Counsel’s Corner

People With Disabilities Foundation (PWDF) Files Two Disability Discrimination and Abuse Complaints in Federal Court Against the Social Security Administration (SSA) for Systemic and Intentional Conduct

By Steven Bruce, PWDF Legal Director

In Case Nos. 3:23-cv-01037 and -03324, [John Doe] and [Jill Doe] v. Kilolo Kijakazi (N.D. CA),[1] respectively, Acting Commissioner Kijakazi of the SSA is charged with violating Section 504 of the Rehabilitation Act of 1973 by providing notices to Plaintiffs while knowing that they, due to their disability, schizophrenia, could not have possibly replied in a way to keep from losing their disability benefits. Not providing meaningful program access by not providing effective communication on the basis of disability (in this case, schizophrenia) is a violation of Section 504 of the Rehabilitation Act of 1973, the predecessor to the Americans with Disabilities Act (ADA).

Section 504, as amended and codified at 29 U.S.C. § 794(a), states: “No otherwise qualified individual with handicaps in the United States . . . shall, solely by reason of his or her handicap, be excluded from the participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance or under any program or activity conducted by any Executive agency or by the United States Postal Service.”

Plaintiff John Doe was forced to wait two years for his first SSI benefit check after being found disabled at the highest level of severity that the SSA has, known as “Listing-level severity.” This level is so severe that vocational and other factors become irrelevant as to whether he is determined to be disabled for the purposes of Social Security disability benefits. John’s functional limitations, which he has had for most of his life, have resulted in multiple hospitalizations within short periods of time; specifically, in the psychiatric wards of several Bay Area hospitals. A psychiatrist medical expert testified at his hearing that his symptoms include auditory and visual hallucinations, delusions, and disorganized and tangential thinking. His depressive symptoms include trouble with sleep, energy, concentration, and anhedonia. Further, when he is manic, he exhibits pressured speech, increase in activities, decreased need for sleep, and impulsive behaviors with irritability and grandiosity. He is markedly limited in concentration and persistence in maintaining pace, and has made multiple suicide attempts in his past. All of this was known to the SSA before it falsely found that John owned a million dollars in real estate in Mexico and was; therefore, over-resourced for the SSI poverty program. This finding caused him to remain homeless for two years.

The other plaintiff, Jill Doe, had her benefits taken away after a work Continuing Disability Review (CDR) found that she could work, despite the finding by an Administrative Law Judge (ALJ) that, based on psychologist’s testimony that Jill’s functional limitations included disorganized thinking, auditory, visual, and olfactory hallucinations and delusions, Jill would not be able to understand the SSA notices regarding the work review. She had tried to work to make ends meet, as she was already on SNAP and housing subsidies. She worked as a school crossing guard, and tried to work at a pharmacy chain (CVS), but could not stay long because she had too much difficulty handling the cash register and stocking shelves without a lot of support from supervisors.

Jill was sent a so-called “due process notice” with ten days to respond. She was previously told by the SSA that it was okay to work part time, but then the SSA took away her benefits without any kind of notice that she was able to comprehend.  To have responded to the notice she received about working, she would have had to have understood very complex issues, including: 1) Impairment Related Work Expenses (IRWEs), 2) Employer Subsidies, 3) Income Averaging, and 4) Special Conditions—all of which would allow for portions of her earnings to be deducted from the calculation of the substantial gainful activity (SGA) amount for each year (it changes every year).

Notwithstanding similar symptomatology for both plaintiffs, their disabilities were used against them. Section 223(d) of the Social Security Act[2] defines disability as “inability to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for the continuous period of not less than 12 months.” Although the SSA and some of its ALJs found that Plaintiff John Doe was disabled based on psychiatrist testimony, it was also stated that he should undergo a CDR (in order to be terminated from benefits) in 18 months, based on treatment.

The SSA had the information about Jill’s limitations as well, but did not bother to look at it, since this disability was targeted so that these individuals would have their benefits either not started or terminated. This was the explicit design of former SSA Commissioner Andrew Saul, who was fired by President Biden on July 9, 2021 for, among other things, having “. . . undermined and politicized Social Security disability benefits . . .  reduced due process protections for benefits appeals hearings, and taken other actions that run contrary to the mission of the agency . . . “[3] Saul was replaced by the named defendant, Acting Commissioner Kijakazi, who was appointed pending nomination of a commissioner by the President, and confirmed by the Senate.

A proposed SSA rule published in the Federal Register states, “[The following] impairments are subject to change with advancements in medical treatments and findings from our predictive model . . . Depressive, bipolar and related disorders . . . Huntington’s disease . . . Intellectual disorder . . . Late effects of cerebrovascular disease . . . Neurocognitive disorders . . . Other cerebral degenerations . . . Schizophrenia spectrum and other psychotic disorders (emphasis added).”[4]

It is unclear just what the SSA means by “advancements in medical treatments and findings from our predictive model.” There is no known cure for schizophrenia. Not only is there no cure, but anti-psychotic medications such as Risperidone, which are used to control the symptoms, are still universally described as “brain mechanism unknown,” which means it is unclear how they work.

Furthermore, a two-year, $52 million study paid for by the SSA and published in December 2013 in the prestigious American Journal of Psychiatry[5] has already established that people living with schizophrenia are very unlikely to return to work without the aid of employment supports, psychotherapy, job coaches, anti-psychotics—and even with all of these, extended periods of time off. These findings are in direct contradiction to the above proposed SSA rule.

The ALJ who found (based upon a psychiatrist’s testimony) that Plaintiff John Doe was disabled also stated that Doe should have a CDR (i.e., be terminated from benefits) in 18 months based on expected improvement due to treatment. One can surmise that the ALJ was just following the party line; however, this kind of abusive statement in an ALJ decision is abhorrent.

No matter how appalling it sounds, most of the SSA employees involved in the process duly followed former Commissioner Saul’s instructions to identify and violate claimants’ civil and human rights by invidiously and systemically attacking this population and removing their Social Security disability benefit checks, which they rely on for the necessities of life.

PWDF intends to fully litigate these cases so that the plaintiffs receive reasonable accommodations. Even though plaintiffs cannot get monetary damages because the Supreme Court in 1996 found Congress did not waive sovereign immunity of the federal agencies,[6] they are entitled to injunctive relief such as reasonable accommodations to at least give them an opportunity to have the same SSA program access as anyone else. Although PWDF has repeatedly requested that the SSA provide plaintiffs with reasonable accommodations we had obtained for others with the same disability, it has declined to do so.

Having partly offered one out of eight accommodations requested, the SSA took it back upon PWDF’s filing of the John Doe lawsuit. In other words, they inflicted a reprisal so that Plaintiff, who had to wait two years for his first Supplemental Security Income (SSI) check, now has no means to equal access to the SSA’s SSI program related to income and resources eligibility criteria.  In its complaint to federal court, PWDF has also alleged the reprisal that that the SSA inflicted against John Doe for rescinding one of eight accommodations partly given to him once he filed this lawsuit.

[1] PWDF does not publish client names unnecessarily; therefore, plaintiffs are referred to in this article with pseudonyms.

[2] 42 U.S.C § 423(d).

[3] Lisa Rein, Biden fires head of Social Security Administration, a Trump holdover who drew the ire of Democrats, The Washington Post, July 11, 2021 at 7:20 p.m. EDT. Available at https://www.washingtonpost.com/politics/andrew-saul-social-security-/2021/07/09/c18a34fa-df99-11eb-a501-0e69b5d012e5_story.html (last visited Aug. 3, 2023).

[4] Rules Regarding the Frequency and Notice of Continuing Disability Reviews, 84 FR 63588 (proposed Nov. 18, 2019). www.federalregister.gov/documents/2019/11/18/2019-24700/rules-regarding-the-frequency-and-notice-of-continuing-disability-reviewsg-the-frequency-and-notice-of-continuing-disability-reviews

[5] Robert E. Drake, MD, PhD, et al., Assisting Social Security Disability Insurance Beneficiaries With Schizophrenia, Bipolar Disorder, or Major Depression in Returning to Work, Am J Psychiatry December 2013 170:12; pp. 1433-1441. http://psychiatryonline.org/doi/full/10.1176/appi.ajp.2013.13020214;

[6] Lane v. Pena, 518 U.S. 187 (1996).

PWDF Profile

Who We Are

People With Disabilities Foundation is an operating 501(c)(3) nonprofit organization based in San Francisco, California, which focuses on the rights of the mentally and developmentally disabled.

Services

Advocacy: PWDF advocates for Social Security claimant’s disability benefits in eight Bay Area counties. We also provide services in disability rights, on issues regarding returning to work, and in ADA consultations, including areas of employment, health care, and education, among others. There is representation before all levels of federal court and Administrative Law Judges. No one is declined due to their inability to pay, and we offer a sliding scale for attorney’s fees.

Education/Public Awareness: To help eliminate the stigma against people with mental disabilities in society, PWDF’s educational program organizes workshops and public seminars, provides guest speakers with backgrounds in mental health, and produces educational materials such as videos.