On April 16, 2020, I received a notice from the SSA stating that they were going to lower my client’s monthly SSI payment from $944 to $0 beginning May 2020 and that the amount would change because his situation had changed. The amounts for the months of February 2015 through April 2020 were also reduced. The notice did not provide any reason for the change in benefit amounts.

History of the case: Over a year ago I decided to represent Mr. Doe (not his real name), because he had a hearing before an ALJ who found that he met the psychosis listing (level 12.03) for schizophrenia, but that his drug and/or alcohol use was material to the determination of disability and therefore he was not disabled under the Social Security Act. I appealed this to the SSA Appeals Council, because there was no evidence indicating that any drug and/or alcohol use was material to the disability.  Mr. Doe was a young individual about 23 years old with schizophrenia who had been unrepresented at the hearing, except for the presence of his mother, who did not understand the process. The Appeals Council remanded the case for a new hearing. I wrote the ALJ and asked that he recuse himself, because he decided to deny the case not based on any evidence.  In spite of the fact that the ALJs are required to obtain evidence, no one had contacted Mr. Doe’s psychiatrist, who Mr. Doe had seen numerous times at a county hospital, and  knew if his behavior was the same whether he was under the influence of any drug or not. That ALJ did not respond. However, the day of the new hearing, another judge took over and issued a fully favorable decision, because there was no evidence of materiality according to Mr. Doe’s primary psychiatrist at the county hospital. Mr. Doe’s mother became the representative payee.

After having received the April 16, 2020 notice and spoken with Mr. Doe’s mother, I wrote a letter within 30 days of receiving the notice to the SSA District Manager; the Regional Commissioner, Steve Breen; and the Regional Chief Counsel, Deborah Stachel, at the SSA Office of General Counsel in San Francisco.   The letter states, in pertinent part, that claimant received the notice stating he would receive $0 benefits per month beginning May 20, 2020, and the amounts for retroactive benefits from February 2015 through April 2020 would be changed. There was no allocation of an overpayment mentioned in the letter. I informed these individuals at SSA that Mr. Doe has schizophrenia, that he, his representative payee mother, and I, his attorney, do not understand the notice.[[1. Click Doe SSA 4-15-20 Ltr Redacted 9-4-20 to see notice.]]

I expressed amazement and surprise that SSA would take advantage of an individual who has an active psychosis, schizophrenia, and who does not understand the notice. He was not given an opportunity to contest a reduction in his benefits after he was terminated in February 2020. I pointed out that, for SSI, notices must provide for due process pre-termination hearings, which is a Constitutional right under Matthews v. Eldridge, 424 U.S. 319 (1976), Gonzales v. Sullivan, 914 F2d 1197 (9th Cir. 1990) and Doe v. Astrue, No. C 09-00980 MHP, 2009 U.S. Dist. LEXIS 72819 (N.D. Cal. 2009), settled by 3:09-CV-980 EMC (N.D. Cal. 2012), my case in which the US District Court accepted jurisdiction under a 1950 due process case (Mullane v. Hanover Bank, 339 U.S. 306 (1950)), which requires that a reasonably prudent disabled individual must be able to reasonably respond to SSA notices.  Finally, the landmark case of Goldberg v. Kelly, 397 U.S. 254 (1970) requires a prior evidentiary hearing to determine validity before benefits are terminated.

I also alleged in the letter that under Section 504 of the Rehabilitation Act of 1973, claimant requests reasonable accommodations enabling him to meaningfully understand and participate in the Social Security Disability Program under Title XVI.  I pointed out in each letter to the above three described individuals within the statutory time limit of 180 days to appeal for discrimination appeals (and is continuing), and that it is the intent of the letter to exhaust administrative remedies before taking the case to U.S. District Court.

A couple of weeks later on June 9, 2020, I submitted a Request for Reconsideration Form to SSA, in which I stated that my client’s SSI benefits were cut off based on an indecipherable notice dated April 15, 2020. That claimant, his representative payee, and his attorney with 30 years’ of experience do not understand the notice. I stated it apparently relates to a 2-3-week mental health hold, probably a § 5150 hold, for a couple of weeks between January 2020 and February 2020.  I stated that claimant wants his Constitutional due process rights and requested a Section 504 remedy; i.e., reasonable accommodations so that he has equal, meaningful access to the SSI program, meaning equal to anybody else who has an opportunity to meaningfully respond to a notice, such as the one in this case.

After the 180 days under Section 504 of the Rehabilitation Act of 1973, we plan to take Mr. Doe’s case to U.S. District Court under Constitutional due process and Section 504 grounds. We will be asking for injunctive relief since the SSA has not responded specifically to the letter requesting accommodations or to the Request for Reconsideration. If there is a private law firm interested in this litigation, please contact PWDF.

In August 2020, an SSA representative called our office and explained that they were going to process Doe’s benefit checks, including his retroactive benefits, and asked if we would withdraw his appeal.  In this appeal, Mr. Doe had requested reasonable accommodations based on his schizophrenia so that due process and discrimination issues denying him equal program access would not recur.  Without saying they would provide any reasonable accommodation, the SSA requested Mr. Doe to withdraw his appeal in exchange for a ministerial duty they have to do for him and everyone else who is disabled.

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