To Sue or Not to Sue?

Plan to Sue Social Security for an Alleged Overpayment

 
 

Heavenly Harmony V. Social Security Administration, Andrew Saul, Commissioner

Room 617, Altmeyer Building

6401 Security Boulevard

Baltimore, MD 21235-6401

Social Security Administration Office of General Counsel – Seattle, WA701 Fifth Avenue Suite 2900, M/S 901Seattle, WA 98104

(206) 615-2684

Oregon District Court – Portland, OR

Mark O. Hatfield United States Courthouse

1000 Southwest Third Avenue

Portland, OR 97204-2802

503-326-8008

Processing fee is $400. May be able to grant waiver, which will be deducted from benefits if awarded, along with attorney fees if the Social Security Administration authorises it.

 

I am submitting this brief, which contains some elements used in my April 12th, 2019 hearing at the Office of Hearings Operations (OHO), as well as supplemental testimony submitted to the appeals council in November 2019. I will address any discrepancies in the ALJ’s decision, and why the council’s denial to review the case was erroneous. The chief officer for the council mentioned in their letter that the judge’s decision can only be overturned by special rules, especially if a civil action is not filed within 60 days. My concern is that the federal court judge will not examine any new evidence past the date of the hearing transcript. Under federal law, one cannot sue the Social Security Administration directly. Therefore, the commissioner named above will be known as the defendant in the case.

Also, I am concerned that, due to lack of communication within a reasonable timeframe, plus not being well trained on working with blind individuals, my attorney, who was referred to by my LegalShield provider lawfirm, has not done an effective job at representing my case, and I ended up filing a complaint with the Oregon State Bar. As of March of 2020, he called my excuse of ‘poor communication’ ‘completely subjective and utterly preposterous.’ He commended me for being an outstanding witness in my hearing compared to other witnesses he has represented, though.


Here is how a civil action against SSA is initiated: An initial brief must be sent to open a case, then the summons must be served to the commissioner through the office of general council. Upon acknowledgement of the summons, an opening brief is sent by the plaintiff, followed by a response brief from the opposition. Finally, the plaintiff will have one chance to reply to the response before the judge decides. The process generally takes about twelve to eighteen months to complete.

 

In most of 2015 through 2016, I have been consistent in keeping up with my payments to my mother, who is the head of the household and who only speaks Spanish, for rent, but things started going downhill after I got back from a trip in July of 2016. I live in a household with one other disabled person, who is my brother, and a single mother, who has been divorced since 2005.

The reason I stopped paying my mother $200 for rent beginning in August 2016 was because I paid for air fare to an event that took place a few months later, which then turned into months of severe medical hardship. I will not go into detail here, as there are plenty of exhibits and posts covering the matter. Suffice it to say that there were two stages of why I have not been able to keep up with my payments during the time. The first was due to unexpected medical and transportation expenses, and later, it was due to a misunderstanding. However, in February 2017, I managed to pay my mother two hundred dollars for rent. This may have to be calculated when I present the new evidence, assuming that I can still submit it. Basically, my mother was concerned for my health and did not require me to pay her until I felt better, and I have paid off my medical bills. At the same time, she was demanding that I pay her every month. She was basically trying to milk an emaciated cow.

 

The administrative law judge begins the letter with, ‘You will not have the right to a federal court review.’ Despite this, though, I do not think that anyone at the administrative level has the power to say what your rights are. It may have been an error on the judge’s part for concluding that a federal district court judge might also conclude that the evidence was consistent for why the case was denied at the previous three stages of the appeals process that they simply followed all laws, rules and regulations. He probably did not want me to spend $400 and have my case dismissed without prejudice. Therefore, it is extremely important that we submit a motion to allow new evidence to be considered. This may include a subpoena to be delivered to my mother in person. It must call for her to either testify at an oral argument hearing or submit copies of the new evidence directly since she is not willing to do it on her own. Otherwise, I can deliver the evidence myself.

 

On page three of the judge’s decision, as well as in the original notice dated 26 April, the Social Security Administration indicated that they had been counting the overpayment since November 2016 based on information they collected from my mother in a routine eligibility case review. But, in another exhibit, my mother signed a sworn statement, which reads in part, I hereby certify that Deadname used to pay $200 a month. In August 2016, however, Deadname stopped paying. This was based on a phone conversation she had with an SSA caseworker in early April of 2018. In the recording or transcript, my attorney is heard asking me, ‘Do you agree with your mother’s sworn statement?’ My response to that question was yes. However, in light of having someone else look at the case, I strongly disagree with this statement now. In response to my complaint, my attorney showed great dislike towards the supposed non-lawyer for critiquing his work and telling me what I should do legally and has asked the bar to determine the identity of this non-lawyer to inform them about the bars against practising law without a valid licence. As a consumer, I have every right to seek advice from whomever I want, and my friends are entitled to think whatever they want, but unless they are attorneys, they should always say, That doesn’t sound right. You might want to bring this up with an attorney.

Also, I cannot find any explanation for why the Social Security Administration did not count August, September, or October as being overpaid since both notices clearly said November 2016, contrary to the sworn statements.

 

An SSA caseworker called me on Friday, 17 February 2017 for a routine case review, and, during that call, I told him that I wanted to get a secured credit card, and I asked him if that was going to be an issue for them since the card would be giving me more money. The caseworker reassured me and said something to the effect of, ‘Credit cards are things you have to pay for, so we don’t really need to know about them.’ Based on that statement, I assumed that I did not need to pay my mother since I was then being obligated to pay my credit cards every month.

Note: prior to being notified on 26 April 2018 of the overpayment, no one from Social Security told me outright (either in phone or in writing) that I still had rental obligations, so my mother’s telling me to pay her could be regarded as Hearsay. It is my understanding that some government entities have a standard which articulates that there may be physical, mental, educational, linguistic, or other barriers for not knowing about a code of federal regulation, public law, etc., although one could reasonably argue that ignorance was no excuse. Still, if I had been living on my own, and if I were struggling to pay my rent because of all the medical stuff I was going through, I could have gotten assistance to ensure that I would continue to have a roof over my head. The problem is that I was not able to get this type of assistance because I do not have a formal lease with my mother. Still, I should have had every right to borrow money from her. In fact, this article from Social Security explains that a loan can take on the form of cash, food, or shelter. This is only true if I agree to pay it off at a later date, which I plan to do.
Instead, she told them that she was not charging me rent, but later, she is still demanding that I pay her when I cannot. Bottom line is that my mother had forgiven me to pay rent when she should have loaned that money during the time that I was paying all those bills.

 

I was able to close almost all my debt in early 2018, so, beginning in April, I withdrew two hundred dollars in cash, which came from a credit account, and I handed it to my mother. I was initially going to pay her three hundred dollars a month, as I had said on my 5 March 2018 interview with Social Security, but my mother told me that I did not have to pay her that much. I thought I could pay her back for the time I could not pay her by adding $100 to the $200, but I never ended up paying her the extra amount. I also paid my mother in May of 2018.

 

When I learned that my benefits were being threatened, I doubled my efforts to find ways to save money, get grants, etc. I even set up a mutual funds account with Edward Jones so I would have something to fall back on just in case. At the rate I was going, though, I could only deposit around twenty-five to fifty dollars a month at a time. My mutual funds officially opened in October. Then, as the evidence has shown, I called Money Management International, which is a debt management programme certified by the National FOUNDATION FOR Credit Counselling in July of 2018, and I asked whether I should consider filing bankruptcy, but the counsellor suggested that I begin a debt management plan instead. So, as of December 2019, I have successfully completed that plan and no longer have any debt obligations. As part of the agreement, all my accounts had to be closed, but they were able to lower the minimum payment as well, and it also came at a high price (which you’ll see more of below). I wouldn’t have been able to do this, save for some things I’ve sold in some garage sales last year, combined with the money I’ve saved in my mutual funds, and things I have pawned, I was able to pay off a large amount of debt in a short amount of time.

 

According to the judge’s order, a claimant is eligible to receive SSI, pursuant to 20 CFR. 116.1100, if access to income or other resources are limited. Income is counted on a per-month basis. The more income one has, the less one’s benefits will be. Pursuant to 20 CFR. 416.232, if an individual’s countable income and or resources do not exceed a certain limit, they will have no effect on the individual’s benefits. Later down the page, the judge cites several codes of federal regulations that further detail how income is counted, how it affects a person’s eligibility for SSI, and what is counted as income or resources.

The judge also articulated that in-kind income is counted even though it is not monetary. In-kind income is food or shelter, or something that can be used to meet one’s needs. However, 20 CFR. 416.1130 states that an individual is not receiving in-kind income if said individual is paying the amount equals the market value. The later codes, 20 CFR 416.1131 and 20 CFR 416.1140 explain how in-kind support and maintenance is calculated. This last part is what makes it entirely illogical, as I will outline below.

On pages three and four, the judge has concluded that, based on the hearing and evidence submitted, there was no reason to decide in my favour. The Social Security Administration determined that if I had been receiving help from my mother, then I was no longer eligible to receive the full amount, and that they would take that away from me.

However, upon new developments of the case, one of my former teachers of the visually impaired, who I’ve spoken to in October 2019, and who is not an attorney, although they had connections to attorneys because of their own legal issues, suggested that if an individual is not able to pay rent for any reason, then one must either borrow money from somebody else, or get evicted. ‘Since my mother did not evict me, it means that she is still expecting me to pay back the money that I owe. So, by willingly telling the Social Security Administration that I had not been paying rent, it meant that she made the situation worse for her because she is ultimately getting less money from me each month. Therefore, I think that if she have had legal representation, the attorney would’ve advised her not to sign whatever Social Security had sent her, but rather, instead sign a different sworn statement saying something like, I hereby certify that Deadname is on loan for the amount of $3,800 for the time period of August 2016 through March 2018, and there would’ve been a different outcome to the case. The Social Security Administration would have requested evidence of a loan or rental agreement and proof that I would indeed pay her back. The problem is that there are not many attorneys who are fluent in Spanish, and interpreters are not always available. In response to my complaint where I said that I felt like we had not made a strong enough argument, my attorney said that he could not have seen any way to win except perhaps by outright lying under oath.

When I told my attorney about my new argument, he said that it obviously put the judge’s decision in conflict with SSI benefits, but it made sense in the same way. The judge articulated that SSA cannot or should not impose a repayment plan that would undermine the intent of the system. They are only using this as an excuse to take back the money they are calling overpaid simply because of a sworn statement signed by my mother when she needs that money more than they do. Still, he agreed that although my case might as well be entirely hopeless, the decision made against me was still basically offensive to a larger sense of decency. For that reason alone, he invited me to submit a supplemental testimony, which did no good because it did not change the underlying facts of the case or raise any new issues of law. He said that he submitted my supplemental testimony electronically, but I got no notice of this, and it wasn’t included in the exhibits provided by the Appeals Council, so I had no way of knowing whether it was received or reviewed.

 

So, when I got the letter of adverse action from Social Security on 26 April 2018, I immediately faxed it to my LegalShield provider firm, which I have had since 2012, thanks to my former teacher. The attorney who was assigned to my file asked me why my mother would do such a thing. I told her that she was probably afraid of committing fraud. She then said this: Doesn’t she know how to be sophisticated? I did not know what the attorney meant by that, but there would be a time when I wish I knew. My mother, not knowing how much this would hurt me financially, was very intimidated by Social Security’s strict policies that she thought what she did was right. Therefore, I am not blaming her for what she did, but I hope that this will be a lesson that we can all learn from. My attorney could have taken a chance to make this a high profile or landmark case. It only takes one person to change the rules, and my mother could’ve just kept her mouth shut.

 

Thus, I am proposing to settle the debt with my mother by using forgivable loans or rental assistance grants, so that I can put this behind me and move on with my life. I am also actively working to reestablish my credit history after I closed all my accounts before legally changing my name. This has made it virtually impossible for me to get the needed loan or credit to pay back my mother right away because I lost almost two years of historical information that would’ve helped me attain a good loan offer, but I want to get the satisfaction of turning the tables on Social Security for subsequently making my life worse by providing them with the new evidence. I have spent a little over six months disputing with the credit bureaus (with help from the Consumer Financial Protection Bureau) to get them to migrate and merge my reports together. I might have to work with a loan officer or credit analyst. The good news is that I got approved for an unsecured credit card with a very low credit limit, so hopefully within a year, I’ll have proven myself to be creditworthy again to get the needed amount to pay back the rent.

Also, considering some historic events that started in early March, the world is currently experiencing a pandemic of the Corona Virus Disease of 2019 (COVID19.) This has consequently shifted the entire social, political, educational, economic, and any other imaginable landscape in a new direction. As such, local, state, and federal governments, and various nonprofit organisations, have started issuing stimulus packages and economic impact relief payments to eligible recipients while they continue to practise physical distancing and self-quarantine. Another thing my attorney said in his response to my complaint was that although he agreed that my case was grossly unfair given the extent of my disability, American society has always been grossly unfair, and he’s had several clients die while waiting for their hearings. For this reason, I feel that the novel corona virus is Karma’s way of punishing our society for bearing ill will towards its weakest members because the United States has always acted like a spoiled brat. Congress has even proposed a rent and mortgage forgiveness act, which I hope passes. This would make my and anyone else’s life easier during these trying times. Still, because my brother and I are adult dependents, we were not eligible to receive the stimulus cheque, so I called my senator’s office to talk to them about it.

If I were still a kid, or if my mother had legal custody of me as an adult, she would have every right to withhold any amount of money to take care of me, and I would have no control over it. If I had a job, or if my business was successful, and I was making lots of money, that’s another thing. But since neither is the case, I shouldn’t be forced to give up what little money I have and still try to make ends meet. And because I’m not paying utilities in addition to the rent, my SNAP benefits are below what most individuals living on Section Eight would get. My mother could have gotten a better job, gotten a degree, and have been able to provide me with the best things in life. In fact, there is a special needs trust which articulates that disabled people are entitled to have as much right (no more, no less) as anyone else, to experience life’s luxuries and basic needs for the purpose of maintaining good self-esteem. That’s why I look forward to the day when one or both of my parents retire so that my brother and I can get Disabled Adult Child Programme benefits. I will then invest in an ABLE (Achieve a Better Life Experience) or a IDA (individual development account).

Following the letter that I received from the Social Security Appeals Council’s denial of the case on Friday, 29 November 2019, I believe that my attorney was not able to submit my new argument in time. I also wonder how something so obvious was so easy for him to miss that he failed to see it. According to the complaint, he said that at the beginning of the consultation, he hesitated to take on my case because the chance of prevailing was virtually impossible to achieve. He only agreed to do it as a favour for the public good I.E. pro-bono. This is the main reason attorneys almost never take on overpayment cases because they almost never win.

 

In conclusion, I ask that the district judge require the Social Security Administration to return:

  1. The total amount collected for overpayment equalling approximately $1,196 as of December 2019.
  2. Redetermine the market value and return approximately $2,680.

These figures should amount to $3,876.

 

Given all the circumstances of my severe medical and financial hardship, and all the evidence in this case detailing those incidents, as well as how much time and energy I’ve spent to challenge the decision and the fact that we are now all in this together because of the pandemic, I am asking for the federal district court’s review of the administrative law judge’s decision, as well as the denial of the council’s review, so that my benefits can be restored to their original state, and that my mother is paid for the time that I should’ve been paying her. I also think my attorney deserves some compensation for his time, as well.

The Social Security Act was signed into law in 1935 to prevent abject poverty, and, by continuing to steal money from me each month because of a mistake, the Social Security Administration is also stealing money from my mother, as well, so it would defeat that purpose. My attorney even said that ‘stealing money from a blind person because of a mistake’ was strong language, but he hoped that by saying that, it would have influenced whoever was reading my supplemental testimony.

Furthermore, it would be against equity and good conscience to continue withholding any amount of overpayment because I depend on my benefits for food, clothing, transportation, and other necessities. I know that it is their money, and that they technically have every right to withhold any amount that they feel is negotiable, but it is only because of what evidence they have. Therefore, I personally believe that my mother deserves the money more than Social Security does because it would have helped her with the bills and other things. I will eventually be filing a plan to achieve self-support, as well.

Regardless as to whether I can get this decision overturned, I may report to the media, especially to someone who works on matters of consumer advocacy based on advice my friend has given me, who is big on journalism concerning financial affairs and rights protection. I was forewarned by some people (who are not attorneys) that I could get in trouble for doing so, but I think not, because I will be exercising my first amendment right to freedom of speech and freedom of press, the freedom to assemble, and the right to petition congress, which I will no doubt do if I cannot get anywhere through the administrative or legal system. Also, I would technically not be libeling or slandering the Social Security Administration, for I would be presenting evidence that would err any of the opposition’s rebuttals. Their answer would have to be, ‘No comment.’ It will make them look bad in the media that it will hopefully lead to an internal review of their policies, and that is what I will need to win. Plus, I believe that there are some whistleblower laws enacted by Congress, which prevents any entities from retaliating against you for exposing them. I also believe that if I share my story with one person, and if that one person were credible, then most people would be more likely to listen to that one person because of their credibility. Another thing that might count against me is that because a lot of this was taking place before I legally changed my name, all the evidence is currently listed under my Deadname. As someone who has undergone several traumatic experiences, I want to have nothing to do with this name, in public or otherwise, but unfortunately, it cannot be changed because it would degrade the value of the evidence. So, before I allow the media to publish my story, I will make sure they address me by my correct name and pronouns, and also blot out any documents containing my old name and pronouns on my terms, not theirs. Likewise, I have asked the bar to refrain from publishing my complaint, or at least removing any references to my Deadname.

Despite others telling me to just let it go, I refuse to put it at rest until something is done about it. I personally feel this is a battle worth fighting for, even if it takes a lifetime to do it. Or I could just drop the ball for now and just pay my mother $300 and have SSA pay me the full amount minus the minimum sum needed to collect on the overpayment even though my mother would be the one losing the money. Then I will come back to it a year later when I have built up to the required amount in credit. It will sort of be like a form of psychological warfare. The good news is that there are no statutes of limitations, so I can take as much time as I need to accomplish this.

 

Thank you for your time and consideration.

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