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House Bill 335 Would Eliminate Services and Negatively Impact the Health of 2.9 Million Pennsylvanians and Their Families

Recently, Lindsay Osterhout, OBL Managing Partner Administrative Division, met with case management staff at Southwestern Pennsylvania Human Services, Inc (SPHS) in Charleroi, PA. Among other local news, they discussed new proposed state legislation, HB 335, and the devastating effects it would have on our community.

HB 335, sponsored by Representative Seth M. Grove, would eliminate the current Behavioral HealthChoices (BHC) program thereby making it difficult for counties to provide coordinated and integrated human services and negatively impact the health of 2.9 million Pennsylvanians and their families. BHC is the statewide program through which every county delivers mental health and drug and alcohol services to vulnerable Pennsylvanians enrolled in the Medical Assistance program, and their families. The program, created 21 years ago, has allowed Pennsylvanians to receive needed mental health services.

We at Osterhout Berger Disability Law, frequently work with disability claimants who rely on these services to manage their care. If these programs are eliminated, it will be very difficult for our claimants to find affordable care to manage their symptoms. We are concerned that HB 335 passes, we will see tragic consequences. Several health and human services agencies have signed onto a letter opposing this legislation. Read the letter that was sent to Members of the House of Representatives HERE. Please consider contacting your state representatives and urge them to oppose this bill. Locate your legislator using this LINK.

We value our community partnership with SPHS and thank them for bringing this proposed legislation to our attention.

New Rule Makes it Easier for Military Spouses to Find and Keep Jobs in the Law

On January 29, 2019, the Pennsylvania Supreme Court’s Board of Law Examiners adopted the Military Spouse Licensing Rule, which allows military spouse attorneys who accompany active duty service members to Pennsylvania to apply for a temporary license to practice law in the state. Historically, because service members are subject to frequent military-ordered relocations, attorney spouses were presented with the difficult choice of remaining in a jurisdiction where they were licensed to practice without their spouse or incurring the significant costs of obtaining a bar license in the relocation state. Osterhout Berger Disability Law is very excited to hear that Pennsylvania has joined the trend of issuing licensing accommodations for these attorneys. The new rule goes into effect in July 2019.

OBL is very fortunate to have several military spouses who are attorneys on our team. Hannalore Merritt, Managing Associate of our Appellate Department, who was a military spouse herself and knew the struggle of trying to maintain a career being married to an active service member, was familiar with a group called Military Spouse JD Network comprised of individuals in similar situations. Due to growth of the firm, when it came time to hire additional attorneys, she suggested that the firm look to this population. “I knew there was lots of talent out there but that it was hard to maintain a job when you were facing having to take a bar exam every few years with changes in orders and duty stations.” Merritt explained. “To be honest, until Hannalore brought it to my attention, I really hadn’t thought about this issue at all,” explained managing partner Karl Osterhout. “Since we have always had at least some attorneys in our Appellate Department who worked remotely, that part was a natural fit, and I like very much feeling like I am, and some small part, being helpful to these families who sacrifice so much for the defense of our Country,” said Osterhout.

The first active military spouse hire was Christine Huber, Senior Associate Attorney; she and Hannalore attended law school together in Seattle. Christine’s family is currently based at Kings Bay Naval Submarine Base in Georgia, and they typically move every 2 years. She describes numerous difficulties to maintaining a career as a military spouse; “As an attorney, one of the biggest hurdles is obtaining a license to practice in every state. While many states have or will soon have the military spouse exemption, it still involves a lengthy process and high fees.” Another difficulty faced by many career spouses who also have children, is being the primary caregiver. “It is difficult to find an employer, especially in the legal field, who is willing to accommodate you being the sole person responsible when school calls for an unexpected pick up or when your child is home sick,” explained Huber. Finally, another difficulty is maintaining a resume that is attractive to employers. “Often with moving every few years, your resume begins to look quite choppy and most employers will pass right over it as it appears you would not have loyalty to their firm. While this is far from the truth, it often gets in the way of securing an interview,” said Huber.

Christine Huber, OBL Sr. Associate Attorney, and husband Mike

Christine describes the profound impact her employment at OBL has provided; “All of the difficulties mentioned previously disappeared with working at OBL. I can maintain my bar license and ability to practice, without having to retake a bar examination in every state we move to. I am able to have a resume which shows my loyalty and retention at a law firm. I have now worked at OBL over the course of 3 separate moves, something I had never thought was possible.  Further, being able to work remotely allows me to maintain my workload while also handling any issues that may arise for my family.  It has afforded us the ability to be present for the special moments in military life (i.e., homecomings, meetings, send offs, etc.) without having to put my professional career on hold or take time off or work. Perhaps most importantly, working at OBL and being exposed to various areas of law has allowed me to realize that my true passion is advocating for the rights of those who feel like they are being lost in the system, for those who can no longer work due to physical or mental impairments, and for those who were wrongly denied benefits.”

Since hiring Christine in 2015, OBL has hired two more associate attorneys who are military spouses, Amanda Whitt-Downs, found through MSJDN, and Meghan Lambert, found through a military spouse page. They are all attorneys in our Appellate Department, and work on researching and drafting briefs to Federal District Courts across the country for our clients who have been denied SS disability benefits by the Agency. Explains Osterhout, “It’s just been a privilege to get to know these women. I am particularly indebted to Christine, who really stepped up when I had an illness last year; she was an incredible help to Hannalore in making sure that we continued to meet our deadlines in the Appellate Department. She really, as they say, ‘went over that wall’ for me and I’ll never forget it.” Merritt states, “They are all highly versatile women who are driven and compassionate, not to mention able to balance a lot in addition to their careers. They also have excellent resumes – we are fortunate to have been able to set them up remotely because they are really talented and do great work.”

OBL applauds the Pennsylvania Supreme Court in adopting the Military Spouse Licensing Rule and the effort the Military Spouse JD Network put forth in advocating for these talented group of attorneys.

Read more about the Supreme Court adoption HERE

Very Recent Decisions from Three Separate Circuit Courts Clarify ALJ’s’ Obligations Under SSR 00-4p

As we know, SSR 00-4p, among other things, obligates an ALJ to identify and resolve any inconsistencies between the DOT and a VE’s testimony. Cases evaluating this issue have typically set the bar fairly low in terms of the nature of the ALJ’s obligations under 00-4p. In particular, courts have tended to find that unless the inconsistency was very obvious and/or was brought to the attention of the ALJ (usually, what the court means here is that the Claimant waives this issue if it is not brought to the ALJ’s attention), the ALJ does not have any, or much, obligation to “play detective” and look behind the VE’s testimony. Three decisions issued recently by the Eleventh, Fourth, and Second Circuits are very favorable to Claimants on this issue.

In Washington v. Comm’r of Soc. Sec., 906 F.3d 1353 (11th Cir. 2018), issued in October 2018, the court held that “[the ALJ’s obligations under 00-4p] is not fulfilled simply by taking the VE at his word that the testimony comports with the DOT. When the record reveals an apparent conflict between the VE’s testimony and the DOT.” Here, and very notably, the 00-4p issue was preserved, in the court’s opinion, over the Agency’s argument that the issue had been waived at the administrative level because the representative did not bring it to the ALJ’s attention. This was so based on the court’s interpretation, with a detailed survey of Agency policy and of how other circuits have resolve the issue, of “apparent inconsistency”, because the VE’s testimony that the Claimant was able to perform the job identified despite a limitation to occasional fingering, what is in direct conflict with information in the DOT companion volume, Selected Characteristics. Thus, Washington joined in the interpretation of an ALJ’s obligations under 00-4p, as found in the Seventh, Eighth and Tenth circuit’s (e.g. Hackett v. Barnhart, 395 F.3d 1168, 1175 (10th Cir. 2005); Overman v. Astrue, 546 F.3d 456 (7th Cir. 2008); Moore v. Colvin, 769 F.3d 987 (8th Cir. 2014); Pearson v. Colvin, 810 F.3d 204 (4th Cir. 2015); Haddock v. Apfel, 196 F.3d 1084, 1087 (10th Cir. 1999)).  Congratulations to Michael Steinberg, Esq. of Tampa Florida for obtaining this very helpful decision.

In Thomas v. Berryhill, 2019 U.S. App. LEXIS 1312 (4th Cir., January 15, 2019) there were two favorable aspects to the court’s decision to remand for further proceedings. First, at issue was the ALJ’s evaluation of the Claimant’s mental RFC, which the court held “contains too little logical explanation” for meaningful judicial review.  Id. at *6.  In particular, the court emphasized that (1) the ALJ had drew no explicit conclusions about how the Claimant’s mental limitations affected her ability to work on a full-time basis, (2) the ALJ did not explain sufficiently how she weighed the evidence contradicting her finding that the Claimant had no mental limitations at all, (3) the ALJ had expressed her RFC finding first, and only then concluded that the limitations were consistent with the RFC and (4) although the ALJ stated that the Claimant could not work at a “production rate or demand pace,” she had given no insight into what those terms mean.

Very interestingly, the court went on to discuss an issue related to 00-4p, “since it is likely to come up again below…”  Id. at *9 (it is unclear whether the court considered this issue sua sponte, or whether it was an issue briefed by the parties). With respect to 00-4p, the court held that “an ALJ cannot rely unquestioningly on a VE’s testimony,” but rather must identify and elicit a reasonable explanation for any conflicts between the testimony and the DOT.  Id. at *10-11 (citing Pearson).  The court then identified as an apparent contradiction the VE’s identification of jobs with a “reasoning level” of 2 (requiring detailed tasks) with the RFC/hypothetical assumption that Claimant was limited to “short, simple instructions,” may not be able to carry out detailed but uninvolved instructions required by reasoning level 2.  Id. at *12.  Congratulations to Dana Duncan, Esq. of Nekoosa, Wisconsin for obtaining this very helpful decision.

Finally, in Lockwood v. Comm’r of SSA, No. 17-2591-cv, 2019 U.S. App. LEXIS 2104 (2d Cir. Jan. 23, 2019) the Second Circuit became another circuit which has held regarding the 00-4p requirement to identify and obtain a reasonable explanation for inconsistencies, that a limitation to no overhead reaching was inconsistent with the DOT descriptions of the jobs identified by the VE, since the jobs required occasional or frequent reaching/handling. The critical discussion in this decision is repeated here:

But while “this Court could guess” what the three jobs [the vocational expert] identified “require in reality, it [was] the  [Commissioner’s] duty to elicit an explanation from [Heller] as to whether th[ose] occupations actually require . . . overhead reaching.” Spears v. Colvin, No. 15-CV-6236, 2016 U.S. Dist. LEXIS 127084, 2016 WL 4973890, at *5 (W.D.N.Y. Sept. 19, 2016). The importance of teasing out such details is precisely why the Commissioner bears an “affirmative responsibility” to ask about “any possible conflict between [vocational expert] evidence and information provided in the [Dictionary].” SSR 00-4p (emphasis added). Absent such an inquiry, the Commissioner lacks a substantial basis for concluding that no such conflicts in fact exist. [citing Washington and Pearson]

Lockwood, 2019 U.S. App. LEXIS 2104, at *13-14.  Congratulations to Patrick Radel, Utica, New York, for obtaining this very helpful decision.

Lockwood therefore explicitly joins Washington, Pearson, et.al., and dovetails nicely also with Thomas. Washington, Thomas and Lockwood are three really nice, very recent decisions that we need to take full advantage of.

The “Social Security 2100 Act,” championed by Rep. John Larson (D-CT), is getting a hearing in Congress!

The “Social Security 2100 Act,” championed by Rep. John Larson (D-CT), which was the subject of another recent OBL News post, is getting a hearing in Congress!

Social Security 2100 proposes to shore up this benefit program for 62 million beneficiaries while ensuring the program’s financial stability. Among its proposals are that any increase in benefits under its provisions wouldn’t affect eligibility for other key federal programs, including Supplemental Security Income, Medicaid, and the Children’s Health Insurance Program.

 

https://thehill.com/opinion/finance/427835-a-bill-to-boost-social-security-will-finally-get-a-full-and-fair-hearing

 

One-third of all Americans between the ages 35 and 65 will become disabled for more than 90 days and 1 in 7 workers will be disabled for more than five years

Over the years, we have handled tens of thousands of disability claims for injured workers. The one thing they have in common is that none of the clients planned on having a disability. According to the American Council of Life Insurers, one-third of all Americans between the ages 35 and 65 will become disabled for more than 90 days and one in seven workers will be disabled for more than five years. Short Term/Long Term Disability policies can be purchased through an employer from companies like Aetna, MetLife, New York Life, etc. This type of policy can provide more immediate financial relief than relying on Social Security Disability alone. Read more to learn about various disability insurance options:

https://www.disabled-world.com/disability/insurance/

 

New proposed rule sets a “floor” for social security benefits at 25% above the poverty level, among other pro-claimant recommendations.

Congressman John Larson of Connecticut is again making the rounds with Social Security 2100, a set of proposals he has been making for a few years to both protect the Fund and to ensure the meaningfulness of the benefits for our lowest earning neighbors:

  • Immediate increase in Social Security benefits equal to about 2% of the average benefit amount.
  • Adoption of a new way to adjust for inflation for determining annual cost-of-living adjustments to benefit payments, based on the CPI-E, an inflation benchmark that incorporates goods and services that are more appropriate for the older and low income Americans.
  • A minimum benefit set at 25% above the federal poverty line to ensure that low-income workers avoid poverty in retirement.
  • Higher income thresholds for tax-free benefits, with the income levels at which a portion of Social Security can become included in taxable income rising from $25,000 to $50,000 for single filers and from $32,000 to $100,000 for joint filers.
  • Collection of Social Security payroll taxes on wages and self-employment above $400,000 ($132,900 currently).
    phase-in of higher payroll tax rates for Social Security, which would eventually take the current level of 6.2% up to 7.4% by 2042.

The bill would ensure that any increase in benefits under its provisions wouldn’t affect eligibility for other key federal programs, including Supplemental Security Income, Medicaid, and the Children’s Health Insurance Program.

 

The Congressional Budget Office Recommends Cuts to Social Security Benefits

The Congressional Budget Office’s recommendation for reducing the deficit includes cuts to Social Security Disability, including eliminating Child’s SSI benefits altogether.

Among the CBO’s recommendations are six “mandatory spending” options, as well as a taxation option:

  • Eliminate Supplemental Security Income Benefits for Disabled Children
  • Link Initial Social Security Benefits to Average Prices Instead of Average Earnings
  • Make Social Security’s Benefit Structure More Progressive
  • Option 31 Raise the Full Retirement Age for Social Security
  • Require Social Security Disability Insurance Applicants to Have Worked More in Recent Years
  • Eliminate Eligibility for Starting Social Security Disability Benefits at Age 62 or Later
  • Tax Social Security and Railroad Retirement Benefits in the Same Way That Distributions From Defined Benefit Pensions Are Taxed.

The full CBO report can be viewed at https://www.cbo.gov/system/files?file=2018-12/54667-budgetoptions.pdf.

LTD Benefits: What You Need To Know

 

Erik Berger, OBL Partner and Long Term Disability Specialist, recently wrote an article for The National Association of Disability:

“According to a 2016 survey, approximately 40% of Americans have a privately purchased disability insurance policy or a disability policy offered through their employer. Since Social Security disability benefits, on average, provide approximately one third of the amount of the average disabled worker’s paycheck, and since many people live paycheck to paycheck without substantial savings, the successful presentation of a Long Term Disability benefits claim (LTD) is absolutely critical to maintaining the worker’s financial and personal stability. For instance, a 2017 study of bankruptcy court records demonstrated that over 40% of mortgage foreclosures are attributed, at least in part, to disability.

LTD benefits obtained as a benefit of employment (and usually paid for by the employer), somewhat like Social Security benefits, are paid to beneficiaries whose disability is expected to last more than a few months; although the terms of the LTD contract control, generally speaking most workers may be entitled to LTD benefits for up to 2 years if they are unable to work at the job they were performing when they became disabled, and even permanently if the worker’s disability results in an inability to perform any gainful employment. In almost all cases involving a disability policy purchased by the company, the worker will be required, as a condition of receiving LTD benefits, that they also apply for Social Security disability. However, if the LTD policy is bought privately most of these policies provide disability benefits on the sole basis that the policyholder is unable to perform their past job.

One way that claims for LTD benefits is vastly different from Social Security claims is that they are adversarial cases, where the employer and/or insurance company has claims adjusters, doctors, vocational experts and other experts who provide evidence against the worker’s interest. So, even though the “HR person” at the company may be, in fact, a very nice person, this should not lull the worker into forgetting that, in the end, the employer/insurance company will always look out for itself first. “

OBL Applauds AALJ Statement Regarding Hearing Scheduling

The Association of Administrative Law Judges (AALJ) is the professional association that 80% or more of Social Security ALJs belong to, and carries as part of its mission statement a commitment to the “independent and honorable administrative judiciary as indispensable to justice in our society.” In the President’s Newsletter dated November 16, 2018, the AALJ responded to a new regulation proposed by SSA to give sole discretion in how hearings are scheduled (in person or by video) to the Agency, thereby taking away the claimant’s ability to opt for an in-person hearing with the ALJ who is going to decide their case. AALJ President Marilyn Zahm commented that ” [t]he Agency’s explanation for these drastic changes is spurious – the Agency already easily moves caseloads from backlogged hearing offices to other locations around the country.  There is no need to force claimants to give up their right to an in-person hearing – the Agency’s own statistics show that only 32% optout of a video hearing. Thus, two-thirds of the caseload can be moved without the need for this regulation.  Where is the need to be able to move ALL hearings and deprive all claimants of the right to in-person hearings?”.

OBL agrees wholeheartedly with ALJ Zahm’s assessment, and applauds her strong words and analysis. We also wonder why it often seems like the AALJ and Social Security representatives’ professional associations are often in a contentious relationship. Plainly, the AALJ’s commitment to the integrity and independence of ALJs is something that all claimants representatives do (or should) support. The AALJ website can be found at https://www.aalj.org/.

Karl Osterhout

Managing Partner, Osterhout Berger Disability Law

Pennsylvania Reinstates General Assistance Program

OBL is delighted to forward the following message from Richard Weishaupt, the Director of Community Legal Services in Philadelphia:

It is with great thanks that I can say that Pennsylvania has reinstated the General Assistance program.  As you may recall, the Pennsylvania Supreme Court unanimously held that Act 80, which eliminated the GA program, had been enacted in a manner that violated the Pennsylvania Constitution.  It has taken several months for the state to revise their computer programs and retrain their staff, but they have been accepting applications while they were reprogramming.  Finally, eligible Pennsylvanians began getting benefits today, just in time for Thanksgiving.

Payments began being authorized beginning Monday, 11/19, and benefits began appearing on people’s Access Cards today, the morning of 11/20.  We began getting reports of this happy news a few hours later.  We have been told that the process of granting benefits to the folks who have already applied will continue for the next few days.  Initial payments should be completed by the end of November.  People who finished their applications a month ago will get a month of benefits ($205 in most counties, including Philadelphia and Allegheny County) while others who finished the application and turned in all of the needed paperwork in August or September will get more.  Those who only recently applied will get less.

People whose applications have been approved will be sent a notice starting around 11/20 saying they are eligible and should check to see if there are benefits on their Card.  If they don’t have an EBT Access Card, they should contact the CAO to get one, but anyone with food stamps should already have one.  People who are approved for GA and already have Medicaid but not Food Stamps will need to get a new card from the CAO.

Here are the numbers we have received from the Department: As of last Friday (11/9) 2458 people have been found eligible and their payments will be issued this week and next week.

Another 6049 cases are pending, meaning something else needs to happen – they need to provide verification, including Employability Assessment Forms (EAF) and/ or they may need to be interviewed. They should check their mail or contact the Department if it is not clear what they need to do.  They can check on the status of their cases by going to the County Assistance Office or by calling the Customer Service Center (215-560-7226 for Philadelphia, and 1-877-395-8930 for the rest of the state) .

13,748 people have been found ineligible – we’re not sure why.  They may not have submitted verification or kept an appointment or who knows what.  They should have gotten or will soon get a letter saying why they were turned down.  They can appeal within 30 days of the date of the turn down.  They can also try to fix the problem by bringing in the needed verification or asking for an appointment.  Under Department rules they can “refresh” their application within 60 days but they will only get benefits back to the day that they provide needed verification or complete their interview.  In either case they should act quickly.  People who live in Philadelphia can contact Community Legal Services (215-227-2400) or Philadelphia Legal Assistance (215-981-3800) for help. People who live in other counties can contact their local legal aid program for help—information is available at https://palegalaid.net.

More detailed information and copies of Departmental policy can be found on the Community Legal Services of Philadelphia website.  www.clsphila.org/GA .  A copy of the most recent DHS policy will be on the CLS webpage shortly.