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. ...

Wisconsin ALJ Taken Off Regular Duties Because Of Comments About Claimants

     From the Milwaukee Journal Sentinel:

Administrative law judge John H. Pleuss has been removed from the list of judges within the computer system at the Social Security’s Madison Office of Adjudication and Review, and all of his 60 cases through the end of 2016 have been reassigned, according to two whistle-blowers from the administration and a copy of the list provided to the Milwaukee Journal Sentinel. ...

Pleuss described disability claimants in his notes using shorthand phrases such as "very black, African looking woman (actually a gorilla-like appearance),” “buxom,” and "attractive; looks innocent,” the Milwaukee Journal Sentinel and a conservative website, Wisconsin Watchdog, have reported. ...

Although Pleuss remains at the Madison office in some capacity, office director Laura Hodorowicz and group supervisor Wayne Gentz have both been removed from the hearing office and its directory, according to Holland, lead case technician Machelle Keller and a copy of the directory provided to the Journal Sentinel. ...

     Pleuss was approving 55% of the cases he heard.

That Two Factor Authentication Fiasco Was Even Worse Than You Thought

     Last month Social Security introduced two factor authentication for its online systems. Claimants would have to enter a password and then enter a second passcode delivered to them via a text message in order to enter Social Security's online systems. Social Security had to beat a hasty retreat two weeks later as senior citizens protested that they didn't have text access.

     As embarrassing as the two factor authentication seemed, the reality was even worse. Computerworld reveals that in the same month that Social Security introduced two factor authentication, the National Institute of Standards and Technology warned federal agencies not to use two factor authentication.

     Social Security is still requiring two factor authentication for attorneys using its online systems. Can we now dispense with that?

Happy Labor Day