Questions on Reasonable Accommodations under the ADA have no place in the proof of a Social Security Disability Case.

Your at your social security hearing before an ALJ and he poses a hypothetical question to the vocational expert asking the expert to consider the claimant's limitations and determine if there are jobs that the claimant could do. The expert answers that with accommodations, the claimant could do job x, y, and z.
Can an ALJ then ask the vocational expert, at steps 4 or 5, “Given reasonable accommodations, are there any jobs that claimant could be employed?” If not asked by the ALJ, can the vocational expert consider reasonable accommodations in determining if there are any jobs within the national/regional economy that the claimant could do in his/her disabled condition?
In many cases it is difficult to obtain benefits for a client. When the question of allowing accommodations comes into the process, there are real concerns for the claimant, for example, not all employers or all jobs require that accommodations be provided, how would that be factored into the process? Since much of the vocational expert’s testimony is based upon subjective determinations on which jobs are available and which jobs are not, give the VE the opportunity to ponder on this issue would/could greatly expand the available jobs.
It would be improper for the Administrative Law Judge or the Vocational Expert to consider reasonable accommodations under the Americans With Disability Act at steps 4 or 5 of social security’s sequential evaluation process.
The ADA provides that a covered entity (generally an employer engaged in interstate commerce and who employs 15 or more workers) shall not discriminate against a qualified individual with a disability (an individual who, with or without reasonable accommodation, can perform the essential functions of the employment position that such individual holds or desires).
Under the sequential evaluation used by Social Security to determine if a claimant’s disability(s) prevent him/her from being employable in the national economy the focus in on availability of jobs that the claimant, given his residual functional capacity, may be able to work. Under step four, the focus is on jobs that the claimant had successfully worked during the past fifteen years. If the claimant is unable to do a prior job then at step five, the focus turns to any job within the national economy that claimant could work.
The questions posed at step four and then step five, ask:
Step Four: If your impairment does not meet or equal a listed impairment, can you perform your "past relevant work?" If the claimant cannot do past relevant work, then the inquiry moves to -
Step Five: If your impairment does not meet or equal a listed impairment and you cannot perform your "past relevant work," then can you perform other jobs that exist in significant numbers in the national economy?
If the requirements of the ADA are applied at either Step Four or Step Five of the sequential evaluation, the questions would be given reasonable accommodations can claimant perform past relevant work or any work. If allowed it makes a significant difference in the process. Allowable?
Such was the issue in Eback v. Chater, 94 F.3d 410 (8^th Cir. 1996). The Court’s holding in Eback was that it was inappropriate to consider accommodations—


“This rationale is faulty for numerous reasons, the most significant of which is that a determination of relevant jobs existing in the national economy in significant numbers must be based on an assumption that the employer would be willing to make accommodations under the ADA. The Associate Commissioner of Social Security issued a statement that the ADA and the disability provisions of the Social Security Act have different purposes and have no direct relationship to each other.
[The inquiry into other available jobs] is based on the functional demands and duties of jobs as ordinarily required by employers throughout the national economy, and not on what may be isolated variations in job demands (regardless of whether such variations are due to compliance with anti-discrimination statutes or other factors). Whether or how an employer might be willing (or required) to alter job duties to suit the limitations of a specific individual would not be relevant because our assessment must be based on broad vocational patterns ... rather than on any individual employer's practices. To support a ... finding that an individual can perform "other work," the evidence ... would have to show that a job, which is within the individual's capacity because of employer modifications, is representative of a significant number of other such jobs in the national economy.” @ 412 (underlining added)


SSR 00-1c provides some insight into the issue by looking at it from the opposite direction, i.e. does application for SSDI preclude application under the ADA? SSR 00-1c is based upon the U.S. Supreme Court Case, CAROLYN C. CLEVELAND v. POLICY MANAGEMENT SYSTEMS CORPORATION ET AL., ____ U.S. ____, 119 S.Ct. 1597 (1999 . In the case the United States Supreme Court looked carefully at the underlying statutes and focused on one key difference: The SSDI provisions deal with the person's condition without accommodation, and the ADA is based on providing reasonable accommodation for the disability.


The regulation provides, in part:


“The SSAct and the ADA both help individuals with disabilities but in different ways. The SSAct provides monetary benefits to insured individuals who are under a disability, as defined in the SSAct. The ADA seeks to eliminate unwarranted discrimination against any individual who is considered a "qualified individual with a disability" as defined in the ADA...


The Social Security Act provides monetary benefits to every insured individual who "is under a disability." 42 U.S.C. § 423(a)(1). The Act defines "disability" as an "inability to engage in any substantial gainful activity by reason of any ... physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than 12 months." § 423(d)(1)(A)…


The ADA seeks to eliminate unwarranted discrimination against disabled individuals in order both to guarantee those individuals equal opportunity and to provide the Nation with the benefit of their consequently increased productivity. See, e.g., 42 U.S.C. §§ 12101(a)(8),(9). The Act prohibits covered employers from discriminating "against a qualified individual with a disability because of the disability of such individual." § 12112(a). The Act defines a "qualified individual with a disability" as a disabled person "who ... can perform the essential functions" of her job, including those who can do so only "with ... reasonable accommodation." § 12111(8).


By way of contrast, when the SSA determines whether an individual is disabled for SSDI purposes, it does not take the possibility of "reasonable accommodation" into account, nor need an applicant refer to the possibility of reasonable accommodation when she applies for SSDI…”

The ADA and Social Security are not overlapping legislation, and they serve different purposes. Questions on accommodations are irrelevant to the considerations that are to be made under Steps 4 or 5 in the Social Security’s sequential evaluation process.

Disclaimer: Blogs posted herein are only the thoughts of the author and are intended neither as legal advice, nor do they create nor attempt to create an attorney-client relationship. The person viewing my blogs is admonished that an attorney-client relationship may only be created with the express consent to the parties to it.

Appeal your SSDI denial into Federal Court

I just finished watching the Robert Redford movie “All is Lost”.  It started me thinking about that case in which benefits were not awarded at the initial claim level, or at the reconsideration, or before the Administrative Law Judge (ALJ) and finally, the Appeals Council (AC) found no reason to change what the ALJ had decided.  As bad as it may seem, if you believe you have a good case, all is not lost!  You can take your case into the Federal Court system.

Things get much more formal when you take the case into federal court. There are special rules in each district, and many judges have special procedural rules that apply to cases assigned to that judge.  More importantly, Social Security now has an attorney to represent it’s interests. Last but not least, there is the requirement of briefing the issue(s) in your case.  Most attorneys will look at a case very closely before a decision is made to take a case into the Federal Court.  The amount of work needed to present a brief really requires that there must be a good issue.  Without a good issue, an attorney will not want to invest the amount of work that is needed at this level of appeal.

Let’s say that your case has merit and you believe that the ALJ was wrong when he denied benefits in your case.  What is the next step?

First thing to do is to check the calendar.  You have only 60 days from the date of the decision by the Appeals Council to file a case into Federal Court.  (If you need additional time, or have a reason for the delay, you can request additional time from the AC (not from the Federal Court—you are not in the Court yet)). 

If you are within the 60 day time limit, you now need to draft a complaint.

What is a complaint?   A complaint is a pleading which starts an action and sets forth a cause of action.  It must be drafted carefully to properly state the factual as well as legal basis for your claim.

Although some leeway is given to pro se parties (people proceeding without counsel), as to the content of the complaint, there are basic rules concerning the basic content of a complaint. (Before an attorney may take up representation s/he may request that you provide an affidavit indicating that you do not owe the federal government any money, and that you waive any requirement that attorney fees (under the Equal Access to Justice Act) be paid to you; but directly to the attorney if you are successful at this level of appeal.  The reasons for this are subject of another blog.

What are the basics?  Your complaint must be typed or printed legibly in English on 8½ x 11 inch paper, double spaced, using one side of the page only, typed in 13 point font, and must contain your original, not photocopied, signature. There is no requirement as to the font, although the U.S. Supreme Court prefers Century.

You are the plaintiff.  You must write your name as the plaintiff in the caption and include your Social Security number (confidentially). The Commissioner of Social Security is the only proper defendant in an appeal from a final decision by the SSA.  The Commissioner would be listed in the caption as the Defendant. If you do not know the Commissioner’s name, you can write “Commissioner of Social Security.”

In the body of the complaint you want to set forth the nature of your disability, the date your disability began, the date of your hearing and the date of the Administrative Law Judge’s decision. You can attach a copy of the Appeals Council’s letter (the “final decision”) at the end of your complaint.

The following complaint form is provided only as a guide.  If you are putting your case into Federal Court, it is your obligation to correctly follow the rules so that your complaint complies with requirements of the jurisdiction in which the court is housed (venue).

UNITED STATED DISTRICT COURT

DISTRICT OF MINNESOTA

-------------------------------------------------------------------------------------------------       

                                                            )

Disabled Claimant,                               )

                                                           )

                                    Plaintiff,         )

                                                          )

-vs-                                                     )           COMPLAINT

                                                          )

Carolyn Colvin,                                   )

Commissioner of                                 )

Social Security,                                  )

                                                         )

                                    Defendant.    )

                                                        )

-------------------------------------------------------------------------------------------------

Preliminary Statement

1.             This is an action for review of the final decision of the Commissioner of Social Security (hereinafter “Commissioner”) pursuant to 42 U.S.C.A. §§ 405(g) and 1383(c) (3).

2.             By this action plaintiff seeks a judgment reversing the final decision of the Commissioner denying him Disability Insurance Benefits under Title II of the Social Security Act, 42 U.S.C.A. §§ 401 – 431 and directing the Commissioner to award such benefits to plaintiff both retroactively and prospectively.

Jurisdiction

3.             Jurisdiction over this suit is conferred upon the Court by 42 U.S.C.A. §§ 405(g) and 1383(c)(3) as an action to review a final administrative decision of the Commissioner denying Disability Insurance benefits under the Social Security Act.

         Parties

4.             Plaintiff is a resident of Minnesota, and a citizen of the United States.  His Social Security number has been attached to the copy of this complaint that was served on the Commissioner of Social Security.

5.             Defendant is _______________, Commissioner of Social Security.  In this capacity he is ultimately responsible for the approval or denial of all applications to the Social Security Administration for Disability Insurance (DIB) benefits, including those benefits sought by the plaintiff herein.

Facts

6.             Plaintiff applied for Disability Insurance benefits on _________________ alleging disability insurance benefits beginning _____________. 

7.             The claim was denied initially on ____________.  Subsequently plaintiff filed an application for reconsideration and it was denied on ____________.

8.             Plaintiff filed written request for hearing before the Office of Disability Adjudication and Review on _______________. 

9.             A hearing that plaintiff attended was held on ________________ in Minneapolis, MN.

10.          On __________________,  the Honorable _______________ Administrative Law Judge, signed a decision finding that plaintiff was not disabled under sections 216(i) and 223(d) of the Social Security Act.

11.          Plaintiff then requested review by Appeals Council.  On _______________ the Appeals Council issued a ruling that denied plaintiff’s request for review. 

12.          The facts of this case are more fully set out in the record of the administrative proceeding which must be filed in this Court by defendant pursuant to 42 U.S.C.A. §§ 1383(c) and 405(g).

Statement of Case

13.          The decision of the Administrative Law Judge  was erroneous, not supported by substantial evidence, and /or it is contrary to law.

            Wherefore, plaintiff requests that the Court reverse the decision of the commissioner and grant plaintiff DIB benefits, award attorney’s fees, and grant such other and further relief as this Court may deem just and proper.

Dated: _____________________                        ____________________________

                                                            Claimant’s name         

With the Complaint drafted, the next step is to file it with the Court.  If you do not have the money necessary to pay the filing fee ($400.00 at present), you can prepare an Application to proceed without payment of fee.  The court will review application and if it finds that your income and resources are below the means it deems necessary to pay such costs, filing fee, etc., it may enter an Order allowing you to file without the payment of costs.

After the Court accepts your filing of the Complaint, it will issue a Summons.  It is a legal document issued by the Court.  It is served upon the defendant with the Complaint to inform the defendant that a legal action has started and the defendant is a party and needs to provide an answer if the defendant does not want judgment entered against her/him.  You then have 120 days to service the summons and complaint.  The defendant will have 60 days to respond.

I have mentioned that you must serve the summons and complaint, but how and on whom?

Under Rule 4 of the Federal Rules of Civil Procedure, you need to serve the following in person or by certified mail:

The United States Attorney                     Carolyn V. Colvin

For the District of Minnesota                   Acting Commissioner of Social
 600 U.W. Courthouse                           Security

300 South 4^th Street                              Office of General Counsel

Minneapolis, MN. 55415                       Social Security Administration

                                                             611 Altmeyer Building

Social Security Administration               6401 Security Boulevard

Office of the Regional Chief Counsel      Baltimore, MN. 21235

OGC – Region VI

1301 Young Street, Suite A702           The United States Attorney
 Dallas, TX 75202-5433                      General

                                                            10^th & Constitution Avenue NW

                                                            Washington, DC 20530

The parties and addresses are not fixed in stone, so a word to the wise, check the addresses and parties at the time you file your case.

After your case is filed the Court will assign a Magistrate Judge and a District Court Judge to your case.  If both parties agree, the Magistrate Judge can handle the entire case.

You will receive an Answer from the Government.  You than need to prepare, serve and file your Motion for Summary Judge and Memorandum of Support.

Your memorandum analyzes the decision and argues it is in error based upon evidence, medical evidence and other, in the file (you cannot bring up new evidence at this time), the law, testimony from the hearing, in an attempt to persuade the judge that the ALJ failed to properly consider the evidence or to otherwise make a decision in accordance with the law.

Hopefully you get a decision in your favor.  If not, there is a right to Appeal to the Circuit Court of Appeals.  The procedure to get into the Circuit Court of Appeals is not part of this blog.

---

[1] Pro Se Civil Guidebook, www.mnd.uscourts.gov/Pro-Se/GuideAndInfo.shtml

Reopening a Prior Decision

Every so often a client who is applying to social security wants to know if they can reopen a prior social security disability (DIB) or supplemental security insurance (SSI) case which resulted in a denial of benefits.
Although it is a difficult situation dealing with time limits and different evidenciary issues, it is still worth everyone’s time and attention to look into the prior application. The reason is possibility of a bigger recovery for the client and fees to the attorney. Social Security pays benefits back to the date of the original application or for disability insurance up to one year prior to application. If you can get the old claim opened and joined to a new application, there is a good possibility of getting a larger award of backpay.
It is important to the decision to attempt to reopen a case that the prior case ended after the initial determination i.e. the claimant was denied benefits (SSDI or SSI) and did not request reconsideration.¹
The next consider when consideration to be made prior to attempting to reopen a prior case is that the subject matter of the prior case needs to be related to the current case, i.e. prior case was back pain and the new case is back pain and herniated disk. If the cases are not related, social security will not allow a reopening.
Reopening the old case is an attempt to obtain a new decision, a second bite of the apple. The regulation, 20 CFR 404.988 provides that within 12 months of notice of the initial determination a decision may be reopened for any reason. Social Security has taken the position that phrase for any reason is to be read to mean when the prior determination was made.²

It is very difficult to reopen a case that has been closed for in excess of 12 months. It can be done and rules require a higher level of proof. This is set out in 20 CFR 404.988 and 20 CFR 404.989³ (For an SSI case the rules to reopen the case are set forth in 20 CFR§§ 416. 1487 through 416.1489, these parallel the rules for reopening a SSDI case )

To begin the process of opening a closed case, a written request to open the prior case must be made. Social Security does not have a form for this process. To reopen a case, you must file a new application and ask social security to reopen the old case. Your request must indicate the on-set date of disability was within the time frame covered by the first application. You must take some type of affirmative action in writing to make the request, for example, putting a statement in the new application that states the prior determination was incorrect.

If the case is over the one year threshold, it becomes more difficult and the requirements of proof increase exponentially.

What happens if social security denies your request to reopen a case? Social Security only allows appeals from initial determinations, and since a request to reopen is not an appeal from an initial determination there is no appeal.

An interesting case to read in this situation is Dealy v. Heckler, 616 F.Supp. 880 (WD Mo. 1984) @ 888⁴--

“The practice of administrative res judicata has been approved by the Supreme Court in United States v. Utah Construction & Mining Co., 384 U.S. 394, 86 S.Ct. 1545, 16 L.Ed.2d 642 (1966). "When an administrative agency is acting in a judicial capacity and resolves disputed issues of fact properly before it which the parties have had an adequate opportunity to litigate, the courts have not hesitated to apply res judicata to enforce repose."Id. 86 S.Ct. at 1560 (cites omitted). If "an administrative proceeding has not been of an adjudicative nature, a decision arrived at by the administrative agency cannot have res judicata effect." Delamater v. Schweiker, supra, 721 F.2d at 53. Only what is adjudicated can be res judicata, and administrative action other than adjudication cannot be res judicata. Associated Industries of New York State, Inc. v. United States Department of Labor, 487 F.2d 342, 350 n. 10 (2d Cir.1973). "An action taken by an administrative agency to grant or deny a benefit is not an adjudicated action unless the agency has made its decision using procedures substantially similar to those employed by the courts." Delamater, supra, 721 F.2d at 53. Use of adjudicative procedure is necessary to produce an adjudication that is binding under the rules of res judicata; where there is no hearing, no testimony, no subpoenaed evidence, no argument, and no opportunity to test any contention by confrontation, the doctrine of administrative res judicata has no application. Id. at 53-54. "Although application of the doctrine of res judicata to administrative decisions serves a useful purpose in preventing relitigation, it is not applied with the same rigidity as its judicial counterpart." Brinker v. Weinberger, 522 F.2d 13, 15 (8th Cir.1975).

Moreover, it is apparent that the regulations pertaining to res judicata adopted by the Secretary are in conflict with the Social Security Act itself. Pursuant to 42 U.S.C. § 405(a), the Secretary has the "full power and authority to make rules and regulations and to establish procedures, not inconsistent with the provisions of this subchapter...." Id. See McCoy v. Schweiker, 683 F.2d 1138, 1143 (8th Cir.1982) (the Secretary is empowered to make rules and regulations so long as they are not inconsistent with the provisions of the Act). Where a regulation "is inconsistent with the Social Security statute it must, of course, give way." Marion v. Gardner, 359 F.2d 175, 181 (8th Cir. 1966).”

It does start the mind to wonder if the arguments are not applicable to your present case, but you may want to read my prior blog concerning how social security ignores, except as case specific, determination of the Federal District Court.

Disclaimer: Blogs posted herein are intended neither as legal advice, nor do they create nor attempt to create an attorney-client relationship. The person viewing my blogs is admonished that an attorney-client relationship may only be created with the express consent to the parties to it.

1 20 CFR 404.988--A determination, revised determination, decision, or revised decision may be reopened—

(a) Within 12 months of the date of the notice of the initial determination, for any reason;

(b) Within four years of the date of the notice of the initial determination if we find good cause, as defined in § 404.989, to reopen the case

2POMS DI 27505.001 Conditions for Reopening a Final Determination or Decision

A. Rules for Reopening

Generally, a determination or decision may be reopened and revised only when:

The determination or decision was incorrect when made;

3 20 CFR 404.989 – (a) We will find that there is good cause to reopen a determination or decision if—

(1) New and material evidence is furnished;

(2) A clerical error in the computation or recomputation of benefits was made; or

(3) The evidence that was considered in making the determination or decision clearly shows on its face that an error was made.

(b) We will not find good cause to reopen your case if the only reason for reopening is a change of legal interpretation or administrative ruling upon which the determination or decision was made.

4Also see, Aversa v. Secretary of HHS, 672 f. Supp. 775 (DNJ 1987)