Articles Posted in Social Security Disability

The answer is no!  On January 23, 2017, President Trump appointed Nancy A. Berryhill the Acting Commissioner of Social Security.  The appointment occurred under a federal law known as the Vacancies Reform Act (5 U.S.C.A. 3345 et seq.). The term “acting” in important.  The United States Congress did not confirm the appointment of Ms. Berryhill.  The Vacancies Reform Act permits a person to serve in a government position which requires the advice and consent of the United States Senate without Senate confirmation.  The point of the legislation is to allow a person to temporary full fill the duties of position while the Senate is considering a permanent replacement.  However, this permission is time limited.  In the case of the Social Security Administration, the President has not yet nominated a permanent replacement.

In Ms. Berryhill’s case, under the Vacancies Reform Act, the “acting” appointment ended November 17, 2017.  The Social Security website continued to show that Ms. Berryhill was the “Acting” Commissioner of Social Security after November 17, 2018.  On March 6, 2018, the U.S. Government Accountability Office, through its General Counsel, notified the President, Congress and the Director of the Office of Personnel Management.  The notice had to do with the Social Security Administration’s continued use of the title of “Acting” Commissioner of Social Security, after November 17, 2017.  The notice concluded that because of the continued use of the term “Acting” the Social Security Administration was in violation of the Vacancies Reform Act. Sometime after the letter was sent, the Social Security Administration changed its website.  Now the website suggests that Ms. Berryhill is the Deputy Commissioner for Operations and “performing duties and functions not reserved to the Commissioner of Social Security.”  For now, the position of the Commissioner of Social Security is vacant. Continue reading

Every year, the Social Security Administration complies numbers which it says represents the allowances and denials the Commissioner of Social Security has made in the past fiscal year for applications and appeals for disability. The following numbers are not just for Indiana or the Indianapolis Office of Hearings Operations but for the nation. The numbers and their percentages are only for the decisions made in fiscal year 2017. Therefore, the application or appeal could have been filed a year or many years before fiscal year 2017.

The application process for federal Social Security disability is always started by the filing of an initial application. The initial application can be filed either on line at www.sss.gov or by going to a local Social Security office. (To find a local Social Security office near you just enter in you zip code at Social Security Office Locator.) In fiscal year 2017, 34% of the claims were approved and 66% of the initial claims were denied. These numbers are about the same as they had been last year.

If your initial claim falls within the 66% of those which were denied, then you should file a request for reconsideration. This first appeal is reviewed by in house physicians and psychologists at the Disability Determination Bureau in Indianapolis. The rate of approval was 12% with 87% denied.

In my November 24, 2017, blog post, “Does a Statement from A Family Doctor Writing “Disabled” Guarantee A Finding of Disability?” I discussed the need for the report of a treating physician to important details, medical findings, and medical reasoning.  Equally important is the need for sufficient and consistent medical evidence.

20 CFR 404.1520b and 20 CFR 416.920b details what is considered “sufficient” and “consistent” medical evidence.  For medical evidence to be sufficient when it contains all of the information which the Commissioner needs to make a decision.  Medical evidence is considered consistent when it does not conflict with other evidence in the case file, when there are no internal conflicts and is not ambiguous.    Finally, the Commissioner will not view the medical evidence as consistent if the evidence is not based on medically acceptable diagnostic techniques.

An example of how medical evidence might be considered to be incomplete is when one or more of the elements required in the Listings of Impairments are not found in the medical evidence.  Consider, Listing 5.06, inflammatory bowel disease.  Subsection A requires an obstruction of stenotic areas in the small intestine or colon that resulted in hospitalization for surgery.  There must have been two surgeries at least 60 days apart occurring within 6-months.  If the medical evidence includes only one hospitalization, the record will be insufficient.   If the record is insufficient, the Commissioner is allowed to request existing medical evidence.

Numerous news television stations reported this evening that an ATIC-SWAT team arrested Eric Conn when he was leaving a restaurant.  The arrest took place in La Ceiba, Atlántida, Honduras.  The ATIC-SWAT team and the Federal Bureau of Investigation (“FBI”) worked together to bring about Mr. Conn’s arrest.  It is expected that Mr. Conn will be transported to the United States tomorrow.

Mr. Coon was indicted for conspiracy to commit mail fraud and wire fraud, mail fraud, and false statements.  The allegations centered around his alleged fraud in obtaining Social Security disability benefits for clients.  The federal charges were filed in the Eastern District of Kentucky in April 2016.  In March 2017, Mr. Conn entered a guilty plea to one count of theft of government money and one count of payment of gratuities.  Mr. Conn was scheduled to testify at a trial against one of the co-conspirators, Dr. Bradley Adkins, in the week of June 5, 2017.  However, Mr. Conn removed his ankle monitor on June 2, 2017 and fled.

Mr. Conn earned a place on a FBI “Most Wanted” poster as a result of his decision to flee.  On July 12, 2017, the Federal District Court in Lexington, Kentucky sentenced Mr. Conn, without him being in the courtroom, to 12 years in prison.   Mr. Conn was photographed on surveillance cameras in New Mexico in mid-July.

Appealing the unfavorable decision of an administrative law judge is the final step in the administrative journey to receive Social Security disability.  Unfortunately, about 82% of the appeals to the Appeals Council result in a denial of the Request for Review.  To add insult to injury, not only does a Request for Review have about an 18% chance of success, it takes about a year and a half for the Appeals Council to arrive at its decision.

In some respects, a Request for Review may appear futile.  However, it is necessary to file a Request for Review with the Appeals Council so that you can seek further review in Federal District Court.  In court, depending on the case, the chance of having the decision of the administrative law judge reversed, is much higher than at the Appeals Council level.   If you are one of the 82% who are notified by the Appeals Council that the decision of the administrative law judge should not be changed, then you have 60 days from receiving the determination of the Appeals Council to decide whether to begin another journey, the litigation journey.

Every person who loses an Appeals Council Request for Review of an administrative law judge’s unfavorable decision in a disability case has the right to request a court review.  A court review is litigation.  It involves filing a suit against the Commissioner of Social Security in the Federal District Court which sits in the judicial district where the claimant lives.  A claimant who wishes to file a civil action in Federal District Court must pay a filing fee of $400 to the U.S. Court Clerk.  Most people who are disabled do not have $400 to pay to file a civil action.  It is possible to ask the court to waive the filing fee requirement.  The request is done by completing a written waiver form, detailing the assets and expenses of the claimant.  If the court allows the case to be filed without the payment of the filling fee, the court will order the U.S. Court Clerk to file the case without a fee and will also order the U.S. Marshals Service to serve the summons and complaint on the Commissioner of Social Security without the need for the payment of service of process.

Often, a person will begin the disability process by going to a local Indianapolis Social Security office and apply for disability benefits.  Many times, the reason that the person is applying for benefits is because the family doctor said that the person can no longer work.  Sometimes the doctor writes  a note saying “patient is disabled.”  Armed with the note and the opinion from the his/her doctor that he/she can on longer work, the person expects to be placed on Social Security disability within weeks of applying.

The person is surprised to learn that after three to four months, Social Security has denied the initial application for disability benefits.  When that person comes to see me about the initial denial, we have a conversation about the effect of the family doctor’s statement and its impact on the decision making process at Social Security.  The fact is, a simple note from a treating physician has little influence on whether Social Security will award disability benefits.

Social Security regulations 20 CFR 404.1527 (d)(1) and (2) and 416.927 (d)(1) and (2) deal specifically with short physician notes.  (d)(1) states that “a statement by a medical source that you are ‘disabled’ or ‘unable to work’ does not mean that we will determine that you are unable to work.”  (d)(2) reminds the reader that the final responsibility for deciding whether a person is disabled is a matter reserved for the Commissioner of Social Security.  This means that just because a treating physician writes that a person qualifies for disability under the rules and regulations for Social Security disability, there is no guarantee that the person will be found disabled.  The policy consideration underlying these regulations is that Social Security does not want private physicians and psychologists controling the federal disability system.

Before May 1, 2017, persons receiving notice of a scheduled hearing before an administrative law judge were advised to submit written evidence before the hearing.  They were also advised that if they were unable to submit the evidence before the hearing, they could bring the evidence to the hearing.  Based on 20 C.F.R. 404.935 and 416.1435 [51 FR 303, Jan. 3, 1986] the notice provided:

You are required to inform us about or submit all evidence known to you that relates whether

or not you are blind or disabled. Your representative must help you inform us about or submit

Effective January 17, 2017, the Commissioner of Social Security has changed how and under which circumstances the Appeals Council will consider evidence submitted to it.  Amending 20 C.F.R. §§ 404.970 and 416.1470 accomplished these changes.  [81 FR 90987.]  (These two regulations are identical except for the fact that 20 C.F.R. § 404.970 deals with Title II claims, and 20 C.F.R. § 416.1470 pertains to Title XVI claims.  The changes made by the Commissioner are the same with both regulations.)

So, how have these regulations changed?  Under the rules in effect until January 17, 2017 (the “old regulations”) a claimant who appealed an unfavorable decision of an administrative law judge to the Appeals Council, was allowed to submit additional evidence.  For additional evidence to be considered as part of the disability claim, the Appeals Council had to determine that the additional evidence qualified under the regulations.  Additional evidence “qualified” under the regulations if it was “new” and “material.”  The evidence also had to relate “to the period on or before the date of the administrative law judge hearing decision.”  If the Appeals Council determined that the additional evidence was nonqualifying, it would not consider the new evidence as part of its review of the unfavorable decision.

The question of whether the Appeals Council made an error of law in applying the regulations is reviewable by the federal courts.  (See, for example, Farrell v. Astrue, 692 F3d 767, 771 (7th Cir. 2012).  However, the question of whether the Appeals Council erred by refusing to accept the case is not subject to federal court scrutiny because review is discretionary.  (Farrell v. Astrue, at 771.)  Under the old regulations, additional evidence was “new” if it had not been submitted and considered by the administrative law judge.  The evidence was considered “material” under the old regulations if the evidence related to the issues in the case.