San Francisco

Hangin’ out at the Social Security field office

Geri KahnLeave a comment
Photo by Fishbowl Collective
Photo by Fishbowl Collective

This past week was a long week.  It seemed long perhaps because I made two trips to two different Social Security field offices,  one in San Francisco and one in Walnut Creek.   This was two too many.   The offices were over-crowded and I experienced long waits.  I try to avoid going to the field office but certified mail and fax did not seem to work, at least in the first case.   They do not answer their phone so I had to appear in person.  In the second case, my clients retained me because their phone calls and submission of information did not seem to be working.   The second case is particularly egregious,  in my opinion.

My client is a child originally from Afghanistan.  She entered the United States as a refugee in 2003  and has some very serious debilitating  medical issues.   She is now a lawful permanent resident of the United States and has applied for her certificate of naturalization because her mother recently became a citizen of the United States.  She has not received her certificate yet.  When she applied for SSI, she was told that she could not receive it because of her legal status.   The Social Security worker told her that she needed to be a citizen of the United States.  At the time I heard this story, I was assisting my client’s mother with her naturalization case and I told my client’s mother that the Social Security office worker was wrong; her daughter was entitled to receive SSI for a period of 7 years because she originally had entered as a refugee.  Indeed, in some circumstances, refugees may now be able to obtain SSI for 10 years if they can show they have a naturalization application pending.

My client and her mother went back to Social Security and submitted a copy of my client’s  green card at least on three occasions.  Still, the worker was insistent that my client submit a copy of her naturalization certificate.  They were completely frustrated.    I accompanied them yesterday.   When we met with the claims representative, she began to tell us the same story that my clients told me – that story being that since my client entered after 1996, she was not entitled to SSI.  I told her that law allows refugees to have SSI for 7 years after admission and that my client was admitted as a refugee less than 7 years ago.   The claims representative then understood and asked for proof of the refugee status and we submitted it.

It seemed so simple and yet it was not.    I found it egrigous because as I learned yesterday, this was the second application my client has filed.  She filed one previously and Social Security denied it claiming she did not have legal status to receive SSI.  (I will have to check  if we can reopen it.)  I do not know what the source of the problem was.  I do not know if  the Social Security worker failed to ask sufficient questions or lacked the training to ask.   Refugee status is not that common but still I would hope that the Social Security worker would inquire of every applicant whether or not he or she entered as a refugee.  I know that my clients do not know the law and only submitted to Social Security what was asked of them.

I am optimistic now that my client’s application will be approved and will look forward to seeing that approval letter.

California Social Security ALJ approval rates are available online

Geri Kahn3 Comments

Through a Freedom of Information Act request, the newspaper, The Oregonian, has learned of the production and approval rates for all Social Security administrative law judges (ALJs)  in California as well in the United States.  They have made the information available in an online searchable database.

The online database is an invaluable tool because it allows one to search for the past three years by a judge’s name.  It then shows you the production rates, the approval and the denial rates for that particular judge.  You can also search by year or all years and see all ALJs in the United States.  I looked up a few judges from San Francisco, Oakland, San Rafael and San Jose.  I found that the results were consistent with what I have seen in my own practice.  I also checked the database to look up statistics for some judges who have recently transferred to the Bay area from other offices.   It will be nice to go into a hearing knowing what kind of result I can expect.

Thanks to my colleague, Gordon Gates, a Social Security disability attorney in Maine who publishes the Social Security Disability Blog for blogging about this article and bringing it to my attention.

9th Circuit rules that claimant’s pain testimony is true absent ALJ providing specific clear and convincing reasons for rejection

Geri KahnLeave a comment

law-booksOn November 5th, 2008, the 9th Circuit Court of Appeals in San Francisco, CA, issued a new decision very helpful to claimants.  In Vasquez v. Astrue, —F.3d— —-(No. 06-16817, 2008), the Court held that absent a finding by the Administrative Law Judge that the claimant was not credible, a claimant’s symptoms of pain must be taken as true.

In Vasquez, the claimant testified that she was in chronic pain due to a back injury.  She mentioned her pain on Social Security forms and it was collaborated by her doctors in their reports.

When evaluating a claimant’s subjective complaint of pain, the Court noted that the Administrative Law Judge (“ALJ”) must use a two part test.  First, the ALJ must determine whether the claimant has presented objective medical evidence of an underlying impairment which could reasonably be expected to produce the pain or other symptoms alleged.  Second, if the claimant meets the first part and there is no evidence of malingering, then the ALJ can only reject the testimony about the severity of the symptoms if she gives “specific, clear, and convincing reasons” for the rejection.

In this case, the Court noted that the ALJ did not cite any evidence of malingering.  She was therefore required to provide specific, clear and convincing reasons, by pointing to facts in the record, to support an adverse credibility finding.  She did not.

The Court then went on to discuss what the appropriate judicial response is when the ALJ fails to give adequate justification for rejecting a claimant’s pain testimony.  It is the law that the Commissioner of Social Security must accept a claimant’s subjective pain testimony if the ALJ fails to articulate sufficient reasons for rejecting it.  This is known as the “credit-as-true” rule.  When acceptance of the tesimony would result in a finding of “disabled,” and there are no outstanding issues that need to be resolved, the Court must grant the case and order benefits to be paid.  There is a split in the circuit, however, as to whether the the application of this rule is mandatory or discretionary when there are other outsdanding issues that must be resolved before benefits can be paid.

In this case, the Court found  that there were other outstanding issues to be resolved.  Nevertheless, they found other factors which merited a mandatory applciation of the rule.  Specifically, the Court found the claimant’s advanced age and the six year delay from the time the claimant filed until now to be positive factors that merited an application of the rule.  The Court remanded the case with the specific instruction for the ALJ to accept Ms. Vasquez’s pain testimony as true when determining whether she was entitled to benefits.