Social Security

Andrew Bryant & Jennifer Danish

On April 4, 2018, the Seventh Circuit Court of Appeals issued an opinion vacating the denial of a Supplemental Security Income disability claim brought by 47-year-old Rebecca Ann Akin, who suffered from fibromyalgia, back and neck pain, and headaches. Akin v. Berryhill, 887 F.3d 314 (7th Cir. 2018).

On appeal, Akin argued that the administrative law judge wrongly discounted her allegations of back pain, improperly credited the opinions of agency doctors who had not reviewed all the medical records (including MRI scans) and disregarded her history of headaches. In its opinion, the Seventh Circuit described in detail Akin’s history of chronic back and neck pain, headaches, and other symptoms associated with her fibromyalgia diagnosis. The court then noted that the agency doctors whose opinions were relied upon by the ALJ did not review about 70 pages of medical records, including relevant MRI results. Rather, in denying the claim, the ALJ interpreted the MRI results himself. The Seventh Circuit found that this evaluation of the MRI results was flawed because the ALJ impermissibly “played doctor.” Akin, 887 F.3d at 317, citing, Goins v. Colvin, 764 F.3d 677, 680 (7th Cir. 2014). The lower court’s decision denying benefits was vacated and the case was remanded to the agency for further proceedings.

In commenting on Akin’s additional arguments, the Seventh Circuit further addressed and criticized the ALJ’s finding that Akin’s testimony was “not entirely credible” as “meaningless boilerplate.” In this discussion, the court noted that the disabling pain caused by fibromyalgia cannot be evaluated or ruled out by objective medical tests, as relied upon by the ALJ. Akin, 887 F.3d at 318, citing, Vanprooyen v. Berryhill, 864 F.3d 567, 572 (7th Cir. 2017).

Further, the court noted that the ALJ improperly discredited Akin’s testimony regarding her preference to delay undergoing a series of injections. The court noted that the ALJ did not consider Akin’s stated reasons for preferring a conservative course of treatment, as those stated reasons did not undermine the legitimacy of her complaints of disabling pain. Id, citing Beardsley v. Colvin, 758 F.3d 834, 840 (7th Cir. 2014).

Finally, the court noted that based on the opinions of two state-agency consultants, the ALJ discounted Akin’s complaints of headaches, despite Akin’s persuasive arguments to the contrary based on CT scans and other evidence. Akin, 887 F.3d at 318.

The content provided here is for informational purposes only and should not be construed as legal advice on any subject.

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Social Security

Jennifer Danish will be covering The Basics of a Social Security Disability Claim on April 6, 2017 and moderating day two of the conference on April 7, 2017 at American Association for Justice’s Social Security Success! Seminar. Registration still available and open to non-AAJ members.

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Social Security

For new and updates relevant to Social Security disability, we recommend visiting attorney Joni Beth Bailey’s blog page.  Recent topics include: “Famous Last Words—’I’ve got this!  I don’t need an attorney at my Social Security disability hearing!'” and “SSA’s mySocial Security:  New Online Security Update”

Ms. Bailey is an experienced attorney representing individuals since 1984 and focuses on cases in Southern Illinois (service area map).  Her skill is recognized nationally as she is a frequent speaker to other Social Security disability attorneys.

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Social Security

The  American Bar Association’s House of Delegates recently approved Resolution 106B. The Resolution proposes various reforms to the rulemaking provisions of the Administrative Procedure Act (“APA”), many of which embrace principles endorsed in past Administrative Conference of the United States recommendations.  This project identifies points of overlap, and offers the Conference’s views on non-overlapping portions of the Resolution. Issuing a Statement on ABA Resolution 106B offers the Conference an opportunity to endorse a series of reforms that would promote transparency and public participation while enhancing the quality of information received by agencies in the notice-and-comment process.

Related Links: http://www.americanbar.org/news/reporter_resources/midyear-meeting-2016/house-of-delegates-resolutions/106b.html

One suggestion is to hold off on all rules until after the presidential election.  WHY?

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Social Security

Congressional Research Service (“CRS”) has put out a “primer” on SSA:

Social Security Primer

Congressional Research Service

Summary

The Social Security program was established in the 1930s and has been modified by Congress many times over the years. Today, Social Security provides monthly cash benefits to retired or disabled workers and their family members, and to the family members of deceased workers. Among the beneficiary population, approximately 82% are retired or disabled workers, and 18% are the family members of retired, disabled, or deceased workers. In November 2015, nearly 60 million beneficiaries received a total of $74 billion in benefit payments for the month, with an average monthly benefit of $1,227. Workers become eligible for Social Security benefits for themselves and their family members by working in Social Security-covered employment. An estimated 94% of workers in paid employment or self-employment are covered, and their earnings are subject to the Social Security payroll tax. In 2016, employers and employees each pay 6.2% of covered earnings, up to the annual limit on taxable earnings ($118,500 in 2016). Among other requirements, a worker generally needs 40 earnings credits (10 years of covered employment) to be eligible for a Social Security retired-worker benefit. Fewer earnings credits are needed to qualify for a disabled-worker benefit; the number needed varies depending on the age of the worker when he or she became disabled. A worker’s initial monthly benefit is based on his or her career-average earnings in covered employment. Social Security retired-worker benefits are first payable at the age of 62, subject to a permanent reduction for early retirement. Full (or unreduced) retirement benefits are first payable at the full retirement age (FRA), which is increasing gradually from 65 to 67 under a law enacted by Congress in 1983. The FRA will reach 67 for persons born in 1960 or later (i.e., persons who become eligible for retirement benefits at the age of 62 in 2022 or later). In addition to payroll taxes, Social Security is financed by federal income taxes that some beneficiaries pay on a portion of their benefits and by interest income that is earned on the Treasury securities held by the Social Security trust funds. In 2014, the Social Security trust funds had receipts totaling $884 billion, expenditures totaling $859 billion, and accumulated assets (in the form of Treasury securities) totaling $2.8 trillion. Projections by the Social Security Board of Trustees show that, based on the program’s current financing and benefit structure, benefits scheduled under current law can be paid in full and on time until 2034. The projections also show that Social Security expenditures will exceed income by about 19% on average over the next 75 years. Restoring long-range trust fund solvency and other policy objectives (such as increasing benefits for certain groups of beneficiaries) have made Social Security reform an issue of ongoing congressional interest and debate. This report provides an overview of Social Security financing and benefits under current law. Specifically, the report covers the origins and a brief history of the program; Social Security financing and the status of the trust funds; how Social Security benefits are computed; the types of Social Security benefits available to workers and their family members; the basic eligibility requirements for each type of benefit; the scheduled increase in the Social Security retirement age; and the federal income taxation of Social Security benefits.

Full text available here.

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Social Security

Social Security has several programs that will expedite a claim for disability benefits claims. One is to prevent homelessness. In fact, each Social Security local office has a designated staff member to handle such emergency situations.  Relevant POMS is below and available at: http://policy.ssa.gov/poms.nsf/lnx/0302801001.

RS 02801.001 Critical Case Criteria and Exclusions

A. Policy – critical case criteria

SSA’s goal is to pay all benefits due on time. Processing critical cases has priority over all other workloads. Through routine processing, this goal is usually met. However, when a beneficiary is adversely affected because payment is not made timely, our goal is to resolve the problem and make payment as soon as possible. Some of these cases are considered “critical.”

Most critical cases are identified and processed in the FO and paid via the Critical Payment System (CPS) (SM 00635.001, MSOM INTRANETCPS 001.001). CPS is a method of payment designed for use primarily (but not exclusively) in critical case situations.

NOTE: The existence of a CPS exclusion does not also exclude the case from critical case processing. When a CPS exclusion exists, the FO will complete an MDW 2560HP Request (High Priority Payment Center Request) (MSOM MDW 001.003 MDW Worksheet (MMDW).

There are two methods of replacing payments which have not been received by an individual.

  • The critical payment–a check is issued by the Treasury Department and received by the individual in 5-7 days. The critical payment process is used for limited situations and the FO should be certain the problem cannot be resolved through routine processing.
  • The immediate payment (IP)–a check is issued immediately in the field office because of a dire need situation (see RS 02801.010). Both of these payment processes are recorded via CPS.

For all critical cases, there must be evidence of:

  • entitlement with the paper evidence submitted to SSA, and
  • payment is due (for terminal illness (TERI) cases, there are developmental tolerances).

1. A critical case exists when

  • the case is identified as a TERI case (DI 11005.601); or
  • a due payment has not been received and an urgent need exists and/or there is a public relations problem.
    NOTE: For all garnishment situations, use COGS per GN 02410.210.

2. A critical case may be

  • An initial claim for retirement, survivors or disability benefits with all factors of entitlement met. All TERI cases are critical.
    NOTE: An initial claim critical case may qualify for preliminary payment (RS 02807.005) or expedited payment (RS 02805.001).
  • A reinstatement of payment — cases that have been suspended and evidence has been submitted showing the suspension no longer applies. 
  • A delayed or interrupted payment for a beneficiary due to a processing error (e.g., failure to convert life benefits to survivors benefits, incorrect death termination). 
  • Appellate reversals.
    With these cases
    • PC’s may make payment in AC and ALJ reversals and RSI reconsideration cases. If an FO identifies such a case as a critical case, an MDW 2560HP Request (High Priority Payment Center Request) should be completed and sent to the PC.
      NOTE: In concurrent Title II/XVI cases, the PC coordinates payment with the FO to avoid creating a windfall. See GN 02610.005.
    • The method of payment for a DIB reconsideration reversal identified as a critical case in an FO depends on the location of the file. In all cases CPS processing should be used. If there is a CPS exclusion, or the FO has not received a copy of an approved SSA-831-U5 or SSA-833-U5, the MDW 2560HP Request (High Priority Payment Center Request) should be completed and sent to the PC.
  • Nonreceipt of issued payment(s) – EFT or dire need
    When nonreceipt is alleged involving EFT and the payment has been sent to the incorrect bank (e.g., wrong routing transmit number or RTN), a CPS payment may be issued. Refer to GN 02406.007 to determine appropriate action. When nonreceipt is reported for a nonrecurring paper check, see GN 02406.003 and GN 02406.200.
    If the beneficiary reports nonreceipt and indicates dire need, SSA can issue an immediate payment if the criteria in RS 02801.010 are met. If there are any additional benefits due in excess of the immediate payment limitation, payment may be made through CPS. See GN 02406.125C and GN 02406.125D to determine what action to take for a missing paper check when dire need exists.
    NOTE: If processing a CPS payment for nonreceipt of a check, DO NOT also do a nonreceipt input, as this would cause 2 replacement checks to be issued.
  • Cases identified in the PC
    The following types of cases identified in the PC may need CPS processing.
    • Correspondence from the beneficiary, his/her representative payee, or someone writing on his/her behalf (e.g., a congressional inquiry) which indicates a payment problem that meets the criteria in RS 02801.001A.1., or
    • A delayed payment inquiry indicates a payment problem that meets the criteria in RS 02801.001A.1. or an inquiry that is not associated with the folder within 15 days of receipt in the PC, or
    • A disability to survivor conversion, not automatically processed by the Death Termination Program, that has subsequently failed two attempts to process the survivor award through MADCAP, or
    • A MADCAP adjustment action for nonpayment to payment status that has excepted three times.

B. Policy – critical payment exclusions

Listed below are exclusions from critical case processing.

1. Actions or issues where no payment is due:

  • A Medicare problem (no Title II payment problem);
    NOTE: Refund of Medicare premium due to State Buy-In can be issued by CPS in situations where the State has already paid the premiums for that month(s).
  • SSN problems (see RM 10215.035) or;
  • Earnings discrepancies (see RM 03844.006).
  • Request for explanation of benefit or overpayment amounts.

2. Other exclusions

  • A request for recomputations, recalculations, and/or delayed retirement credits where only amount of payment is in question (RS 00605.401);
  • Nonreceipt that represents only: a retroactive cost-of-living increase payable to all beneficiaries; a LSDP, or an underpayment due a deceased beneficiary.
  • A conditionally adjudicated or unadjudicated claim.
  • The family maximum has been paid; a critical case payment may not exceed the family maximum
  • Tax Refund Offset (TRO) Refunds (GN 02201.030). The Critical Payment System should not be used for these refunds.

NOTE: SM 00635.001H.3. contains additional instructions for when CPS is not permitted.

C. Procedure – CPS processing

Evaluate cases other than TERI cases as follows.

  • Obtain evidence that entitlement exists and payment is due.
  • Ensure that the problem cannot be resolved through routine processing.
  • Consider the merits of each case when applying the critical case definition and criteria.

1. A Followup to priority payment request

If the FO has not received a reply from the PC to the MDW category 2560 or 2560HP within a few days indicating that

  • the requested action is being taken; or
  • the case is being treated as a critical case and payment is being (has been) made; or
  • the payment cannot be made and why.

Follow-up with the PC using the Manager-to-Manager process (see GN 01070.228).

2. Benefit Payment Offset (BPO) cases

Title II benefit payments are subject to the Treasury Offset Program (TOP). BPO reduces an individual’s Title II benefit to recover non-tax debts owed to other Federal agencies. Therefore, make the CPS for the amount the individual is due minus any BPO amount. Do not include the BPO amount in the CPS payment because SSA cannot be reimbursed for the BPO amount. DO NOT use CPS to pay back excess BPO payments (see GN 02410.300A.8.) See GN 02201.029.

2. Your Loved One Can Still Perform Some Activities of Daily Living

To qualify for long-term care benefits, you typically must be unable to care for yourself independently. Many policies insist that you are unable to perform at least two out of six essential activities of daily living (ADLs).

These activities include:

  • Bathing and grooming
  • Dressing yourself
  • Feeding yourself
  • Continence
  • Toileting
  • Mobility

Sometimes, insurance adjusters will argue that your loved one can still perform basic ADLs, even though they struggle with them and might be unsafe living alone.

In these cases, a long-term care attorney can help you document your family member’s difficulties and need for skilled care. However, please note that some policies will not cover certain personal services, like light housekeeping, running errands, or social companionship.

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The content provided here is for informational purposes only and should not be construed as legal advice on any subject.

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Social Security

In a case of first impression before the Appellate Court of Illinois, a marital settlement agreement requiring the respondent to pay 32% of his net income for guideline child support of three minor children was found unconscionable.  In re Marriage of Ruth Mitter, 2015 IL App (1st) 142695.  The husband challenged the settlement agreement arguing the trial court erred in denying him a credit of Social Security Retirement dependent benefits of $1,083 a month toward the child support payments.  The court agreed with the husband that the benefits were earned and should be considered part of his overall child support obligation and the case reversed and remanded for further proceedings.

Here the court relied on the Illinois supreme court’s rationale in In re Marriage of Henry, 622 N.E. 2d 803 (1993) where it was determined that payment of Social Security disability dependent benefits satisfied the parent’s child support obligation. The Henry court reasoned that eligibility for Social Security benefits and the amount of such benefits was based on the earnings record of the primary beneficiary, and thus dependent disability benefits were generated by the noncustodial parent through his labor and earnings.

Henry also noted that the source and the purpose of Social Security Dependent benefits are identical to the source and purpose of child support—both come from a noncustodial parent’s wages or assets and both provide for the needs of the dependent child.  Thus, because “Social Security Dependent disability benefits are earned by the noncustodial parent, made on behalf of such parent, and, in fact, paid at least in part with contributions from the non-custodial parent’s own earnings, payment of Social Security Dependent disability benefits satisfies a noncustodial parent’s child support obligation.”  Henry, 622 N.E. 2d, 809.

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Social Security

The American Association for Justice‘s Social Security Section has scheduled a fabulous 2 day set of CLE courses “AAJ Social Security Success! Seminar” for March 17-18, 2016 in Las Vegas, Nevada.  Mark your calendars now to attend this seminar and experience the first rounds of the NCAA Tournament and St. Patrick’s Day in Vegas!  This Seminar is open to AAJ and non-AAJ members.

As more information about the agenda and registration are made available, we will post it.

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Social Security

The Seventh Circuit Court of Appeals takes yet another opportunity to criticize the Social Security Administration’s disability claim adjudication process in Alaura v. Colvin, decided August 18, 2015 (decision written by Judge Richard Posner).  The plaintiff, a 22-year old man was struck in the back of his head by an assailant wielding a bar stool as a weapon.  The blow shattered his skull, necessitating emergency surgery.  Still suffering after surgery two months later Alaura was examined by a neurologist who diagnosed post-traumatic headaches and cognitive impairment caused by the injury to his brain.  In addition to daily headaches the Claimant was found to be suffering from occipital neuralgia causing piercing or throbbing pain in the neck, the back of the head, and front of head behind the eyes.  Nerve blocks failed to lessen the pain.  He later complained of seizures that occurred several times a week in which he would zone out for a couple of minutes.  Another neurologist found Alaura’s symptoms consistent with complex partial seizure activity.  Anti-depressants, and further nerve blocks failed to alleviate chronic headaches.

Despite this the administrative law judge made no effort to consider the combined effects of all of his impairments and limitations on Alaura’s ability to work.  The Court criticized the Social Security administrative law judge’s (ALJ’s) failure to seek opinions from either a neurologist or pain specialist  to examine the Claimant or his medical records and offer an opinion about his ability to do various forms of work.  The ALJ also rejected the consulting internist’s opinion, without explanation, that the Claimant can sit for only 30 minutes at a stretch and walk only six blocks at a time.  Posner criticized the judge’s “scattershot” analysis producing no confidence the ALJ had responsibly determined the Claimant’s fitness for gainful employment.

Posner further criticized the vocational expert’s conclusion there were jobs in the region that Alaura could perform.  In particular, he once again expressed concern with the source and validity of the statistics that vocational experts “trot out” in SS disability hearings.  Posner found it “preposterous” that typically a VE simply divides the number of jobs in the broad category that includes the narrow category of jobs that the Claimant can perform by the number of narrow categories, thus assuming that each narrow category has the same number of jobs as each other narrow category.  Therefore, the stated number of jobs in a narrow category are likely to be a fabrication.  The point was then illustrated by looking closer at the job of “addressor,” and Posner reasonably concluding it was unlikely 200,000 addressor jobs existed in the age of automated business mailing.  The case was remanded for further consideration.

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Social Security

REMINDER: Pursuant to 42 USC Section 1395y(b)(2), commonly known as the Medicare Secondary Payer Act, Medicare may not make payment for medical benefits where payment has been made or can reasonably be expected to be made under a workers’ compensation law or plan of the United States or a state, or under an automobile or liability insurance policy or plan (including a self-insured plan), or under no fault insurance. By law, Medicare has a priority right of recovery from the primary payer as well as from parties in receipt of third-party payments, such as a beneficiary, provider, supplier, physician, attorney, state agency or private insurer [42 CFR 411.24(g)]. Accordingly, it is essential that all parties to personal injury insurance settlements ensure that Medicare’s interests are protected and therefore of the utmost importance for all attorneys, insurance company personnel and medical billing professionals to fully understand how and when the MSP applies in any given personal injury situation. Failure to meet your MSP obligations may have some very significant financial ramifications such as attorney personal liability as supported by the 3rd Circuit decision in U.S. v. Harris, or an insurer $1,000 per day per case fine for failure to perform MMSEA reporting.

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Social Security

The American Association for Justice has scheduled a fabulous CLE course in Miami at the James Hotel, right on the beach.  Join your colleagues at the James Royal Palm in Miami for the AAJ Social Security Success! Seminar on January 29–30, 2015.  Enjoy the sun and sand and improve your practice with lectures on:

  • The Disappearance of the Medical Expert:  Where have all the ME’s gone?
  • Administrative Law Judge Hypotheticals
  • Diagnostic and Statistical Manual of Mental Disorders, Fifth Edition (DSM-V)
  • Laying Traps for Federal & AC Appeals
  • Technology
  • Cross Examining the Vocational Experts
  • Fee Structures

Faculty for this program include:

Register Today:  This program is open for non-AAJ members to attend.  Call AAJ Education at 800.622.1791 or 202.965.3500, ext. 8612.

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Social Security

David R. Bryant and Jennifer Danish will be presenting “UPDATE IN SOCIAL SECURITY AND MEDICARE SET ASIDES” at the CBA Worker’s Compensation Committee Meeting scheduled for November 7, 2014, 12:15 p.m. to 1:30 p.m.  For more information visit www.chicagobar.org.

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