Posts Tagged With: Commissioner Astrue

Illegal Immigrants, Social Security Benefits, and The Freedom Of Information Act

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The seal of the United States Department of Health and Human Services. The symbol represents the American People sheltered in the wing of the American Eagle, suggesting the Department’s concern and responsibility for the welfare of the people. The colors are reflex blue and gold. This seal is now just used for mainly legal purposes; the department has a separate logo which is used for its visual identity. More information here and here. (Photo credit: Wikipedia)





Civil Action No. 11-1387 (JEB). 


United States District Court, District of Columbia. 



April 6, 2012.


U.S. DEPARTMENT OF HEALTH AND HUMAN SERVICES, Defendant, represented by Fred Elmore Haynes, U.S. ATTORNEY’S OFFICE.
SOCIAL SECURITY ADMINISTRATION, Defendant, represented by Fred Elmore Haynes, U.S. ATTORNEY’S OFFICE.




JAMES E. BOASBERG, District Judge.
Plaintiff Raul Rodriguez-Cervantes, a federal prisoner incarcerated in Post, Texas, brings this pro se suit under the Freedom of Information Act, 5 U.S.C. § 552. In so doing, Plaintiff seems to have put the cart before the horse. Plaintiff has brought a FOIA suit before first having his FOIA request denied. Indeed, he has brought a FOIA suit before even submitting a FOIA request. As such, the Court will grant Defendants’ Motion for Summary Judgment and dismiss the case without prejudice.
I. Background
On December 15, 2010, Plaintiff sent a letter to Defendant Social Security Administration (SSA) seeking assistance regarding applying for social security benefits.  The letter stated in relevant part:
I worked in the United States for about 15 years and always paid my social security deductions. Now I am a federal prisoner and upon the expiration of my sentence I will be removed to Mexico, my native country. At this time, I would like to know if there is any way/application to get my social security benefit before the age established by the S.S. policies. My question is due to the fact that I will be deported from this country and I do not know whether I should have a relative or friend in this country (which I do not have) to get those benefits or I should file some forms to get it in advance of the age required by the S.S. Administration.

SSA responded with a standard form letter in which it informed Plaintiff that “[n]either Social Security benefits not SSI payments are payable to prisoners just because they are being released or because they have been in prison.” In addition to providing Plaintiff with a phone number to call if he wished to file for social security benefits, SSA enclosed in the letter two brochures entitled “Social Security: What Prisoners Need To Know” and “Social Security: Entering The Community After Incarceration—How We Can Help.” 
On April 8, 2011, Plaintiff sent another letter to SSA stating:
This is a request for Social Security Disability Benefits.
In suport of my request, a deportation from the United States will be executed as soon as my current sentence be completed. The term of deportation is undefined. Although, my age is not the required in accordance with the proceedings, however, there is undisputable that a deportation will satisfy more than the necessary disability [sic].
Accordingly, please provide me with the necessary information in order to proceed with my request.
According to Plaintiff, on April 20, 2011, the agency responded with “an identical letter as the [prior one].”
Finally, on May 12, 2011, Plaintiff sent yet another letter to SSA stating:

I am an inmate incarcerated at the Giles W. Dalby Correctional Facility in Post, Texas. Since I can’t visit your office in Lubbock and I have no access to a computer, I am requesting that you please send me an application so that I may apply for my social security benefits.
Opp., Exh. 2 (Plaintiff’s Letter). This time, SSA responded with “Social Security Earnings Information,” and Plaintiff was informed that SSA was “returning [his] request for information from [his] earnings record” because “[i]n light of the current budget situation, [SSA has] suspended the Request[-]a[-]Social[-]Security[-]Statement service.” Opp., Exh. 1 (SSA Letter). Plaintiff was, however, given the option to go online to estimate his retirement benefits using SSA’s online Retirement Estimator. Id.
No other record exists of Plaintiff’s seeking to obtain information from SSA. Plaintiff has nonetheless brought this FOIA suit seeking the “disclos[ure] . . . [of] his entire record as maintained within the System of Records of the Social Security Administration Office on December 15, 2010, together with any other records pertinent to the said request.” Before the Court now is Defendant’s Motion for Summary Judgment.
II. Legal Standard
Summary judgment may be granted if “the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.”  “A party asserting that a fact cannot be or is genuinely disputed must support the assertion by citing to particular parts of materials in the record.” The moving party bears the burden of demonstrating the absence of a genuine issue of material fact.  “[A] material fact is `genuine’ . . . if the evidence is such that a reasonable jury could return a verdict for the nonmoving party” on an element of the claim. Factual assertions in the moving party’s affidavits or declarations may be accepted as true unless the opposing party submits his own affidavits, declarations, or documentary evidence to the contrary. 
FOIA cases typically and appropriately are decided on motions for summary judgment. In a FOIA case, the Court may grant summary judgment based solely on information provided in an agency’s affidavits or declarations if they are relatively detailed and when they describe “the documents and the justifications for nondisclosure with reasonably specific detail, demonstrate that the information withheld logically falls within the claimed exemption, and are not controverted by either contrary evidence in the record nor by evidence of agency bad faith.” Such affidavits or declarations are accorded “a presumption of good faith, which cannot be rebutted by `purely speculative claims about the existence and discoverability of other documents.'” 
III. Analysis

The sole basis for Plaintiff’s FOIA claim seems to be that SSA did not produce “his entire record as maintained within [SSA’s] System of Records” in response to his December 15 letter, which merely requested “to know if there is any way/application to get my social security benefits before the age established by the S.S. policies.” The natural question raised by this claim is whether the December 15 letter—or indeed any of Plaintiff’s other letters to SSA—somehow amounts to a FOIA request. Although common sense offers an answer to this question, the Court will probe further.
A valid FOIA request must (i) “reasonably” describe the records sought and (ii) must be made “in accordance with [the requested agency’s] published rules stating the time, place, fees (if any), and procedures to be followed.” [s] specifically to the FOIA.”  Importantly, “an agency’s obligations commence upon receipt of a valid request; failure to file a perfected request therefore constitutes failure to exhaust administrative remedies.” And, as is well settled, a FOIA suit cannot be sustained where the plaintiff has failed to exhaust his administrative remedies. (“It goes without saying that exhaustion of remedies is required in FOIA cases.”)). Since SSA requires that all FOIA requests actually “ask for records,” any purported request that does not do so is invalid. A requester that fails to ask for records, therefore, fails to exhaust his administrative remedies.
Even if given the liberal interpretation that Plaintiff urges, his December 15 letter is by no means a FOIA request, and the circumstances plainly suggest he did not intend it to be one. Plaintiff’s letter contains no explicit or even implicit request for the production of any records. Indeed, in his own words, Plaintiff characterizes the letter as one “seeking assistance for benefits under the grounds of his deportation.” In addition, neither of Plaintiff’s two other letters to SSA was a FOIA request or anything that could be liberally construed to amount to a request for records. Plaintiff requests information about how to apply for social security benefits, asks whether or not he qualifies for those benefits given his circumstances, and seeks an application for social security benefits. He does not, however, request the production of records. As his letters merely pose questions to SSA or ask for assistance in applying for social security benefits, they do not constitute valid FOIA requests. Whether or not Plaintiff was satisfied by the responses to his questions or the level of assistance he was receiving, a FOIA suit is not the proper means by which to obtain a different response.
Finally, the fate of Plaintiff’s suit is sealed with his concession that “there may not have record of a freedom information request, but, however there his request for benefits [sic].” Plaintiff himself admits that he has no FOIA request before SSA. He has, therefore, brought a FOIA suit without first filing a FOIA request and exhausting available remedies. It cannot survive.
The Court last notes that Plaintiff’s objective throughout may simply be to acquire an application for social security benefits. To that end, Defendant has offered to arrange for Plaintiff to request a copy of his earnings record and to provide him with an application for benefits. The Court appreciates the assistance.
IV. Conclusion
As the Court finds that Plaintiff has failed to exhaust his administrative remedies, the Court will grant Defendant’s Motion for Summary Judgment. A separate Order consistent with this Opinion will issue dismissing the case without prejudice.


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Social Security Judges Operate With Virtually No accountability

A Congressional Report from the House Ways and Means Committee  Confirms Social Security Judges Operate with Virtually No Oversight or Accountability.

Washington, DC – The Office of Inspector General (OIG) issued the second of a two-part report identifying Administrative Law Judges (ALJ) who are considered outliers because of the number of their disability decisions rendered either favorable or unfavorable.  The report comes in response to a June 16, 2011 bipartisan request from Members of the Ways and Means Social Security Subcommittee asking the Social Security Administration’s (SSA’s) Inspector General to review ALJ workloads, adherence to Agency policies and procedures, and quality reviews.  The Members made that request in the wake of a Wall Street Journal article exposing the practices of a West Virginia ALJ who granted awards in 1,280 of the 1,284 disability cases he handled.

Social Security Subcommittee Chairman Sam Johnson (R-TX) said, “ALJs are supposed to be making their decisions on behalf of the Commissioner of Social Security, but this report confirms that ALJs operate with virtually no oversight and no accountability.

“On review, Social Security disagreed with 1 out of 7 ALJ awards but couldn’t reverse those decisions.  What kind of a process allows a bad decision to stand because the decision-maker can’t be challenged? That’s just not right.  Given that the Social Security Disability Insurance program will become insolvent in just a few short years, it is more important than ever that we protect taxpayers and ensure that the program pays benefits only to those who are truly disabled.”



The key findings of the report, “Congressional Response: The Social Security Administration’s Review of Administrative Law Judges’ Decisions” are summarized below:

The Administrative Procedures Act (APA) prevents an agency from improperly influencing an ALJ’s decision and protects ALJ decisional independence.  However, ALJs must follow agency regulation, policy, and procedure in making decisions.  Under the law, the agency may not review the decisions of a specific ALJ before their decisions are processed (such reviews are referred to as pre-effectuation reviews).

Reviews after a decision is processed, or post-effectuation reviews, along with special studies may target the decision of a specific ALJ based on anomalies in productivity or allowance rates.   Based on these reviews, the SSA can issue directives to an ALJ for policy compliance; take disciplinary action; or identify training needs to bring ALJs more closely into alignment with Agency policies and procedures.

Recently, the SSA conducted three types of reviews of ALJs’ decisions. Two of these involve a selected sample of cases to determine if regulations, policies, and procedures have been followed and also to identify training needs.  The third was a series of special post-effectuation studies based on anomalies of decisions by seven ALJs that came to the SSA’s attention.  Out of these special studies performed, one ALJ was identified as not following polices and procedures, was corrected, and became compliant.

The OIG concluded that the SSA has authority to review ALJ decisions but faces legal restrictions in conducting those reviews. Changes to current law would be needed to allow the SSA to review and correct decisions of specific ALJs based on unusually high or low allowance rates.

Social Security Judges are under fire from Congress which recently discovered how much they are paying out in benefits. In a recent series of articles in the Wall Street Journal and other media, judges are being focused on for approving every disability case that comes before them.;;;; ).” target=”_blank”>(;;;;; ). Some in Congress are wondering why we need to pay a judge $167,000.00 a year to rubber-stamp every case that comes before him. A lawyer at the GS-9 level making $40,000.00 a year or less could do the same and save millions of dollars a year. The Law of Averages says that even a trained chimpanzee would be right about half the time, and he would work for peanuts.

Americans seeking Social Security disability benefits will often appeal to one of 1,500 administrative law judges (ALJ) who help administer the program. In the first half of 2011, 27 ALJs awarded social security benefits 95% of the time because of pressure from Commissioner M. Astrue. Nationwide over 100 ALJs are approving 9 out of every 10 cases that come before them. The cases they fail to approve are likely to be approved by the Appeals Council, which works for the Commissioner. Senate and House Committees are investigating the issue. Approving all cases without even reviewing the file is called “paying down the backlog”. Judges are under pressure to move cases quickly in order to clear a backlog of 730,000 pending cases. The pressure comes directly from the Commissioner of Social Security. This is one of the things that I discuss in detail in the book “socialNsecurity”, available at

I put it in proper perspective. Having spent about 20 years observing the competing forces that produce a judge who reverses 100% of his cases, while another reverses less than 10%, I have a better handle on this issue than a reporter who writes a sensational article. Much of my insight and explanation of the competing forces is spelled out in my book “socialNsecurity, Confessions of a Social Security Judge”. Anyone looking for more historical and recent statistics on this subject along with an explanation of how the system works can find easy readable information in my book.

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Babies Born After Daddy Dies Cannot Collect Daddies Social Security Benefits.

The Supreme Court heard the case of Astrue v. Capato on March 19th to determine if a child conceived after the death of one of its parents is entitled to benefits under the Social Security Act. About 100 such cases are pending before the Social Security Administration (SSA).

The Court rendered its decision in May 2012.

In one of the more interesting cases during the 2011 Supreme Court term (at least those not involving Obamacare), the Court ruled that the Social Security Administration could deny benefits to the children of a deceased father where the children were conceived through in vitro fertilization after the father’s death.

The Third Circuit Court of Appeals had previously ruled in the children’s favor, but the Supreme Court reversed the lower court’s decision in a unanimous ruling (Astrue v. Capato, No. 11-159).

Eighteen months after the death of her husband from cancer, Karen Capato gave birth to twins. They had been conceived using Robert Capato’s sperm. Karen applied for the twins to receive Social Security survivor benefits under the theory that the twins were Robert’s biological children and entitled as beneficiaries.

Justice Ruth Bader Ginsburg wrote for a unanimous Court, which reversed the Third Circuit. The case hinged on a provision in the Social Security Act of 1939, which allows surviving family members of a deceased wage earner to collect monthly benefits. Ginsburg acknowledged, “The technology that made the twins’ conception and birth possible, it is safe to say, was not contemplated by Congress when the relevant provisions of the Social Security Act (Act) originated (1939) or were amended to read as they now do (1965).”

Ginsburg concluded that the Social Security Administration’s interpretation of the statute’s text was “better attuned to the statute’s text and its design to benefit primarily those supported by the deceased wage earner in his or her lifetime” compared with the Third Circuit’s analysis. Ginsburg also concluded that the agency’s interpretation was entitled to deference by the courts.

Robert Capato, who knew he was dying of terminal illness, froze his sperm so that his wife, Karen, could have more children after he died.  18 months later, Karen gave birth to twins after having in vitro fertilization.  Robert and Karen Capato’s twins were born in 2003 — 18 months after Robert Capato’s death. Karen Capato’s application for survivor benefits on behalf of the twins was rejected by the Social Security Administration, which said that for them to qualify, Robert Capato needed to be alive during their conception. A federal judge agreed, saying they had to qualify as Capato’s children before his death or qualify under state inheritance law as children who could legally inherit.

And in its first review of “posthumous conception,” the ­Supreme Court on 19 March struggled to align modern reproductive techniques to a federal law written in 1939.

The major issue that emerged in arguments in this case was the definition of a child and familial linkage according to the Social Security Act.  There is no doubt to the court that this was his child, but according to the current law, it appears as if the child’s conception and birth after the death of the father would end the child entitlement to Social Security benefits.

Lawyers for Capato argued that children of a parent should be covered by the Social Security Act regardless their time of birth.

Lawyers for the Social Security administration, as well as a few of the justices, seemed to be concerned with the implications of this case if found in favor of Capato. For instance, if there were loose paperwork around sperm donation centers, it could lead to multiple cases of children seeking Social Security benefits who would otherwise not be entitled to any.

This U.S. Supreme Court case is the first case testing whether children conceived through in vitro fertilization after the death of a parent are eligible for Social Security survivors benefits.

The case began in 2001 when Robert Capato was diagnosed with esophageal cancer. Before beginning treatments, he deposited sperm at a fertility clinic, and after he died, his wife Karen carried out the couple’s plan to conceive using Robert’s sperm.

In 2003, she gave birth to twins and filed for survivors benefits for the children based on her late husband’s social security taxes. But the Social Security Administration denied the claim, contending that because the twins could not inherit under Florida state law, where the couple lived, the children were ineligible for survivors benefits.

A federal appeals court in Philadelphia disagreed and Reversed the decision, saying the 1939 Social Security Act confers benefits on all biological offspring of a married couple.

The Supreme Court’s eventual decision in the case will have an immediate effect beyond the Capato family. More than 100 similar cases are currently pending before the Social Security Administration.

“Increasingly, members of the military — male members of the military before deployment — are freezing their sperm in case something happens and they don’t come back,” says Karen Capato’s lawyer, Charles Rothfeld.

The Justices wrestled with how to interpret a law written in 1939 and how to apply it to modern technology never imagined back then.

The government’s lawyer, Eric Miller, contended that since 1940, the Social Security Administration determined a child’s eligibility for survivors benefits based on whether that child can inherit under state law.

Justice Samuel Alito noted that the Congress that enacted this law in 1939 “never had an inkling about the situation that has arisen in this case … just as they had no inkling that any state would go off and take away the [inheritance rights] of children born to married people.”

Justice Elena Kagan called the government’s reading of the law “bizarre” in view of the fact that another section of the statute does not apply state inheritance law to stepchildren, grandchildren and even step-grandchildren when determining survivors benefits.

But that was about all the sympathy the Capatos got. Justices Antonin Scalia and Anthony Kennedy both raised an issue not before the court — whether a child conceived in vitro can be properly called a survivor since the child never lived with or was dependent on the deceased.

And when the Capatos lawyer rose to make his argument, he got pounded.

Justice Sonia Sotomayor asked whether Capato’s in vitro children would still qualify for survivors benefits if she had remarried. “A situation like that is what is making me uncomfortable because I don’t see the words ‘biological’ in the statute” or the word “‘marriage’ … within the definition of ‘child,'” she said.

Rothfeld replied that when Congress enacted the Social Security Act in 1939, more than 95 percent of the children in the United States were the offspring of married parents, so when Congress said a child is a child, “it would have had in mind the paradigm of the time.”

Justice Kagan asked whether Rothfeld could point to any other statutes around that time which supported the notion that when people said child, they meant child within a legal marriage.

Rothfeld said it was so clear back then that there was no need to define it further.

Justice Sotomayor asked if the child of an unmarried mother is excluded from automatic coverage.

Rothfeld responded that under the statute as written, “that’s correct.” After all, Rothfeld argued, in 1939 there was no way to be scientifically certain who the father of a child was. Marriage was a proxy for that.

But at the time this statute was written, “Wasn’t it also understood that the marriage ends when a parent dies?” Justice Ruth Bader Ginsburg asked.

Justice Stephen Breyer added that if the court ruled in Capato’s favor, “I don’t see how you’re going to save us from even worse problems.” Breyer said that the in vitro laws in every state are a very complicated subject and wondered whether the father could “just write a note and say this is my child, even if it’s conceived later ….”

Rothfeld replied that Robert Capato did in fact write such a note, but under state law, it wasn’t enough.

Chief Justice John Roberts said that under the court’s precedents, if a law is ambiguous, it defers to the agency’s interpretation and the Capatos would lose. Is there any reason, he inquired, that we shouldn’t conclude, “based on the last hour” of argument, that this law is at least ambiguous?

“It’s a mess,” added Justice Kagan.

Lawyer Rothfeld responded: “The problem is that we’re dealing with new technologies that Congress … wasn’t anticipating.”

It was a tough slog through the details of a law that was written at a time when, as Justice Samuel A. Alito Jr. said, “they never had any inkling about the situation that has arisen in this case.”

The Capatos married in 1999, and shortly thereafter he was diagnosed with esophageal cancer. Because they feared that his treatments might leave him sterile, Robert Capato began depositing sperm at a sperm bank in Florida.

He rallied at one point, and the couple had a naturally conceived son in 2001. But as his condition worsened, the Capatos began to talk about in vitro fertilization to give their son siblings. They signed a notarized statement that any children “born to us, who were conceived by the use of our embryos” shall in all aspects be their children and entitled to their property.

But the provision was not included in Robert Capato’s will at his death in March 2002.

After the twins were born, Karen Capato applied for Social Security survivor benefits. The Capatos’ naturally conceived son received the benefits; the twins did not. The Social Security Administrative Law Judge (ALJ) said the 1939 federal law looked to state laws to determine whether the benefit seeker is eligible to inherit property, and under Florida law, the twins were not eligible.

An appeals court reversed that decision, saying that the twins only had to meet the definition in another part of the law, which defined an eligible child simply as “the child or legally adopted child of an individual.”

But other appeals courts have found just the opposite, that the state laws are the places to look for determination of eligibility.

Assistant Solicitor General Eric Miller acknowledged that the law was ambiguous, because it seemed to provide two different definitions of a “child.” But he said the Social Security Administration had made the reasonable ­decision to require that a person seeking survivor benefits “must show that he or she would have been able to inherit personal property” under applicable state laws.

Alito seemed most skeptical of the government’s position, saying that perhaps Congress in 1939 did not think there was need to define the meaning of child. “They knew what a child was,” he said.

Charles A. Rothfeld, representing Capato, said the law was clearly meant to cover “the biological child of married parents” and the twins fit that definition.

What about a child born into a marriage but not a biological child, asked Justice Sonia Sotomayor. She wondered what would be the outcome if Karen Capato remarried but used her deceased husband’s frozen sperm to conceive.

Justice Ruth Bader Ginsburg pressed Rothfeld on whether the marriage between the Capatos ended with his death.

Justice Antonin Scalia wondered how children could be “survivors” if they were not conceived before their father’s death.

“What is at issue here is not whether children that have been born through artificial insemination get benefits,” Scalia said. “It’s whether children who are born after the father’s death get benefits.”

Chief Justice John G. Roberts Jr. noted that the court’s precedents say that when a statute is ambiguous, the courts should defer to the federal agency.

“Is there any reason we shouldn’t conclude based on the last hour that it’s at least ambiguous?” Roberts asked.

“It’s a mess,” piped in Justice Elena Kagan.

“I think the problem is that we’re dealing with new technologies that Congress . . . wasn’t anticipating at the time,” Rothfeld replied.

Karen Capato’s application for survivor benefits on behalf of the twins was rejected by the Social Security Administration, which said that for them to qualify, Robert Capato needed to be alive during their conception. One federal judge agreed, saying they had to qualify as Capato’s children before his death or qualify under state inheritance law as children who could legally inherit.

Few pro-life groups jumped into the fray. Representatives from the Susan B. Anthony List declined to comment. But Concerned Women for America sided with the mother: “We hope the Supreme Court recognizes, as other circuits have, that all biological children of married parents meet the definition of a child,” stated Mario Diaz, the group’s legal counsel. “To say otherwise would not only devalue children in legal theory, but, as we can see in this case, it would also have enormous tangible consequences.”

The Life Legal Defense Fund was the only pro-life group to file an amicus brief on behalf of the family seeking benefits. The group’s representatives noted in the brief that even though they supported the family’s claims, the court should consider in vitro fertilization’s problems, like the many frozen embryos from the process that clinics often discard.

“Children conceived by in vitro fertilization (IVF) are as much children entitled to love, respect, and protection as any other child,” the pro-life group wrote. “In no way should any qualms about the parents’ resort to IVF technology justify penalizing the children for the nature of their origin. … This does not mean, however, that IVF is an unalloyed good or that public policy should promote IVF.”

But Concerned Women for America’s Diaz argued that the main issue should remain that no matter how the child was conceived, a child is a child.

It’s worth noting that federal law caps the total amount of survivor benefits paid to any family. The Capato twins have three siblings, at least one of whom qualifies for benefits, so the issue there may be more about how the pot is divided than the size of the pot. (For example, if the father’s benefit amount is $1500.00 per month, then the children would be eligible to draw a maximum of $1500 per month, for a total benefit of $3000 per month to the family, until the youngest child reaches 18 years. If one child is eligible, then that child draws $1500; but, if 3 children are eligible, then each child draws $500 per month for a total of $1500.)

The case is Social Security Commissioner Astrue v. Karen Capato .

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