Monday, January 16, 2017

Social Security Commissioner Colvin Announces Resignation

Last Friday, Acting Social Security Commissioner Carolyn Colvin submitted a letter to President Obama stating that she will be leaving her position at the end of his term on Friday, January 20th. Commissioner Colvin's decision comes as no surprise.  She has been serving as acting commissioner since February 14, 2013.
Social Security Commissioners are appointed by the President to serve six year staggered terms. They must be confirmed by the Senate.  Colvin was never confirmed and was working on an acting capacity.  No one seems to know who will be appointed by Donald Trump or if he has any potential candidates under consideration.  In the meantime, I understand that Nancy Berryhill, who now serves as Deputy Commissioner for Operations, will be the new Acting Commissioner until the next Commissioner is appointed.
Although I have been very critical of Commissioner Colvin, I must clarify that many of the problems that her agency has had stem from the Republicans' refusal to give her the budget that she needed. Currently, there is an astronomical backlog of disability cases with 1.1 million claimants waiting for a hearing. 
Commissioner Colvin has always been a firm believer in Social Security's programs.  In her letter to President Obama she stated:
Social Security is the most important social program ever implemented in this country.  The agency distributes almost $1 trillion to 65,000,000 people each year.  Millions of our fellow Americans rely on these benefits and the services we provide.  Indeed, many of our seniors would be in poverty if they did not receive their Social Security benefits each month.  
Colvin's appreciation of the importance of Social Security stands in sharp contrast with the statements made by many Conservatives who constantly trash talk the program calling it a "Ponzi Scheme". Donald Trump promised during his campaign that he was the only Republican who would not change Social Security or medicare.  Now, he must keep his promise and appoint a new Commissioner who fully supports Social Security.   


Monday, January 9, 2017

What are "Non-Medical" or "Technical" Denials in Social Security Disability Applications

When a person files a Social Security Disability application, the SSA can take one of two actions: 1. ask the state agency to commence a medical evaluation of the claim or, 2. issue a "technical denial". Technical denials are also called "Non-Medical" denials.  

Technical denials occur when the SSA finds that the claimant does not have enough credits (the person has not worked long enough and recently enough), the person is working and making more than $1,170 a month or, the applicant failed to meet the necessary immigration requirements.  

Sometimes, the state agency (DDS) makes a favorable medical determination on a case but, later on, the SSA denies the claim when it realizes that the would be beneficiary fails to meet a technical requirement.  These specific type of technical denials are called "subsequent non-medical denials".

Lately there has been an increase in technical denials.  The reason why this is happening is not entirely clear.  It is very frustrating to handle an appeal of a technical denial.  As a general rule, my office does not handle these type of claims.  Moreover, such denials cannot be appealed electronically.  Claimants who have received technical denials must do a lot of homework on their own, gathering information such as records showing: accurate earning histories, payment of FICA taxes, wage information and proof of immigration status.  Once all this information is obtained, a paper appeal can be submitted, --in person or by mail at the local field office--, requesting a reconsideration of the technical denial. 

Monday, December 12, 2016

The "Co-Signature" of a Physician in a Social Security Disability Medical Opinion

In social security disability cases, the opinion of a treating doctor is given controlling weight unless it is contradicted by substantial evidence in the record.  Social security lawyers know that many doctors do not actually complete the medical opinions that are submitted in support of a claim.  Very often, they simply co-sign the questionnaires which are completed and signed by nurses or PA's in their offices.  (Obviously, it is always better when the treating doctor is the one who actually writes the opinion and signs the paperwork.) 

Given these circumstances, it is somewhat unclear what weight is given to medical opinions that are co-signed by an M.D.  Should these opinions be given "controlling weight" even when the physician did not examine the claimant?

A case recently decided in the Connecticut District Court addressed this question.  In Baldwin v. Colvin, 2016 U.S. Dist. LEXIS 165596 * (D. Conn. Dec. 1, 2016), Magistrate Judge Joan Margolis ruled that Hartford ALJ Peter Borre  erred in ignoring the "co-signature" of a physician.  The case was remanded for a new hearing with the following instructions:
[U]pon remand, the ALJ shall consider "whether . . . [the co-signed] opinion[] [is that] of an acceptable medical source[.]" and "explicitly consider the treating physician factors so that [the ALJ] may comprehensively set forth [his] reasons for deciding whether to give the opinion[] controlling weight[.]" Johnson, 2016 U.S. Dist. LEXIS 19515, 2016 WL 659664, at *3-4, and if the ALJ does not assign controlling weight to the opinion of the treating provider, explain the weight given to the opinions of the State agency consultant by considering the relevant factors set forth in the Regulations. 20 C.F.R. §§ 404.1527 and 416.927.
Ignoring the co-signature of a physician is is a legal error even when the doctor who co-signs a form has not treated a claimant.  In accordance with social security disability regulations, the ALJ must make specific findings explaining the weight given to the opinion.




Monday, December 5, 2016

December 2016 Social Security Disability Briefing

Here are some of the top stories and issues affecting Social Security Disability Lawyers and their clients:

  • New HIV Listing:  The Social Security Administration has published a new listing for claimants who suffer from HIV / AIDS.  The revisions in the HIV listing reflect the great medical advances in treating this condition.  This new rule becomes effective on January 17, 2017.  For a complete version of the new listing click here.
  • Congressman Larson Might Become the Ranking Democrat in the House Social Security Subcommittee:  Just a few days ago Congressman Xavier Becerra, the top democrat on the House SSA subcommittee, announced that he was leaving Congress to become California's Attorney General.  Connecticut's John Larson is the second ranking member on the Committee. However, it is not clear yet if he will become the ranking member on the next Congress. Congressman Larson's office is just a few doors down from RamosLaw.   We will keep you posted .  We want him to take the job!  Our Congressman is the person that we need protecting Social Security.
  • The National Organization of of Social Security Claimant's Representatives (NOSSCR) is interested in any stories about the five day rule and good cause exception harming Region I claimants: for example, situations where the ALJ did not find there was good cause for late submission of probative evidence, and the case needed to be appealed causing delays for the claimant or the claimant lost back benefits by reapplying.  Please send your stories (without any personally identifiable information about the claimant) to Lisa.Ekman@nosscr.org by noon on Thursday Dec. 8th.
  • Commissioner Colvin and Other Top SSA Officials Expected to Resign on Inauguration Day: According to the "ALJ Discussion Forum" Acting Commissioner Colvin has informed SSA employees that she will be stepping down on inauguration day.  According to the rumors "many other" SSA employees will follow her.  This has not happened before.  Anyway, expect more backlogs and more staff reductions in the next administration.  Thanks Republicans! 

Monday, November 21, 2016

Anti Social Security Activists Part of the Trump Transition Team

During the past hours it has become evident that Donald Trump is about to break his campaign promises regarding Social Security.  Generally, it has been assumed that Trump was far more supportive of Social Security than most Republicans in Congress.  Now, it is evident that the right wing of the Republican party which favors major cuts in Social Security has taken control over the Trump transition team and is influencing the way that the Social Security Administration (SSA) will be run in the next four years. 
During the presidential campaign Donald Trump promised to protect Social Security and repeatedly stated that, if elected, he would not make any changes to the program.   He said that he would do everything within his power "not to touch Social Security, to leave it the way it is".  
Today, CNN has reported that Trump has named Tom Leppert, former major of Dallas and a well known proponent of privatizing Social Security, to the "landing team" for the SSA.  (For the CNN article click here.)  "Landing teams" are groups designated by presidents elect to interact with federal agencies in helping to set up the government after the new President is sworn into office.
Other news sources have also reported that other well know anti Social Security activists are at Trump Tower actively working to wreck the SSA an its programs.    Here is a list of these other right wing policy makers who also have a long history of hostility towards Social Security:
  • Mike Korbey, former senior advisor to the principal deputy commissioner in George W. Bush’s SSA.
  • Former Reagan SSA commissioner Dorcas Hardy.
  • Former SSA Inspector General Patrick O’Carroll.
  • Former SSA General Counsel David Black.
Korbey is an ultra conservative who falsely claims that Social Security is “broken and bankrupt.” He was part of a group called United Seniors Association that favored Bush’s Social Security failed privatization plan.



Monday, November 7, 2016

Letter to Commissioner Colvin Re: Proposal to Change Treating Physician Rule

November 7, 2016

Carolyn ColvinActing Commissioner
Social Security Administration


   6401 Security Boulevard
   Baltimore, MD  21235-6401

Submitted on www.regulations.gov

Re:  Notice of Proposed Rulemaking on Revisions to Rules Regarding the Evaluation of Medical Evidence, 81 Fed. Reg. 62559 (September 9, 2016), Docket No. SSA-2012-0035

Dear Acting Commissioner Colvin:

Thank you for the opportunity to comment on the proposed regulations contained in above referenced Notice of Proposed Rulemaking (NPRM).  I am writing to express my strong opposition to the SSA’s proposal to eliminate the treating physician rule and the 9th Circuit’s credit-as-true doctrine. 

I believe that the proposed rules would unduly burden our Federal Court system and the legal staff at the U.S. Attorney’s Office.  Moreover, claimants and your staff at the SSA will also be adversely affected as a result the likely delays caused by these revisions.  As proposed, the new rules will lead to more federal court appeals, more delays and substantially more remands for a new hearing. 

It is no secret that the proposed rules are part of your administration’s strong anti-claimant stance.  This proposal shows once again, that you have acquiesced to the Republicans’ pressure to “tighten up the rules” to make it harder for claimants to qualify for disability benefits.  However, I would like to point out your agency’s current proposal will not achieve the results intended by its drafters.  Instead of leading to lower allowance rates, the proposed changes will lead to chaos, waste, and unnecessary delays in the adjudication process.  Moreover, the new rules will foster confusion at the Federal Court level, resulting in an even bigger backlog and far more EAJA fee awards.

The proposed rule removes the responsibility of adjudicators to explain how they weigh medical evidence and how they weight prior determinations made by other administrative agencies.  If enacted, adjudicators will have to weight medical evidence without guidelines or legal standards. The vagueness and uncertainty created by the proposed rules will lead to more prolonged federal court challenges and not, to the “quick and easy unfavorable decisions” wished for by its proponents. 

It is a well accepted legal axiom that specificity and preciseness in legal standards, lead to less challenges at the appellate level.  The vague rules proposed by your agency violate this legal axiom.  In fact, the proposed changes are an outright invitation to lawyers and jurists to develop new case law to fill up the legal void left by the absence of clear regulatory guidelines.

In my experience as a disability lawyer, I have witnessed how the absence of guidelines to evaluate medical evidence can lead to a significant number of remands by the federal courts.  Besides practicing in the area of Social Security Disability, I also represent claimants who have been denied disability benefits under insurance contracts governed by the Employee Retirement Income Security Act of 1974 (ERISA).  In disability insurance cases covered by ERISA, the treating physician rule does not apply and there are no clear guidelines for evaluating medical evidence.  Due to the absence of clear guidelines to evaluate medical evidence in ERISA cases, federal judges are often unable to issue a decision and are forced to issue a remand back to the insurance company for further consideration. 

For the above mentioned reasons, I urge you to withdraw the proposal to change the way that the SSA evaluates medical evidence.

Sincerely,




Iván A. Ramos

Letter to Commissioner Colvin Re: Proposal to Change Treating Physician Rule

November 7, 2016

Carolyn ColvinActing Commissioner
Social Security Administration


   6401 Security Boulevard
   Baltimore, MD  21235-6401

Submitted on www.regulations.gov

Re:  Notice of Proposed Rulemaking on Revisions to Rules Regarding the Evaluation of Medical Evidence, 81 Fed. Reg. 62559 (September 9, 2016), Docket No. SSA-2012-0035

Dear Acting Commissioner Colvin:

Thank you for the opportunity to comment on the proposed regulations contained in above referenced Notice of Proposed Rulemaking (NPRM).  I am writing to express my strong opposition to the SSA’s proposal to eliminate the treating physician rule and the 9th circuit’s credit-as-true doctrine. 

I believe that the proposed rules would unduly burden our Federal Court system and the legal staff at the U.S. Attorney’s Office.  Moreover, claimants and your staff at the SSA will also be adversely affected as a result the likely delays caused by these revisions.  As proposed, the new rules will lead to more federal court appeals, more delays and substantially more remands for a new hearing. 

It is no secret that the proposed rules are part of your administration’s strong anti-claimant stance.  This proposal shows once again, that you have acquiesced to the Republicans’ pressure to “tighten up the rules” to make it harder for claimants to qualify for disability benefits.  However, I would like to point out your agency’s current proposal will not achieve the results intended by its drafters.  Instead of leading to lower allowance rates, the proposed changes will lead to chaos, waste, and unnecessary delays in the adjudication process.  Moreover, the new rules will foster confusion at the Federal Court level, resulting in an even bigger backlog and far more EAJA fee awards.

The proposed rule removes the responsibility of adjudicators to explain how they weigh medical evidence and how they weight prior determinations made by other administrative agencies.  If enacted, adjudicators will have to weight medical evidence without guidelines or legal standards. The vagueness and uncertainty created by the proposed rules will lead to more prolonged federal court challenges and not, to the “quick and easy unfavorable decisions” wished for by its proponents. 

It is a well accepted legal axiom that specificity and preciseness in legal standards, lead to less challenges at the appellate level.  The vague rules proposed by your agency violate this legal axiom.  In fact, the proposed changes are an outright invitation to lawyers and jurists to develop new case law to fill up the legal void left by the absence of clear regulatory guidelines.

In my experience as a disability lawyer, I have witnessed how the absence of guidelines to evaluate medical evidence can lead to a significant number of remands by the federal courts.  Besides practicing in the area of Social Security Disability, I also represent claimants who have been denied disability benefits under insurance contracts governed by the Employee Retirement Income Security Act of 1974 (ERISA).  In disability insurance cases covered by ERISA, the treating physician rule does not apply and there are no clear guidelines for evaluating medical evidence.  Due to the absence of clear guidelines to evaluate medical evidence in ERISA cases, federal judges are often unable to issue a decision and are forced to issue a remand back to the insurance company for further consideration. 

For the above mentioned reasons, I urge you to withdraw the proposal to change the way that the SSA evaluates medical evidence.

Sincerely,




Iván A. Ramos