Proposed Regulations On Consideration Of Pain

     The Social Security Administration has asked the Office of Management and Budget (OMB), which is part of the White House, to approve publication of proposed an Advanced Notice of Proposed Rule Making (ANPRM) on Consideration of Pain in the Adult Disability Determination Process. Here's the only explanation available of the proposal:

Our regulations set a two-step process for evaluating pain in disability claims, at which we identify the existence of medical evidence supporting pain and evaluate the intensity of the alleged pain respectively. With this ANPRM we seek to solicit public comment on these existing rules to determine whether they align with current medicine and health care research.

     This isn't even a proposal at this point. They'll only be seeking comments on what a proposal should be.

Transcript Of Culbertson v. Berryhill Oral Argument

     The Supreme Court has posted the transcript of the oral argument in Culbertson v. Berryhill, concerning attorney fees for federal court work. The argument was more spirited than I would have thought. I wouldn't predict the Court's decision in this case but I would predict that it won't be unanimous. 

     To my mind this is a straightforward plain language case. The statute says there's a separate cap on attorney fees for federal court. You can certainly make an argument that it shouldn't say that but that's what it says. If that's not what Congress intended, they can change the statute but it's not up to the Court to change it to something they think makes more sense. Judges or justices shouldn't use the plain language argument only when it suits their purposes and ignore it when they don't like the result. Plain language should always be the first consideration.

Hearings For Eric Conn's Former Clients Suspended Until January 7

     The Lexington Herald-Leader reports on Social Security's decision to suspend hearings for Eric Conn's former clients until January 7.

     I'd love to get a copy of whatever memo Social Security sent out to staff about this.

Hearings For Eric Conn's Former Clients Suspended For Two Months

     Ongoing hearings to cut off disability benefits for Eric Conn's former clients have been suspended until January 7, probably because of the problems in these claimants obtaining access to the files that Conn's office kept on them. No, I don't have a link. This just happened. Apparently, there was pressure from a local Republican Congressman. The news has come from his office. We have no word yet on cases which have already been heard but which are pending decision writing.

     I wouldn't predict that Democrats on the House Social Security Subcommittee, who will be in the majority come January, will go to bat for Conn's former clients but the pressure on Social Security to aggressively go after these claimants will abate. Perhaps we'll get some sanity. If you haven't been involved in these cases you may think these people are just getting what they deserve but once you get nearer ground level it becomes clear that whatever Conn may have done these claimants did nothing wrong and that most of them are sick and deserve the benefits they've been receiving. Social Security has gone to incredible lengths to try to prevent Conn's former clients from getting fair hearings.

Social Security Disability Claims, Awards And Number In Current Payment StatusFrom

Source: Office of Chief Actuary, Social Security Administration

Was A Claimant Required To Make A Lucia Objection Administratively In Order To Preserve The Issue For Federal Court?

     Since the Supreme Court's decision in Lucia v. SEC that Administrative Law Judges (ALJs) as they had been appointed to that time were unconstitutional there's been a big issue concerning the thousands of Social Security cases pending in the federal courts. It would seem that all should be remanded for new hearings except for one problem. Almost none of the claimants involved had raised the issue while the cases were pending at Social Security. In most administrative litigation an objection must be filed while the case is pending before the agency in order to preserve the issue for federal court. However, there's a prior Supreme Court decision that says that as a general matter that is not required in Social Security cases. There's also the fact that Social Security had announced prior to the Lucia decision that it would refuse to consider any argument about ALJ constitutionality. Why require that an objection be made when the agency has announced that it won't consider it?

     We've been waiting for the federal courts to act on this issue. There have been a number of decisions that have accepted Social Security's argument but those have been rather summary decisions that barely discussed the issue. We now have a more substantive decision in Muhammad v. Berryhill and it goes the other way. It's the recommended decision of a federal Magistrate Judge. The District Court judge could overrule this recommendation but it is certainly a substantive decision. We're a long way from even a Court of Appeals decision in this case.

     This issue may or may not end up at the Supreme Court. My guess is that it won't because the Courts of Appeals will all come down against Social Security. Even though a number of District Courts have accepted the agency's arguments, I just think those arguments are weak.

Preview Of Culbertson v. Berryhill

      SCOTUS blog gives a preview of the oral arguments coming up this week before the Supreme Court in Culbertson v. Berryhill on the computation of federal court attorney fees for representation in Social Security cases in the federal courts.

SSA To Pay $12.4 Million For Early Intervention

     From a contracting notice recently posted by the Social Security Administration:

Contract Award Dollar Amount:

$12,378,342.00...

Contractor Awardee:

MATHEMATICA POLICY RESEARCH, INC.
1100 1ST STREET NE
12TH FLOOR
WASHINGTON

DC
200024221
USA 

Synopsis: ... 

Single Award Cost Plus Fixed Fee 5-year Contract for Retaining Employment & Talent After Injury/Illness Network (RETAIN) Evaluation - This is a joint project between SSA, the Department of Labor (DOL), and several states. The purpose of the contract is to evaluate the impact of the various interventions implemented under cooperative agreements between the states and the DOL.

     I hope this study shows that early intervention works but let me list just a few of the reasons I don't think it will work very well:

• Most people who become disabled are disabled by degenerative conditions, like diabetes or osteoarthritis. These conditions just get worse with time. Rehabilitating people with this sort of problem isn't realistic. As soon as you get them able to do a new job, their condition has worsened to the point they can't do it.
• Pain is a huge factor in producing disability.  No intervention can take away the pain. If pain prevents one type of work, it's almost certain to prevent other types of work.
• Mental illness is a major cause of disability. It’s not so amenable to intervention that  helps to preserve the ability to work.
• People with below average cognitive abilities are dramatically over-represented among the population of people who apply for Social Security disabilities. That's because their limited intellectual abilities limit them to simpler, more physically demanding work to begin with and make it almost impossible for them to switch to other less demanding work. 
• This whole concept is based upon a misunderstanding of who applies for Social Security disability benefits and why they apply. Those who support this think that most disability is due to trauma and that if you can just help people figure out what they can do despite their injuries and give them a mobility scooter or whatever that they can go back to work. The thing is that the 12 month duration of disability requirement in the definition of disability that is written into the Social Security Act means that folks who are disabled by trauma either go back to their old jobs or figure out something else they can do on their own or with the help of programs that already exist well before 12 months have passed. I don't know that there's anything new that can be offered to help people in this situation. If you wanted to do something useful, you could better fund state vocational rehabilitation agencies. Besides, it's such a small component of disability that it doesn't matter that much anyway.
• In any case, as far as I'm concerned, Mathematica is nothing more than a Beltway Bandit. They get lots and lots of government contracting money but nothing they do ever helps anyone.

Field Office Supervisor Steals Over $700,000 From Claimants

     A press release:

RALEIGH, N.C. – Robert J. Higdon, Jr., the United States Attorney for the Eastern District of North Carolina, announces that a Federal grand jury in Raleigh has returned a thirteen-count indictment charging STEPHANIE CHAVIS, age 42, of Saint Pauls, North Carolina, with ten counts of Wire Fraud, two counts of Aggravated Identity Theft, and one count of Theft of Government Property.

The indictment alleges that beginning in or about August 2010, and continuing until in or about April 2018, CHAVIS engaged in a scheme to defraud the Social Security Administration by using her supervisory position to divert more than $700,000 in funds meant for SSI beneficiaries into bank accounts controlled by CHAVIS.

The indictment further alleges that CHAVIS advanced this scheme by convincing unsuspecting employees to manually process unauthorized payments on SSI beneficiary accounts using the beneficiaries’ personal identifying information and CHAVIS’s bank account information.

If convicted of all counts, CHAVIS faces a maximum penalty of twenty-four years imprisonment. She also faces a minimum two-year consecutive term of imprisonment on each aggravated identity theft count.

The charges and allegations contained in the indictment are merely accusations. The defendant is presumed innocent unless and until proven guilty in a court of law.

The case is being investigated by the Social Security Administration’s Office of the Inspector General. Special Assistant United States Attorney Tamika Moses is prosecuting the case for the government.

     How did she get away with this for almost eight years? I thought there were internal controls in place that would catch something like this. Wouldn't the people whose money was stolen have noticed and said something? My guess is that whatever internal controls have been in place are about to get strengthened nationally.
     My firm deals extensively with that field office. I think it's about to get turned upside down. I hope they're able to handle their normal workload.
     I also hope that Social Security promptly pays the money that was owed to the claimants involved. That should be a priority.

Wouldn't That Right Now Be "Clearly Established" At Least In The 9th Circuit?

     From Whalen v. McMullen, CA9, decided October 30, 2018:

While investigating Kathleen Whalen for fraud related to her application for social security benefits, Washington State Patrol officer John McMullen gained both her cooperation and entrance into her home by requesting her assistance in a fictitious criminal investigation. During his investigation, McMullen secretly videotaped Whalen both outside and inside her home. No criminal charges were ever lodged against Whalen, but the Washington Disability Determination Services division (“DDS”) of the Washington Department of Social and Health Services (“DSHS”) used at her social security hearing the footage surreptitiously filmed inside her home.

Whalen brought suit against McMullen under 42 U.S.C.§ 1983, alleging that McMullen’s entry into her home without a warrant and under false pretenses violated her Fourth Amendment right to be free from unreasonable searches and seizures. She appeals a grant of summary judgment in favor of McMullen based on qualified immunity. W e conclude that McMullen violated Whalen’s Fourth and Fourteenth Amendment rights, but we agree with the district court that McMullen has qualified immunity from suit because the right was not clearly established. We affirm.

     I have seen this exact same tactic used in North Carolina. I think it's the way they're generally doing these investigations. I'm pretty sure they won't keep using this tactic in the 9th Circuit area. What about the rest of the country? I don't know that I'd want to do it if I were working for them or with them.