The RECAP Project

     Thousands of Social Security cases end up being appealed to the federal courts every year. One annoying aspect of practicing in the federal courts is the costs charged for the PACER system. It's the system for online access to court records. With PACER you often have to pay to get access to public records. My gut feeling is that this is wrong.

     Recently, I've discovered a worthy project to try to alleviate the PACER monopoly at least a little and Social Security attorneys can participate:

RECAP Project — Turning PACER Around Since 2009

RECAP is an online archive and free extension for Firefox and Chrome that improves the experience of using PACER, the electronic public access system for the U.S. Federal District and Bankruptcy Courts.

If you use PACER, install RECAP. Once installed, every docket or PDF you purchase on PACER will be added to the RECAP Archive. Anything somebody else has added to the archive will be available to you for free — right in PACER itself. ...

The Archives and APIs

Thanks to our users and our data consulting projects, the RECAP Archive contains tens of millions of PACER documents, including every free opinion in PACER. Everything in the archive is fully searchable, including millions of pages that were originally scanned PDFs.

Everything that is in the RECAP Archive is also regularly uploaded to the Internet Archive, where it has a lasting home. This amounts to thousands of liberated documents daily. ...

1.3% COLA?

      From CNBC:

... The Senior Citizens League is a nonpartisan advocacy group for older Americans and has a history of accurately forecasting the annual change. The group estimates that the Social Security COLA for 2021 could be about 1.3%.

That is less than the 1.6% adjustment made for 2020 and one of the lowest increases Social Security has ever had. ...

RIP RBG

 

    From the Los Angeles Times:

... Ginsburg became a counsel for the American Civil Liberties Union, and by 1972 led its Women’s Rights Project. She set out to change the court’s view of gender bias and its impact on women and men.

n. She did not rely on grand pronouncements about inequality or take on hot controversies such as abortion. Instead, she planned a careful, step-by-step approach to undercut sexist laws. She pressed a series of seemingly minor cases — often on behalf of men — that demonstrated gender discrimination hurt both men and women.

For example, the Social Security Administration at the time paid a survivor’s benefit to a widow after her husband died, but not to a widower whose wife had died. This might have been seen, at first glance, as a gender preference in favor of women. Ginsburg did not think so. When Stephen Wiesenfeld’s wife died during childbirth in 1972, he had to raise his son alone, and sued to obtain a survivor’s benefit from Social Security.

Ginsburg took the Wiesenfeld case to the Supreme Court and won a unanimous decision in 1975 holding this discrimination against widowers was unconstitutional. It was unfair to the surviving husband, but it was also unfair to the wife who had paid Social Security taxes at the same rate as men, but could not pass on the benefit to her surviving family. And it was unfair to their baby, who needed all the support his widowed father could obtain. ...

Social Security Subcommittee Hearing

      A press release:

House Ways and Means Social Security Subcommittee Chairman John B. Larson announced today that the Subcommittee will hold a hearing entitled “Save Our Social Security Now,” on Thursday, September 24, at 1:00 PM EDT.

This hearing will take place remotely via Cisco Webex video conferencing. Members of the public may view the hearing via live webcast accessible at the Ways and Means Committee’s website. The webcast will not be available until the hearing begins.

What:	Social Security Subcommittee Hearing entitled “Save Our Social Security Now”
When:	1:00 p.m. on Thursday, September 24, 2020
Where:	This hearing will take place remotely via Cisco Webex video conferencing.
Watch:	Livestream of the hearing can be viewed via live webcast accessible at the Ways and Means Committee’s website. The webcast will not be available until the hearing begins.

Expect Disability Claims And Expect That Social Security Will Turn Them Down

      From The City:

The illness was supposed to last for three weeks, doctors told her.

But weeks four through six of COVID-19 were the worst for Holly MacDonald. Her low-grade fever morphed into an all-around fatigue. She began having trouble speaking.

And when she stood up, her legs and feet turned purple.

“I’d walk too far and then I’d need to be in bed for three days,” said MacDonald, who is 29 and lives in Crown Heights. She had to take administrative leave from her job at a nonprofit where she builds social-media campaigns.

A month after getting sick in early March, MacDonald was back in the ER, frustrated as she tried to convince her doctors she was mired in her second month of what, she’d been told, was a three-week respiratory virus.

She’s still not fully recovered. MacDonald is one of upwards of 70,000 New Yorkers struggling with unexplained long-term symptoms of COVID-19, according to a range of estimates provided by several New York City-area doctors and hospitals contacted by THE CITY.

“The hidden number could be more,” said Dr. Zijian Chen, who directs Mount Sinai’s Center for Post-COVID Care. “We’re looking at patients who are still testing positive day to day, so this is a population that’s going to continue to grow.” ...

In some cases, patients say, their doctors don’t believe them. ...

These “long-COVID” cases, as the Mount Sinai center describes them, appear to occur randomly — there’s no demographic category that is more likely than another to be struck.

Patients come in reporting fatigue, shortness of breath and difficulty thinking clearly. In some cases, the symptoms arrived months after the worst of COVID illnesses were over. ...

     Note the part about "their doctors don't believe them." If physicians can't explain the reasons for a patient's symptoms, they tend to dismiss the symptoms as if they were imaginary. A few examples: post-polio syndrome, sero-negative rheumatoid arthritis, multiple sclerosis, interstitial cystitis, irritable bowel syndrome, fibromyalgia, complex regional pain syndrome, etc. Of course, by now many of these are taken seriously and some were taken seriously all along, such as MS, but there's no good way to tell from medical tests how badly the disease is affecting the sufferer. Social Security has historically just turned down disability claims filed by people with such problems for the most part. I expect the same for claimants with chronic health problems related to Covid-19. I hope the volume is small because I hope that given a little more time most people with these post-Covid-19 symptoms will get better but I'm really expecting a good number of these cases.. We'll see.

GAO Study Requested

      The Chairman of the House Social Security Subcommittee plus the Chairman of the Subcommittee having jurisdiction over the SSI program have asked the Government Accountability Office (GAO) to perform a study on service delivery at Social Security during the pandemic.

     That's fine but I'd prefer a hearing.

Agency Actions After Huntington

      Social Security's Office of Inspector General (OIG) has issued a report on Agency Actions After the Huntington Fraud Scheme. This refers to the agency's hearing office in Huntington, WV.  That office has jurisdiction over the area in Kentucky where Eric Conn practiced. The report talks about efforts made to make sure there were no other such schemes. Spoiler alert, there weren't any others. They found some things going on in Ft. Lauderdale and Harrisburg that shouldn't have been going on but those were management issues, not anything criminal. In fact, the bizarrely exceptional nature of what Conn did was one of the reasons the scheme went on as long as it did. No one in management could believe that such a preposterous scheme would be attempted.

     Social Security went well beyond making sure there were no other such schemes. The agency made a deliberate attempt to influence Administrative Law Judge decision. Here are some excerpts from the report concerning those efforts -- footnotes omitted:

... In our FY 2012 report, we identified the 12 ALJs who had the highest allowance rates and the 12 who had the lowest allowance rates. The majority of the staff we interviewed attributed the variance in allowance rates to ALJs’ decisional independence and discretion when interpreting the law, as well as the demographics of the populations in the hearing offices’ service areas. In a FY 2017 we found the majority of the 24 outlier ALJs who had the highest and lowest allowance rates were no longer among the outlier ALJs because they were no longer working at the Agency or their allowance rates changed. ...

 In a November 2014 report, we identified 44 outlier ALJs (about 4 percent of the average number of ALJs available in the Agency) who had 700 or more dispositions and had allowance rates of 85 percent or higher in any 2 FYs between 2007 and 2013. We conducted a sample review of favorable decisions issued by the 44 ALJs and concluded they improperly allowed disability benefits in some cases. SSA took administrative action on 15 of the 44 ALJs. ...

According to SSA, “ . . . [when] identifying outlier ALJs, OHO management (at all levels) use internal [management information] MI reports to review trends in Appeals Council remand rates, hearings held per month, hearings scheduled/hearings held, anomalous rates of favorable/unfavorable dispositions, length of time in certain docket statuses, and whether there has been a focused review for policy compliance."

 When OHO managers identify an outlier ALJ, local hearing office managers may address issues with the ALJ to resolve performance. At any time, the HOCALJ may request support from regional and Headquarters ALJ performance teams for guidance, including receiving support from a Triage Assessment Group. The Group meets bi-weekly to evaluate the facts of each ALJ performance situation, including relevant management information and other documentation. The Group provides guidance for the Regional Chief ALJ and HOCALJ to take action regarding an outlier ALJ. The HOCALJ may assign an ALJ a mentor, require that an ALJ take additional training, or issue directives to correct performance. If the outlier ALJ continues having performance issues, OHO'S Office of Chief ALJ considers further action in consultation with SSA's Office of General Counsel. ...

FY 2011, the Division of Quality began conducting pre-effectuation reviews of randomly selected favorable hearing decisions before SSA made any payments to claimants. ...

 SSA regional office employees conduct in-line quality reviews on a sample of hearing draft decisions to ensure the draft decisions are both policy-compliant and legally sufficient before employees submit the drafts to ALJs for signature. In-line quality review findings allow managers to provide feedback to ALJs when their decision writing instructions affect, contribute to, or cause legal sufficiency, quality, or policy-compliance errors. If hearing office managers begin to see recurring errors, they may determine training is needed for some or all of the hearing office staff and ALJs on those issues. SSA developed the in-line quality review program in 2009. Initially, SSA implemented the program in a limited number of regions because of hiring restrictions. However, in FY 2014, the Agency officially launched the program nationwide. In February 2017, SSA’s Office of the Chief ALJ informed us that the regional in-line quality reviews were temporarily suspended because of other critical work. ...

 One of the CARES initiatives is Updating Decision Writing Tools and Templates, which SSA developed as part of its approach to ensuring policy compliance and national consistency in the tools its employees use to make and prepare draft decisions. Another quality assurance initiative in the CARES plan the Agency-developed is the Insight program. SSA uses Insight to identify policy compliance and internal consistency errors in hearing decisions to improve the consistency and timeliness of the disability adjudication process.45 In response to our April 2019 report,46 SSA developed metrics to conduct an analysis that showed a 31-percent reduction in quality flags for decisions where employees used Insight compared to when they did not. ...

 OHO managers began monitoring national and individual ALJ agree ratesin FY 2011 to assess the level of policy-compliant, legally sufficient decisions. However, it did not set a goal until FY 2013 when OHO management established an 85-percent quality expectation goal for decisions and a 65-percent goal for dismissals.47 The decision agree rate represents the extent to which the Appeals Council concludes the ALJ decisions were supported by substantial evidence and contained no error of law or abuse that would justify a remand or reversal. ALJs who have below average agree rates may receive additional training, mentoring, and counseling and, in some cases, may be subject to further review. ... [footnotes omitted]

     I know that some of this was directed at reducing the number of technical mistakes made and that's a good thing. However, it's been obvious that the whole process has been strongly tilted towards reviewing the decisions of ALJs who approve more claims than most. ALJs who approve only very few claims have drawn little or no attention. I'm not sure that the agency has even tried hard to reduce the number of technical mistakes. To give an example, if a claimant fails to appear for the hearing (in normal times) but the attorney does, the ALJ has some options but dismissing the request for hearing isn't one of them. However, ALJs commonly do dismiss in this situation. The Appeals Council will quickly remand these cases but they shouldn't happen. The regulations are clear. How much attention has Social Security paid to preventing mistakes like this? Not much that I can tell but they've sure succeeded in convincing ALJs that something bad will happen to them if they approve too many claims.

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. ...