions to how we consider medical opinions and prior administrative medical findings. First, we would no longer give a specific weight to medical opinions and prior administrative medical findings; this includes giving controlling weight to medical opinions from treating sources. Instead, we would consider the persuasiveness of medical opinions and prior administrative medical findings using the factors described below. Second, we propose to consider supportability and consistency as the most important factors. Finally, we propose to reorganize the factors to: (1) list the supportability and consistency factors first, (2) include a "relationship with the claimant" factor that combines the content of the current examining relationship and treatment relationship factors, (3) list individually the three different factors currently combined as other factors, and (4) restate the factors using consistent sentence structure. ... 

     You would think in reading this that Social Security believes that the federal courts are packed with Republican appointees eager to go along with anything hostile to disability claimants. Good luck with that theory. If this is finally adopted, which is doubtful, expect it to be eviscerated by the federal courts.

New Mental Impairment Listings Approved But Won't Be Published Until December

     The Office of Management and Budget (OMB) has finished reviewing Social Security's proposed amendments to the agency's Listings on mental illness and intellectual disability and has approved them. The Listings are a major part of Social Security's policies on evaluating mental illness in disability claims. 

     The process that produced this dates all the way back to 2003. This particular draft was first published in 2010. 

     This proposal has been extremely controversial. Normally, new regulations are published in the Federal Register within a week or two after OMB approval. They come into effect thereafter. However, Social Security recently told the National Organization of Social Security Claimants Representatives (NOSSCR) that it was not planning to publish the revisions to the mental impairment Listings until December. This strongly suggests to me that the agency knows the new mental impairment Listings will be controversial and wishes to put off releasing them until after the election. They want to dump them in the Federal Register during the holiday season with the transition to a new administration underway. 

     I've been representing Social Security disability claimants since 1979. Disability claimants suffering from mental illness are being treated the worst now that they're been treated since about 1983. Claimants with intellectual disability are being treated worse now than at any time in my career. I expect the new Listings will try to crystallize the current restrictive policies. What a legacy for Carolyn Colvin.

Not Happy About Being Number One

      From WSOC-TV:

Thousands of people nationwide seeking disability assistance are waiting months, or even years, for Social Security to hear their cases.

The Charlotte review office has the biggest backlog of all the 170 offices across the nation.

The latest numbers show that Charlotte has 14,456 pending cases. People wait an average of 622 days for their appeals to be heard, almost 100 days more than the national average.

Randy van Hoosan's wife has multiple sclerosis and said that four years ago she realized she couldn't work anymore.

When she applied for disability, she was denied. He said she appealed in October 2014, but almost two years later she's still waiting for her appeal to be heard.

The couple filed bankruptcy in December. They said they lost their house, a car and "just live day to day." ...

They contacted U.S. Sen. Richard Burr's office and got a letter back last month, saying they should expect to wait another 18 to 24 month. ...