Op-Ed
Social Security Administration (SSA) Reorganizes its Civil Rights Division to be Centralized in its Headquarters; However, the Process Remains Ineffective and Unduly Biased
By Steven Bruce, PWDF Legal Director
The SSA’s national Office of General Counsel (OGC), as opposed to each of 11 regional offices, now handles disability compliance issues for disabled beneficiaries under its SSDI and SSI disability programs and for SSA employees, both protected under Sections 504 and 501 of the Rehabilitation Act of 1973, respectively.
A civil rights complaint when filed seeking reasonable accommodations (RAs) for a program beneficiary on disability benefits or an SSA employee now should be sent to Christopher G. Harris, Associate General Counsel, Office of the General Counsel, Office of General Law, Division 3. After the civil rights complaint was sent to the SSA’s civil rights division, SSA attorneys claimed they are seeking resolution to an administrative civil rights complaint, which can be submitted by an SSA form 437 or letter.
It took PWDF from mid-2020 until now and another agency serving as co-counsel from September 14, 2022 through now to have two phone conferences with the SSA’s compliance division on behalf of a client. This was an SSA strategy to slow down the process, guaranteeing that nothing would happen. On September 14, 2022, PWDF and co-counsel sent the SSA a demand letter seeking RAs for this client.
This client with schizophrenia, described at an Administrative Law Judge (ALJ) hearing as “acutely psychotic,”[1] was forced to wait nearly two years to get his first SSI disability check, having applied for SSI in mid-2017. It became clear that the SSA would not provide desperately needed RAs. In our letter to Mr. Harris, we included four pages of requested RAs, only to find out that the SSA compliance official was either not shown the 4-page list of requested RAs or he pretended to have not seen them. The result: send another letter. Maybe this time the SSA will read it.
The SSA requested the consent form the client signed be redone because of “typos.” We have not yet heard substantive responses to the request we made for RAs on September 14, 2022. A federal agency is required to participate in good faith in an interactive process, and delay in providing accommodations itself can constitute a denial of accommodation.
In 1995, the SSA became a separate Commission from the U.S. Department of Health & Human Services (HHS) and immediately dissolved their Office for Civil Rights (OCR). They claimed they “lost” their Section 504 Self Evaluation, which Congress mandated was to be made public for three years, from 1988-1991. When factoring in the shutdown of their OCR, which as part of HHS OCR went to great lengths to have some objectivity in decision making, the SSA’s own attorneys whose job it is to help defend the agency from non-compliance charges remain the highest agency decisionmakers, knowing that they will be assisting the U.S. Attorney’s office in defending allegations of discrimination. This lack of neutrality should be rectified.
Since 1995, it has been over 27 years that ALJs deny they have jurisdiction to enforce the anti-discrimination law. In an ALJ decision in this case, dated November 3, 2021, the ALJ wrote:
“According to HALLEX 1-2-4-30 and 20 CFR § 416.1430, there is no right to request a hearing on this matter. Regarding the case law cited in the request, Doe v. Astrue specifically states a civil rights claim is severable from the underlying case and does not need to be subject to exhaustion of administrative remedies. Further, if the SSI Applicant’s representative or the SSI Applicant objects to the issues as set forth in the hearing notice, that should have been indicated in writing pursuant to 20 CFR 416.1439. There is no evidence the Agency received such an objection. Therefore, I must find the reasonable accommodation request is not an issue before me. Nevertheless, in accordance with HALLEX I-3-0-88, I notified the appropriate reasonable accommodation office of this request through the iAccomnodate system.”[2]
The ALJ misconstrues federal law and I wrote on or about Nov. 11, 2021 “ . . . . I disagree with your statement that you have no jurisdiction, the Supreme Court case Weinberger v. Salfi 422 U.S.749, (1972) states otherwise and exhaustion [of administrative remedies] is required as a matter of law. Among other reasons for the agency to have an opportunity to correct their errors, it affords parties in the court with experience and expertise to compile an adequate record for judicial review at 765. Also see Heckler v. Ringer, 466 U. S. 602 (1984.)”
The ALJ misconstrues the federal judge’s (Judge Marilyn Hall Patel’s) decision; specifically, under the Supreme Court case of Bowen v. New York, 476 U.S. 467 (1986) to waive exhaustion.
The factors for waiver of exhaustion are futility, irreputable harm and collateral to a claim for benefits. Exhaustion of nonexistent administrative remedies obviously is futile. Weinberger v. Salfi , 422 U.S. 749 (1975), 794 with respect to administrative exhaustion as interpreted under 42 U.S.C. §§ 405 (g) and (h). Irreparable harm has already happened here and can happen again.[3]
Exhaustion would not exist if were not for the Supreme Court ruling requiring exhaustion for the reasons stated herein.[4] It could be argued that a waiver is appropriate in this case due to the waiver factors, including what has happened here. The agency claims it has no jurisdiction, even though the Supreme Court says otherwise.
The statement that “…Doe v. Astrue specifically states a civil rights claim is severable from the underlying case and does not need to be subject to exhaustion of administrative remedies….” is the federal judge explaining that the discrimination case against the SSA can proceed in federal court because the factors for waiver of exhaustion are present.
Further, in Davis and Doe v. Astrue, the federal court found that both cases could proceed on separate tracks, meaning the case for benefits could proceed administratively and the case for discrimination on the basis of disability could proceed in federal court. In other words, the federal court concluded that the Davis and Doe v. Astrue cases are waiver cases.
With regard to objections, there were many, including those recently restated in a Demand letter to the SSA dated Sept. 14, 2022:
• December 9, 2020, letter to District Manager requesting reasonable accommodation and information about reasonable accommodation process;
• December 22, 2020, letter to District Manager requesting reasonable accommodation;
• July 8, 2021, letter to Regional Commissioner enclosing December 9 and 22, 2020 requests;
• July 15, 2021, letter to District Manager noting disability discrimination and failure to discuss reasonable accommodations and effective communication;
• September 6, 2021, discrimination complaint to OGC Region 9;
• September 20, 2021, hearing before ALJ Mary Ann Lunderman, together with request that ALJ Lunderman represented that she herself made;
• November 16, 2021, request for review of hearing decision with respect to reasonable accommodation; and
• Additional communications.
Despite these multiple and persistent requests, the Agency has not responded or even attempted to engage in an interactive process.”
In sum, the ALJ’s decision on jurisdiction over Section 504 of the Rehabilitation Act of 1973 is misplaced, as is her reliance on HALLEX, an internal hearing office manual that is neither law or regulation.
What is next? Continuation of inaction based on SSA’s policy of stigma and stereotype relating to mental and developmental disabilities. Apparently, the population of severely impaired people with unequal program access or SSA employees do not have equal opportunity if their disability is severe mental or developmental; e.g., pervasive autism.
The only rationale to explain the difficulty in finding a written process for these populations is because the SSA has a policy of not providing RAs for psychiatric and/or developmental disabilities, such as schizophrenia, autism, or other mental impairments that preclude effective communication with the SSA. These communication impairments necessitate that accommodations be provided for equal, meaningful access to work incentive programs, SSA’s continuing review for medical improvements, and work reviews to determine whether this agency can cease people from disability benefits, whether legally or not.
We hope this country’s largest disability programs[5] will come into compliance with the Rehabilitation Act of 1973, a Congressional mandate requiring equal program access for people with disabilities, from 50 years ago.
[1] ALJ Parnow Decision dated Jan. 10, 2020.
[2] ALJ Lunderman Decision dated Nov. 2, 2021 (re Section 504: “…there is no right to request a hearing on this matter.”)
[3] Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc. (2000) 528 U.S. 167 (2000).
[4] The current Supreme Court is deciding whether to eliminate agency exhaustion. SEC v. Cochran, Oral Argument Nov. 7, 2022, Case No. 21-1239.
[5] The SSA sends $85 billion a month in checks, thus having no undue hardship in coming into compliance.
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.
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