Social Security Benefits

DHS Employees May Be Incompetent

DHS Civil Servants May Be Incompetent

One of the major reasons the Department of Homeland Security may be doomed is because the rank and file civil employees may be incompetent for the jobs they are trying to perform. The Senior Executive Staff was filled by professional job-hoppers from other agencies looking for a raise in pay and another career enhancing paragraph on their resume’ or curriculum vitae. Today the DHS appears to be a bloated  and mismanaged bureaucracy of marginally qualified civil servants.
How were the top DHS positions filled? It was Ruling Class cronyism, favoritism, and nepotism. And in a few isolated cases, it may have been some affirmative action.
In the case of  Carmen H. Walker, Deputy Officer for EEO Programs, Office of Civil Rights and Liberties, it may have been a combination of all four, because she certainly was not qualified to render the decisions that she made. The most egregious was in the Case of Cadet Webster Smith.
It took a long time for the Dept Homeland Security, Office of Civil Rights to make a decision on the Webster Smith Discrimination Complaint. Webster Smith received a fatal blow from Ms Carmen Walker, the Deputy Officer for EEO Programs in the Department of Homeland Security. That decision was the death knell for Cadet Smith in his fight to get justice from the Coast Guard Academy and the Coast Guard?

Carmen H. Walker, Deputy Officer for EEO Programs, Office of Civil Rights and Liberties, in her 20 August 2007 letter said that because Webster Smith was court-martialed, he could not have been discriminated against, as a matter of law. Well, that was just flat out patently wrong. A court-martial does not bar a civil rights action. The court-martial was just one act in a chain of events, each of which constituted racial discrimination. The same set of facts could have given rise to actionable relief in different arenas. The several discriminatory actions taken against Webster Smith before he was even charged under the UCMJ were completely separate and distinct from any possible legal errors that were committed during the course of the court-martial.
Only the legal and procedural errors committed by the prosecution at trial were the subject of the appeal to the Coast Guard Court of Criminal Appeals. The decision by Ms Walker was the dumbest decision I had ever seen, and the shortest. There was more meat on the shadow of the chicken that died of starvation than in her Report. There were no Findings of Fact. There were no Conclusions. There was no Rationale, or any reasoning whatsoever. There was nothing in the Final Report to show how she had arrived at her decision. No comparisons are made with any other cases or sets of facts.The Report and her decision simply defied reason and logic.

H. Jerry Jones, the Coast Guard’s director of the Office of Civil Rights in Washington D.C., authorized an inquiry Dec. 7, 2006  into whether former cadet first class Webster Smith was treated differently during the investigation into his case than others who had committed similar offenses.
After reviewing Smith’s complaint, Jones dismissed 16 separate claims but authorized an investigation into the alleged inequity of treatment, headquarters spokesman Commander Jeff Carter said Dec. 15.
The Coast Guard hired JDG Associates Inc., a San Antonio-based consultant company that specializes in equal opportunity and civil rights issues, to examine the complaint, Carter said.
Carter explained that the Coast Guard does not maintain a large Equal Employment Opportunity Commission staff and needed to hire the firm to ensure fairness.

Consistent with 29CFR 1614.107(b) when an agency dismisses some but not all of the claims in a complaint, the dismissed claims will not be investigated and the dismissal is not immediately appealable. The Department of Homeland Security was supposed to review them together with the Report of Investigation when it prepared the Final Agency Decision (FAD) on the accepted claims. It does not appear that Ms Walker did anything remotely comparable to that. She did not appear to have followed the letter or the spirit of the Regulation, 29CFR 1614.107(b).

Webster Smith has the right to request reconsideration of the FAD, including the dismissal determination if it had been sustained. It appears that Ms. Walker did that by default. Even though the dismissed claims were not processed as discreet and separate claims, the information regarding the dismissed claims were required to be used as evidence during the investigation of the accepted claim. Ms. Walker certainly could not have done that.
However, it is hard to tell just what Ms Walker did, if anything. She gave very few clues as to what she did, if she did anything. She could have flipped a coin, or rolled the dice for all we know. The FAD is brief and uninformative. It gives very little insight into the inner workings and hidden mechanisms of her mind.
Ms Carmen Walker was faced with a living room full of pink elephants. She chose to ignore all of them. She ignored what would have been obvious to even a child, and instead she grasped at two invisible straws. She chose to hang her hat on a technicality that has proven to be a gross embarrassment to her and the Department of Homeland Security.

It looked like Ms Walker had not looked at the complaint since it first had arrived on her desk. She must have noticed that the First Anniversary of the filing of the complaint was fast approaching. On 5 September, it would have been one year since the complaint had been filed. Ms Walker was required by Agency Regulations to provide Webster Smith with a copy of the investigative file, to notify him in writing that he had a right to request a hearing and a decision from an administrative law judge (ALJ) or to request an immediate final decision from the agency (29 CFR 1614.110). Ms Walker’s Final Decision looked like nothing more than a half-hearted attempt to avoid letting the 360 day period run out without taking the required Agency action.

Oscar Wilde said that the easiest way to get rid of a temptation is to yield to it. Ms Walker obviously believed the easiest way to get rid of a complaint was to simply say that it did not state a claim for which relief could be granted.

In her decision no evidence was evaluated. Statements were taken by the Investigating Officer, but no Facts were deduced. There were two apparently implied facts: One, that Webster Smith had been in the military; and, Two, that he had been court-martialed. From those two apparently implied facts, Ms Walker concludes that Webster Smith’s Discrimination Complaint failed to state a claim for which relief can be granted.

If Webster Smith had been trying to overturn his court-martial conviction by filing a civil rights complaint, then he would not have filed an appeal to the Coast Guard Court of Criminal Appeals. That is a separate action. It is designed to remedy the errors committed during and after the court-martial conviction.

The Court of Criminal Appeals has no jurisdiction to render a finding concerning whether Webster Smith was discriminated against when he was forcefully removed from Chase Hall at midnight in December 2005 by Coast Guard Intelligence, or when he was prevented from attending class, or when he was made to work on the boat docks in June 2006, or when he was forbidden to speak to any other classmates or cadets, or when he was forbidden to go within 100 yards of Chase Hall. Moreover, it was discrimination when a press release was distributed to the media with his photograph calling him a sexual predator and saying that his presence created an intimidating environment in Chase Hall. All of these prohibited actions occurred long before a charge sheet was drawn up, and well before a court-martial was convened and most certainly before a verdict was rendered. On these acts alone Webster Smith was discriminated against because of his race. These all occurred long before the court-martial and the other related acts occurred.
The Court of Military Review is a military forum and can only give a military remedy. It has no jurisdiction to give relief in the administrative, employment area.  The Coast Guard Court of Criminal Appeals, established under Article 66, UCMJ, by the Judge Advocate General is composed of the Chief Judge and not less than two additional appellate military judges. The judges may be commissioned officers or civilians. The Coast Guard Court of Criminal Appeals is currently composed of six appellate judges organized in panels of three for consideration of referred cases. All but the Chief Judge have other primary duties, so that their service on the Court constitutes a collateral duty. In general, the Court reviews and acts on the records by affirming, reversing, or modifying in part the findings or sentence in each case of trial by court-martial in which the sentence, as approved, extends to death; dismissal of a commissioned officer or cadet; dishonorable discharge; bad conduct discharge; or confinement of one year or more. The Court also reviews other courts-martial with lesser sentences if the Judge Advocate General so directs. Also reviewed by the Court are petitions for extraordinary writs, petitions for new trial which have been referred to the Court, and appeals by the United States under Article 62, UCMJ.
That is why there is a civil rights complaint procedure. It is designed to address those areas where one has been treated differently than others based on his race, or sex.
In a perfect world, Ms Carmen H. Walker’s actions alone would have done irreparable harm to an innocent man, but this is not a perfect world; and, Ms Walker may have had her strings pulled by others. Her actions and decisions had a snowball effect.

The Day newspaper in an article written by Jennifer Grogan on 9/11/2007 reported that “The U.S. Department of Homeland Security has ruled that Webster Smith was not discriminated against on the basis of his race when he was court-martialed for sexual assault last summer.” That was not true, nor was it correct.

She reported that “The Smiths declined to comment.” That was true; however, after the Smiths saw what she had written, they had plenty of comments. Mainly, they commented that Ms Grogan’s article was not correct. And they were right. The Day was forced to print a correction on 9/12/2207. As one might expect, the CORRECTION was not as conspicuous, nor as easy to locate as the first blatantly erroneous article. The damage had been done. As Webster Smith’s mother, Belinda, said”After the article has gone nationwide with the Associated Press, they quietly corrected the article but the damage was done.”
The Day, unlike the Navy Times, printed an article short on facts, but long on quotes from the people who had slandered Webster Smith, and who were trying to save face. The same people who tried to label Webster Smith as a sexual predator and released his private cadet photograph to the news media to be beamed around the world.
At the Coast Guard Academy,” Chief Warrant Officer David M. French, an Academy spokesman, on Monday, 10 September, was quoted as saying “We feel the Department of Homeland Security’s final decision on the civil rights complaint from Webster Smith validates the Coast Guard Academy’s actions in this matter as appropriate.”

The CORRECTION buried in the B Section of The Day simply said “The U.S. Department of Homeland Security denied a discrimination claim filed by Webster Smith, a black man expelled from the U.S. Coast Guard Academy following his court-martial for sexual assault. The department ruled that the complaint was not filed in the appropriate forum.”

To deny a complaint and then to give 30 days for one to appeal the denial, is a long ways from saying there was no discrimination. There has not yet been a decision on the ultimate issue of whether Webster Smith was a victim of racial discrimination. Here it is eight years later and justice has not been done in the Webster Smith Case. If a few of the people in the Department of Homeland Security had been marginally qualified, or had simply performed their jobs properly, this might have ended differently. As it is, the Case of Webster Smith remains An American Tragedy.
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Social Security Administration Pays Lip Service To Disabled Veterans

Social Security launches new expedited disability process for veterans

Carolyn W. Colvin, Acting Commissioner of Social Security, today announced the launch of a new disability process to expedite disability claims filed by veterans with a Department of Veterans Affairs (VA) disability compensation rating of 100% Permanent & Total (P&T). Under the new process, Social Security will treat these veterans’ applications as high priority and issue expedited decisions, similar to the way the agency currently handles disability claims from Wounded Warriors.

“We have reached another milestone for those who have sacrificed so much for our country and this process ensures they will get the benefits they need quickly,” said Acting Commissioner Colvin. “While we can never fully repay them for their sacrifices, we can be sure we provide them with the quality of service that they deserve. This initiative is truly a lifeline for those who need it most.”

“No one wants to put America’s veterans through a bureaucratic runaround,” said Maryland Congressman John Sarbanes, a leading proponent for increasing assistance to veterans. “As the baby boomer generation ages and more veterans of the wars in Iraq and Afghanistan need care, this common sense change will help reduce backlogs and cut through unnecessary red tape so that our most disabled veterans receive the benefits they’ve earned.”

In order to receive the expedited service, veterans must tell Social Security they have a VA disability compensation rating of 100% P&T and show proof of their disability rating with their VA Notification Letter.

The VA rating only expedites Social Security disability claims processing and does not guarantee an approval for Social Security disability benefits. These veterans must still meet the strict eligibility requirements for a disability allowance.

The Acting Commissioner is doing nothing more than giving lip service to disabled veterans in this announcement. This is an empty promise. It is a carrot on a stick. It is a distinction without a difference. This is just a lot of hot air. This will not reduce backlogs and cut through unnecessary red tape. It will have little or no influence on the 1500 Social Security Administration  Administrative Law Judges, many of whom are not veterans and have no sympathy for the disabled veterans. In almost 20 years as a SSA ALJ I never heard more than one or two express anything more than contempt for the military and veterans. When Viet Nam disabled veterans came in for disability hearings they were not given any compassionate consideration. There are a lot of draft dodgers from the 1960s in the ALJ corps. A lot more women are coming into the ALJ corps; many are anti-military.

The requirements for getting benefits have not changed. In order to receive the expedited service, veterans must tell Social Security they have a VA disability compensation rating of 100% P&T and show proof of their disability rating with their VA Notification Letter. It is very difficult for a veteran to get a 100% Permanent and Total Rating. The Acting Commissioner was honest enough to say that “The VA rating only expedites Social Security disability claims processing and does not guarantee an approval for Social Security disability benefits. These veterans must still meet the strict eligibility requirements for a disability allowance.”

Putting the best face possible on this, what the Acting Commissioner has done is promise to provide the the wounded warriors with the quality of service that they deserve. BUT, they should have been getting that all along. That would have been the professional thing to do. So, I ask you, what has changed?

For information about this service, please visit


For more about Social Security’s handling of Wounded Warrior’s disability claims, please visit

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It Is Getting Harder To Get Social Security Benefits. The Hearing Backlog Is Growing again.

Social Security Disability Hearing Backlog Growing Again

 Number of people waiting in the hearing backlog approaches 1 million.

If your application was denied and you must appeal your SSDI benefits claim, it’s important to avoid waiting to file and get help.  The Back Log of people waiting to attend a hearing for Social Security Disability Insurance (SSDI) benefits is growing closer to 1 million.

As of December 2013, there were 903,720 people who had filed an appeal and were waiting for a hearing before an administrative law judge (ALJ). , according to  data released by the Social Security Administration (SSA).

This is a nearly 7 percent increase from 847,984 hearings pending at the end of fiscal year 2013, and a 17 percent increase from 771,318 hearings pending in FY 2011.

As the waiting time grows longer, more and more people are enduring significant financial hardship to receive SSDI benefits through a program they paid into through FICA taxes while they were working.

The first-quarter FY 2014 data also shows that the time it takes to get a Hearing has increased to 393 days from 382 days in FY 2013.

Click here to see a state-by-state ranking of pending hearings, based on an analysis of SSA data.


The growing Social Security disability Backlog illustrates the challenges of meeting the SSA’s goals outlined in its FY 2008-13 Agency Strategic Plan.

Social Security had planned to reduce the hearing Backlog to 466,000 claims and the average processing time to 270 days, but a number of factors have worked against this.

Restricted funding has led Social Security to cut the hours its Hearing Offices are open to the public. In addition, the average wait time for calls going to the SSA’s national 800-number have increased. Since September 2010, the SSA has lost more than 7,400 employees from its workforce, according to the U.S. Office of Personnel Management (OPM).

At the same time that waiting times are growing to get a Hearing, it’s becoming much more difficult to receive SSDI benefits.

For example, the SSA reported that 89,332 people were granted benefits in December 2012. A year later, that number was reduced to 61,983 in December 2013, a 30 percent decline.

SSDI is a federally mandated insurance program that provides monthly benefits to individuals who are under full retirement age (65-67) and who can no longer work because of a severe, long-term or terminal disability. FICA payroll taxes paid by workers and their employers fund the program, which is administered by the SSA.

You Need Help When Filing An SSDI Appeal

Things To Consider When Applying for SSDI benefits.

1.    Consult An Attorney. Those who applied for Social Security Disability Insurance benefits without a representative have the opportunity to get help with a disability appeal. At the hearing level of the SSDI program, nearly eight in 10 applicants have a representative.

2.    Appeal Every Thing. When people apply for SSDI and are denied benefits, they may decide to give up on their application. It’s important to pursue a disability appeal because delaying or missing important dates can hurt someone’s claim. For instance, those who decide to wait and apply later may wait too long and become uninsured. The SSA requires individuals to be fully and currently insured in order to receive SSDI benefits. Generally, this means having a work history of five out of the last 10 years—and waiting too long could mean missing this window.

3.    Provide documentation and details. It may take the SSA two years or longer to review an SSDI claim through the appeals process, which points to the importance of good documentation. Continue to work closely with your doctors to document updates, new tests and test result. It’s also important to correct any errors, explain changes and provide more detail with your SSDI appeal.

More than 168,000 people applied for SSDI benefits in December 2013 and entered the growing line for review of their disability insurance claims.

It is important for new SSDI applicants to realize they need expert help with their application. That expertise and attention to your claim can result in benefits as early as your initial application. That means avoiding disability appeals altogether.


Find more information about SSDI disability appeal see


(Statistics Source: ALLSUP) ABOUT ALLSUP :

Allsup is a nationwide provider of Social Security disability, veterans disability appeal, Medicare and Medicare Secondary Payer compliance services for individuals, employers and insurance carriers. Allsup professionals deliver specialized services supporting people with disabilities and seniors so they may lead lives that are as financially secure and as healthy as possible. Founded in 1984, the company is based in Belleville, Ill., near St. Louis. For more information, go to or visit Allsup on Facebook at


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Big Fraud In The Big Apple

                                                                          (There are worms in the Big Apple.)

The Big Apple does everything in a big way. The Great White Way leads the world in live stage entertainment on and off  Broadway. The World Champion New York Yankees and the New York Knicks set the pace for world class sports entertainment. The New York Times, was the Queen of the Tabloids. The Wall Street Journal is the standard for world financial reporting.

New Yorkers like to do things in a big way; but, when it came to defrauding the Social Security Disability Program,  New York’s Police and Firemen have out-done themselves.

New York tabloids are having a field day with the news that dozens of ex-cops have been charged with scamming as much as $400 million in Social Security disability benefits. The bigger outrage is that this grand taxpayer theft went undetected for over two decades (25 years) and is merely part of the national scandal that the disability program has become.

Manhattan District Attorney Cyrus Vance Jr. this week charged 102 retirees, including 80 former New York police officers and firefighters, with making phony disability claims since as far back as 1988 to obtain Social Security benefits and tax-free pensions equalling up to 75% of their pay.

About half of the cheats attributed their “disabilities” to the World Trade Center disaster on  9/11, even if they never even worked at Ground Zero. 

Heading the alleged racket were 64-year-old retired cop Joseph Esposito and 61-year-old detectives’ union consultant John Minerva. They recruited and then directed disability applicants to Raymond Lavallee, an 83-year-old former Nassau County prosecutor, and 89-year-old Thomas Hale who assists disability applicants. They are alleged to have acted much like college counselors, except their jobs were to make their clients look inept.

The group’s suspected ringleaders — retired officer Joseph Esposito, 64; detectives’ union disability consultant John Minerva, 61; lawyer and former FBI agent and suburban prosecutor Raymond Lavallee, 83; and benefits consultant Thomas Hale, 89. Messrs. Hale and Esposito allegedly coached applicants to feign psychiatric impairments by failing memory tests, dressing shabbily, and describing symptoms with statements such as “My [family member] is always after me about my grooming.” Many said they couldn’t leave the house except for short walks.

They claimed all this even as they have active lives and second careers. One ex-cop who claimed to suffer from post-traumatic stress syndrome (PTSD) posted a YouTube video of himself teaching karate. Was he trying to make the cut for “America’s Dumbest Cops”?

{(Glenn Liebermann, shown above, received $175,758.40 in benefits. (Image source: NY Manhattan District attorneys Office)}

{(Richard Cosintino, shown above, is seen on a boat sword fishing. He received $207,639.70 in payments. (Image Source: NY Manhattan District attorneys Office.)}

Online photographs showed others riding motorcycles and jet skis, which we doubt passes as physical therapy.

The four ringleaders allegedly charged a flat fee that ranged from $20,000 to $50,000 per applicant. Mr. Lavallee also received $6,000 per applicant in attorney’s fees from the Social Security Administration.  He must really be enjoying his Golden Years.

Prosecutors say two doctors have also been arrested for allegedly agreeing to falsify claims in return for a cut of the disability benefits.

Mr. Vance says the 102 indicted retirees collected on average $210,000 in benefits.

Since most are still in their 40s or early 50s, each could have extracted hundreds of thousands more had the racket continued. One alleged fraudster is only 32 years old. Mr. Vance says as many as 1,000 people may have been involved in the scheme, and the investigation is continuing.

What’s remarkable about all this is that it’s merely an extreme example of what has been happening across the country. Oklahoma Senator Tom Coburn’s Committee on Homeland Security and Governmental Affairs issued an amazing report last October describing how a Kentucky-based disability law firm colluded with a Social Security Administration’s (SSA) Administrative Law Judge (ALJ) David Daugherty to abuse the program. The report says that disability attorney Eric Conn employed attractive women to recruit applicants and hired doctors with records of ethical problems to falsify medical opinions.

He then steered his clients’ applications to ALJ David Daugherty. Administrative law judges re-evaluate de novo applications that have been rejected. Some like Judge Daugherty have a reputation for being “intellectually lazy,” to quote his professional colleagues. Judge Daugherty approved benefits in more than 99% of cases compared to a program-wide average of 62%, which is dubious enough. Between 2005 and 2011, he awarded an estimated $2.5 billion in lifetime benefits—while rarely being in the office.

Two women who worked in the SSA’s West Virginia office have filed a civil suit against Mr. Conn and Judge Daugherty. Mr. Conn responded in a statement that “it is noteworthy that the U.S. government studied the lawsuit for a year and a half and decided not to join it or get involved” and that “I have always tried to represent my clients in the best and most appropriate way possible, within all the laws and rules.” Neither man would answer questions at a Senate hearing in October 2013.

The gist of the Senate report is that the SSA’s  disability program (SSDI) has vague criteria for qualifying and lacks even the barest oversight, which makes it ripe for abuse. ALJs decide cases independently and are virtually immune to disciplinary action. Politicians enable the fraudsters by denouncing anyone who proposes a fix as an enemy of the disabled.

The truth is that opponents of reform are the ones hurting the truly disabled. The charts pictured above show how disability claims have exploded—to 8.9 million last year from 5.9 million in 2003 and 2.7 million in 1985. Not coincidentally, that is the year Congress relaxed eligibility standards to make it easier for people reporting pain, discomfort and mental illness to qualify for benefits. Like the jet-skiers in New York.

The second chart shows that all of these claims are bleeding the Social Security disability trust fund, which paid out $137 billion in benefits in 2012 or nearly twice as much as a decade ago. Without reform, the fund is on track to go broke in 2016, triggering either a 20% cut in benefits for all recipients or one more taxpayer bailout.

You’d think that fixing this mess would be a Washington priority, but Mr. Coburn and a few others are voices in the wilderness. Instead the country is treated to a political game over extended jobless benefits that might even be affordable if the Obama Administration cared a whit about stopping disability fraud. The polls say public trust in government is falling to new lows, but judging by the open secret of disability insurance scams it isn’t nearly low enough. (WSJ, Opinion, p.A12, 10 Jan 2014)


NYPD, FDNY members cashed in on bogus 9/11 woes as part of massive $400M Social Security fraud: prosecutor

Dozens of former cops and firefighters claiming 9/11 trauma were among the 106 indicted for gaming the Social Security disability system to take early retirement and leech off the taxpayers, authorities said.*” width=”635″ height=”480″ />

Photo from Facebook page of Glenn Lieberman, who is accused of participating in a Social Security disability scam to the tune of $175,758.40 according to the Manhattan DA’s office.

They spat on the memory of the real victims of 9/11.

Dozens of former city cops and firefighters used the 2001 terror attacks as an excuse to fund carefree lifestyles on the taxpayer’s dime, authorities said Tuesday.

The former NYPD and FDNY members — who claimed to have suffered stress-related woes from the World Trade Center attacks — were among 106 people indicted for a longstanding Social Security disability scam, officials said.

A former Brooklyn cop, Glenn Lieberman, 44, became the unwitting poster boy for the sprawling ripoff ring, which includes 71 other retired city cops, eight former firefighters and five ex-correction employees.

Lieberman, accused of being part of the crooked crew that soaked taxpayers for $21.5 million, showed his contempt in an undated photo released by prosecutors with a sick grin and two extended middle fingers.

The alleged ringleaders of the disability scam that dated back to 1988.

Joe Marino; Jefferson Siegel/New York Daily News

The alleged ringleaders of the disability scam that dated back to 1988.

He and the former cops and firefighters were coached by ringleaders to act dysfunctional and steered to shady doctors who helped green-light disability payments of anywhere from $30,000 to $50,000 a year, the 205-count indictment charges.


“I can only express my disgust at the actions of the individuals involved in this scheme,” Police Commissioner Bill Bratton said.

He said he was particularly chagrined that 72 former members of the NYPD “disgraced themselves, embarrassed their families.”

“The idea that many of them chose the events of 9/11 to claim as the bases for this disability brings further dishonor to themselves,” Bratton added.

NYPD retiree Richard Cosentino felt good enough for marlin fishing in Costa Rica.

NYPD retiree Richard Cosentino felt good enough for marlin fishing in Costa Rica.

Manhattan District Attorney Cyrus Vance Jr. suggested there might be additional indictments beyond those announced Tuesday by the time they wrap up the probe. The scammers operated from January 1988 until last month, and some 1,000 people filed fraudulent claims for as much as $400 million, Vance said.

The suspects flaunted their money and carefree lifestyle on social media, apparently never dreaming they would be caught.

“The brazenness is shocking,” said Vance.


Take Lieberman, an ex-Brooklyn South Gangs officer who quit the force in 2006 after 19 years on the job and collected $175,758.40 in disability payments based on a bogus claim of having a psychiatric disorder, prosecutors charged.

Surveillance photo shows Darrin Lamantia, a cop who retired on a disability claim, playing basketball.

Surveillance photo shows Darrin Lamantia, a cop who retired on a disability claim, playing basketball.

But the ex-cop, who now lives in Palm Beach, Fla., doesn’t look like a tortured soul as he sits on a Jet-Ski and flips a pair of birds in the photo.

Lieberman, who is charged with second-degree grand larceny and criminal solicitation, could not be reached for comment. He faces up to 15 years in prison.

But he was not the only suspect who lived the good life thanks to the fraudulent payments, officials said.

Vincent Lamantia, 43, a retired NYPD officer, used the $150,000 in disability money he collected between May 2010 and June 2013 to “fund his lifestyle,” Assistant District Attorney Bryan Serino said.

“He bragged about what he was doing in a series of YouTube videos,” Serino added.

Workers sift through the pile of rubble at the World Trade Center after the 9/11 terror attacks.


Workers sift through the pile of rubble at the World Trade Center after the 9/11 terror attacks.


Richard Cosentino, a 49-year-old retired NYPD officer who now lives in New Hampshire, posted a photo of himself on Facebook with a massive marlin he caught.

“It was an awesome day off the coast of Costa Rica,” he wrote on Sept. 11, 2012, while many New Yorkers were marking the anniversary of the terror attacks.

Prosecutors say Cosentino stole nearly $208,000 between May 2008 and June 2013. He appears happy and functional in his picture.

Louis (Shidoshi) Hurtado, a 60-year-old former NYPD officer, has collected a whopping $470,395.20 since June 1989.

This flow chart provided by the Manhattan District Attorney's Office shows the layers of the scam and the alleged ringleaders.

This flow chart provided by the Manhattan District Attorney’s Office shows the layers of the scam and the alleged ringleaders.

But being diagnosed with psychiatric problems didn’t stop him from running his own mixed martial arts school outside Tampa and boasting on its website about serving as a “personal bodyguard” to stars including Sean Connery and James Caan.

Prosecutors said the four ringleaders of the scheme should have known better.


Raymond Lavallee, 83, of Massapequa, L.I., accused of being the brains of the operation, is a former FBI agent who once ran the rackets bureau at the Nassau County DA’s office.

Thomas Hale, 89, of Bellmore, L.I., who allegedly served as Lavallee’s right-hand man, is a pension consultant.

Civilian worker Joseph Morrone (center) helps dish cannolis at the San Gennaro festival.

Civilian worker Joseph Morrone (center) helps dish cannolis at the San Gennaro festival.

Joseph Esposito, 64, of Valley Stream, L.I., a retired New York police officer, allegedly recruited many of the crooked cops and firefighters.

And John Minerva, 61, of Malverne, L.I., also allegedly steered people into the scam. He has been suspended from the Detectives Endowment Association.

The four alleged ringleaders are charged with first- and second-degree grand larceny and attempted second-degree grand larceny. Each faces up to 25 years in prison if convicted.

Esposito said nothing when he turned himself in earlier Tuesday.


John Stefanowski, an ex-cop, loves golf.

John Stefanowski, an ex-cop, loves golf.

“While these are serious allegations, we were aware that they were coming,” his lawyer, Brian Griffin, said. “We did not avoid them.”

The lawyers for the other accused ringleaders protested their clients’ innocence.

Minerva’s lawyer, Glenn Hardy, said: “My client’s involvement in this scheme was minimal at best.”

Joseph Conway, who represents Hale, said his client was a “decorated World War II veteran.”

“For the last 30 years, he’s run a legitimate consulting company,” Conway said. “He vehemently denies any wrongdoing.”

John Famularo, an ex-Finest and motorcycle enthusiast, is accused of taking more than $340,000 in the scam.

John Famularo, an ex-Finest and motorcycle enthusiast, is accused of taking more than $340,000 in the scam.

Lavallee’s lawyer, Raymond Perini, said his client is a Korean War vet and former G-man who investigated organized crime in New York and Miami.


“He’s denied each and every allegation,” Perini said.

In an 11-page bail letter addressed to Justice Daniel Fitzgerald, prosecutors said cops seeking to claim a disability would seek out Esposito or Minerva, who would then steer them to Hale and Lavallee.

But it was Esposito who “coached” the applicants on what to say to doctors and urged them to “pretend” to have “panic attacks.”

NYPD Commissioner Bill Bratton said he can only express his disgust over Social Security scheme.


NYPD Commissioner Bill Bratton said he can only express his disgust over Social Security scheme.

“You’re gonna tell ’em, ‘I don’t sleep well at night,’ ” Esposito was caught on a wiretap telling one defendant, Jacqueline Powell. “I’m up three, four times.”

Esposito and the other ringleaders got a kickback for every patient diagnosed with a stress-related illness, prosecutors charged. So did at least two doctors who were part of the scam.

None of the doctors involved has been named or indicted but they could face charges at a later date, officials said.

The DA’s office took on the probe after a Social Security official noticed a series of applications that all seem to be written with the same hand and that all had similar diagnoses.

The NYPD Internal Affairs Bureau joined the probe and uncovered the retired officers allegedly participating in the ripoff.

Patrolmen’s Benevolent Association President Patrick Lynch said the union doesn’t “condone anyone filing false claims.”

With Larry McShane

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During the House Ways and Means Subcommittee on Social Security hearing on Thursday January 16th, Rep. Tim Griffin (R- Ark.) raised questions about the disability program’s efficiency and accuracy in the wake of recent high-profile fraud cases.

Social Security Administration Inspector General Patrick O’Carroll and SSA Acting Commissioner Carolyn Colvin testified before the subcommittee about the SSA’s ability to root out fraud and handle employees who are implicated in a scheme.

Colvin testified that 99 percent of disability payments are made correctly. Griffin, however, noted recent disability schemes in New York, Puerto Rico and West Virginia and challenged the accuracy of Colvin’s claim.

That talking point, Griffin said, “needs to be erased” because the nature of fraud makes it impossible to know how rampant abuse of Social Security disability has become.

Griffin also questioned the SSA’s ability to reprimand and fire SSA employees who are investigated or implicated in disability schemes.

“…We all know that in order to fire someone, they do not have to be innocent until proven guilty in a court of law applying (the) beyond a reasonable doubt standard,” Griffin said. “That’s not the standard to fire people.”

O’Carroll said the preference is to place an employee on leave without pay while investigating criminal activities; however, sometimes employees are left in place and monitored in an effort to identify co-conspirators.

Ms. Colvin is running the agency until the White House nominates a commissioner, and the White House has not signaled when it might move on the vacancy.

Another 28 former NYPD officers and firefighters arrested in $400million disability benefits scheme

  • Dozens more arrested in social security disability scam totaled $400million
  • Of those arrested today, 16 were retired NYPD officers, four were ex-firefighters, one worked for both NYPD and FDNY among others
  • Comes after more than 100 other former New York police officers and firefighters were arrested in January
  • Were ‘coached’ on how to appear to be suffering from PTSD and other physical and psychological conditions
  • Some claimed that their disabilities stemmed from 9/11 clean up

By Meghan Keneally



Dozens more retired New York police officers and firefighters have been arrested in connection to the disability benefits fraud scheme.

Another 28 people have been arrested throughout the day, making this the second round of arrests in the wide-ranging social security benefits scheme.

The plot was first reported in January when the Manhattan District Attorney announced that more than 100 people were arrested after being involved in a longterm plot wherein they claimed to have disabilities like post traumatic stress disorder in an effort to steal hundreds of thousands from the government.

Being taken in: This is one of the 28 former police and firefighters who were arrested today for their alleged involvement in the benefit fraud scheme that stole up to $400million from taxpayers

Being taken in: This is one of the 28 former police and firefighters who were arrested today for their alleged involvement in the benefit fraud scheme that stole up to $400million from taxpayers


Tarnishing the badge: The latest batch of suspects have been named and have been rounded up

Tarnishing the badge: The latest batch of suspects have been named and have been rounded up


Perp walk: The 28 individuals- including at least six women- were brought to authorities in Manhattan on Tuesday

Perp walk: The 28 individuals- including at least six women- were brought to authorities in Manhattan on Tuesday


The latest 28 offenders have been named but not identified in pictured.

One of the most interesting arrests is that of former police officer Sam Esposito, whose father Joseph was arrested last month after being labeled one of the scheme’s ‘ringleaders’.

Of the latest arrests, 16 were retired NYPD officers, four were from the fire department, one was from both the fire department and then police department and another was from the department of corrections.


Aside from those 21 individuals, there were seven others who were arrested today and the list of all 28 names was released publicly but it does not indicate which suspect corresponded with which agency.

‘Last month’s indictment was the first step in ending a massive fraud against American taxpayers,’ said District Attorney Cy Vance in a statement.

‘Today, dozens of additional defendants have been charged with fabricating psychiatric conditions in order to fraudulently obtain Social Security Disability insurance, a critically important social safety net reserved for those truly in need.

Warmer waters: Like a handful of other disability recipients before him, William Korinek (seen here with his wife) moved down to Florida after retiring from the New York force

Warmer waters: Like a handful of other disability recipients before him, William Korinek (seen here with his wife) moved down to Florida after retiring from the New York force


‘These defendants are accused of gaming the system by lying about their lifestyle, including their ability to work, drive, handle money, shop, and socialize, in order to obtain benefits to which they were not entitled.

Caught: Michael Guicie of Manalapan, New Jersey was one of the 28 accused

Caught: Michael Guicie of Manalapan, New Jersey was one of the 28 accused


‘Their lies were repetitive and extensive. My Office is continuing to work with the U.S. Social Security Administration to bring additional cases, where appropriate.’

All told, prosecutors told The New York Daily News that up to $400million may have been netted by the schemers, and it is entirely possible that hundreds of others could be arrested.

There were 102 people who were indicted as recipients in the fraudulent benefits scheme on January 7.

The recipients were a mix of 72 former NYPD officers, eight former fire fighters, and other corrections officers all who made up different physical and psychological conditions that they reportedly incurred on the job.

Some of the accused had been falsely claiming disability funds since the 1980s- with the help of four administrative ringleaders- while others only started after the September 11 terrorist attacks.

Many were coached about how they could appear depressed or in the throes of Post Traumatic Stress Disorder, and others said that their work on Ground Zero led them to feel incapacitated in large crowds.

The roles of the individuals arrested today and the bogus claims that they allegedly made have yet to be explicitly laid out.

Under cover: Some of the schemers had been benefiting from ill-earned disability payments for decades

Under cover: Some of the schemers had been benefiting from ill-earned disability payments for decades


Waiting for the story: In the District Attorney's earlier round up of more than 100 recipients, they even told how they were determined to be falsifying their claims

Waiting for the story: In the District Attorney’s earlier round up of more than 100 recipients, they even told how they were determined to be falsifying their claims

When the District Attorney’s office made their case in January, they released photos of some of the accused blatantly showing off their wealth and behaving in ways that would been impossible if their disability claims were true.

Glenn Lieberman, 48, was held up by the New York District Attorney as one of the poster boys for the widespread scam.

Rounding them up: The 28 new suspects are being brought into the Manhattan District Attorney's office over the course of Tuesday- many of whom are now in the custody of their former colleagues

Rounding them up: The 28 new suspects are being brought into the Manhattan District Attorney’s office over the course of Tuesday- many of whom are now in the custody of their former colleagues


Walk of shame: This new suspect tries to hide his face using an Under Armor hat

Walk of shame: This new suspect tries to hide his face using an Under Armor hat


The former police officer was living in a rented $1.5million  waterfront mansion that has a pool and access to a waterway where he parked his two jet skis at the time of his arrest.

The officers were not the only ones in on the scheme, as The Post reports that some of the accused’ siblings pulled the same move.

Vincent LaMantia is one of the 102 indicted fraudsters, and his siblings Darrin, Karen and Thomas all told officials that they had psychiatric ailments that made it impossible for them to hold down a job.

All told, the Staten Island siblings collected $596,000- with the largest portion- $287,000- going to Thomas as he began making disability claims in 2002.

Their time behind bars: These three men were brought in to the DA's office on Tuesday

Their time behind bars: These three men were brought in to the DA's office on Tuesday

Their time behind bars: These three men were brought in to the DA's office on Tuesday


Their time behind bars: These three men were brought in to the DA’s office on Tuesday

Vincent, 43, collected $148,000 and the remaining $161,000 was split between Karen, Kevin and Darrin.


Many of the fraudsters left a virtual trail, including Vincent LaMantia who posted a motivational video online (which has now been removed) where he talked about ways to get rich quick. 

Another such example was that of Joseph Morrone, who told authorities that his work after the September 11th attacks left him with a debilitating fear of crowds.

On Facebook, he was pictured selling cannolis at the crowded San Gennaro festival in Little Italy.

The suspicion is that there were a handful of ‘crooked’ lawyers and doctors who worked with the responders in question and were fully aware of how to ‘game the system’.

The four alleged ‘ringleaders’ were identified first, and it is clear that their positions within the NYPD and background in legal work helped them evade capture for years.

Sending a message: Glenn Lieberman is pictured on a jet ski, clearly not as incapacitated as he claimed to be in his benefit filing. He was one of the original 102 people caught in the first bust in January

Sending a message: Glenn Lieberman is pictured on a jet ski, clearly not as incapacitated as he claimed to be in his benefit filing. He was one of the original 102 people caught in the first bust in January


Active: Rich Cosentino collected a total of $207639 since May 2008

Active: Rich Cosentino collected a total of $207639 since May 2008

Participants would start out by contacting John Minerva, 61, a Detectives Endowment Association consultant, or Joseph Esposito, 64, a retired member of the NYPD.

Minerva or Esposito would then refer the fraudsters to one of two lawyers who were in on the scheme- Thomas Hale, 89, and former FBI agent Raymond Lavallee, 83.

All four are charged with first and second degree grand larceny. The 9/11 disability claims are not the first that the four men have had a hand in, as ABC reports that they are believed to have been running disability scams since 1988.

The lawyers put the schemers in touch with two different doctors- but not after some coaching.

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Government Vows To Clean Up Disability Program Waste

Government tries to clean up disability program

(By Hoppy Kercheval in Hoppy’s Commentary | December 30, 2013)

(NOTE: the views expressed here are those of Hoppy Kercheval and his alone. If you want some accurate information about the Social Security Disability Determination Process, you would be wise to read socialNsecurity, the Confessions of a Social Security Judge. Available on See )

The federal government may finally be getting a handle on the runaway Social Security Disability Insurance Program. The Wall Street Journal reports that the Social Security Administration is “tightening its grip on 1,500 administrative law judges to ensure that disability benefits are awarded consistently and to reign in fraud in the program.”

SSDI payments have risen dramatically in recent years.  A combination of the economic downtown driving more unemployed workers to the program and liberal awarding of benefits by some judges has raised SSDI rolls 20 percent in the last six years to 12 million people, with an annual budget of $135 billion.

At this rate, the disability program will have spent all its reserves by 2016, forcing either an increase in payroll taxes or a cut in benefits.

The Journal reports that the administrative law judges (ALJ) will no longer have “complete individual independence.”  Instead, they will be subject to supervision and management from the Social Security Administration (SSA).

The Association of Administrative Law Judges (AALJ) , the union representing the judges says it fears that will open the process to political interference, but that’s a straw man.  Many of these disability judges need someone looking over their shoulder.

The poster boy for waste, fraud and abuse in SSDI is ALJ  D.B. Daugherty of Huntington.  As a Social Security administrative law judge, Daugherty awarded benefits in virtually every case… thousands of them.  He worked closely with attorney Attorney Eric Conn, who advertised heavily in West Virginia and Kentucky, looking for potential clients.

According to the Journal, Daugherty once told a colleague, “Some of these judges act like it’s their own damn money we’re giving away.”  Daugherty resigned after the Journal first reported the story in 2011.

During the Great Depression, when Congress was first considering a federal insurance program for the disabled (the law didn’t pass until almost 20 years later), a Social Security Advisory Council actuary warned of costs beyond “anything that can be forecast.”

The fear was that well-intentioned assistance for any person with impairments of mind or body that would keep him from being gainfully employed for their rest of his life would devolve into a version of unemployment.

That warning has proven prophetic as this country’s Social Security Disability Insurance (SSDI) program has spun out of control and is now on course to run out of money by 2016.

Sunday night, CBS 60 Minutes aired a segment entitled “Disability USA,” which probed the abuse of SSDI.  Steve Kroft reported that SSDI rolls have risen 20 percent just in the last six years to 12 million people, with a budget of $135 billion.

West Virginia, despite a small population, is a big contributor to the SSDI rolls.  The AP reports that “West Virginia leads the nation in the percentage of adults receiving government assistance for disabilities.”

A big reason for the surge in SSDI is that people who have had their claims denied are hiring law firms that specialize in winning appeals.

According to 60 Minutes, “Last year, the Social Security Administration paid a billion dollars to claimants’ lawyers out of its cash-strapped disability trust fund.  The biggest chunk–$70 million—went to Binder & Binder, the largest disability firm in the country.

Jenna Fliszar, a lawyer who used to work for Binder & Binder and represent clients from West Virginia and other states, told CBS, “I call it a legal factory because that’s all it is.  They have figured out the system and they’ve made it into a huge national firm that makes millions of dollars a year on Social Security Disability.”

In 2011, the Wall Street Journal’s Damian Paletta reported on one Huntington-based disability judge who nearly always sided with the claimant.  Judge David B. “D.B.” Daugherty awarded benefits in all but four of 1,284 cases during one fiscal year.  The national average is 60 percent approval.

A report by the Committee on Homeland Security and Government Affairs estimates that Daugherty awarded more than $2.5 billion in benefits in the last 7 years of his career.

The Journal reported that Daugherty worked closely with lawyer Eric Conn, who advertises heavily in southern West Virginia and eastern Kentucky, looking for potential clients. Daugherty resigned after the Journal’s reports. Conn, who continues a thriving practice in SSDI cases, was evasive in a brief interview with 60 Minutes about his relationship with the former judge.

The abuse of the SSDI system has caught the attention of the Senate Committee on Government Affairs. It held a hearing Monday and issued a report finding “a raft of improper practices by the Conn law firm to obtain disability benefits, inappropriate collusion between Mr. Conn and a Social Security Administrative Law Judge (Daugherty), and inept agency oversight which enabled the misconduct to continue for years.”

The Committee report says Daugherty’s bank records show $96,000 in cash deposits from 2003 to 2011, for which Daugherty refused to explain the origin or source of the funds.

As one of the SSDI administrative judges said, “If the American public knew what was going on in our system, half would be outraged and the other half would apply for benefits.”

Frankly, it’s predictable that Americans hit by hard economic times are tempted to latch on to any government help they can, especially when there is an alliance of lawyers, doctors and judges willing to shepherd them through the system.

In doing so, however, they are squandering taxpayer dollars and bankrupting a legitimate program.

Meanwhile, earlier this year federal authorities arrested 75 people in Puerto Rico on charges of defrauding SSDI out of millions of dollars.  A former Social Security employee teamed with complicit doctors to falsely diagnose individuals as mentally incapable of working.

But the problem is not just the outliers like Daugherty and the Puerto Rican scam.

As the Journal reports, there is widespread disparity in how judge’s rule.  “Dozens of judges awarded benefits in 90 percent of their cases, while others were much less likely to find someone unable to find work, denying benefits in more than 80 percent of their cases, data showed.”

SSDI is an essential part of the country’s safety net.  Those who are impaired, either in mind or body, and cannot work are entitled by law to support.  However, it’s important to remember that SSDI is not another option for the unemployed, nor should it be an easy target for scammers.

Politicians like to say they can save taxpayer dollars by tightening up on waste, fraud and abuse–it’s easier than proposing real budget cuts–but in the case of SSDI, they’re right about the profligate misspending.

During the House Ways and Means Subcommittee on Social Security hearing on Thursday January 16th, Rep. Tim Griffin (R- Ark.) raised questions about the disability program’s efficiency and accuracy in the wake of recent high-profile fraud cases.

Social Security Administration Inspector General Patrick O’Carroll and SSA Acting Commissioner Carolyn Colvin testified before the subcommittee about the SSA’s ability to root out fraud and handle employees who are implicated in a scheme.

Colvin testified that 99 percent of disability payments are made correctly. Griffin, however, noted recent disability schemes in New York, Puerto Rico and West Virginia and challenged the accuracy of Colvin’s claim.

That talking point, Griffin said, “needs to be erased” because the nature of fraud makes it impossible to know how rampant abuse of Social Security disability has become.

Griffin also questioned the SSA’s ability to reprimand and fire SSA employees who are investigated or implicated in disability schemes.

“…We all know that in order to fire someone, they do not have to be innocent until proven guilty in a court of law applying (the) beyond a reasonable doubt standard,” Griffin said. “That’s not the standard to fire people.”

O’Carroll said the preference is to place an employee on leave without pay while investigating criminal activities; however, sometimes employees are left in place and monitored in an effort to identify co-conspirators.

Ms. Colvin is running the agency until the White House nominates a commissioner, and the White House has not signaled when it might move on the vacancy.

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Federal Investigators Widen Probe of Doctors In Potentially Large Scale Disability Fraud Scheme

Social secruity

Social secruity (Photo credit: SalFalko)

Social Security administrative Law Judges (ALJ) are approving more claims for disability benefits in 2013 than in previous years. A federal probe in 2011 revealed wide spread disparities in the approval rates of different states and among ALJs in the same office. The chances of being awarded disability benefits appear to be influenced by the State one lives in and the ALJ who is assigned to hear your case. Your chances increase dramatically if the medical doctor who examines you files a report stating that you cannot work because of a physical or mental impairment that prevents you from sitting for long periods of time or from concentrating on specific job assignments.

Disorders of the back are the most common type of physical impairment. Physical evidence of a condition that can reasonably be expected to result in a serious impairment is easy to ascertain.  Mental impairments are harder to prove than physical impairments. They are more subjective. In the case of an allegation of a mental impairment, judges are forced to rely more heavily on the expert opinion of a trained mental health professional, usually a clinical psychologist or a psychiatrist.

Federal investigators on Wednesday, August 21, searched six facilities in Puerto Rico as part of a broadening probe into potential widespread disability fraud.

Investigators from the Federal Bureau of Investigation (FBI) and the Social Security Inspector General’s office (SSIG), among others, searched five doctors‘ offices and one other location as part of their sweep, a spokeswoman for the U.S. attorney said. The spokeswoman wouldn’t comment further, saying it was part of a continuing investigation and that the six search warrants were sealed.

Doctors play a big role in determining whether people qualify for federal disability benefits because their recommendations often sway state disability determiners and Federal Administrative Law Judges (ALJ) working for the Social Security Administration. Criminal investigators have been looking into whether doctors were paid to improperly create documents detailing applicants’ inability to work.

The federal investigation into disability fraud was launched in 2011 after a page-one article in The Wall Street Journal revealed widespread disparity in how some states and U.S. territories implement the Social Security Disability Insurance (SSDI) program. The chances of winning benefits could vary widely based on where someone applied for benefits, even though standards are supposed to be uniform.


In 2006, just 36% of initial applicants in Puerto Rico were awarded benefits. In December 2010, the award rate had jumped to 69%. By 2010, nine of the top 10 U.S. ZIP Codes for workers receiving disability benefits were on the island.

At the time, SSA officials said the high number of recipients and the high award rate was due to the island’s weak economy and a lack of adequate health care for workers.

The program is overseen by the Social Security Administration (SSA) in Baltimore, but the State Disability Determination Service (DDS) is responsible for performing an initial screening to determine eligibility. Social Security officials said in 2011 that Puerto Rico had rigorous standards and a virtually nonexistent error rate.

The characteristics of Puerto Rico’s beneficiaries differed from other areas. In addition to the large clusters in certain zip codes, federal data showed that 33.3% of Puerto Rican beneficiaries qualified because of “mood disorders,” a rate that is at least 10 percentage points higher than any U.S. state.

Disability examiners and federal judges say mental disorders are harder to measure. decisions are often based on medical opinions contained in Consultative Examinations (CE) issued by doctors to make a determination.

 This probe that has been ongoing for two years.  Federal authorities have made 68 arrests in Puerto Rico alone.

The inspector general from the U.S. Social Security Administration has stated that prosecutors have now also charged a former Social Security employee as well as three doctors with having taken part in assisting individuals in making false disability insurance claims. They worked to help individuals to falsely claim that they were too injured or sick to be able to work.

Disability InsuranceIn return, the suspects were allegedly provided a certain portion of the disability insurance payments of the scammers.

Typically, the cuts that they received from the disability insurance payments ranged from $150 to $6,000. Among those who were charged, dozens included individuals who had actually made these fake claims. The arrests come on the heels of an investigation that had been conducted by the Wall Street Journal in 2011, which looked into unusual claims that were being made in Puerto Rico.

This case also draws attention to an increasing problem that the federal government is currently facing, which is the ballooning disability insurance payments within a program that has standards that are notoriously soft regarding the actual definition of what a disability actually is. For instance, in 2011, when the investigation began from the news paper giant, the federal payments in that program reached $190 billion.

It has been suggested that the reason that disability insurance payments have been growing as quickly as they have – now paying out to over 14 million Americans – is that it has become a sneaky safety net for individuals who are unable to find adequate jobs, but who desperately need to make an income, as the average annual payment is up to twice the income of employment at minimum wage. Another contributor to the growth is that the average age of the workforce is getting higher, and older individuals have a higher risk of experiencing health problems.

SSDI was designed as a way to provide benefits for people who can’t work because of mental or physical health problems, and Americans can qualify for benefits because of ailments ranging from severe back pain to terminal cancer. A lifetime of benefits, including access to Medicare, can cost the government about $300,000 a person.

The program became a safety-net-of-last-resort for millions of Americans during the recent economic downturn, including many who had collected unemployment benefits and had hoped to return to the workforce. SSDI had 7.6 million beneficiaries in 2003, and that number swelled to 10.9 million by the end of 2012. More than 200,000 of the beneficiaries are in Puerto Rico, according to federal data.

SSDI paid out $136.7 billion in disability benefits last year, almost twice as much as the government spent on food stamps. The vast majority of people who receive disability benefits never leave the program to return to the workforce.

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Appeal Denial Of Disability Benefits Until You Get Approved

English: A collection of pictograms. Three of ...

English: A collection of pictograms. Three of them used by the United States National Park Service. A package containing those three and all NPS symbols is available at the Open Icon Library (Photo credit: Wikipedia)

Social Security Disability Insurance (SSDI) is a federal entitlement created in 1956 as an insurance plan for long-tenured workers with the misfortune of becoming disabled before retirement. Today, the program has ballooned into a $135 billion behemoth threatening to collapse under its own weight. Left unchecked, decades of loose standards and poor enforcement may cause a collapse of the system that would culminate in thousands — if not millions — of deserving recipients being deprived their rightful benefit.

Federal disability insurance began from humble beginnings, but unfortunately, over time, has grown dramatically, and today the fastest-rising cost for Social Security is not retiring baby boomers, but skyrocketing disability insurance benefits. In 1970, the disability insurance program was financed with a payroll-tax rate of only 0.8 percent of wages. Today, the cost of SSDI has tripled relative to the 1970 level with disability benefits now making up 18 percent of all Social Security costs. This is a marked difference from 10 percent in 1990. The number of people on SSDI in 2012 exceeded the entire population of New York City at more than 8.7 million participants.

The biggest contributing factor has been the ease with which benefits can be obtained. While it is tempting to blame the aching knees and backs of an aging population, the truth is that American workers are healthier and fitter today than they were when SSDI was in better fiscal shape. Instead, the answer is the program has grown soft around the middle for three reasons: low standards, enticing benefits and far too little control over its own screening process.

It is unfortunate that the disability insurance program has morphed from a program for permanently disabled workers with a substantial work history who were over the age of 50 to a rapidly growing program covering an increasing number of marginally disabled workers.

The screening process of approving SSDI applicants, once run by the Social Security Administration, has been foisted upon a system of appeals run by an overworked and underregulated network of administrative law judges (ALJ). In this system, a growing amount of applicants and their well-practiced lawyers have come to treat initial approval-or-denial of benefits as merely the first stop on the way to an appeal, where the odds of success are higher. Worse, these lawyers face badly orchestrated incentives that can cost taxpayers dearly.

Part of the solution for rising disability costs is to refocus benefits on the most disabled individuals, coupled with incentives for employers to keep disabled people working. In 2010, one out of every 50 working Americans applied for federal disability benefits. Furthermore, with a challenging employment market, this program has also functioned as a fallback for workers without employable skills. Only half of those who enter the disability rolls will ever return to the workforce.

The expansion of this program is troubling even in a booming economy. In a country with a nearly $17 trillion national debt the fiscal unsoundness of this program is even more alarming. The program is growing faster than the payroll-tax revenues that fund it, and the Congressional Budget Office predicts that the SSDI trust fund will be entirely depleted by 2016. At that point, barring legislation to further fund SSDI, the program will be forced to begin paying smaller benefits, or will raid another program such as Social Security’s Old Age and Survivors Insurance trust to cover the balance.

Grappling with the problems posed by a rapidly expanding SSDI system would be simpler if it were the case that the working-age population had simply gotten older and less able to earn a living. Instead, the principal drivers of SSDI growth are a loosening of eligibility requirements, increasingly attractive benefits and an application process that has become incapable of distinguishing between truly disabled workers and those who should be rejected. Together, these three factors have combined to create a modern SSDI program very different than the one envisioned by its architects. Going forward, it is essential that Congress take significant steps to rein in SSDI’s growth. Those changes will inevitably be decried as insensitive and unjust, but they are essential. To do nothing — to continue to prioritize the able-bodied over the truly infirm — is far worse.

By MacMillin Slobodien , an executive director of Our Generation, a nonprofit advocacy group, which is launching the Reform SSDI Now project.

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Social Security Judges Tell Congress They Are Pressured To Pay Down The Back-log




Driven to reduce a huge backlog of disability claims, Social Security is pushing judges to award benefits to people who may not deserve them, several current and former judges told Congress Thursday June 27, 2013.


Judge Larry Butler, an administrative law judge (ALJ) from Fort Myers, Fla., called the system “paying down the backlog.”


 (For a complete explanation of the term “paying down the backlog” see socialNsecurity by Judge L. Steverson, USALJ (Ret.)

The approval rates among ALJs can be quite arbitrary. One ALJ might reverse 9 out of 10 cases and another might deny 9 out of 10 cases. It all depends on the luck of the draw.

There is a practice called “Paying Down The Back Log”. This is where a judge just reverses every case on his docket and grants benefits to the claimant. Some ALJs have been known to do this with no regard at all for the merits of the case. Judges have been known to pay 200 cases or more on-the –record in this manner. Sometimes the Commissioner will take action to stop them. Other times he does not. (Steverson, Judge London, socialNsecurity, p. 19)

A former Social Security Judge, J.E. Sullivan, said, “The only thing that matters in the adjudication process is signing that final decision.” Sullivan is now an administrative law judge for the Department of Transportation.


The House Oversight and Government Reform Committee is investigating why many judges have high approval rates for claims already rejected twice by field offices or state agencies. Two current and two former judges spoke at a subcommittee hearing.


The number of people receiving Social Security disability benefits has increased by 44 percent over the past decade, pushing the trust fund that supports the program to the brink of insolvency.


Social Security officials say the primary reason for the increase is a surge in baby boomers who are more prone to disability as they age. Deputy Social Security Commissioner Glenn Sklar noted that the vast majority of disability claims are initially denied.


“I think the data kind of speaks for itself,” Sklar told lawmakers.


To qualify for benefits, people are supposed to have disabilities that prevent them from working and are expected to last at least a year or result in death.


According to Social Security data, there were errors in 22 percent of the cases decided in 2011, Sklar said. He said some errors were procedural and did not necessarily result in incorrect decisions.


“The true wrong rate would be less than 10 percent,” Sklar said.


Nearly 11 million disabled workers, spouses and children get Social Security disability benefits. That compares with 7.6 million a decade ago. The average monthly benefit for a disabled worker is $1,130.


An additional 8.3 million people get Supplemental Security Income, a separately funded disability program for low-income people.


Social Security disability claims are first processed through a network of local Social Security Administration field offices and state agencies called Disability Determination Services. About two-thirds of initial claims are rejected, according to agency statistics. If your claim is rejected, you can ask the field office or state agency to reconsider. If your claim is rejected again, you can appeal to an administrative law judge, who is employed by Social Security.


In 2007, the average processing time for a hearing was 512 days. Today it is 375 days, Sklar said. The agency has reduced the wait time even as the number of applications has increased. But the judges who testified Thursday said the quality of their decisions has suffered. So far this budget year, the vast majority of judges have approved benefits in more than half the cases they’ve decided, even though they were reviewing applications typically rejected twice by state agencies, according to Social Security data.


Of the 1,560 judges who have decided at least 50 cases since October, 195 judges approved benefits in at least 75 percent of their cases, according to the data analyzed by congressional investigators.


“The Social Security Administration has failed to take steps to address the problem of rapid disability growth, probably because the agency has failed to recognize many of the problems,” said Rep. James Lankford, R-Okla., the subcommittee chairman.


None of the judges who testified spoke of being specifically ordered to award claims. Three said they had been pressured to decide cases without fully reviewing medical files.


The judges described a system in which there is very little incentive to deny claims, but lots of pressure to approve them. It requires more documentation to deny a claim than to approve one, said Sullivan, the former Social Security judge. Also, rejected claims can be appealed while approved claims are not.


There’s a tremendous amount of pressure to push cases out the door as soon as possible,” Sullivan said in an interview after the hearing. “There’s a push to pay mentality.


Butler, the current judge, told the subcommittee, “I think you need to look at the issue of paying down the backlog. It’s not media hype, its real and for six years it’s been going on.”

                      (AALJ President Randy Frye and Marilyn Zahm)

The Association Of Administrative Law Judges(AALJ), union representing administrative law judges, says judges are required to decide 500 to 700 cases a year in an effort to reduce the hearings backlog. The union says the requirement is an illegal quota that leads judges to sometimes award benefits they might otherwise deny just to keep up with the flow of cases. according to a federal lawsuit filed by the judges’ union in April.


The Social Security Administration says the agency’s administrative law judges (ALJs) should decide 500 to 700 disability cases a year. The agency calls the standard a productivity goal, but a lawsuit filed in April 2013 by the Social Security Judges against the Commissioner and the Agency claims it is an illegal quota that requires judges to decide an average of more than two cases per workday.

‘‘When the goals are too high, the easy way out is to pay the case,’’ said Randall Frye, president of the Association of Administrative Law Judges (AALJ) and a judge in Charlotte, N.C. ‘‘Paying the case is a decision that might be three pages long. When you deny benefits, it’s usually a 15- or 20-page denial that takes a lot more time and effort.’’


The lawsuit raises serious questions about the integrity of the disability hearing process by the very people in charge of running it. It comes as the disability program faces serious financial problems.

The agency denies there is a case quota for judges and says the standard is a productivity goal.


“I find it interesting that there is so much wringing of the hands about a judge who pays almost 100% of his cases, as if the agency didn’t know about it, as if the agency wasn’t complicit in it, as if the agency didn’t encourage it,” said Marilyn Zahm, a Social Security judge in Buffalo, NY who is an executive vice president of the Association of Administrative Law Judges (AALJ), the judges’ union.


Judge Zahm had a lot more to say in an interview in October 2009. (Read the entire interview starting at page 430 in my book, socialNsecurity, available at


If Congress doesn’t act, the trust fund that supports Social Security disability will run out of money in 2016, according to projections by Social Security’s trustees. At that point, the system will collect only enough money in payroll taxes to pay 80 percent of benefits, triggering an automatic 20 percent cut in benefits.


Congress could redirect money from Social Security’s much bigger retirement program to shore up the disability program, as it did in 1994. But that would worsen the finances of the retirement program, which is facing its own long-term financial problems. (AP)

Categories: Social Security Benefits | Tags: , , , , , , , , | 1 Comment

Former Social Security Medical Expert Sentenced To Two Years In Federal Prison For Fraudulently Bilking SSA Of $1.5 Million In Benefits


( Wed, 29 May 2013 10:46:43 PST)

SAN DIEGO (CNS) – Doctor  Roberto J. Velasquez, a clinical psychologist, from National City,CA was sentenced Wednesday, May 29th, to nearly two years in federal prison for fraudulently obtaining government disability benefits via a scheme in which the Social Security Administration was swindled out of at least $1.5 million.

While handing down the 21-month custody term in federal court in downtown San Diego, Chief District Judge Barry Ted Moskowitz also ordered Doctor Velasquez, 55, to repay the funds he illicitly obtained.

Over a six-year period beginning in 2006, Velasquez falsely certified that dozens of able-bodied patients were disabled, according to court documents.

To further the fraud, Velasquez made up patient histories, fabricated test results, suggested symptoms and complaints that did not exist, and intentionally underestimated patient scores on standardized tests, prosecutors said.

In exchange for each false report, Velasquez charged his patients a $200 kickback, according to the government.

In his plea agreement, the defendant, who was arrested in the case 13 months ago, admitted that he faked disability-exception forms used by the Department of Homeland Security during naturalization processes.

Doctor Velasquez’s false certifications allowed immigrants to avoid taking civics and English-language portions of the U.S. citizenship exam, prompting the Department of Homeland Security to grant exemptions to about 50 applicants who were not actually disabled.

According to court documents, Doctor Velasquez coached his patients to skirt the citizenship requirements by instructing them to use poor English during interviews and avoid mentioning that they had college educations.

He also lied, prosecutors said, about the length of time he had been treating his patients, in order to falsify a record that would satisfy reviewers at the Social Security Administration, where he previously had worked as a consultant. (He was probably an expert medical witness.)

In addition, Doctor Velasquez conceded that he submitted phony medical reports to the Social Security Administration, falsely certifying that certain patients were eligible for disability benefits when he knew they were not, and admitted that roughly one-third of his patient files contained false statements and bogus certifications of disability.

The fraud was uncovered through an undercover operation conducted by the Department of Homeland Security, Immigration and Customs Enforcement/Homeland Security Investigations and the Office of Inspector General in the Social Security Administration.

The prosecution was part of the U.S. Attorney‘s Health Care Fraud Initiative.

Categories: Social Security Benefits | Tags: , , , , , , , | Leave a comment

Being Born A Man Does Not Render A Woman Disabled

Social Security Poster: old man

Social Security Poster: old man (Photo credit: Wikipedia)

French v. Commissioner of Social Security (USA)

April 23, 2013






March 12, 2013, Decided




Plaintiff Esper French appeals Defendant Commissioner of Social
Security’s (“Commissioner”) denial of her applications for disability
insurance benefits and supplemental security income

 For the
reasons set forth below, this Court finds that substantial evidence
supports the Commissioner’s decision.

The Court therefore RECOMMENDS that Plaintiff’s Motion for Summary Judgment be DENIED , that Defendant’s Motion for Summary Judgment be GRANTED , and that the decision of the Commissioner of Social Security be AFFIRMED .


Plaintiff was 52 years old on the date she alleges she became
disabled.  Plaintiff graduated from high school
and completed some college work She previously worked as a
computer-aided drafter (CAD), a general laborer, and as a care giver.  She alleges that she cannot work due to her depression, 
gender dysphoria and deafness.

A. Procedural History

On November 5, 2008, Plaintiff applied for disability insurance
(“DIB”) and supplemental security income (“SSI”) asserting that
she became unable to work on January 2, 2006.  The
Commissioner initially denied Plaintiff’s disability application on May
16, 2009.

 Plaintiff then requested an ALJ administrative
hearing, and on September 27, 2010, she appeared with counsel before
Administrative Law Judge Timothy C. Scallen, who considered her case de novo  Vocational expert Elizabeth A. Pasikowski also appeared at the hearing.

In an October 20, 2010 decision, ALJ Scallen found that Plaintiff was not disabled.

 The ALJ’s decision became the final decision of the
Commissioner on April 26, 2012, when the Social Security
Administration’s Appeals Council denied Plaintiff’s request for review.

 Plaintiff filed this suit on June 27, 2012.

B. Medical Evidence

In November 1997, records from Foote Hospital show that Plaintiff was
hospitalized for psychiatric issues. An assessment at
that time indicated depression, suicidal  ideation,

In or around 2001, Plaintiff underwent a trans-gender
surgery to become female

Plaintiff is referred to herein as “she” when
referring to evidence post-dating the gender change.

An earlier hearing on April 26, 2010 was adjourned so
that Plaintiff could obtain representation.

 ALJ Scallen
also presided over the first, abbreviated hearing,

and trans-sexual disorder/gender identity disorder.

On February 19, 1998, Plaintiff was admitted to the hospital after a
self-castration attempt.
  Hospital notes indicate that
Plaintiff wanted a sex change operation, but was unable to find a

physician to perform it.  Plaintiff was taking Premarin – a hormone
replacement therapy most commonly used in post-menopausal women.  Plaintiff underwent a surgical procedure to debride his scrotum, evacuate the clot, and properly close the wound.

On May 2, 1998, Plaintiff was admitted to the hospital after
attempting to amputate his left testicle
.  Emergency room
notes from May 29, 1998 indicate that Plaintiff had undergone a sexual
reassignment surgery
and continued to undergo hormonal therapy
. Plaintiff wanted to speak to someone in
the psychiatric unit regarding his mood swings, volatile moods, and
fears of hurting himself. Emergency room notes state that
Plaintiff’s symptoms were partly due to the hormone therapy, and also to
the adjustment to his new female role.

 Plaintiff was
diagnosed with adjustment disorder and was instructed to continue
outpatient therapy and to return if symptoms worsened.

On August 27, 2000, Plaintiff was admitted to the hospital for
depression. Plaintiff reported feeling depressed and
frustrated with the way his coworkers were treating him because of
changing his identity to a woman.  Plaintiff denied suicidal
or homicidal ideation. Plaintiff was diagnosed with
adjustment disorder, depressed mood and gender identity disorder and was
advised to follow-up with counseling.) Plaintiff was also
given instructions to return if symptoms worsened or persisted.

These notes likely reflect Plaintiff’s self-castration
attempts, as formal trans-gender surgery occurred in or around 2001.


On September 30, 2000, a bone density test of Plaintiff’s lumbar
spine  and left hip was performed.  Testing indicated
osteopenia of the lumbar spine with a slightly increased risk of
pathological fracture.  Results also showed osteopenia of the
left hip with a slightly increased risk for pathological fracture.

February 2001, emergency room records indicate that Plaintiff
continued to pursue a sex change – from male to female. 
Plaintiff made comments indicating that she believed that she was a
“joke” and that “no one care[d] if [she was] dead or alive.”  The
emergency room physician indicated that Plaintiff also had suicidal

On April 8, 2009, Dr. Eugene Rontal examined
Plaintiff’s hearing
capacity.  Dr. Rontal reported that Plaintiff had worn hearing
aids, but had lost them.  The examination revealed normal tympanic
membranes and ear canals.  An audiogram demonstrated a moderate
sensorineural hearing loss in both ears.  With a hearing aid, Plaintiff
had 96% discrimination at 50dB. Dr. Rontal opined that Plaintiff had
bilateral sensorineural hearing loss of a hereditary origin.  Dr. Rontal
further believed that a hearing aid was the only  treatment available.

On April 24, 2009, Michele Bridges prepared a case analysis for the
State concluding that Plaintiff would be able to perform some type of
low skilled work that did not heavily rely on hearing.  Ms.
Bridges also concluded that working with the public, working in a fast
food setting that relies heavily on hearing, or work requiring phone use
would be difficult.

On April 27, 2009, Dr. Donald Kuiper completed a physical residual
functional capacity assessment. In it, Dr. Kuiper opined that Plaintiff
could occasionally lift and/or carry 50 pounds, frequently lift and/or
carry 25 pounds, stand and/or walk about 6 hours in an 8-hour workday,
sit for


a total of about 6 hours in an 8-hour workday, and was unlimited in
her ability to push and/or pull.  Dr. Kuiper noted no
postural, manipulative, visual, communicative or environmental
limitations.  After indicating that Plaintiff had no
communication limitations, Dr. Kupier concluded that Plaintiff “retains
sufficient hearing to be able to avoid normal workplace hazards and
understand occasional oral instructions.”  Dr. Kuiper noted an
audiogram and ENT exam dated April  8, 2009 which demonstrated a
non-listing level hearing and discrimination limitation. 
Further, Dr. Kupier reported that an audiogram performed in 2006
confirmed the same level of limitation.

On August 23, 2010, clinical therapist Bernadine McClung evaluated
Plaintiff and determined that Plaintiff had gender identity disorder
together with dysthymic disorder depressed mood. Ms. McClung
assessed Plaintiff’s Global Assessment Functional (GAF) Scale score at
30.  Moreover, Ms. McClung concluded that Plaintiff
exhibited “[s]erious impairment in judgment, preoccupation with becoming
and looking like a female, suicidal ideation, [and an] inability to
function in almost all areas.”  Ms. McClung further noted
that Plaintiff, “[l]ack[ed] motivation to get out of bed, [and was]
unable to obtain and keep a job.

On September 23, 2010,
Jennifer Turecki-Kaiser, MA, prepared an
initial vocational assessment (IVA) to determine Plaintiff’s ability to
participate in vocational rehabilitation as it related to Plaintiff’s
ability to return to gainful employment. Ms. Turecki
indicated that Plaintiff was teaching herself to read lips.  Despite
this, Ms. Turecki had to repeat and rephrase herself
numerous times throughout the interview.  Ms. Turecki noted that
Plaintiff had been diagnosed with moderate, bilateral hearing loss.  Ms.
Tuercki also noted that in 2006, Plaintiff’s hearing loss rose to the
level of disability.  Ms. Turecki pointed out Plaintiff’s


numerous unskilled labor positions and that Plaintiff was “let go”
from numerous positions due to her hearing loss and gender modification
issues.  Ms. Turecki also noted that Plaintiff was
“harassed, ridiculed and at times, felt threatened by others due to her
gender reassignment.”  Ms. Turecki concluded that
Plaintiff’s past work was at the unskilled or semi-skilled level with
the highest specific vocational preparation of 3. She noted
no transferrable skills from Plaintiff’s past work.  As
such, based on education and skill level, Ms. Turecki concluded that
Plaintiff was a candidate for unskilled work only. With
Plaintiff’s hearing loss, Ms. Turecki also concluded that only jobs that
did not require hearing should be considered.  After
reviewing Dr. Gray’s September 20, 2010 RFC assessment, Ms. McClung’s report, Ms. Bridges’ assessment, and
taking into account Plaintiff’s hearing loss and trans-gender issues,
Ms. Turecki concluded that “her impairments and symptoms [] would make
gainful competitive employment a non-realistic goal.”

C. Testimony at the Hearing Before the ALJ

1. Plaintiff’s Testimony

is trans-gendered female. She lives with two roommates.  Plaintiff
reported that she did most of the housework,
although one of her roommates was a hoarder and did not allow Plaintiff
to pick up any of her belongings. Plaintiff also reported that
she cooked all of the meals. Plaintiff reported that she watched
television; however, because of her hearing loss, she directed the sound
through a walkman as high as she can get it.  Plaintiff reported being
active socially with her roommates, going to movies, parks, coffee
houses, and open microphone

Dr. Gray’s RFC assessment, while noted in Ms. McClung’s report, was not included in the administrative record.


nights.  Plaintiff also reported reading science fiction and collecting Star Trek memorabilia.

reported that her hearing  aids were stolen from her
purse and that she had not replaced them.  Plaintiff
reported having no insurance to pay for replacement hearing aids. 
Without the assistance of her hearing aids, Plaintiff testified
that she communicated through reading lips and by using some sign
language. Plaintiff testified that she was only able to
understand about 40 to 50 percent of what is going on around her due to
her lack of hearing. Plaintiff reported that she was afraid to
drive because she cannot hear a car horn and felt she was a hazard to
people on the road.  Plaintiff reported that the last time she drove was
in 2008.  Plaintiff testified that the last time she worked was in 2008
as a
care giver for an autistic child. She testified that she only
worked for three or four weeks before quitting because she felt as
though she was more of a burden than a help.  Before that,
Plaintiff reported that she worked for a temporary service at a
factory.  However, despite typically making a good first
impression on temporary employers, Plaintiff testified that soon
employers would realize that she could not pay attention   and her
supervisors would get very upset with her and would ask her to leave the

Plaintiff also reported upsetting experiences associated with her
gender change from 1998 until 2006.  Plaintiff testified that
people would make comments like: “it might be better off if [she would]
just put the gun to [her] own head and save some heterosexual the need
to go to prison for the rest of his life.”  Plaintiff reported
that she got to a point in her gender dysphoria, that she castrated
herself. ) Due to the lack of understanding of the subject,
Plaintiff reported that this is not uncommon within the trans-gender
community. Plaintiff


reported that she became disabled on January 2, 2006.  Despite this, Plaintiff attempted

to continue working; however, she reported that her hearing remained compromised.

Plaintiff testified that the buzzing she experienced in her ears affects her concentration.

Plaintiff did not take any medications for her depression.  Plaintiff did, however, report

taking hormone therapy medication.

2. The Vocational Expert’s Testimony

The ALJ solicited testimony from a vocational  xpert (“VE”) about job availability for a

hypothetical individual of Plaintiff’s age, education, and work experience who was capable of

performing all exertional demands, but has the following
non-exertional limitations: first of all, avoiding concentrated exposure
to excessive noise I’m going to say simple, routine, repetitive
tasks for the reason that her concentration is interrupted by not only
the constant buzzing the way you’ve said it in your ear which interferes
with concentration, but also the psychological problems as well, no
interaction with the public, occasional interaction with coworkers,
which requires only communication at close distances, and limit to
occasional oral instructions.

The VE testified that the general laborer position would apply. However, if there

was a restriction of not being able to interact at all with co-workers, then the general laborer position

would not apply.  The ALJ then asked if the position could allow for using headphones to

drown out noise. The VE responded that it would not. 


Under the Social Security Act (the “Act”), Disability Insurance Benefits  (for qualifying wage

earners who become disabled prior to expiration of their insured status) and Supplemental Security

Income “are available only for those who have a ‘disability.’” See Colvin v. Barnhart , 475 F.3d 727,

730 (6th Cir. 2007). The Act defines “disability,” in relevant part, as the:


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 a continuous period of not less than 12 months.

42 U.S.C. §§ 423(d)(1)(A), 1382c(a)(3)(A) (DIB); 20 C.F.R. § 416.905(a) (SSI).

The Social Security regulations provide that disability is to be determined through the

application of a five-step sequential analysis:

Step One: If the claimant is currently engaged in substantial gainful activity, benefits are denied without further analysis.

Step Two: If the claimant does not have a severe impairment or
combination of impairments that “significantly limits . . . physical or
mental ability to do basic work activities,” benefits are denied without
further analysis.

Step Three: If the claimant is not performing substantial gainful
activity, has a severe impairment that is expected to last for at
least twelve months, and the severe impairment meets or equals one of
the impairments listed in the regulations, the claimant is conclusively
presumed to be disabled regardless of age, education, or work

Step Four: If the claimant is able to perform his or her past relevant work, benefits are denied without further analysis.

Step Five: Even if the claimant is unable to perform his or her past
relevant work, if other work exists in the national economy that
plaintiff can perform, in view of his or her age, education, and work
experience, benefits are denied.

See 20 C.F.R. §§ 404.1520, 416.920; see also Heston v. Comm’r of Soc. Sec. , 245 F.3d 528, 534 (6th

Cir. 2001). “The burden of proof is on the claimant throughout the first four steps . . . . If the

analysis reaches the fifth step without a finding that the claimant is not disabled, the burden transfers

to the [Commissioner].” Preslar v. Sec’y of Health and Human Servs. , 14 F.3d 1107, 1110 (6th

Cir. 1994).

At step one, ALJ Scallen found that Plaintiff had not engaged in substantial gainful activity

since the alleged disability onset date of January 2, 2006. (Tr. 24.) At step  two, he found that


Plaintiff had the following severe impairment: deafness. Next, the ALJ concluded that this impairment did not meet or
medically equal a listed impairment.  Between steps three and
four, the ALJ determined that Plaintiff had the residual functional
capacity to perform “a full range of work at all exertional levels but
with the following nonexertional limitations: avoid concentrated
exposure to excessive noise; simple, routine, repetitive tasks; no
interaction with the public; occasional interaction with co-workers;
tasks which only require communication at close contact.”
At step four, the ALJ found that Plaintiff was able to perform her past
work as a general laborer.  The ALJ therefore concluded that
Plaintiff was not disabled as defined by the Social Security Act. 


This Court has jurisdiction to review the Commissioner’s final
administrative decision pursuant to 42 U.S.C. § 405(g). Judicial review
under this statute is limited: the Court “must affirm the Commissioner’s
conclusions absent a determination that the Commissioner has failed to
apply the correct legal standard or has made findings of fact  unsupported by substantial evidence in the record.” Longworth v. Comm’r of Soc. Sec. , 402 F.3d 591, 595 (6th Cir. 2005) (internal quotation marks omitted).

Substantial evidence is “more than a scintilla of evidence but less
than a preponderance; it is such relevant evidence as a reasonable mind
might accept as adequate to support a conclusion.”

Rogers v. Comm’r of Soc. Sec. , 486 F.3d 234, 241 (6th Cir.
2007). If the Commissioner’s decision
is supported by substantial evidence, “it must be affirmed even if the
reviewing court would decide the matter differently and even if
substantial evidence also supports the opposite conclusion.” Cutlip v. Sec’y of Health & Human Servs. , 25 F.3d 284, 286 (6th


Cir. 1994); see also Mullen v. Bowen
, 800 F.2d 535, 545 (6th Cir. 1986) (en banc) (noting that the
substantial evidence standard “presupposes . . . a zone of choice within
which the decisionmakers can go either way, without interference by the
courts” ).

When reviewing the Commissioner’s factual findings for substantial
evidence, the Court is limited to an examination of the record and must
consider that record as a whole. Bass v. McMahon , 499 F.3d 506, 512-13 (6th Cir. 2007); Wyatt v. Sec’y of Health & Human Servs.
, 974 F.2d 680, 683 (6th Cir. 1992). The Court “may look to any
evidence in the record, regardless of whether it has been cited by the
Appeals Council.” Heston v. Comm’r of Soc. Sec. , 245 F.3d 528,
535 (6th Cir. 2001). There is no requirement, however, that either the
ALJ or this Court discuss every piece of evidence in the administrative
record. Kornecky v. Comm’r of Soc. Sec. , 167 F. App’x 496, 508
(6th Cir. 2006). Further, this Court does “not try the case de novo,
resolve conflicts in evidence, or decide questions of credibility.” Bass , 499 F.3d at 509; Rogers , 486 F.3d at 247.


Plaintiff raises two claims of error – first, that the ALJ failed to
properly determine the effects of her hearing loss on her ability to
work; and second, that the ALJ improperly omitted depression and gender
identity disorder from the list of severe impairments at step two.

A.  The ALJ Properly Determined The Effects Of Plaintiff’s Hearing Loss On Her Ability To Work

Plaintiff argues that the ALJ failed to properly determine the
effects of her hearing loss on her ability  to work. This Court disagrees and concludes that the ALJ’s
determination that Plaintiff could return to work as a general laborer
is supported by substantial evidence.


The ALJ accommodated Plaintiff’s hearing problems by including
limitations in the RFC including avoidance of concentrated exposure to
excessive noise, communication at close range (presumably to accommodate
her need to read lips), no interaction with the public, and only
occasional interaction with co-workers. Moreover, ALJ Scallen
accommodated the “buzzing” in Plaintiff’s ears which reportedly affected
her concentration by limiting Plaintiff to jobs with “simple, routine,
repetitive tasks . . .” 

To support these limitations, the ALJ
noted the April 8, 2009
consultative examination by ENT specialist Dr. Eugene Rontal, who
observed no reports of tinnitus, aural discharge, or dizziness. The ALJ
also noted that the examination revealed normal tympanic
membranes and ear canals, and that an audiogram demonstrated moderate
sensorineural hearing loss in both ears.  ALJ Scallen
further noted that although a hearing aid brought the Plaintiff’s
hearing  discrimination to 96% at 50dB, Plaintiff reported losing
her hearing aids and has not replaced them.  The ALJ noted
that a 2006 audiogram confirmed the same level of limitation.  These
objective findings, the ALJ concluded, demonstrated that
Plaintiff had a non-listing level hearing and discrimination limitation.

Plaintiff claims that it was error for the ALJ to consider a lack of
treatment for her hearing loss; however, SSR 96-7p instructs that “the
individual’s statements may be less credible if the level or frequency
of treatment is inconsistent with the level of complaints.” See also Gwizdala v. Comm’r of Soc. Sec
., No. 98-1525, 1999 WL 777534, at *5 (6th Cir. Sept. 16, 1999) (ALJ
may consider claimant’s refusal to adhere to medical recommendations,
including the use of hearing aids).

Plaintiff also complains that the ALJ failed to consider evidence that she lacked the insurance


replace the allegedly stolen hearing aids. However, Plaintiff brings
forth no evidence establishing that she
could not have afforded replacement hearing aids through insurance or
other means. On this point, this Court has recently concluded that it is
proper for an ALJ to consider a claimant’s failure to seek
emergency room treatment or low cost health care options. See Hashemi v. Comm’r of Soc. Sec. , No. 11-13629, 2012 WL 3759033, at  (E.D. Mich. Aug. 6 2012).

The ALJ also noted that Plaintiff sought no other treatment or
monitoring for her hearing loss, even on an emergency basis, which
suggests that her hearing loss was not as severe as alleged. Further,
the ALJ noted that Plaintiff was able to effectively communicate by lip
reading – and did so during the administrative hearing in this case –
without the need for any kind of interpretative assistance.

Relatedly, Plaintiff claims that substantial evidence does not
support the ALJ’s conclusion that she can return to work as a general
laborer. Plaintiff argues that the RFC limitation that she “avoid
concentrated exposure to excessive noise” coupled with her testimony at
the hearing regarding the noise in the factory in which she worked,
preclude a return to her prior work as a general laborer.

But Plaintiff’s argument has been rejected by the Sixth Circuit. In Studaway v. Sec’y of Health & Human Servs.
, 815 F.2d 1074, 1076 (6th Cir. 1987),  the Sixth Circuit held
that the Act requires that a plaintiff show his impairments are “so
severe that he is ‘unable to do his previous work. . . .’” The Court
specified: “[h]e must prove an inability to return to his former type of work and not just to his former job.” Id. (emphasis in original) (internal quotation marks omitted); accord Clendening v. Comm’r of Soc. Sec. , 482 F. App’x 93, *7 (6th Cir. 2012) (“The relevant inquiry is


whether [the claimant] could still perform that type of work and not necessarily the specific job that he had in the past.”); see also Villa v. Heckler , 797 F.2d 794, 798 (9th Cir. 1986); Gray v. Heckler , 760 F.2d 369, 372 (1st Cir. 1985); De Loathe v. Heckler , 715 F.2d 148, 151 (4th Cir. 1983); Jock v. Harris
, 651 F.2d 133, 135 (2d Cir. 1981). Because the VE testified that
general laborer work existed at a level consistent with Plaintiff’s RFC,
this Court is compelled to affirm. See Studaway , 815 F.2d at 1076.

B.  Severe Impairments

At step two the ALJ determined that Plaintiff had one severe
impairment, deafness. (Tr. 24.) Plaintiff contends that the ALJ
improperly omitted depression and gender identity disorder from the list
of severe impairments. However,
Plaintiff fails to recognize that once step two is “cleared” by finding
that some severe impairment exists – in this case, deafness

- the ALJ must then consider a plaintiff’s “severe and nonsevere
impairments in the remaining steps of the sequential analysis.” Anthony v. Astrue
, 266 Fed. App’x 451, 457 (6th Cir. 2008) “The fact that some of [a
plaintiff's] impairments were not deemed to be severe at step two is
therefore legally irrelevant.” Id. Consequently, any alleged
omission of Plaintiff’s depression and/or gender identity disorder from
the list of severe impairments does not necessarily undermine the ALJ’s
decision. See Anthony , 266 Fed. App’x at 457; Talos v. Comm’r of Soc. Sec ., No. 11-13207, 2012 WL 1392156, at *8 (E.D. Mich. Mar. 26, 2012); Maziarz v. Sec. of Health & Human Servs. , 837 F.2d 240, 244 (6th Cir. 1987).


The Court has reviewed the ALJ’s decision and concludes that he
properly considered Plaintiff’s depression and gender identity disorder
in the remaining steps of the sequential analysis.

Specifically, the ALJ discussed Plaintiff’s mental health treatment
during 1997 for depression and suicidal ideation.  Next,
the ALJ discussed, in detail, Plaintiff’s emergency room visits during
February and May 1998 after he attempted to remove his testicles. ALJ Scallen noted Plaintiff’s history of gender dysphoria,
identifying as a transgender while seeking a sex change operation.  ALJ Scallen noted a break in treatment until August 2000, at which
time Plaintiff presented to the emergency room exhibiting symptoms of
depression regarding his sexual identity, but denied suicidal ideation.  ALJ Scallen noted Plaintiff’s return to the emergency room in February 2001 with suicidal ideation, but was discharged. ALJ Scallen also noted that Plaintiff worked for years with the noted conditions. And, importantly, ALJ Scallen identified no records of treatment for
Plaintiff’s mental health conditions since the alleged onset date of

This Court concludes that the ALJ properly considered Plaintiff’s
mental health impairments and a failure to find that Plaintiff’s
depression or gender identity disorder constituted a severe impairment
at step two does not constitute reversible error.


For the reasons set forth above, this Court finds substantial
evidence supports the Commissioner’s decision. The Court therefore RECOMMENDS that Plaintiff’s Motion for Summary Judgment (Dkt. 12) be DENIED , that Defendant’s Motion for Summary Judgment.  The ALJ rated the severity of Plaintiff’s mental
impairments and the RFC reflects the degree of limitation the ALJ found
in the “paragraph B” mental function analysis.


14) be GRANTED , and that, pursuant to 42 U.S.C. § 405(g), the decision of the Commissioner of Social Security be AFFIRMED .


s/Laurie J. Michelson



Categories: Social Security Benefits | Tags: , , , , , , , | Leave a comment

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