Indiana Social Security Disability Attorney Blog

On March 18, 2018, I blogged asking: Is There A Commissioner of Social Security?  In that blog, I noted that President Trump’s January 23, 2017 appointment of Nancy A. Berryhill to serve as the Acting Commissioner of Social Security expired under the Vacancies Reform Act (5 U.S.C.A. 3345 et seq.) as of November 17, 2017.  Because of the expiration of her appointment, Ms. Berryhill’s title changed from: “Nancy A. Berryhill, Acting Commissioner of Social Security” to: “Nancy A. Berryhill, Deputy Commissioner for Operations, performing the duties and functions not reserved to the Commissioner of Social Security.”

On April 17, 2018, President Trump nominated Andrew M. Saul to become the next Commissioner of Social Security.  (Mr. Saul’s nomination was received by the U. S. Senate and referred to the Committee on Finance. )  The effect of this nomination is to revive the status of Nancy A. Berryhill to “Acting Commissioner” of Social Security.  As explained by Judge Ambrose in the case of Guy C. Patterson v. Nancy A. Berryhill, Commissioner (Acting), U. S. Social Security Administration, Dist. Court, WD Pennsylvania, No. 2:18-cv-00193, decided June 14, 2018, the Vacancies Reform Act has a “spring-back” clause which allows Ms. Berryhill to become the “Acting Commissioner” once a nomination for a Commissioner of Social Security has been made by the President and received by the U.S. Senate.  Ms. Berryhill will continue to serve as the Acting Commissioner as long as Mr. Saul’s nomination is pending in the U.S. Senate.  The reason Ms. Berryhill is the “Acting Commissioner” is due to the plan/order of succession of the Social Security Administration.  The succession order provides that when a vacancy exists at the Commissioner level, the person who is next in line is the Deputy Commissioner of Operations.  Ms. Berryhill is the Deputy Commissioner of Operations.

From a litigation perspective,  Rule 25(d) of the Federal Rules of Civil Procedure provides that when a party who is a party to a law suit because of her official capacity, ceases to serve in that position, the official’s successor is automatically substituted as a party.  Proceedings in the pending litigation following the automatic substitution should be in the name of substituted party.  Rule 25(d) also allows for the court, before which the case is pending, to enter an order of substitution “at any time.”  That said, even without an order of substitution, the substitution is not affected.

It should go without saying that to be found disabled under the Social Security disability system, it is necessary to apply for Social Security disability benefits by filing a valid application for benefits. (20 CFR § 404.603 and 20 CFR § 416.305.) But what is “valid” application?

For an application for Social Security disability benefits to be “valid,” the form used must be a form which the Social Security Administration has approved. Also, the application needs to be signed by the applicant for benefits (unless an exception applies). Unless very limited exceptions apply, the person seeking benefits must be alive at the time the application is filed. The person signing the application must sign under the penalties for perjury. Finally, filing the application with the Social Security Administration is required. (20 CFR § 404.610 and 20 CFR § 416.310.)

When is a disability application considered “filed” under the program rules? The default rule is the Social Security administration considers an application for disability benefits “filed” on the earlier of either the date of receipt of the application at a location approved by the Social Security Administration (usually a Social Security office) or on the protective filing date. (20 CFRE § 404.614 and 20 CFR § 416.325.) Many applications for Social Security disability are filed on the internet using the Social Security Administration’s secure website ( www.ssa.gov.) If the application is filed using the internet, then the filing date is the date which Social Security receives the completed application. [TIP: When using the internet to complete and file an application, Social Security will produce a receipt showing the date which the application was completed and successfully filed. It is important to print and save that receipt. The receipt can establish the date of filing.]

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In October 2010, Congress passed Rosa’s Law (Public Law 111-256) which changed references of “mental retardation” in specified federal laws to “intellectual disability.”  Historically, the medical profession, our legal system and our laws have struggled with labeling a person with intellectual disorders.  At the beginning of the 20th Century, persons with intellectual disorders suffered under pejorative names like “idiot,” “imbecile,” and “moron.”  These names were used to describe a person’s IQ starting with the lowest and then advancing to a moderate score.  By the late 20th century, these names were replaced by the term “mental retardation.”

Rosa Marcelino, a 9 year old girl from Maryland, who is afflicted with Down Syndrome helped changed the pejorative labels.  Rosa, along with her parents and family, were instrumental in changing the law of Maryland so that the term “mental retardation” was removed from the health and education statutes of Maryland.  That effort then went to the U.S. Congress.  Both the Senate and House in 2010 unanimously passed a law amending the language in all federal health, education and labor laws removing the term “mental retardation” and in its place substituting the term “intellectual disabilities.”  President Obama signed the bill into law.  During the signing ceremony, President Obama quoted Nick, Rosa’ brother, as to the reason for the need of the bill: “What you call people is how you treat them.  If we change the words, maybe it will be the start of a new attitude toward people with disabilities.”  The federal law is named after Rosa.

In conformity with the mandate of Rosa’s Law, the Social Security Administration replaced the term “mental retardation” to “intellectual disability” in its Listing of Impairments.  (Cf. Change in Terminology “Mental Retardation” to “Intellectual Disability,” 78 Fed Reg. 46499 (2013).)  This change was effective on August 1, 2013.

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.